EU Settlement Scheme: An Endless Process?

You could be forgiven for believing that once you have achieved status under the EU Settlement Scheme (EUSS) you would be free from any more navigation around the world of UK immigration law, but you would be mistaken. There is still the need for you to apply for a Biometric Residence Card (BRC), especially if you are planning on travelling outside the UK.

This blog will explore the reasons why updating your BRC is important, how you can do it, and what you can expect the process to be.

Why do I need to update my BRC?

As many people have known, once a person has successfully registered his/her status under the EU Settlement Scheme, whether it is a settled or pre-settled status, he/she will be issued an E-document to confirm his/her right to stay in the UK. If this person only wants to stay in the UK or travel within the EEA area, it may not pose any issue. He/she can simply show the e-document to the border officers when re-entering the UK, either by mobile phones, laptops or other ways.

Unfortunately, if such person wants to travel outside the UK, this could pose a serious problem, as airliners may not accept such e-document as a genuine status confirmation. It may easily cause delay on one’s journey. In worst scenario, one may be refused by airliners to board flights to come back to the UK, which makes the application for a physical status document necessary. This means that to many people, a simple registration, as claimed by the Home Office, will have to involve two processes: the first one is to register and receive an e-status under the scheme; while the second process is to apply again for a plastic physical status document, which is the BRC card.

What if I do not plan on travelling outside the UK?

As stated above, if you are not planning on travelling outside the UK, it is less important for you to update your BRC, as you can continue to rely upon your digital status to prove your right to stay, work or study in the United Kingdom. However, even if you are not currently planning on travelling, it may still be in your best interest do update your BRC sooner rather than later to avoid any hassle in the future.

What if my BRC card has expired?

If your BRC has expired, you can still prove your rights in the UK using your status via the online portal:
https://www.gov.uk/view-prove-immigration-status

You can use this service to:

view your settled or pre-settled status
get a share code to prove your status to others, for example employers
update your personal details, for example your passport number or email address
check what rights you have in the UK, for example the right to work or claim benefits

What if I am an EU citizen granted status under the EUSS?

If you are an EU citizen, you are not required to hold a BRC and, therefore, will not be issued with one following a grant of status under the scheme.

Evidence of status will be given to EU citizens in digital form; no physical document will be issued. Your status is linked to the identity document that was used to apply for the scheme.

Once again, one point should be noted that if you plan to travel outside the EEA areas, you may want to consider applying for a physical BRC card. It is tangible. You will feel much better with your hands touching it.

What if I have been granted status under the EUSS but have not applied using an existing valid BRC?

In this case, the UK Visa and Immigration team have announced a period of 10 working days after your decision was made before you will receive your new BRC. However, they also urge those who have not received their card within 15 working days to report this using the service at: https://www.gov.uk/biometric-residence-permits/not-arrived.

We hope that this link being provided so early on does not mean that delays should be expected, rather than being the case for only a minority of applicants.

What if someone tries to deliver my BRC card while I am not home?

If a courier company has tried to deliver your BRC and left a card, or sent a text message or email, you should contact the courier company to rearrange delivery, as opposed to contacting the Visa and Immigration department.

So, once I have my updated BRC I am free to travel anywhere?

NO. It is vital to remember that the BRC does not equate to a passport or other travel documentation. It is simply a domestically issued residence card that provides evidence of settlement in, and the right to travel to, the UK.

This means that when you are travelling, you still require all the other necessary documentation to do so. You must continue to present your valid passport and either a valid BRC or valid visa at the UK border. For more information, please see:

https://www.gov.uk/uk-border-control/before-you-leave-for-the-uk

What do we think?

While it may help the Home Office save some money by not issuing physical cards to those EEA nationals and their family members, it has indeed caused much confusion and inconvenience to them. Further, by forcing people to have to register and apply twice for the same document, this will lead to huge waste of time and delay.

It is for this reason that as general advice, we would say do apply for the updated BRC sooner rather than later, especially if delays are likely.

Have questions? We are here to help!

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EU Settlement Scheme: How can I apply for an administrative review if a decision goes against me?

The EU Settlement Scheme (EUSS), we are certain many of you will know, was set up in response to Brexit to allow EU, non-EU EEA and Swiss citizens and their eligible family members to apply to enter or continue to stay in the UK before the end of the Brexit transition period the opportunity to protect their residence in the UK after this period had ended. The official deadline to get on the scheme was 30 June 2021.

Now that the scheme has been in effect for quite some time, people are getting decisions come back to them that they may not have prepared for. This article will focus on the options available to people looking to make an appeal if their application has been unsuccessful or they have had unexpected hurdles placed before them by immigration authorities.

If you applied to the EU Settlement Scheme and were refused

If you were refused acceptance to the EUSS or did not get the outcome you expected, the email or letter you received notifying you about this decision should contain information on how you can appeal. This is called an administrative review.

You can apply for an administrative review if either:

your application was refused on eligibility grounds

you were granted pre-settled status but think you qualify for settled status

Applications for administrative reviews can be made from inside or outside the UK. You can also make a new application under the EU Settlement Scheme at any point – for example, if you want to move from pre-settled status to settled status. This application will be free.

If your settled or pre-settled status was cancelled at the border

You should be told in the letter given to you at the border if you can apply for the decision to cancel your settled or pre-settled status to be reviewed.

You can apply for an administrative review if your settled or pre-settled status was cancelled because:

there has been a change in your circumstances

you gave false information

You can apply for an administrative review from inside or outside the UK.

If you arrived with an EU Settlement Scheme family permit and your leave was cancelled at the border

Similarly to the above, you should be told in the letter given to you at the border if you can apply for the decision to cancel your leave under the EU Settlement Scheme to be reviewed.

Again, you can apply for an administrative review (from within the UK or elsewhere) if your leave was cancelled because:

there has been a change in your circumstances

you gave false information

What you must remember when applying for a review

Firstly, the cost of the review is £80 per person. However, if the review is successful and the original decision is withdrawn due to a case working error, or you application for a review is completely rejected, this fee will be refunded to you.

In terms of timing, you must make your application for an administrative review within 28 days of the date on your decision email.

You will need to complete the administrative review application form.

You must use a separate form for each person applying for a review, whether they are a child or an adult.

When sending in new evidence or information, you do not have to resend information that you have provided in the past, as this will already been on file.

Potential delays

The Home Office have said they are currently receiving large amounts of requests for reviews and that there can frequently be waiting times of up to 3 months for a response. It is understandable that many review requests are coming in, but to make people wait for 3 months or longer suggests there is unacceptable and points to a deeper issue with the capabilities of decision making staff.

When do you need to apply for administrative review?

You will have to apply for administrative review within 28 days of being served the Home Office’s decision (or 7 days if you are (unfortunately) in detention).

Not happy with the outcome of your administrative review?

You may be able to challenge the Home Office’s decision by way of judicial review, which you normally have to apply for it as soon as possible and no later than three months.

Administrative review or right of appeal?

It should be noted that the right to seek administrative review is in addition to your right to appeal. Some people may want to appeal against the Home Office’s decision, in light of the fact that administrative review is carried out by the Home Office’s own staff, while appeals are dealt with by the immigration appeal tribunals.

The normal rules of appeal will apply. This includes lodging your appeals within 14 days of being served the decision (28 days overseas or 7 days while in detention).

What do we think?

Apart from the aforementioned long waiting times, the review process seems to be fairly simple – but we will have to wait and see if it is as straightforward as it sounds. What we will say regarding the initial submission of information is that applicants should always double check what they are submitting is accurate and complete. While it is known that some people may leave out certain information because they think it could hinder their chances of acceptance, which is also to be avoided, it is also possible that positive information can be left out of applications by mistake, causing delays on such applications.

Have questions? We are here for you!

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In what circumstances can you challenge the Secretary of State’s Policy Guidance?

Written by Mahfuz Ahmed.

The Secretary of State drafts policy guidance and statements of practices for their caseworkers, and great reliance is placed upon these documents by applicants, when making immigration and other applications.

There may be circumstances where the contents of such policies may be considered by some as unlawful. In this article, we look at the courts approach towards such documents should a challenge be bought in relation to the lawfulness of the contents of policies.

BF (Eritrea)

BF is an Eritrean national, who entered the UK and claimed asylum on the basis that he was an unaccompanied child. The Home Office assessed BF to be an adult following their policy guidance, despite his claim that he was 16 years old.

The policy guidance states that if a person does not have evidence to support that they are a minor, then they will not be accepted as being under 18 if:

‘their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary’.

BF issued a claim for Judicial Review on the basis that the contents of the guidance stated above was unlawful. He stated that there is a risk that minors would be assessed as adult for appearing to look older then they actually are, and therefore the guidance was ‘prone to error’.

The Upper Tribunal refused BF’s claim. BF appealed to the Court of Appeal and it was held that that challenged sections of the guidance was unlawful as it gave rise to a real risk of children being detained. The Secretary of State appealed to the Supreme Court.

R (on the application of A) v Secretary of State for the Home Department [2021] UKSC 37 and R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38

On 30^th July 2021, the Supreme Court assessed on what basis the lawfulness of policy guidance could be challenged.

The Supreme Court held that when assessing the lawfulness of a policy, one must look at the following:

Whether the policy authorises, positively approves or encourages unlawful conduct.
If there is a failure to provide accurate advice about the law when there is a duty to do so.
Whether the authority purports to provide a full account of the legal position but fails to achieve that.

Opinion and concluding comments

The judgements given appears to limit and narrow the possible grounds for judicial review when bringing a challenge in relation to the lawfulness of a policy guidance and statement. By doing so, it has given public authorities more leniency and tolerance when drafting such policies.

When assessing the lawfulness of a policy moving forward, it is important to compare with the relevant law and ensure that the policy is read both fairly and reasonably and ensure that it is read objectively, in the eyes of the intended audience.

After utilising the above approach, should it appear that the contents of a policy guidance encourages or sanctions unlawful conduct, then there may be grounds for Judicial Review.

Have questions? We are here for you!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

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Welcome Katherine!

We are so thrilled to welcome Katherine to our team as a paralegal! She has already shown herself to be knowledgeable, hard-working and committed to doing a fantastic job here with us.

Katherine obtained her Bachelor of Law from the University of London. She is a qualified solicitor in New South Wales (Australia). Currently, Katherine is in the last phase of the Qualified Lawyer Transfer Scheme, meaning she will soon be qualified in the UK as well.

In her spare time Katherine enjoys reading and video editing. She is fluent in Cantonese, Mandarin and English.

Have questions? We are here for you!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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Asylum Claims: What Do You Need to Know?

Written by Mahfuz Ahmed.

What is an Asylum claim?

If you are in danger of being persecuted in your country of origin and have fled to come to the United Kingdom to escape that danger, then you must claim asylum if you want to stay in the UK as a refugee.

The United Nations Convention’s definition of a refugee is that they should have a well-founded fear of persecution on account of one or more of the following five reasons: –

Race
Religion
Nationality
Membership of particular social group
Political opinion

It should also be noted that the persecution should come from the state or its agents, not from any individuals.

Should your fear not relate to one of the above, then you may be eligible for Humanitarian Protection or Discretionary Leave outside of the Convention.

Asylum Procedure

We understand that the asylum procedure can be a daunting process, and therefore below we have listed briefly the process of claiming asylum:

Arrive in the United Kingdom.
Claim asylum.
Attend a screening interview. The purpose of this interview is for the Home Office to find out briefly what your claim relates to. Your biometric details will be take and you will be provided with asylum seeker identity documents.
Attend a substantive interview. This is the full Home Office interview and can last several hours. Should you require an interpreter, then the Home Office will provide this.
Receive asylum decision.
Should your asylum claim be granted, then you will be given refugee status. This is granted for 5 years.
In the alternative, should your claim be refused then you can lodge an appeal against the refusal of your asylum claim.

Successful asylum claim

Should your claim for asylum be successful, then you will be given leave to remain in the UK as a refugee for a period of 5 years, and thereafter you will be eligible to provide for Indefinite Leave to Remain in the UK, provided that it is still not safe for you to return to your country of origin.

During this time, it may be possible to bring your partner and children to the United Kingdom under the Family Reunion rules and therefore avoid the stringent criteria required under appendix FM.

After holding Indefinite Leave to Remain for 12 months you are eligible to apply for Naturalisation.

Refused asylum claim

Under the Immigration Rules, if your asylum claim is refused, you will normally be given right to appeal, unless your claim is certified to be totally without merits or repeated claim. Should that be the case, you need to lodge your appeal within 14 days of the Home Office’s decision. An immigration Tribunal will be able to look at your case and the Home Office’s decision.

If your appeal is allowed, which means that it is successful, you will be granted a refugee status. If it is unsuccessful and you believe that the immigration judge has made an error of law, you can apply for permission to appeal against the first judgment.

If you have exhausted your appeal right and your case is still refused, you may have to leave the UK unless you have other reason to stay here.

The law on asylum claim is complicated and can involve many issues. Should you require any assistance in relation to your claim for asylum, then do not hesitate to contact us. Our specialist immigration team will do their best to guide you through your claim.

Have questions? We are here for you!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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Can time spent under a visit visa count towards 10 years long residence?

Written by Mahfuz Ahmed.

Under the UK’s ‘long residency’ rule, a person can qualify for Indefinite Leave to Remain allowing them to stay in the UK without any time restrictions, provided that they have been resident lawfully in the UK legally for 10 or more continuous years.

Long Residency is typically shown by a visas or a combination of different visa covering 10 or more continuous years of lawful residence.

‘Continuous residence’ may be broken if a person leaves the UK for a considerable time. Paragraph 276A(i)(a)(iii) of the Immigration Rules. States that:

(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or

The UK Visitor visa permits a person to visit the UK for a period of up to 6 months. This article will look in to whether the time spent during a visit to the UK may count towards a long residency application.

R (on the application of Mungur) v Secretary of State for the Home Department

In this case, the Court of Appeal considered whether an applicant who was in the UK under a visitor visa, can reasonably expect that they would be able to return at the time of leaving for the purposes of para 276A(i)(a)(iii) of the Immigration Rules.

The Appellant, Mungar had initially entered the UK on visitor’s visa, and subsequently left the UK in order to make an application for a student visa. The student visa was granted and Mungar re-entered the UK.

Mungar applied for Indefinite Leave to remain on the basis of 10 more continuous years of residence which included the time spent in the UK whilst he was visiting. The Home Office refused the application on the basis that the time spent on his visit visa did not count towards his continuous residence, as at the time he left the UK he had no reasonable expectation that he would lawfully be able to return to the UK.

Mungur made an application for Judicial Review challenging the refusal made by the Secretary of State. The Court considered the application of paragraph 276A(i)(a)(iii) of the Immigration Rules.

The Court held that as the Appellant was granted the student visa as he fit the criteria required, it was reasonable for the Appellant to expect to return to the UK.

The Appeal was upheld.

From the above judgement, we can see that the time spent on visit visa may be considered towards an application for Indefinite Leave to Remain. Should you require any assistance, then do not hesitate to contact us.

Need legal advice? We are here for you!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

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Welcome Mahfuz!

We are thrilled to announce that we have recruited an extremely experienced and knowledgeable solicitor, Mahfuz Ahmed, who we can already tell will be a hugely important asset to our growing firm!

Mahfuz is a Solicitor, who provides advice to clients on all aspects of immigration law, and litigation.

Mahfuz has extensive experience assisting private clients on a broad range of UK immigration matters, including naturalisation, settlement, family migration and human rights, pursuing and defending money claims and claims for possession.

Prior to joining Lisa’s Law, Mahfuz began his career in 2012 at niche litigation firm, and then joined a highly-regarded Legal 500 law firm, with a focus on complex appeals and Judicial Reviews in relation to human rights and asylum law.

In his spare time, Mahfuz follows and plays football, and is a loyal Manchester United supporter.

Mahfuz speaks English and Bengali.

Great to have you on board, Mahfuz!

Need legal advice? We are here for you!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

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lisaslaw@web

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Slanderous claims result in privacy injunction in recent private law child proceedings!

Using our voice and expressing our opinion is a right that everyone in the UK, and most of the world, often take for granted. Communication plays a key role in a healthy and successful life, and in most circumstances creates positive and interesting dialogues between people, allowing us to think in different ways, learn new things, and create important debates.

However, problems arise when people use their voice to spread hurtful misinformation, where the sole aim is to damage reputations via deceitful claims. When this is the case, the courts have the power to grant what is known as a privacy injunction. This is what today’s article will revolve around, and we will look at a recent case to further explore this topic.

What is a privacy injunction?

A privacy injunction is a civil court order that stops a person from doing a specific act, or conversely requires them to do something that they previously had not been doing. Injunctions are often granted to prevent the publication of private, confidential, slanderous or simply false information. In today’s article we will be looking at its usage in order to prevent inaccurate, defamatory information that was spread with the intention of negatively affecting people’s private and professional lives.

Consequences of ignoring privacy injunctions are treated very seriously. A breach of an injunction can be punishable as a contempt of Court which can potentially lead to imprisonment.

The case in question: X (a child acting by her Children’s Guardian) v Y and another

The background of this particular case is as followed: X was born in 2017, and the parents split up the same year. X lived with both parents under shared childcare arrangements.

Following this, the father, mother and new guardian of X entered legal proceedings over inflicted injuries, whereby the father expressed a number of concerns with respect to injuries to X. X was examined by a GP on 6 July 2018. On 7 July 2018 the father alleged that X exhibited bruising. While the GP confirmed evidence of bruising, the results of the examination were inconclusive, and both parents began to blame the other for the injuries, and a local childcare authority got involved.

As hearings continued, the father began to show up less and less and did not attend the final hearing. The father then began to use Facebook to publicly discuss the case, naming those involved and using derogatory language against them. He also contacted media outlets about the situation, and displayed a sign on his car referencing the mother, guardian, social workers and the judge who were involved in the case, all of which used defamatory language and unfounded extreme allegations.

What did the court decide?

The courts granted a privacy injunction which disallowed the father from posting material on social media regarding those involved in the case and required him to remove any previous posts. He was also made to remove the sign from his car.

This decision was made on the basis of lack of evidence of the claims being made by the father and the extremity of these claims. For example, the judge ruled that the X’s guardian had done nothing to warrant the criticism of the father, and such allegations were likely to affect their private and professional life.

Also, the fact that the father had not attended the original or the adjourned final hearing, and failed to follow any formal complaint procedures before acting on social media did not stand him in good stead with the courts.

What do we think?

As a law firm we understand the complex nature of family disputes, and the emotional turmoil it can put people through. In terms of the father’s initial behaviour, whereby he officially registered his anxiety about bruising on X, this is perfectly reasonable. We support people immediately contacting authorities relating to issues of abuse and violence, or any other criminal behaviour. This is what authorities are there for. However, the slanderous behaviour and unfounded allegations are only ever going to end one way, and this case solidifies the notion that taking things into your own hands can often be counter-productive. A privacy injunction will often be utilised in cases such as this, as it is an effective tool to stop the spread of dangerous misinformation.

Have questions? We are here for you!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

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Refugee Resettlement – How does it work and what is the UK government doing to aid Afghan refugees?

As the situation in Afghanistan has forced many civilians out of their homes the UK’s refugee resettlement policies have once again been cast into the limelight. In this article we will take a look at the current policies the Home Office has in place for people who find themselves in this unfortunate situation, and analyse what has been said in terms of the UK’s plan to allow Afghan refugees into the country.

Resettlement schemes offered by the UK

The UK operates three resettlement schemes: The UK Resettlement Scheme (UKRS), Community Sponsorship Scheme, and Mandate Resettlement Scheme. These schemes act as the foundations which allow the UK to play a supporting role in humanitarian crisis, to try and help save lives and get people to a safer environment than what is available in their country of origin. The Home Office is informed, within these schemes, by the United Nations High Commissioner for Refugees (UNHCR), which is the internationally recognised and UN mandated agency for dealing with refugees.

While the resettlement schemes in the UK have come under some criticism in the past, in Home Office claims to not be bias against anyone because of potential employability or successful integration predictions.

UK Resettlement Scheme (UKRS)

Under this route, the UK will offer legal and safe passage to refugees who fit into the following categories:

Legal and/or Physical Protection Needs;

Survivors of Violence and/or Torture;

Have Medical Needs;

Women and Girls at Risk;

Family Reunification;

Children and Adolescents at Risk;

Lack of Foreseeable Alternative Durable Solutions

The amount of people the UK takes in under this scheme is determined by available funding and local authorities’ capacity for supporting refugees.

Unaccompanied children will always be prioritised, and will be reunified with their parents as soon as possible.

Community Sponsorship Scheme

This scheme is pretty much how it sounds, where people directly support and welcome a resettled family into their local community. It is a very pleasant concept and scheme which shows the value and life changing potential of human decency.

Community Sponsorship is accessible to refugees under the same criteria as the UKRS, set out in the bullet points above.

Mandate Resettlement Scheme

The Mandate Resettlement Scheme is a global scheme and resettles recognised refugees with a close family member in the UK who is willing to accommodate them. However, in the same sense as the previous schemes, these refugees must be assessed by the UNHCR before being eligible.

Security checks

Like with any immigration routes, those wanting to come to the UK will have to undergo security checks, which are handled by the UNHCR. Red flags that may hinder or delay a person’s successful entry to the UK could be:

military service;

involvement with the government authorities including any arrests or periods

of detention;

past involvement in the conflict they are fleeing from;

links to terrorism/extremism;

certain occupations;

travel history.

How are refugees allocated to certain areas?

For the UKRS, refugees are matched to a local authority that can provide suitable accommodation and the appropriate support for those being resettled, through the regional Strategic Migration Partnership (SMP). Refugees are matched to a local authority that can provide suitable accommodation and the appropriate support for those being resettled.

Through Community Sponsorship, refugees are allocated to a suitable community group who has been formally approved as a sponsor. Local authorities must consent to each Community Sponsorship application and agree to the group accepting the proposed refugee family.

Refugees resettled through the Mandate Resettlement Scheme are accommodated and supported by a family member living in the UK.

Arrival in the UK

An arrivals team will arrange for families resettled through the UKRS and Community Sponsorship Scheme to travel to the UK six to eight weeks after they have been allocated accommodation (depending on the host country exit permit process). This may be on a scheduled or chartered flight. There will also be an escort to accompany families to the UK and they will be greeted by representatives from their receiving local authority or community sponsor group on arrival.

Further support

Health care support, travel arrangements and cultural orientation are all elements that the Home Office can support refugees with. For example, if a refugee has a health issue appropriate support will be given to them. Likewise, if forms have to be filled in or biometric information has to be taken, staff will be available to help make sure it is all done correctly.

Also, all adults arriving through the UKRS and Community Sponsorship Scheme anywhere in the UK should receive a minimum of eight hours’ English language tuition a week in their first year.

The Afghan citizens’ resettlement scheme

In light of the recent situation in Afghanistan, the Home Office has announced it will launch an Afghan citizens’ resettlement scheme.

At present, the scheme is said to welcome up to 5,000 vulnerable Afghans to the UK, who have been forced to flee the country, in its first year, with up to a total of 20,000 in the long-term.

What do we think?

We believe that it is the duty of every country and government to offer safety to those who can no longer remain in their own country due to conflict or persecution. The three standard resettlement schemes in place in the UK do a decent job as a backbone for allowing such action to take place. Of course, the security measures in place are necessary, but we wonder if there is a way to streamline the process more, so that when such severe situations arise like the current goings on in Afghanistan, help can be accessed quicker.

The Afghan citizens’ resettlement scheme is a good start, and we hope that many people will benefit from it. As time goes by, we would not be surprised if it becomes necessary for the UK to home more than the 20,000 limit they have initially set for the long-term plan.

Have questions? We are here for you!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

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Furlough Frenzy! What is considered unfair in terms of employee dismissal during the pandemic, and what can we learn from two cases with very different outcomes?

Navigating the often uncomfortable realm of employee dismissal has long since been a challenge for employers. Of course, employers do not seek out the chance to dismiss workers, as it often results in administrative as well as social awkwardness for them, but it can unfortunately be a necessity.

People losing their jobs is one of the main fallouts of the COVID-19 pandemic, and many actions were taken by the government to try and limit this as much as possible. One of the more prevalent ways of achieving this was the Job Retention Scheme (also known as the furlough scheme).

What we will look at today in this article are the outcomes of two separate cases which both involve the Job Retention Scheme, with employment tribunals taking different stands on whether the respective claimants have been treated unfairly or not by their employers. The different outcomes highlight the fact that there is still some confusion when it comes to this scheme, and that what may be considered just for one person may be considered unjust for the next.

Reminder on the Job Retention Scheme

Furloughing essentially means an employee’s job is put on hold. The Coronavirus Job Retention Scheme has allowed firms to put employees on furlough, meaning they do not work but still get paid by the employer with money provided by the state.

The government has been covering up to 80% of the employee’s wage (up to a maximum of £2,500 per month), and then the employer has had the option to add the extra 20% if they wish, but they do not have to.

It is a grant, not a loan. This means whatever is granted does not have to be repaid. The scheme is due to be entirely phased out by September 2021.

The first case: Mhindurwa v Lovingangels Care Limited

What makes Mhindurwa v Lovingangels Care Limited significant to our article today is the fact that an employment tribunal ruled that the claimant HAD been treated unfairly by her employer due to the fact that they had not considered the option of furloughing her.

To give a background to this case the claimant, Ms Mhindurwa, was working as a care assistant, providing live-in care to a vulnerable person until they were moved into a care home. She fulfilled this role from October 2018 to February 2020. In May of 2020 she requested to be furloughed to which her employer refused, saying that there was no longer any work for Ms Mhindurwa. She was then given a redundancy payment along with a notice of dismissal.

Ms Mhindurwa, after appealing first to her employer to no avail, took the case to an employment tribunal. In her opinion she should have been put on furlough instead of being made redundant.

Fortunately for her, the employment tribunal agreed with her. They found that she had been unfairly dismissed for two reasons. The first was to do with Ms Mhindurwa’s, original appeal which was found to be too quickly dismissed by the employer, who did not attempt to see things from his employee’s point of view.

The second reason is to do with the wide availability of the Job Retention Scheme. It was found that a reasonable employer would have at least given consideration to whether the claimant should be furloughed to avoid being dismissed on grounds of redundancy. The fact that the furlough scheme was set up for situations exactly like the one presented in this case meant that there was little reason for the employer to deny Ms Mhindurwa’s request to be furloughed, and the employer offered no good reason to the contrary.

The second case: Mr. M Handley v Tatenhill Aviation Limited

While in the previous case the employment tribunal saw fit to agree with the claimant, in this second case the reverse occurred. It was found that an employee, who had been supported by the Coronavirus Job Retention Scheme, was not unfairly dismissed because the employer chose to make him redundant even though they could have chosen to furlough him for longer.

This time, the claimant, Mr Handley, worked for a private airfield, where he gave flying lessons and flight experiences to customers. Shortly after the first lockdown, due to a massive decline in business, the airfield worked for, Tatenhill Aviation, closed the flying school and placed Mr Handley on furlough for a three week period, or until he could return to work as normal.

Due to profits being down since before the pandemic, the airfield had already been considering redundancies, and on August 10^th 2020 Mr Handley was chosen to be made redundant. He rebuked this by stating he had been put on furlough and that the terms of the furlough scheme meant his employer could not make him redundant.

The employment tribunal chose to dismiss Mr Handley’s claim, due to the fact that the final decision to furlough someone or extend that furlough rests in the hands of the business itself, not an Employment Tribunal. It was further deemed to be reasonable that to cut some costs elsewhere in the business the redundancy was a viable option to the business and therefore not unjust.

What can we learn from these two cases?

The two cases, while similar in terms of both being linked to the furlough scheme, have some important differences which lead to their contrasting outcomes. We can learn from them that where furlough is not even considered by an employer, redundancy as an alternative may be viewed as unfair, as procedurally the employer has failed to take all the relevant options into consideration. Due to the harsh outcomes redundancy brings, it should be the last step an employer can take. Whereas an employer has done so, the decision whether to extend an employee’s furlough will rest within the hands of the company itself, as it is shown in the second case.

The important issue that we can take away is that employment tribunals will always look at the steps taken in the run up to the redundancy, not just at the redundancy itself. We can see from these two cases that the way the employers handled their respective situations were very different, with one having far more reasonable grounds to dismiss their employee than the other, after having carefully considering the potential outcomes of that redundancy.

What we offer in terms of advice for employers thinking about making redundancies is to always consider the options available to you, rather than making a split decision in haste. This will always work out better for employees and employers and makes for a more reasonable conclusion for all involved, where a more favourable outcome may become clear.

Have questions? We are here for you!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

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News and Insights

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What if I do not plan on travelling outside the UK?

What if my BRC card has expired?

What if I am an EU citizen granted status under the EUSS?

What if I have been granted status under the EUSS but have not applied using an existing valid BRC?

What if someone tries to deliver my BRC card while I am not home?

So, once I have my updated BRC I am free to travel anywhere?

What do we think?

Have questions? We are here to help!

If you applied to the EU Settlement Scheme and were refused

If your settled or pre-settled status was cancelled at the border

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Not happy with the outcome of your administrative review?

Administrative review or right of appeal?

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Have questions? We are here for you!

BF (Eritrea)

R (on the application of A) v Secretary of State for the Home Department [2021] UKSC 37 and R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38

Opinion and concluding comments

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Have questions? We are here for you!

What is an Asylum claim?

Asylum Procedure

Successful asylum claim

Refused asylum claim

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R (on the application of Mungur) v Secretary of State for the Home Department

Need legal advice? We are here for you!

Need legal advice? We are here for you!

What is a privacy injunction?

The case in question: X (a child acting by her Children’s Guardian) v Y and another

What did the court decide?

What do we think?

Have questions? We are here for you!

Resettlement schemes offered by the UK

UK Resettlement Scheme (UKRS)

Community Sponsorship Scheme

Mandate Resettlement Scheme

Security checks

How are refugees allocated to certain areas?

Arrival in the UK

Further support

The Afghan citizens’ resettlement scheme

What do we think?

Have questions? We are here for you!

Reminder on the Job Retention Scheme

The first case: Mhindurwa v Lovingangels Care Limited

The second case: Mr. M Handley v Tatenhill Aviation Limited

What can we learn from these two cases?

Have questions? We are here for you!

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