EU court says online marketplaces like Amazon can be held liable for trademark infringement

Today’s article takes a look at a recent intellectual property case involving Amazon and the Court of Justice of the EU. The court finds that online marketplaces like Amazon can be held liable for trademark infringement, keep reading to learn more.

This is a highly significant case due to the status and profile of Amazon as a company, which is the largest e-commerce website in the world. Amazon’s logistics have helped it to become the first choice for people in the UK, with the ability of consumers to order products for next day delivery for no extra cost, setting it apart from competitors.

Despite this, not all products are sold by Amazon itself, with Amazon itself essentially functioning as a marketplace for merchants to sell their products. This results in a different level of quality among sellers, with some being better than others.

The finding by the Court of Justice (CJEU) holds online marketplaces to account by finding that online marketplaces like Amazon can be held liable for counterfeits sold by third parties. This is a landmark case which is contrary to an earlier opinion given by the Advocate General. It is important to remember that in terms of the application of this decision in the UK, Court of Justice decisions are not binding for the Courts of England and Wales, however these decisions do remain influential.

Background

The claimant in the case, Christian Louboutin, is a French designer of luxury shoes and handbags. He owns his own brand Christian Louboutin, and his brand is best known for their high-heeled women’s shoes. Christian Louboutin originally brought cases against Amazon in a Belgian and Luxembourg court in 2019 because Amazon had displayed ads for red-soled shoes. The reason why this was an issue is that Louboutin is famous for its red-soled shoes, to the extent that they are in fact registered as a trademark within the EU. It is also registered as a trademark in Belgium, Luxembourg and the Netherlands.

Louboutin discovered that a third-party seller, not Amazon itself, was selling counterfeit versions of Louboutin’s iconic red-soled high-heeled shoes. The company did not authorize his own products to be sold on the Amazon platform or Amazon’s third-party sellers. Louboutin believed that Amazon violated the exclusive rights of the Louboutin trademark, despite not selling the counterfeit product directly themselves. They therefore blamed Amazon for not making it clear whether a good is sold directly by Amazon or a third party.

Following the case being brought before the Court of Justice of the European Union, this led to preliminary questions as to the possible liability of Amazon for infringement resulting from the use of the illustrious red sole trademark. The colour red corresponds to Pantone code 18-1663TP or “Chinese red”. The uses of the trademark in question include:

The use of the trademark in the context of commercial advertising
The trademark being displayed in an undifferentiated manner, obstructing transparency as to the origin of the products.
The use of the trademark during the storage and the dispatch, by Amazon, of counterfeit products bearing the said trademark and sold by third parties.

Court decision

The European Court of Justice held that one party’s unauthorized use of the same trademark as the other party’s trademark in fact means the use of the trademark. As a result, they found that the presence of the trademark in question on the Amazon platform does violate Article 9(2a) of the EU Trademark Regulation (Regulation No. 2017/1001).

Among other things, the Court noted that such use may give users of the online marketplace the impression that the advertisement for the product does not come from a third-party seller, but from the operator of the marketplace (Amazon). Amazon operates a “hybrid business model” in which it acts as both a marketplace operator and a third-party logistics service provider, which leaves consumers potentially sceptical about the source of infringing goods (whether it’s Amazon or a third-party seller).

Briefly, the court held that Amazon is different from online platforms such as eBay. This type of e-commerce only provides a “market environment” and does not participate in promotion, payment and delivery, while Amazon is deeply involved in it.

Therefore, although Amazon should not be liable for infringement, it does not mean that Amazon is exempt from infringement allegations on the basis of joint responsibility. This also means that if there is a trademark infringement problem on the Amazon platform in the future, it is not only the problem of the third-party merchants, but the Amazon platform can also be responsible for the infringing and counterfeit products sold by the third party.

Our thoughts

This case is likely to be a divisive one. On the one hand, many argue that Internet giants like Amazon have too much power and authority over the online marketplace anyway, and therefore the decision is welcomed. Certainly, brands like Louboutin would also welcome this decision, which reduces competition by removing imitations of their products.

On the other hand, many might argue that the decision goes too far. By increasing bureaucracy and oversight because of Amazon bearing responsibility for advertising counterfeit products on their marketplace, this could result in costs being passed on to the consumer, as well as reducing their choice. It could also be argued that it is harsh to punish the marketplace directly for trademark infringements by a third-party seller.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

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James Cook

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Does the Home Secretary have the right to refuse an application based on false information in a previous application?

By Jessie Yang

In the case of Khan v The Secretary of State for the Home Department, the Court of Appeal dismissed the appeal of the appellant, whose application for Indefinite Leave to Remain had been refused by the Secretary of State (Respondent). The appellant’s application was refused on the basis that he had provided false information about his income in a previous application for leave to remain. It was held that the documents provided by the Appellant had to be genuine and therefore the Secretary of State had acted fairly by refusing the application.

Keep reading to learn more about the case and the rules for submitting false information in an application.

Background of the case

In this case, the Appellant applied for Indefinite Leave to Remain as a Tier 1 migrant. The Respondent (the Secretary of State) refused the Appellant’s application on the basis that the earnings that the Appellant had provided in his current and previous application for Indefinite Leave to Remain had not supported the lower amount of earnings that he had declared for the purpose of income tax. The Appellant’s claim was subsequently dismissed under paras 276B and 322(5) of the Immigration Rule.

The Appellant challenged the decision in the Upper Tribunal (Asylum and Immigration Chamber) by submitting a Judicial Review claim. The Appellant contended that the Secretary of State had acted unfairly by failing to give him adequate notice of the issues raised. In addition, the Appellant submitted that the Respondent’s finding of dishonesty had been irrational.

The Upper Tribunal dismissed the Appellant’s claim and the Appellant appealed.

Judgment of the Court

It was held by the Court of Appeal that the Upper Tribunal was not irrational in reaching the conclusion that the Secretary of State had acted unfairly. When reaching the decision, the court set out the following tests and requirements to be met by the Respondent, the Secretary of State:

1. Were the documents or information relating to the Appellant’s claimed income genuine and true? In the present case, it was decided that the documents and the claimed income were not genuine.

2. If the Respondent considered that the discrepancies were the result of dishonesty, did she clearly inform the Appellant of this fact and give him the opportunity to respond, both about his conduct and any other factors that were relevant and should be taken into consideration? In the present case, the court held that the requirement was satisfactorily met.

3. Provided that requirement 2 is met by the Respondent and that the Appellant responded to the Respondent, did the Respondent take that response into account before she concluded that the Appellant had been dishonest? In the present case, the court held that on the facts of the case, this requirement was amply met.

As a conclusion, the court ultimately held that the Respondent (the Secretary of State) had met all the relevant requirements and accordingly, the Appellant’s claim was dismissed.

Significance of the case and our comment

The decision in Khan v The Secretary of State for the Home Department means that any future applicant for Indefinite Leave to Remain is obliged to provide detailed, genuine and true evidence that supports the applicant’s claim that they have earned the necessary income.

If the Secretary of State can prove that they have given the applicant the opportunity to respond to the submitted claimed income that is or might not be ‘genuine’, the court will most likely to find that the Secretary of State had acted with impartiality and fairness.

This is especially true when the Secretary of State can show that they have taken into consideration the applicant’s response or any other relevant factors before concluding that the applicant had been dishonest. Accordingly, the court will be highly likely to refuse an applicant’s claim in such a scenario.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

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James Cook

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Minimum service levels bill – what would this mean for trade unions and the right to strike?

Following a sustained period of strike action, the UK government has recently introduced a bill to parliament which would require certain public services to provide minimum service levels during strikes. The minimum service levels bill, officially titled the Strikes (minimum services) Bill 2022-2023, recently passed its second reading in parliament after being voted through by 309 votes to 249 votes. It was introduced by the Business Secretary Grant Shapps and will now go to the committee stage of the process.

The bill has been widely criticised by trade unions for being “anti-trade union” as it significantly curbs the power of a trade union to strike effectively. It would allow companies to sue trade unions and would also allow companies to sack workers if minimum service levels are not met. The government have claimed that the legislation is being introduced “to ensure that striking workers don’t put the public’s lives at risk and prevent people getting to work, accessing healthcare, and safely going about their daily lives”.

However, the bill is expected to face legal challenges by trade unions. The TUC, the UK’s national organisation of trade unions, have warned that the bill would worsen industrial relations between the government and trade unions and lead to more frequent strikes. The Labour Party have also promised to repeal the legislation if they get into power.

Keep reading to learn more.

What are the current trade union laws?

The current trade union laws are largely regulated by the Trade Union Act 2016.

Some of the most significant aspects of the Trade Union Act 2016 include the following:

Section 2 requires a turnout of 50% or more union members in a ballot for strike action
Section 3 requires that workers in important services (health, school education, fire, transport, nuclear decommissioning and border security) must gain at least 40% support of those entitled to vote in a workplace for a strike to be legal.
Section 8 requires a union to give an employer 2 weeks’ notice prior to industrial action
Section 9 limits the right to take industrial action after a strike ballot to six months, or nine months if the employer agrees.

There is currently no requirement for trade unions to provide a minimum level of service during a strike, however the Boris Johnson government did introduce legislation allowing business to hire agency workers during strike action. This measure has been firmly supported by Rishi Sunak’s government.

What are the trade union laws in other countries?

The government has justified the introduction of this law designed to restrict the power of Trade Unions in the UK by claiming that other countries in Europe also have legislation designed to ensure a minimum service level. So how do the countries that Prime Minister Rishi Sunak cited, France, Italy, and Spain compare when it comes to minimum service levels?

One of the main differences is the notice period required prior to a strike. As mentioned, in the UK this is 14 days. However, this differs in the other countries.

In France, workers have to give 48 hours’ notice before a strike
In Italy, it is ten days’ notice
While in Spain, ten days’ notice is required if the strike affects companies in charge of public services

In France, Italy and Spain, participating in a strike does not lead to being fired, however following the proposed UK legislation, workers could be forced to work and sacked if they do not.

While France has had minimum service level legislation in place since 2008, the levels are agreed through negotiations with trade unions. In contrast, the minimum services levels could give the UK Business Secretary the power to decide statutory minimum service levels across a range of sectors.

What are the key aspects of the minimum services bill?

The Minimum Service Levels Bill would give the Secretary of State for Business, Energy and Industrial Strategy Secretary the power to determine the minimum levels of service which must be maintained in a number of specified sectors.

These sectors would include the following:

Transport
Education
Health
Fire Rescue
Border Security
Nuclear Decommissioning

In addition to the Business Secretary hoping to form what they call “sensible and voluntary agreements” when it comes to minimum service levels, it would also have the ability to impose minimum service levels should they not be agreed.

Employers will be required to identify the number of employees which are required to continue working to ensure that minimum services levels are maintained. This will subsequently be communicated to the trade union via a work notice and such workers will be deemed “necessary workers”.

The trade union must take “reasonable steps” are ensure that the relevant employees who have been identified in the work notice comply with it. If they do not do so, the trade union risks losing their immunity from being sued under section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). In addition, any workers who continue to strike despite being identified as a necessary worker will lose their protection from automatically unfair dismissal. This has led to some criticism that the government have gone from “clapping nurses to sacking nurses”.

Our thoughts

While the intention of the bill to ensure that public services have a minimum service level may well be a noble idea, it is questionable as to whether it will achieve its intentions, as well as whether it will hold up to legal challenges. Should the bill go through in its current form, it is likely that it will be subject to legal challenge by trade union on the grounds that it breaches Article 11 of the European Convention on Human Rights (ECHR). This is itself codified in UK law through the 1998 Human Rights Act.

The right to strike is enshrined in Article 11 of the ECHR, which gives the right to “freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests”.

However, there is scope in Article 11 for restrictions to be placed on the right to strike where the restrictions are prescribed by law and “are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.” The interpretation of whether the legislation is “necessary” is therefore largely what its legality will hinge on. It is likely that some sectors, such as health, will be more enforceable than others.

It is also a substantial change to the way in which industrial action is able to take place across the entirety of Britain, and calls into question what the government calls their commitment to the right to strike by forcing workers to work on strike days.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

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James Cook

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High Court rules that the EU Settlement Scheme is operating unlawfully – why?

By Jessie Yang

On 21st December 2022, the High Court delivered a judgment for a judicial review case relating to the EU Settlement Scheme which came about as a result of Britain’s exit from the EU in 2016.

This case was brought by the Independent Monitoring Authority (a statutory body set up to protect EU citizens’ rights in the UK) against the Home Office relating to the requirement in the EU Settlement Scheme (EUSS) for those with pre-settled status to apply for settled status after five years. It has some significant implications for those EEA nationals with pre-settled status.

The case was titled as follows: (R (on the application of Independent Monitoring Authority for the Citizens’ Rights Agreement) v Secretary of State for the Home Department (European Commission and another intervening) [2022] EWHC 3274 (Admin), [2022] All ER (D) 70.

Keep reading to learn more.

Background

The EU Settlement Scheme introduced by the Home Office in 2018. It requires EU citizens to submit an application under the scheme to continue to live in the United Kingdom lawfully.

According to the scheme, EEA Nationals who were residing in the UK before 31st December 2020 were required to apply to the Home Office in order to remain in the UK in reliance on their former rights. Those EEA nationals who had lived in the UK for five continuous years were granted Settled Status. However, EEA nationals who were not eligible to qualify for Settled Status under the scheme were granted pre-settled status (limited leave to remain for 5 years). In this case, they were required to make a second application to extend their leave before the expiry of their pre-settled status. If they did not do so, they would lose their residence rights and become unlawful residents in the UK as a consequence.

The Decision of the Court

The judicial review claim was considered by Mr. Justice Lane. His Lordship ruled that a right of residence can only be lost in very specific circumstances which are clearly defined in the EU Withdrawal Agreements (2020). Failure to make a second application as ‘required’ under the EU Settlement Scheme does not and could not constitute one of those very specific circumstances.

Although the Home Office submitted the claim that the specific requirement to re-apply was ‘merely procedural,’ the High Court rejected this claim and ruled that the consequences of failing to submit a second new application was so severe and significant that they could not be easily disregarded.

That being the case, Mr. Justice Lane declared that the EU Settlement Scheme is operating unlawfully. In summary, His Lordship determined two important points:

1. Individuals granted pre-settled status should not lose their rights by not making a second application.

2. Settled status rights accrue automatically without the need for a second application to upgrade rights. The right of settled status in the UK under Article 15 Withdrawal Act (2020) accrues automatically, once the conditions for obtaining the right have been fulfilled by an individual. It is unlawful for the Home Office to withdraw these rights where an individual fails to make a second application.

The Significance of the Ruling and Our Comments

The case has two potential consequences for those who made applications under the EU Settlement Scheme, namely, a) those granted pre-settled status could be given the ‘automatic rights’ to reside permanently in the UK once they have met the five year residence threshold without submitting a second application; b) those granted pre-settled status could also be automatically entitled to extend their stay in the UK upon expiry of their limited leave as long as they satisfy the requirements without making a second application should they are not eligible to apply for Settled Status.

It should be noted that the Home Office is highly disappointed with the High Court’s ruling and plans to lodge an appeal. The Home Office minister Lord Murray commented that ‘the EU Settlement Scheme goes above and beyond our obligations under the Withdrawal Agreement.’ Given this, it therefore seems highly likely that the issue regarding the lawfulness of the EU Settlement Scheme may be brought and decided before the UK Supreme Court in due course. Accordingly, it should be noted that until the appeals stage is over, and the final judgment is delivered, individuals with pre-settled status should continue to make a second application on expiry of their status in due course.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

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James Cook

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Legal privilege – when is the right to confidentiality lost for data held on company servers?

Today’s article examines a case involving legal professional privilege, work emails and company servers. It provides a great deal of relevance to many businesses, as the issue of legal privilege in the context of work emails on corporate servers is one which arises regularly up and down the country.

In this case, the applicant made an application for electronic documents, which it argued that the right to privilege (right to confidentiality) did not extend to by those whose mailboxes the emails had originated from. This case provides an important lesson as to how this type of scenario should be examined.

Keep reading to learn more about this case and the lessons which can be learned.

Background

The case originates with MP & Silva Holding SA (MPS), a now dissolved company which was an international sports marketing and media rights firm that was order into administration by the UK High Court in October 2018. This came after the company missed payments to organisations such as the Premier League and the Scottish Football League.

Prior to this it was sold to the Chinese companies Everbright Securities and Beijing Baofeng Technology, who bought a 65% majority stake in the company in May 2016. This purchase was made through a strategic partnership, Jinxin, for $661m. It was following this purchase that the claims in deceit and unlawful means conspiracy are said to have arisen.

In around September 2018, soon before the company was ordered into administration by the UK High Court, Jinxin obtained copies of the personal electric mailboxes of a number of individuals from MPS. This included some of the defendants, who had been senior officers at MPS.

Following the acquisition of the electronic mailboxes, Jinxin and its lawyers, Herbert Smith Freehills (HSF) reviewed the material subject to various internal safeguards. These safeguards consisted of Jinxin’s internal team passing on documents to the matter team after reviewing potentially privileged documents. Jinxin’s claimed that in order to reduce the risk of its legal team reviewing privileged documents, they performed keyword searches were thought most likely to highlight documents through which the Tort Defendants (MPS) might claim privilege. Jinxin claimed that the keywords used were so extensive that approximately half of the 1.5m documents were quarantined, meaning that they could not be reviewed. These processes were questioned by MPS once they were discovered.

In the end the only application made by Jinxin was that none of the Tort Defendants could claim any privilege against Jinxin relating to documents held on MPS computer systems, in order to overcome the obstacle of being unable to review these documents. If the application succeeded, it would mean that Jinxin could proceed to review all the relevant documents it held without any further issues relating to quarantine. Jinxin argued that an essential pre-condition for privilege was not present in the documents stored on the computer systems of MPS.

Decision

The court refused to grant the declaration, as it did not have sufficient information to make it. The reason for this is that the judge held that there was inadequate evidence about the relevant documents in question.

The judge rejected the arguments made by Jinxin that the access to emails by IT staff, staff handbooks setting out the company’s right to monitor electronic communications, and the ownership of the servers, all pointed to a loss of confidentiality and a lack of privilege. However, the judge held that none of these factors prevented confidentiality from arising. Furthermore, the judge held that a reasonable person would assume that the location and exploitation of privileged material would not be included in a company’s right to access data on its servers.

The judge offered a solution from the case BBGP Managing General Partner Ltd & Others v Babcock & Brown Global Partners [2010] EWHC 2176; (Ch) that could be helpful in a situation like this. In the aforementioned case, the documents in question were reviewed by independent lawyers. This would go some way to overcoming the disclosure problem which arose in this case.

Our comments

The fact that some data/information were stored in company’s emails or other device does not automatically mean that the right of privacy or confidentiality is lost. Whether the right to privacy/confidentiality is lost depends on the particular facts of each individual case. Hence, in this case, the Court refused to grant the declaration sought by Jinxin, as it did not have sufficient information to make such a declaration. In situations like this, the safest approach to take is to work with other parties and to use an independent lawyer, rather than one on behalf of the employer itself.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

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!

James Cook

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Lease Dispute Involving a Seven-Figure Insurance Claim leads to another Successful Settlement

By Yitong Guo

We are delighted to have started 2023 with a successful settlement involving a seven-figure insurance claim.

This case involved us assisting a commercial landlord client on their insurance claim for an insured risk. We managed to secure full insurance payment from the landlord’s insurer despite the tenant’s alleged entitlement of such payment. During the negotiation process, we successfully assisted the parties to reach full settlement on the lease dispute and the insurance claim. Not only that, but we also assisted our client to sell their freehold interest (with a burnt site in situ) to a third party, as part of the settlement deal.

The caseworker for this case was Yitong Guo (Solicitor), while the case was led by Evveline Loh (Litigation Supervisor). Keep reading to learn more about the case.

Background

Our client, the landlord, is a company registered in the UK who held the freehold interest. The landlord had let two commercial units to the tenant on a short commercial lease agreement: one with a written commercial lease – unit A, while the other occupancy was entered through oral agreement – unit B.

Unit A was completely burnt to the ground due to a fire incident, while Unit B was able to continue to function despite minor disruptions. Hence, the tenant was able to continue to occupy the site while our client’s insurer compensated the tenant part rent and cost to connect the electric power.

Our client in the first instance (Unit A) proceeded to make an insurance claim for the insured risk and received a cash settlement offer from their insurer.

The tenant heard about the settlement and sent a pre-action letter to the client and their insurer threatening to take legal action and claiming they were entitled to a portion of the cash settlement for reinstatement of unit A. Numerous threats were outlined in their pre-action letter.

Issues

Our client was faced with several complex issues and the suitable resolution would require both legal consideration as well as commercial rationales.

1. Does it make commercial sense?

The most important point to our client is whether any settlement proposed would make any commercial rationale: does it make commercial sense to reinstate the unit and continue the lease?

This placed further questions as to whether the cash payment justified the costs of reinstatement, including:

Would the client make a loss if they were to proceed to reinstate the site?
What is the time scale for such reinstatement work to be carried out?
Will there be planning and building regulation obstacles?

2. What is the legal position as a commercial landlord?

In usual circumstances, it is indeed the landlord’s obligation to reinstate the premises (and/or the building as appropriate) following damage by an insured risk. However, in this case the question must be asked: was the client obliged to reinstate even if it would be impossible or impractical to do so? The apportionment of the tenant’s entitlement of the cash settlement was also an issue if the client was preparing to accept the pay-out.

3. Insurance

Was the settlement amount justifiable? Would the tenant be entitled to apportionment of the cash settlement?

Actions

On reviewing the lease agreement and insurance policy, we considered that although there might be different options for our client, the sticking issues here were the practicality of rebuilding unit A and to renew the lease as a landlord; and whether to sell the site without reinstating the unit and accept the amount of the cash settlement.

In order to answer these questions, we engaged and worked with a valuation assessor, quantity surveyor, and specialist legal counsel who provided expert reports on the separate issues in question. We had fully reviewed the lease, the insurance policy and the relevant laws and concluded that the lease clause did provide an option for termination of the lease if reinstating the burnt unit proved to be impossible or impractical, and the client might be in a strong position to do so with the supporting data.

Given we had sufficient evidence needed to advise our client on the legal practicality of the reinstatement of unit A and the likely outcome and risk on lease renewal as well as termination, our client was able to make an informed decision in relation to the above issues. We proceeded to action on our advice with an outlook to settle the dispute with the tenant, release our client’s obligation as landlord to reinstate the site, negotiate a sale of both unit A and B and restrict the tenant’s claim on the insurance settlement sum.

During our negotiation with the insurance company, there were a few points raised but what was more concerning was under-insurance.

Satisfying result

The negotiation was not easy. The first offer received in front us was for our client to transfer the site for no consideration to the tenant and to pay an apportionment from the insurance pay-out.

However, the end result was a satisfying one. After several rounds of negotiation, we manged to secure a full settlement on every aspect of the dispute: Our client’s obligation as landlord to reinstate was released; the site with the burnt down unit was sold at a competitive price as part of a larger scale corporate transaction, (thanks to our firm’s conveyancing expertise, we also acted for the client on this transaction). The insurance claim was successful and our client has received full pay-out with no deduction for any apportionment to the tenant. Should this matter have proceeded to court it would have cost our client considerable amount of legal fees and would have certainly carried more risks for the client.

Conclusion

This case truly reflects the skills we have in our team and our ability to focus on both the legal and commercial aspects. Our firm will always act in our client’s best interest. Our team possesses a rounded and coordinated skillset and our firm’s service to our clients goes beyond our legal expertise.

We strongly advise parties in dispute to try their best to resolve the issues before entering legal action. For their own benefit, court proceedings should be the last recourse to consider.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

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!

James Cook

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Register of overseas entities – Lisa’s Law part of select group that can complete verification checks for you

In a bid to crack down on money laundering and improve transparency, the Economic Crime Act 2022 introduced a new Register of Overseas Entities. This came into force on 1^st August 2022. Those who do not comply will face severe sanctions, including restrictions on buying, selling, transferring, leasing or charging their land or property in the UK. As a result, overseas entities that own land or property in the UK must declare their beneficial owners and/or managing officers.

Lisa’s Law is one of a select group of UK-regulated agents who can complete verification checks on beneficial owners of an overseas entity. You can view the full list, including Lisa’s Law, here.

Why do I have to register with Companies House?

Before overseas companies can be registered with Companies House, which maintains an online register of companies, a UK-regulated agent must complete verification checks on all beneficial owners and managing officers. Overseas entities are defined in Section 2 of the Act as any legal entity that is governed by the law of a country or territory outside the UK. The Republic of Ireland is classified as an overseas jurisdiction for the Register of Overseas Entities.

In addition to this, the changes will also affect overseas entities who already own or lease land or property in the UK. Such companies must register with Companies House and tell them who their registrable beneficial owners or managing officers are by the end of this month (January 2023). This will only apply to overseas entities who bought property or land on or after:

1^st January 1999 in England and Wales
8^th December 2014 in Scotland

Furthermore, entities that disposed or property or land after 28^th February 2022 will need to give details of these dispositions.

Once you have registered with Companies House, as an overseas entity you will receive a unique Overseas Entity ID. You will be able to use this to give to the land registry when you buy, sell, transfer, lease or charge for UK property or land. The aim of this is to create more transparency, allowing law enforcement agencies to investigate suspicious wealth more effectively.

How to register as an overseas entity

To register as an overseas entity you must do the following:

Sign in or create a Companies House account
Provide the name and email address of the person who can be contacted about the application
Give information about the overseas entities and its beneficial owners or managing officers
Tell Companies House about the UK-regulated agent that completed verification checks (us if we complete it on your behalf)
Pay the £100 registration fee using a credit or debit card

When and if the application is accepted, the overseas entity as well the beneficial owners/managing officers will be added to the Register of Overseas Entities.

Please note that as of 12^th January 2023, failure to comply could mean getting a fine, a prison sentence, or both. You would also face restrictions when buying, selling, transferring, leasing or charging property or land in the UK.

Our comments

As a select group of agents who are able to carry out verification checks on beneficial owners of an overseas entity, Lisa’s Law can help to assist your business with these matters. Prior acquiescence towards the anonymity of foreign owners ends with the arrival of the register of overseas entities. Ultimately, its aim is to make it more difficult for foreign criminals to launder money through UK property. If you would like our help with these verification checks, please don’t hesitate to contact us using the methods below.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

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James Cook

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Priority service returns for entry clearance family applications

The Home Office have formally announced the return of their priority service for family visa applications. This will once again enable applicants to have the option to pay for their application to be considered quicker. We have now received emails from the Home Office regarding pending applications, and whether the applicants want to pay £573 for priority service. This will result in their application being considered within 3 weeks.

The Home Office’s priority service for entry clearance application was previously suspended due to the Ukraine crisis following Russia’s invasion of the country. The Home Office prioritised their resources into considering applications received by Ukrainians who were trying to flee the conflict through the visa schemes like the Homes for Ukraine scheme. Without priority service being available, applicants were waiting 6 months, and in some cases more, for their applications for entry clearance to be considered so that they could join their family members in the UK.

No doubt this is a much-welcomed update for family members, who will now be able to reunite quicker thanks to the reintroduction of the priority service. As always, if you need assistance with immigration legal services, please don’t hesitate to contact us.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

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!

James Cook

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How do you vary or speed up a visa application you have already made?

Making a visa application is a lengthy process, and waiting for a decision can be very frustrating, especially if you need to travel while waiting for your visa decision.

So, what options do you have? One option is to “upgrade your visa application”. Keep reading this article to find out how to vary or speed up a visa application.

Super Priority Status

If you need to travel urgently, there is a way of switching certain applications to super priority status, even if you didn’t originally do so. This can be done by simply varying the application to the one you had already applied for, but this time submitting it on Super Priority Status. This can be done for both settlement applications and also through permission to stay applications.

Super Priority service fast tracks your application, ensuring that visa decision makers give priority to your application at each stage of the process. This means that you can receive a decision within 24 hours, instead of the multiple weeks it usually takes. It will however cost you £800 per person, so could be quite expensive if you have multiple dependants. Nevertheless, you may feel this is worth it if you need a fast decision.

However, just like when you vary an application, it’s important to remember that you must also vary the applications for dependents as well. In addition to this you must pay the £800 fee per person for the Super Priority service. If your dependants do not have their applications varied, then the dependants’ applications will not be considered.

When completing your application for Super Priority service, you must ensure that you upload the same documents as in your initial application. However, you should ensure that you update any that are out of date. The application date will be your second application, not the previous one, and you must also attend a UKVCAS appointment. This will allow you to submit your biometrics such as your fingerprint and photo ID.

Once this is done, you should receive a decision on your application within 24 hours as a result of your new-found Super Priority status. Before travelling, you must ensure that you wait for your biometric residence permit (BRP) to arrive. You can find out more about the BRP in our comprehensive article here.

Varying the application

One thing you can do is vary your original application. This might seem a bit counterintuitive. Surely this would just reset the amount of time you have to wait for your application to clear?

However, in certain scenarios it may be better for you to vary your immigration application. Take note of the fact that you can only do this if you haven’t yet received a decision! If you have already received a decision on your application, then by that point it’s too late.

You will need to start a new application, however you will be asked if you have an existing application on which you haven’t received a decision. You will need to provide the unique reference number for this application, as well as pay the application fee and immediate health surcharge for the new application. However, you will receive a refund of the previous application fee if you had already paid it.

Some applications allow you to include dependants, so if this is the case then you can include them on your new application. If not, then you should make them aware that they will need to make their own application. As you will be making a new application and they are your dependants, them not making a new application could put your status in the UK at risk.

Depending on the type of visa application, this can help to speed up the process.

Contact your MP

Finally, it might sound like a rudimentary option but contacting your local MP can greatly help your chances of speeding up your application, especially if you don’t have the means of paying for the Super Priority service. As your local representative, MPs can find out more about the delay and help to speed up your application process. This can be an easy, cost-effective way of getting an update or getting a faster outcome.

You should be prepared to provide them with some basic information about your application, such as the date you submitted your application and your unique reference number.

Don’t know who your MP is? Find out here: https://members.parliament.uk/members/commons

Final thoughts

Varying your application is primarily an option for when you are in desperate need of a quicker outcome for your visa application. In other situations, it may not be worth it if you have already submitted an application.

We would advise you to seek legal advice prior to varying an application, as it can be tricky for the uninitiated. Our in-house immigration experts would be happy to assist you with this process.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

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!

James Cook

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Hussain v Parveen – when is a transnational divorce invalid in the UK?

As a London law firm which deals with clients from a variety of countries and backgrounds, we are used to facing questions about divorces filed outside of the UK. In today’s article we will take a look at an important case (Hussain v Parveen) in which the High Court clarified the validity and related requirements of transnational divorce.

Keep reading to learn more about the case and transnational divorce in general.

Background

The respondent, W, was born in Pakistan and has always been a Pakistani national. Many years ago, W met her first husband, A, in Pakistan, where they married in November 2000. At that time, A was still living in the UK, and he returned to the UK a few weeks after the marriage. Meanwhile, W continued to live in Pakistan.

In February 2008, A filed a petition for divorce in England. In accordance with Pakistan’s 1961 “Muslim Family Laws Ordinance” law, A read Talaq (Islamic way of divorce) in England and gave it in the form of a letter. The letter was converted into a divorce certificate by a mosque in Bradford on February 10, 2008. Subsequently, the mosque sent the divorce certificate to W, who then provided it to the local trade union committee. A certificate was officially issued by the local trade union committee stating that the divorce was effective from 29 May 2008.

In accordance with Pakistani law, the divorce was considered valid to determine that the marriage between A and W was completely over, allowing W to remarry.

W remarries

After the end of her first marriage, W met her second husband, referred to as “H”. On December 19, 2008, they got married in Pakistan. However, unlike W’s first marriage, the second husband brought her to the UK. On March 28, 2009, W came to the UK with H, and has been living in the UK since then. However, W’s second marriage did not go particularly well either, and the marriage broke down.

W’s second husband, H, filed divorce proceedings on April 25, 2018 and received a provisional divorce judgment (decree nisi) in September 2019. Around August 2020, H suddenly applied to revoke the interim decree and applied for annulment of the marriage on the grounds that W was still married to her ex-husband, A, on the date of her marriage to H. Since their marriage was not dissolved in the UK, W has always been married. The application was initially rejected, but W continued to appeal, and the marriage was annulled on the grounds of bigamy.

The British Family Court subsequently held that the marriage between the two parties was indeed invalid. The ruling was based on the fact that W’s divorce proceedings started in the UK and ended in Pakistan. This means that the divorce is an international divorce which, while recognized as valid in Pakistan, is not entitled to recognition under the Family Law Act 1986 in the UK.

According to relevant laws in the UK, if the husband declares talaq divorce in the UK alone, the divorce will not be recognized. Also, if the husband declares the talaq divorce in UK and then notifies his wife and the chairman of the trade union committee in Pakistan or Bangladesh, the divorce is also not recognized. English courts have held that an overseas divorce can only be recognized in the UK if it was initiated and obtained in the same country outside the UK.

The judge therefore ruled that under English law W was in a bigamous relationship with her second ‘husband’, H, and that the marriage was voided under section 11(b) of the Matrimonial Causes Act 1973. W was dissatisfied with this resolution and appealed the decision.

What did the High Court decide?

The point of contention between H and his counsel was that W’s previous divorce is not entitled to recognition under section 45/46 of the Family Law 1986, as the court is obliged to use this regulation to determine whether the wife and husband are legally married on the date of marriage. The court held that under British law, the wife’s previous divorce was in fact an international divorce and had no right to be recognized in the UK. However, this is inconclusive on the question of whether the wife lacks the capacity to marry her husband. The Act does not specify the impact of non-recognition on the ability to marry.

The judge believed that the validity of the wife’s previous divorce should be determined by the laws of Pakistan, under which her first marriage was validly determined. From the perspective of fairness, the court also believed that each case should be viewed on its own merits. W’s first husband lived in the UK for a long time, but W did not live in the UK. Therefore, their divorce had to take place in two places. UK law encourages Muslim Pakistani nationals residing in the UK to obtain divorces in the UK through the talaq process and by post. However, this did not apply to W, who at all relevant times was domiciled and living in Pakistan.

The court held that, according to the Family Law Act 1986, the divorce had no right to be recognized. However, this did not mean that W lacked the ability to marry, because in judging whether W’s marriage and divorce were valid, marriage took precedence over divorce. Therefore, the applicable law is that of the country where the marriage took place, in this case, Pakistan. According to the laws of Pakistan, W’s divorce was valid and her marriage was also valid. Because of this, the appeal was approved and W’s second marriage was declared valid.

Our thoughts

It is important that you know whether your foreign divorce is recognized in the UK for a number of reasons. First of all, you may want to remarry in the UK. If this is the case, then your first divorce needs to be recognized. If it is not recognised in the UK, then it is classed as bigamy and the new marriage is invalid. In addition, divorce can affect issues such as wills and inheritance, immigration, taxes, benefits, and the financial remedies you may have.

So how do I know if our divorce is valid?

Generally speaking, England and Wales recognize most overseas civil court divorces, but there are some basic criteria. Under the Family Act 1986, overseas divorces obtained judicially or otherwise will only be recognized in the UK if:

valid under the laws of the country in which it was acquired
On the relevant date (i.e. the date on which the proceedings commenced), either party was either a permanent resident or domicile or a national of the country.

The UK recognizes overseas divorces obtained by means other than litigation where:

valid under the laws of the country in which it was acquired
On the relevant date (i.e. the date the divorce was obtained), both parties were domiciled in that country, or one was domiciled in this country and the other was domiciled in a country which recognizes the divorce (in this case, the United Kingdom)
Neither party was habitually resident in the UK during the year immediately preceding that date.

This case is different from ordinary marriages. It involves the Islamic divorce rules: talaq. According to traditional Islamic law, a husband is considered divorced when he says “I divorce you” three times in a row. This declaration immediately annuls the marriage. However, the Muslim Family Law Regulations 1961 imposed new requirements: first, the husband must notify the chairman of the district trade union council in writing to declare the talaq divorced. Second, the husband must also give a copy of this notice to his wife. Next, the divorce takes effect at the end of the 90 days (or at the end of the wife’s pregnancy if she is pregnant at this time).

For this special type of divorce, British law stipulates that if the husband declares talaq divorce in the UK alone, the divorce will not be recognized. Divorce will also not be recognized if husband announces talaq divorce in UK and then notifies his wife and union committee chairperson in Pakistan or Bangladesh. That said, UK courts have held that an overseas divorce can only be recognized in the UK if it was initiated and obtained in the same country outside the UK.

Our advice

To be on the safe side, you should therefore make sure your divorce proceedings begin and end in the same country. Although the lawsuit in this case was won in the end, it offers a warning for being aware of the laws around divorce before deciding to go through with it. If W had been aware of the UK’s laws around divorce, perhaps the divorce from her second husband would have been less strenuous.

In conclusion, obtaining recognition of a foreign divorce in the UK can be very complicated and different cases may have different outcomes. We strongly recommend anyone who is unsure to contact a legal professional in the UK to ensure their overseas divorce is valid and does not create any unintended implications.

If you are divorced overseas, please contact us at Lisa’s Law Solicitors immediately. Our family law lawyers can provide you with specific analysis and professional advice based on individual cases.

Have questions? Get in touch today!

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

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James Cook

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