Foreign healthcare workers and families: what support are available to you from the Home Office?

This year has been a difficult one for many people due to the strains of COVID-19. Everyone has had to alter their way of life, people have been very ill and there has been extra pressure on healthcare professionals. Without the doctors, nurses, carers, and paramedics who dedicate their lives to helping others we would be in a far worse off position than we are right now.

To acknowledge all the admirable work of these healthcare workers, the Home Office has offered the following support to foreign healthcare workers: https://www.gov.uk/coronavirus-health-worker-visa-extension

All health care workers and their family members will receive 12 months visa free of any Home Office fees and Immigration Health Surcharge (IHS).

The IHS fee currently stands at £624 per year for adults and £470 for minors. This extension will cover healthcare professionals working in the NHS and those in the independent health and care sector.

You may remember a similar announcement earlier in the year offering free visa extensions for health professionals whose visas were due to expire between 31 March 2020 and 1 October 2020. This new announcement brings the extension right the way to March 2021. It is no less than what these brave individuals deserve!

In the announcement, the Home Secretary promised that applying for this extension will be quick and simple, only having to fill out a short online form.

A link can be found here to get an email update on when applications are open: https://www.gov.uk/coronavirus-health-worker-visa-extension

Although it is good to see that the Home Secretary has finally acknowledged the hard work of these service workers, the policy has been applied discriminatorily against family members of domestic healthcare workers.

Under the Home Office’s current policy, such offer is only available to the healthcare workers who need visas to work in the UK. Only when their visas fall to expire and are due to renew, their family members can then apply for 12 months free extension with them. If they do not need visas to work in the UK, like British nationals and those who have permanent residence in the UK, their family members will not benefit from this concession and will have to pay the relevant visa fees and IHS fees. For more information on this issue, please refer to our previous article:

Free visa extensions for family members of NHS workers – but only if you are NOT British?

This policy clearly does not make any sense and is irrational. We strongly believe that all healthcare workers and their family members should be treated equally.

Bereavement Scheme

As well as the free visa extension, all NHS and health care workers have been added to the Bereavement Scheme. This scheme is there to protect family members and dependants of these workers.

Non-EEA family members of any NHS worker, including support staff, or a healthcare or social care worker who dies as a result of coronavirus, will receive immediate indefinite leave to remain, free of charge.

The family member must have been working for the NHS in any role or working for an independent health and care provider, including the social care sector.

Health and Care visa

Eligible healthcare workers, along with their dependants, can also apply for the new fast-track Health and Care visa.

You can apply for a Tier 2 (Health and Care) visa if:

you have a job offer from the NHS, an organisation providing medical services to the NHS or an organisation providing adult social care

you are from outside the European Economic Area (EEA) and Switzerland

your sponsor has told you that you are eligible for it

You must be a qualified:

doctor

nurse

health professional

adult social care professional

More information about this visa is available here: https://www.gov.uk/tier-2-health-care-visa

EU Settlement Scheme

Healthcare workers who are EU, other EEA or Swiss citizens, or their family members, also have until 30 June 2021 to apply to the EU Settlement Scheme. You can learn all about the EU Settlement Scheme from our article:

A Clearance of the Past? – How Can You Benefit From the EU Settlement Scheme?

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Be Careful of Oral Agreements!

Written by Evveline Loh.

The court had recently handed down their judgment in Coleman v Mundell [2020] EWHC 2852 in the Queen’s Bench Court around the end of last month. The case was a dispute about an oral agreement made between Mr Philip Coleman (the “Claimant”) and Mr Mundell (the “Defendant”). The Claimant issued a claim against the Defendant for specific performance of an oral agreement compelling the Defendant to perform and comply with their contractual obligation. However, specific performance is an equitable remedy which is only available at the court’s discretion.

So What Happened?

The Claimant owns Direct Entry Solutions Ltd (“DES”), which is a company that operated a courier business. The Claimant’s business was facing substantial financial difficulties in autumn 2016. The Claimant sought many ways to raise funding by executing second charge over his own property, overdrawing his own directors’ loan account and subsequently borrowed a loan from Pulse Cash Flow (“Pulse”). However, the Claimant felt there was a need for a further £250,000.00 cash injection for the company to trade its way out of the situation.

The Claimant had other businesses other than DES. He held 100% shares in Ninurta that owned 5 plots of valuable land (“the Ninurta Land”) in Marbella, Spain. The lands were valued around €2.55M and €3.1M. Having armed with evidence and knowledge of the value of the Ninurta Land, The Claimant first engaged Mr Hellier in discussions about raising funds. He needed the funds to invest in DES by using the Ninurta Land as collateral for the transaction. Mr Hellier and the Claimant could not come to an agreement on the first offer but agreed to meet in Spain for further discussion.

Whilst on the way to Gatwick airport, the Claimant received a call from the Defendant who was a long-time friend. The Claimant and the Defendant both had common interest in property development. They have both spent time together in London and Spain. The Claimant, whilst in discussion with Mr Hellier, also mentioned his current predicament and the potential of the Ninurta Land to the Defendant.

On 30 September 2016, the Defendant was interested as to what the Claimant could offer and both spoke over the phone. This was where the dispute arose as they both recalled the conversation differently.

The Claimant recalled that the Defendant agreed to offer the Claimant £250,000.00 interest-free loan subject to it being secured over the Claimant’s 50% share in Ninurta. However, the Defendant recalled that he was offered the option to purchase the Ninurta shares for £250,000.00, which the Claimant could then inject into DES. It was never meant to be a loan.

However, despite having different versions of the event, what was conclusive was that the parties did enter into a deed for transfer of share and the Defendant did transfer £250,000.00 to the Claimant.

Two years later, the Claimant sought to repay the Defendant £250,000.00. However, the Defendant refused and instead offered to sell his shares for £350,000.00. The Claimant argued that the transfer deed was only part of a wider contract in which the transfer of shares was only ever intended to be security for a loan. The Claimant argued that there was a collateral agreement, which he was entitled to enforce.

The Claimant’s Spanish lawyer, Ms Kaviani who had prepared the transfer testified that she recalled that the Claimant and the Defendant had told her that the Defendant was helping the Claimant as a friend and would take a security over the Claimant’s shares in Ninurta. It was further explained that parties could not fix a charge or a mortgage due to insufficient time to organise a valuation as this is required under Spanish law. Hence, the only way was to allocate the Defendant with 50% share capital of Ninurta then was by way of a security to the loan.

Judgment

The Court considered all the evidence and referred to Chitty on Contracts at 13-004 stating:

“It may be difficult to treat a statement made in the course of negotiations for a contract as a term of the contract itself, either because the statement was clearly prior to or outside the contract or because the existence of the parol evidence rule prevents its inclusion. Nevertheless, the courts are prepared in some circumstances to treat a statement intended to have contractual effect as a separate contract or warranty, collateral to the main transaction. In particular, they will do so where one party refuses to enter into the contract unless the other gives him an assurance on a certain point or unless the other promises not to enforce a term of the written agreement”.

The Court further adds that “It is undoubtedly true that the courts are nowadays much more willing to accept that a pre-contractual assurance gives rise to a collateral contract, so that such collateral contracts are no longer rare”. This was sited in the case Times Travel (UK) Limited, Nottingham Travel (UK) Limited v Pakistan International Airlines Corporation [2017] EWHC 1367 (Ch).

Therefore, if there is a genuine agreement for the transaction to be a loan whereby the share transferred acts as a security for the loan pending repayment, such oral agreement is enforceable albeit it not being in writing. As long as there is an ascertainable intention to contract, the court will seek to look at the substance and not the form of the agreement.

Hence, it was held that the Claimant has the right to repay the loan on an interest free basis and requires the shares to be transferred back to him.

Food for thought

Oral agreements are as legally binding as written ones. The court has yet again proven that an agreement can be formed if the following four elements are present:

i) an offer

ii) acceptance of that offer

iii) consideration

iv) the intent to create legal relations

However, it is always better to have the terms of an agreement to be set out in writing at the outset to avoid such dispute from happening. The issue with oral agreement is that one will still need to prove it in court for it to hold up. You might need witnesses to support your claim, collect documentations or analysing the other party’s action to prove that there was indeed an oral agreement. Such task can be onerous, costly and time consuming. Sometimes you might even need a bit of luck to prove that it existed!

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Child protection mediation services to be considered in England and Wales after Nuffield come forward with recommendations

The Nuffield report

The Nuffield Family Justice Observatory aims to improve the lives of children and families by putting data and evidence at the heart of the family justice system. Recently, they put together a report which grouped together evidence gathered from 17 studies on child protection mediation in Australia, Canada, and the US, and brings together key findings on the procedure and practice of child protection mediation and outcomes. These finds have been used to assess whether similar child protection measures would work in England and Wales, and to identify any gaps in the research already undertaken.

The findings in the article are based upon the research done by Nuffield and the 17 studies which act as the basis of their report. The full analysis can be found here.

What is child protection mediation?

Child protection mediation facilitates family inclusivity in decision-making. It can take place at any point in the child protection proceedings, but most commonly occurs either at the start of proceedings or after a fact-finding hearing. The most common situation is that a specifically trained third party assists the family, social workers, attorneys, and any other interested parties in a case to assess and develop agreements in line with issues relevant to an abuse and neglect case before the court. The best interests of the child is always the top priority.

Alternative terminology includes: child welfare mediation; dependency mediation; and alternative dispute resolution (ADR) in child protection proceedings.

In terms of the previous research, parents were generally satisfied

Parents found the mediation to be inclusive and felt like they were truly involved with the decision making. They found it preferable to more traditional court proceedings, which many of them felt do not provide a space for families to take part in such matters.

It was the opinion of most parents that the best interest of the child were placed at the centre of the mediation process, and remained there consistently.

Greater efficiency

It was found that, in most cases, where agreements had been made throughout out child mediation that less time would be spent in court proceedings. While there is little conclusive evidence as to whether full or partial agreement is most common for mediation, families that went through child protection mediation had a greater chance of reaching some form of agreement than those that did not. We see this as one of the most positive findings within the Nuffield analysis.

It was found that child living arrangements were frequently agreed upon during the mediations, which is a very important aspect in terms of the welfare of the child.

Trained and experienced mediators are essential

It is not surprising that the more experience a mediator had during these trials, the more satisfactory outcome was landed on. Where the third party had little knowledge of the family they were dealing with, and where their preparation time was fairly short, often issues would arise, such as tensions between the mediators and the attorneys and social workers.

The report suggests that child protection mediation is more effective in cases where the issues presented are more ‘straightforward’, such as establishing contact arrangements between parents. More complex issues such as child maltreatment, cases of neglect, alcohol and substance abuse were more challenging to navigate.

Official recommendations

Budgets:

Realistic cost assessments of child mediation must be laid out before any official planning can begin. The report suggests that some child protection mediation services had not been sustained after their initial funding, which paved the way for some issues such as a lack of preparation time in certain cases. The Nuffield analysis indicates that variety of possible figures will have to be considered in line with a pilot scheme, as demands are likely to change as time goes on.

Necessary materials must be prepared:

Service protocols and other materials should be prepared by a multidisciplinary team with experience of care proceedings and should be guided by the Family Mediation Council. It would be beneficial if the team could draw on the good practice materials developed for, and endorsed by, the National Council of Juvenile and Family Court Judges in the United States, according to the Nuffield report.

Stakeholders should be sought out:

Support from stakeholders will be essential. In England and Wales, this would be the judiciary, the Association of Directors of Children’s Services (ADCS), Cafcass and Cafcass Cymru, and the Association of Lawyers for Children. These stakeholders will play a crucial role in establishing key aspects of the service, including the selection and training of mediators.

Our thoughts

It is always our belief that litigation is not for being litigious. Its ultimate objective is to resolve. It is particular so in child proceedings where the party who suffers most tends to be children. Alternative dispute resolutions (ADRs) have proved to be quicker, less stressful and cheaper in other proceedings. We are confident that it should also work well in child protection proceedings, which will eventually benefit the children concerned most.

rom the evidence presented in the Nuffield report, we believe that child mediation services have a good chance of supporting families and may bring some relief or at least some clarity to many cases. However, it is vital that the services are planned accordingly and not brought in before they are ready. We feel a pilot scheme is essential to such planning as it will give a base on which to build from regarding this complex and sensitive issue.

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Home Office’s Math Puzzle: 18 Months or 540 Days? – How long is a person allowed to be away from the UK under applications for settlement based on 10 years’ lawful residence?

Written by Chuanli Ding.

I had always believed that in an application for settlement based on 10 years’ lawful residence pursuant to Paragraph 276B of the Immigration Rules, as soon as the applicant has not been away from the UK for more than 180 days on any single occasion or 540 days in total during the past 10 years up to the date of the application, his/her continuous residence should not be treated as broken.

That was the reason why I wanted to correct a colleague one day when I saw in his advice to a client the respective absences had become 6 months and 18 months. He was surprised at it. He failed to understand why I changed it, as 6 months was 180 days and 18 months was 540 days.

I told him that it was not correct, as 6 months did not always equate to 180 days and the same with 18 months. A month can be 28, 29, 30 or 31 days. A year is 365 days and consists of 12 months. On average, a month should be 30.42 days, 6 months is 182.5 days and 18 months is 547.5 days. To make it worse, in some circumstances, the difference could even be more. If we advised client in this way, we could be misleading, as we were telling clients the absence more than allowed under the Immigration Rules.

My colleague told me that he was quoting precisely from the Immigration Rules. He then showed me Paragraph 276A(a) of the Rules. I could clearly see 6 months and 18 months there, with my own eyes. I immediately became ashamed of my ignorance.

I wondered where I got the 180 and 540 days from. I checked the Home Office’s guidance to its officers on long residence, Version 16.0, published on 18^th October 2019. I immediately saw the origin of my mistake.

On Page 11 of the guidance, under the subtitle Events that break continuous residence, it states that continuous residence can be broken if the applicant has been absent from the UK for a period of more than 6 months at any one time or spent a total of 18 months outside the UK throughout the whole 10 year period. Right above this provision, it states that “for the purpose of calculating time spent outside the UK for the long residence rules, a month constitutes 30 calendar days”.

It is probably because of this definition that on the following page (Page 12), when talking about the same residence, only 180 and 540 days are used. The 18 and 54 months have been removed completely.

It is clear that the Home Office has been instructing its officers that 6 months is 180 days and 18 months 540 days and that 180 and 540 days have been used to judge whether an applicant’s continuous residence has been broken when dealing with settlement applications based on 10 years lawful residence.

It is well established law that wherever there is conflict between the Immigration Rules and the Home Office’s internal policy/guidance, the former prevails, as it has been subjected to the Parliament’s scrutiny and approved by it, while the latter is not.

I then must consider whether the word month is defined under the Immigration Rules. I can see that week has been defined as a period of 7 days counting from a Monday. I am unable to find similar definition for month. In such absence, I have to say that the Home Office’s definition in its guidance is unlawful.

I understand that it may be difficult to count an applicant’s absence by month in practice. He/she could leave the UK on 19^th March and return on 9^th May. It will be difficult to say whether he/she was away from the UK for one month, three months or one month and 20 days. However, difficulty alone cannot be a pretext for the Home Office to simplify the calculation in this way.

By treating a month as consisting 30 calendar days, the Home Office has effectively taken away at least 7.5 days from an applicant’s absence allowance if the days of his/her total absence during the 10 years is in issue. It is indeed unlawful.

Of course, for the sake of clarify and its own benefit, the Home Office can always seek to amend the Immigration Rules and replace month with day or define month as having 30 calendar days, as in other legislations (in the British Nationality Act 1981, the allowed absence has been 90, 270 or 450 days); however, before such thing happens, the correct law should be what is stated in the Immigration Rules, not the Home Office’s guidance.

18 months is not 540 days, unless so approved by the Parliament.

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Right to Rent Checks – What Landlords and Tenants Need to Know

This article is written in line with the new guidance published by the Home Office for landlords to guide them through the right to rent checking process. The full publication is available here.

First things first, what does right to rent mean?

It is not a difficult phrase to read; however, it can be very confusing to fully understand. ‘Right to rent’ has nothing to do with landlords’ right to rent out their properties. Instead, it is all about tenants needing to have the right to rent accommodation in the UK.

Who has the right to rent?

People have the right to rent if any of the following apply:

they are a British or EEA citizen

they have indefinite leave to remain or settled status

they have refugee status or humanitarian protection

they have permission to be in the UK and have a valid visa

the Home Office has granted them a time limited right to rent

How can landlords conduct a right to rent check?

Landlords should conduct a right to rent check before they enter into a tenancy agreement with a person. If a person’s right to rent is time-limited, the landlord should conduct a follow-up check shortly before their leave expires.

Document checks are the usual way landlords can tell if someone has the right to rent in the UK. If a prospective tenant can produce either one document from group 1 or two documents from group 2 then they should meet the requirements.

It is important that the landlords are vigilant in their checks, and make sure that the documents are consistent, genuine and have not been tampered with.

List Group 1 – (One document needed).

A passport (current or expired) showing that the holder is a British citizen, or a citizen of the UK and Colonies having the ‘right of abode’ in the UK.

A passport or national identity card (current or expired) showing that the holder is a national of the European Economic Area (EEA) or Switzerland.

A registration certificate (current or expired) issued by the Home Office to a national of an EEA state or Switzerland.

A document certifying permanent residence (current or expired) issued by the Home Office to a national of an EEA state or Switzerland.

A permanent residence card (current or expired) issued by the Home Office to the family member of a national of an EEA state or Switzerland.

A document issued by the Home Office to a family member of a national of an EEA state or Switzerland (current or expired) and which indicates that the holder is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK.

A biometric immigration document (current or expired) issued by the Home Office to the holder which indicates that the person named in it is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK.

A passport or other travel document (current or expired) endorsed to show that the holder is ‘exempt from immigration control’, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has ‘no time limit’ on their stay in the UK.

An immigration status document (current or expired) containing a photograph issued by the Home Office to the holder with an endorsement indicating that the person named in it is allowed to stay in the UK indefinitely or has no time limit on their stay in the UK.

A certificate of registration or naturalisation as a British citizen.

List Group 2 – (Two documents needed).

This list includes many variations of certain government issued letters, which can be found on page 40 of this document.

Where a person is unable to present a landlord with any of the above acceptable evidence, the landlord can make a request to the Landlord Checking Service to establish whether their prospective tenant has a right to rent.

Recording and retaining the check

It is important that landlords make a clear copy of each document in a format which cannot be altered later and retain the copy securely: electronically or in hardcopy. They must also make a record of the date on which the check was made and retain the copies securely for at least one year after the tenancy agreement comes to an end.

Landlords must copy and retain copies of:

Passports – any page with:

the document expiry date

the holder’s nationality

date of birth

signature

UK immigration leave expiry date

biometric details

photograph

any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp)

All other documents – the documents in full and copy both sides of:

Biometric Residence Permit

Application Registration Card

Biometric Residence Card

New service coming soon: Online right to rent checks

On 25 November 2020, the Home Office is introducing a new online checking service. From that date, you will be able to rely on the online service ‘Check a tenant’s right to rent’ page on GOV.UK to obtain a statutory excuse against a penalty when conducting a right to rent check. This page is not yet up and running but will be a very handy tool come the 25^th of November.

Landlords will be able to undertake a right to rent check in real time, via video links, for:

non-EEA nationals with a current biometric resident permit or card

EEA nationals and their family members with status granted under the EU Settlement Scheme

those with status under the points-based immigration system

Using the video link provided by the service, landlords will be able to check that the photograph from their profile page is of them (i.e. the information provided by the check relates to the person and they are not an imposter).

The online service will confirm that no further check is required for someone who has a continuous right to rent. For someone with a time-limited right to rent the service will advise when a further check is required.

Right to rent checks for EEA and Swiss nationals

EEA and Swiss Citizens can continue to use their passport and national identity cards to evidence their right to rent until 30 June 2021, or if they have status under the EU Settlement Scheme or status under the points-based immigration system they can choose to evidence their right to rent using the Home Office online service.

Landlords cannot insist that they use the online service or discriminate against those who wish to use their passport or national identity card.

There is no requirement for a retrospective check to be undertaken on EEA or Swiss Citizens who entered in to a tenancy agreement on or before 30 June 2021.

According to the Home Office, new guidance on how to conduct right to rent checks on EEA and Swiss nationals after 30 June 2021 will be provided in advance of this date.

Consequences for failing to carry out the check?

Any landlord who does not carry out the check will face the following serious consequences:

A landlord could be sent to prison for 5 years or get an unlimited fine for renting property in England to someone who they knew or had ‘reasonable cause to believe’ did not have the right to rent in the UK.

This includes if they had any reason to believe that:

they did not have leave (permission) to enter or stay in the UK

their leave had expired

their papers were incorrect or false

You can also be fined if both of the following apply:

you rent your property to someone who is not allowed to stay in the UK

you cannot show evidence that you checked their right to rent

This is why recording the checks are of vital importance!

Our thoughts

The information we have received from clients in the past has shown that the Home Office’s online check is pretty unreliable. It is either slow or provide inaccurate information. It is particularly so if the tenant has submitted his/her application, but the Home Office has delayed it and is yet to make a decision.

Under Section 3C of the Immigration Act, provided that the tenant has submitted his/her application before his/her previous visa expires, his/her lawful status continues. Unfortunately, in many cases, the Home Office’s online check will show that the tenant’s visa has expired, which will mislead the landlord to believe that the tenant should be evicted.

We simply hope that the Home Office’s new online checking system will perform better and faster, as any minor error or delay might mean that some innocent person or family will become homeless.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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Settlement Based on 10 Years Continuous Lawful Residence: Is Your Gap Book-Ended or Open-Ended?

Written by Caryn Toh.

The Court of Appeal raised the issues of the gaps in 10 years continuous lawful residence applications in the case of Hoque & Ors v SSHD [2020] EWCA Civ 1357 on 23^rd October 2020. It considered whether unlawful residence which was followed by grant of lawful residence (“book-ended gap” as it was called in the case) should be treated differently from that which was not (“open-ended gap”).

Before looking into the aforementioned recent case law, let’s look into the definition:

What is continuous Lawful Residence?

“Lawful residence” is defined under Paragraph 276A(b) of the Immigration rules as follows:

existing leave to enter or remain; or

(temporary admission within section 11 of the 1971 Act (as previously in force), or immigration bail within section 11 of the 1971 Act, where leave to enter or remain is subsequently granted; or

an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.

ILR will be available for those who have satisfied ten years continuous lawful residence in the UK and satisfied other requirements listed under Paragraph 276B of the Immigration Rules.

Backgrounds and Issues

There are five applications for permissions to appeal (two of them are in the same case) and the court granted permission to appeal on three of the applications, which in turn raised two issues.

The four appellants from separate cases had all come to the UK with leave to enter as students and were subsequently granted successive further limited periods of leave to remain. Three of the appellants claimed to be entitled to ILR on the basis of long residence.

Their applications for further leave to remain were refused, as were their appeals against the refusals, at which point they became overstayers in the UK. However, the three appellants subsequently made further applications for leave to remain within the time periods prescribed by para 39E of the UK’s Immigration Rules, with the headings of ‘Exceptions for overstayers’.

The three appellants later varied their applications that were pending to ILR applications based on their upcoming ten years of residence in the UK. An applicant that has a pending application for leave to remain on one basis is allowed to make a further application on a different basis, which is treated as a variation of the original application: see JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78.

The applications were pending until they have reached the 10th year of their stay in the UK. However, the applications were refused by the Respondent on the basis that they had not been in the UK for 10 years continuous lawful residence as per 276B(i)(a) of the Rules.

The appellants argued that the requirement in para 276B(i)(a) was qualified by para 276B(v) of the Immigration Rules, which provided that ILR applicants must not have been in the UK in breach of immigration rules, but provided an exception that ‘any current period of overstaying’ would be disregarded if para 39E of the Rules applied, and the appellants argues that they fell within the scope of that exception.

It was claimed that the their period of overstaying should be disregarded and have therefore accumulated 10 years “continuous lawful residence. Additionally, the appellants also contended that the refusal of the ILR applications was in breach of their Article 8 of the European Convention on Human Rights (“ECHR”).

Decisions

None of the appellants met the requirements pursuant to para 276B for the grant of ILR and the appeal would be dismissed. Lastly, little weight should be given to a private life established by a person at a time when the person’s immigration status is ‘precarious’ in accordance to the public interest considerations applicable in all cases under s117B(5) of the Nationality, Immigration and Asylum Act 2002. It is concluded that the appellants are unlikely to be granted leave to remain when the requirements are not met, but had instead relied on art 8 ECHR. [see 53 – 58 of the judgment].

In short, the Court of Appeal found that the requirement for ILR applicants to have 10 years’ continuous lawful residence in the UK was not qualified by a subsequent requirement in the UK’s Immigration Rules that ‘any current period of overstaying’ would be disregarded in certain circumstances.

The Court of Appeal has ruled that the any period of overstaying and the grace period of 14 days provided under Paragraph 39E of the Immigration Rules headed “Exception for overstayers” will not be applicable or counted as lawful if the Applicant has not accumulated at least 10 years lawful residence for the purpose of paragraph 276B(i)(a) of the Immigration Rule at the time of their ILR application under Paragraph 276B of the Immigration Rules.

Thoughts

What is interesting is however there are some instances where any overstaying permitted (Book-ended gaps) under Para 39E will be treated as lawful residence if it falls between previous period of lawful residence. This can be referred to in para 50 of the judgement.

It is worth mentioning however that the Court of Appeal “do not regard it as unreasonable or disproportionate for the Secretary of State to treat book-ended and open-ended overstaying differently”. The case of open-ended overstaying is not permitted under Para 39 E because there will have been no grant of leave on the original application.

In conclusion, the Court of Appeal has confirmed that the appellants that have open-ended gaps are not to rely on the provision under Paragraph 39E to extend the lawful residence in order to meet the 10 years continuous lawful residence criteria.

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New Safety Measures Brought in for Victims of Domestic Abuse during Remote Hearings

Domestic abuse has unfortunately been on the rise since national lockdowns became part of life. People are forced to remain indoors most of the day when in some cases their home is the most dangerous place for them. This terrible crime destroys families and ruins lives. Measures must be taken to put an end to it and to support people who are victim to it.

The Family Justice Council has published new guidance titled ‘Safety from Domestic Abuse and Special Measures in Remote and Hybrid Hearings’. This guidance aims to identify situations in which careful consideration must be given and where special measures are required in terms of how hybrid/remote hearings should be facilitated to safeguard vulnerable parties. Such measures include proactive advance planning of hearings, consideration of risks involved and practical support to ensure physical and emotional safety of all participants and provides a checklist of those considerations to make sure nothing is missed out.

So, what does the guidance say? Firstly let’s look at the checklist of considerations for proceedings in which domestic abuse is an issue:

In what environment will the victim be appearing?

In what environment will the victim be preparing themselves for and dealing with the aftermath of the hearing?

What will be visible to the court and any other participant in the proceedings? What will be visible to the victim?

What kind of environment and level of visibility is necessary in order to ensure physical and emotional safety for the victim and any children involved?

What kind of environment and level of visibility is necessary to enable the victim to give their best evidence?

What kind of environment is necessary to enable the victim to prepare themselves mentally and emotionally for the hearing and to cope after the hearing?

What kind of environment is necessary for the court to deal justly with the case having regard to any welfare issues involved?

Initial hearing arrangements

It is advised that victims of domestic abuse are first consulted regarding the manner in which they wish to take part in the hearing, as some may find it overwhelming. The emotional impact is likely to vary greatly between individuals. Such consultations must take place in sufficient time before the hearing goes ahead. Parties should allow for at least 48 hours in order for the judge to make a decision and set up the hearing.

In the case of hearings conducted using video software, the appropriate links must be sent in good time. Sending the link very close to the hearing creates additional stress and may mean that the victim enters the hearing in the wrong state of mind, uneasy and unable to concentrate.

In terms of links to video hearings and telephone lines it is vital that the victim and the perpetrator should never be the only two people present. Neither should the victim be left alone with the perpetrator and the perpetrator’s lawyer. This could potentially cause the victim huge distress.

Emails and correspondence

Within the guidance it specifies that emails sent to multiple participants, including lay participants, should always be sent as bcc rather than open cc for the safety of advocates as well as parties. Likewise, emails sent to multiple participants should never include a party’s or their lawyer’s mobile phone number.

Special measures to preserve privacy

When it comes to video conferences, some victims may find the experience worrying or invasive. They may believe that their location could be given away, putting them in danger. The perpetrator may take screenshots, or note down any details of the location of their victim given away by the video call. These are all possibilities that must be taken into consideration.

In order to combat this, the guidance states the following:

The court should provide information on how participants can blur their background or use a generic background if the platform being used enables this. If the platform does not enable this, the court should give advice about how to make the background as generic as possible.

Both the victim and the perpetrator should have the option to join via audio only, even if the other is joining by video. If it is necessary for the court to see the perpetrator (e.g. while giving evidence), the victim should be given advice as to how to cover their screen to avoid having to see the perpetrator themselves.

There may also be certain circumstances where the victim need not attend, for example where no evidence is due to be given and they have a legal representative acting on their behalf.

The full guidance can be found here: https://www.judiciary.uk/wp-content/uploads/2020/11/Safety-from-Domestic-Abuse-and-Special-Measures-in-Remote-and-Hybrid-Hearings-Family-Justice-Council-guidance.pdf

Our thoughts on the guidance

We believe this guidance serves a highly important purpose in the world we currently find ourselves living in. Victims of domestic abuse should be given every opportunity to avoid further distress and the courtroom, or video hearing, should be no exception to that. Furthermore, the guidance does well in terms of covering many different possible emotional hurdles for the victim to overcome during these hearings. With the options available, if followed correctly and in a manner bespoke to each individual, this potentially painful event has a chance of being managed appropriately.

Support for victims of domestic abuse

Call Refuge’s National Domestic Abuse Helpline for free and confidential advice, 24 hours a day on 0808 2000 247. Visit the helpline website to access further information, a contact form and the live chat service. If you are in immediate danger, call 999 and ask for the police.

Translated guidance:

If English is not your first language you may find our translated guidance or easy read version useful. Women’s Aid also have guidance documents on domestic abuse and coronavirus available in a number of languages for victims, family and friends, and community members of those affected.

We are here to help!

If you are in an emergency, call 999 immediately and ask for the police. We will help you along the way to get a Domestic Violence Protection Notice or Domestic Violence Protection Order for immediate protection.

You can be granted settlement in the UK if you are the victim of domestic violence. We will guide you on how to obtain evidence and make an application to the Home Office.

Want to leave home for a safe place? We can help you access a refuge place, or make an emergency Homeless Application to your local authority.

Want to stay at home safely? We can help you obtain Injunctions (Non-molestation Order or Occupation Order) from the court to guarantee your safety to live at home.

Received threats from your partner regarding children? We will guide you on how to obtain evidence and make child arrangement orders to the court if necessary.

Want to file for divorce? We have divorce lawyers in place.

You are not the victim but suspect your family member or friend might be? We will let you know how you can use your ‘Right to Ask’ under ‘Clare’s Law’ by asking the police to make enquiries into the partner of a close friend or family member.

For more information on how we can help, see our article: Coronavirus can be kept outside – but for some the devil lives at home!

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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House in Multiple Occupation (HMO) – Another Minefield of Rent Repayment Claims for Landlords after the Rent Deposit Scheme!

First things first, what does HMO mean?

The concept of HMO was introduced by the Housing Act 2004. To put it simply, under section 254 of the Act, it refers to a building or part of a building or such building consisting of self-contained flats where:

its living accommodation is occupied by persons as their main or only residence;

these persons come from more than one household;

they share one or more basic amenities in the building; and

at least one of these persons is requested to pay rent or other consideration for occupying the living accommodation.

From 6^th April 2006, all HMOs in England and Wales which are occupied by 5 or more persons are called large HMOs. They have to be licenced by the local authorities.

Important Changes

Prior to 1^st October 2018, , the case was that a licensable house in multiple occupation (HMO) had to be a property made up of three or more storeys, occupied by five or more persons in two or more households pursuant to the Licensing of Houses in Multiple Occupation.

However, The Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 (‘the 2018 Order’) has brought fundamental change to the above law from 1 October 2018. It provides an HMO in England was licensable if it was occupied by five or more persons living in two or more households. There is no longer the requirement for three or more storeys.

This essentially means that now all buildings have the possibility of becoming HMO’s, if they can meet the requirements. This is of massive significance to the entire housing structure in the UK.

HMO and the law

To ensure the welfare of both tenants and landlords within a HMO setting, there are some legal restrictions in place.

If you want to rent out your property as a house in multiple occupation in England or Wales you must contact your council to check if you need a licence. This is a vital part of the legalities of a HMO.

It is not only large properties that require a license. Even if your property is smaller and rented to fewer people, you may still need a licence depending on the area. We advise you check with your local council.

A licence is valid for a maximum of 5 years and needs to be renewed before it expires. If you were to run multiple HMO’s, you would need separate licences for each of them. One licensed does not cover multiple properties.

Also, HMO’s are not limited to properties let by secured shorthold tenancy. It applies in the case of lodgers as well. If you have a house and a family of four, you then allow a single lodger in the loft, spare room or basement, you will need to apply for a HMO.

Safety is paramount!

Getting a licence depends on many factors, a major one being if the property is fit and safe to be a HMO.

Conditions include that:

the house is suitable for the number of occupants (this depends on its size and facilities)

the manager of the house – you or an agent – is considered to be ‘fit and proper’, for example they have no criminal record or breach of landlord laws or code of practice

It is also important to:

send the council an updated gas safety certificate every year

install and maintain smoke alarms and carbon monoxide detectors

provide safety certificates for all electrical appliances when requested

achieve a minimum rating of E on the Energy Performance Certificate (EPC)

Essentially, the main concern is that people would be able to reasonably live in the property without being in danger.

It is also important to remember that extra conditions may be added before you receive your licence. You may be asked to improve the conditions of your facilities if they are deemed to be unfit for a HMO, or if there is evidence of rodents. Other possible problems may be any sign of dampness, a lack of ventilation or improper drainage.

Room sizes must be considered

Along with the above safety measures, room sizes must be taken into account in order to run a legal HMO. For example, you are obliged to notify the local housing authority of any room in the property with a floor area of less than 4.64 square metres as this is the smallest size allowed for a single child under the age of 10 to sleep in. Any smaller and such a room is not deemed fit for anyone to sleep in, regardless of age.

Any room within the HMO used as sleeping accommodation by one person who is aged 10 years or older is not permitted to be less than 6.51 square metres. Likewise, if a room is sleeping 2 people aged 10 or over the limit is no less than 10.22 square metres.

These rules are in place to ensure there is no overcrowding which could lead to distressing situations for the tenants.

Consequences of breaking the rules?

The consequences are to be taken very seriously, as the landlord will likely have their HMO license revoked and could face an unlimited fine and/or prosecution. The local housing authority may impose a financial penalty of up to £30,000 as an alternative to prosecution.

In addition, tenants can also sue landlords for repayment of their rent as a separate cause of action.

Rent repayments – a new normal?

When it comes to rent repayments, there have been some significant alterations to the rules as well, of specific concern to HMO landlords.

The previous position when making a rent repayment order was that landlords should not be ordered to pay more than the profit they would have gained from the renting. This was based on the common law principle where parties should be reversed to the positions where they would be in if the rental contract had not been entered into in the first place.

However, the current position is that landlords should be required to pay back all the rent paid and received as a starting point, irrespective of whether they have incurred expenses relating to the rental contract.

A case study

Let’s examine the case of Chan v Bilkhu and another. In this case the tenant, Chan, was requesting for the full refund of his rent after discovering that his landlord had not been officially licenced as a HMO landlord under the latest requirements.

Chan therefore commenced proceedings at the First Tier Tribunal (FTT) seeking a Rent Repayment Order (RRO). The FTT found that throughout the 12 months of the tenancy, the property had been an HMO which required to be licensed but it had not been licensed, meaning the landlord had indeed committed an offence.

The FTT found that Chan had paid £4,482.50 in rent during the 12 months of his tenancy. Based on these findings, the FTT made an RRO in the sum of £1,494.17 which it said represented one-third of the rental profit.

The FTT held that any money the landlord spent in the lead-up to the contract, such as advertising the room, or fitting some new appliances would be taken into account and should be deducted from the RRO.

Chan did not find it agreeable that the landlord should be allowed to deduct any expenses incurred relating to the rent. He maintained that the full rent should be refunded. He appealed.

At the Appeal Tribunal, it was held that the FTT judge made an error in law in that the correct position should be that the landlord should be ordered to repay the full rent, rather the profit. Consequently, the FTT’s initial order was set to one side as the case went further.

It was also found that until 1 October 2018, equating to one quarter of the tenancy, the house had not been a licensable HMO, as it was only on two storeys and not the qualifying three. Only when the regulations changed on 1 October, had it become licensable.

Therefore, the rent to be repaid to Chan by the landlord was eventually three-quarters of the rent for the year, which amounted to £3,361.87.

The above case can be clearly illustrated by the following example:

A tenant paid £1,000 to the landlord as part of a rental contract. During the same period of time, the landlord paid £50 buy-to-let mortgage interest (attributable to the accommodation concerned), paid another £150 to market the accommodation and find the tenant; and paid £50 to a plumber who came and repaired boiler in the accommodation. The landlord is deemed to have made a profit of £750 from the renting.

Under the old regime, the tribunal can only order him to refund to the tenant £750 at the maximum; while under the new regime, he can be ordered to refund the full £1,000.

This is clearly worth taking into consideration and acts as another reason as to why it is so important to keep up to date with the new rules as a landlord.

Our comments

It is quite concerning that although the market of HMOs has been regulated since 6^th April 2006 and in England, such regulation has become stricter, many landlords are still not aware of it, or pay sufficient attention to it even if they are aware of it. This will potentially put them in a very dangerous and risky position.

We predict that much more litigation will arise from this area of law. Many landlords are likely to be prosecuted by the local authorities which could lead to civil penalties and/or convictions.

Further, this could become another area of minefield of claims for rent repayment by tenants against landlords, as what is happening in the area of rent deposit protection scheme. Many landlords are unaware that they may face rent repayment claims from their tenants and lodgers, which could go back as far as 2014, if not 6^thApril 2006 when the HMO was first introduced, if we are to take statutory limitation into consideration.

We are planning a live webinar on this subject in the near future, so keep your eyes peeled for more details on when this will be!

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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BIICL new ‘Breathing Space’ guidelines for commercial contract disputes

Written by Rosa Huang.

England has been plunged into its second lockdown for a four-week period beginning from last week, but work of the courts and tribunals will continue to be exempted from lockdown measures. The exemption will help to avoid any substantial delays from the lockdown, given that the backlog of cases has already increased significantly in the past six months.

The ongoing COVID-19 pandemic has brought great challenges to the business entities. In response to this, there should be careful consideration of how the substantive law applies in this novel situation.

In April 2020, the British Institute of International and Comparative Law (“BIICL”) hosted a meeting attended by academics and senior judges, including Lord Neuberger, the former President of the UK Supreme Court. The “Breathing Space” guidelines arose out of this meeting.

The “Breathing Space” guidelines

The guidelines comprises of a series of concept notes examining the effect of the COVID-19 on commercial contracts. It provides guidelines on how the legal and business communities shall respond to the pandemic in order to foster economic recovery.

Concept Note 1 expressed a concern that strict reliance by parties on their legal rights in response to this pandemic may lead to a “deluge of litigation and arbitration” which would overwhelm the courts, disrupt supply chains and potentially stunt economic recovery. It suggested that the solution may lie partly at a private law level.

Concept Note 2 looked more closely at the private law response to the pandemic, specifically in the context of contractual disputes, and how existing legal principles may be applied in the context of COVID-19 related disputes, as well as how existing dispute resolution mechanisms may effectively be used to achieve negotiated solutions.

The recently published Concept Note 3 proposes a set of practical guidelines (“the Guidelines”) which might be adopted by parties to contractual disputes to encourage a more conciliatory approach, without prejudicing or altering their legal rights.

The Guidelines

The Guidelines comprises three sections:

Interactions between contractual parties – it encourages all parties to:

act fairly and responsibly to maintain contractual performance;

adopt a mutual, without prejudice and confidential ‘cards on the table’ approach to information sharing relevant to the continued performance under the contract;

discuss possible solutions for problems. The solutions can be extensions or reductions of time for performance and/or payment, non-contractual remedies, increases or reductions in the scope of the contract and re-negotiation (including with the involvement of a third-party facilitator);

explore ways to balance the impact between all parties, where extensions or reductions of time and/or changes in scope and/or price are sought; and

where an early resolution cannot be achieved, explore whether the dispute can be ring-fenced to allow contractual performance to otherwise be maintained.

Dispute Resolution – it encourages all parties to:

before resorting to proceedings, and where resources are available, appoint the most appropriate party representatives on all sides to encourage an objective assessment of the dispute and bring different perspectives to its resolution;

agree extensions to contractual or statutory limitation periods where to do otherwise would likely result in proceedings having to be issued;

avoid adopting tactical practices intended to place other parties under unreasonable financial or time pressure; and

where a party seeks funding in relation to proceedings, invite any litigation funder to follow the Guidelines.

Alternative Dispute Resolution (ADR) and Legal Proceedings – it encourages all parties to:

use various ADR techniques to with a view to avoiding legal proceedings or narrowing the issues in dispute (whilst recognising that emergency interim relief may be necessary as a last resort before pre-action ADR has been exhausted); and

where legal proceedings s are unavoidable, work together to adopt litigation/arbitration procedures and timetables aimed at managing the proceedings in an efficient and time-appropriate manner;

use ADR techniques alongside the proceedings with a continued view to resolving or narrowing the issues in dispute; and

consider whether issues arising in the dispute are of wider significance or commonly occurring, such that a court or tribunal may make determinations of wider application through available procedural mechanisms, including a stay in proceedings pending the determination of other cases involving common issues of fact or law, consolidation with other proceedings, or determination of specific issues of precedent value to the parties.

Comment

The Guidelines, although not mandatory, serve as helpful recommendations on the behaviour of the contractual parities, and the steps parties should be taking before embarking on formal legal proceedings. In particular, ADR is further encouraged.

By using ADR techniques to avoid legal proceedings or narrow the issues in dispute, the parties are likely to save time and money as they are likely to be able to obtain a resolution much quicker than they would by going through the Courts.

Under the UK law, the courts also have duties to further the overriding objective by encouraging the parties to co-operate with each other in the conduct of the proceedings and to use ADR procedure if the court considers that appropriate, and facilitating the use of such procedure.

The courts encourage exploration of ADR through reminding, staying proceedings and orders for costs. Where appropriate, courts also provide access to ‘early neutral evaluation’, or ENE. In Lomax v. Lomax, [2019], the English Court of Appeal has held that a judge can refer the parties to ADR even in absence of one or both parties’ consent.

In light of the above, before issuing proceedings, we would suggest the following:

The starting point is to review contract documentation to check the relevant requirements. Where the contracts contain provisions that disputes must be referred to a particular form of ADR, the parties certainly should follow these provisions; where there are no such provisions in the contract, all parties should engage in at least one form of ADR, as required under the Guidelines.

Have questions? We are here for you!

If you are encountering difficulties with your contractual relationships and would like advice on your legal position, or guidance on formulating an effective strategy for disputes, please feel free to contact us by phone on 020 7928 0276, or email into info@lisaslaw.co.uk.

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Family Litigation: Relocation of children must only occur in exceptional circumstances

In relation to family litigation regarding children’s custody, the general position is that the child’s usual residence should not be changed unless in exceptional circumstances. When considering the issue of usual residence, the Court will consider how long the residence has lasted and how well the child has settled down into the surroundings including schooling, socialising with friends and relationship with other family members. When dealing with such cases, the child’s best interest should always be the Court’s primary concern. If one party wants to relocate the child, he/she will have to prove that such relocation is in the best interest of the child and that there is sufficient education and care arrangement in place.

Such principle was once again confirmed by the Court in the case Re: A (A Child) (Relocation) {2020}, which can be found at the following link: https://www.bailii.org/ew/cases/EWHC/Fam/2020/2878.html

What was the case about?

The facts of the case can be summarised as follows:

The child, who we will refer to as ‘A’, is 2 years old and the only child of a British Algerian father and a Slovakian mother. The parents separated and the mother wished to return to Slovakia and take A with her. The father objected and wanted A to stay with him in England.

The mother claimed that the father was abusive towards her, however the father denied such claims. In fact, he claimed that the mother had been abusive towards him.

The father also claimed that the mother had wrongfully kept A in Slovakia back in 2019. The father applied for an order for her summary return and he obtained a without notice passport order, which was served on the mother during a mediation session in England in November. Shortly afterwards, the maternal grandmother brought A to England.

So, how did the Court decide the issues?

The father’s claims that the mother was aggressive and a danger to A were found to be untrue. Also, aggressive messages and photographic evidence of violence towards the mother were found on a phone, which gave the judge reason to believe that the mother was telling the truth while the father was not. It was decided that that father was more of a danger to A, as the mother has said.

What’s more, evidence suggested that the mother was the primary caregiver to A and that a strong bond had developed between them. The mother took care of A’s emotional and physical needs.

The issues that the mother were facing stemmed from the fathers control over her, and her financial insecurity which is part of the control. In Slovakia she would be with her parents, in the town where she grew up, with suitable accommodation provided at no charge to her. It would be a much more appropriate environment for A to grow up in, and the move would also help the mother be a better role model and caregiver to A.

When considering the Human Rights of the parents it was found that the relocation would involve a disproportionate interference with the rights of either parent under art 8 of the European Convention on Human Rights. The father would be allowed contact with the child, frequent video contact was deemed beneficial to A. The father’s Muslim roots were also considered, and A has the right to learn about her heritage, so contact with the father is still permitted.

Conclusion:

After hearing evidence from both parties, the Court granted the mother’s application and allow the child to permanently live with her in Slovakia. The Court based its judgment on its findings that the father was abuse towards the mother and that the child’s best interest could be harmed if the father was allowed to have the child’s custody.

In this case, the child was a British citizen, born and currently living in the UK. Her usual residence should be England. In normal circumstances, the mother will not be allowed to take the child outside the UK. However, the mother had successfully proved that not only she had made sufficient care and education arrangement for the child in Slovakia, but also it would be harmful to the child to stay in the UK with the father.

The outcome might have been different, should the mother only be able to prove either of the above and not both.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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News and Insights

Bereavement Scheme

Health and Care visa

EU Settlement Scheme

Have questions? We are open as usual!

So What Happened?

Judgment

Food for thought

Have questions? We are open for business!

The Nuffield report

What is child protection mediation?

In terms of the previous research, parents were generally satisfied

Greater efficiency

Trained and experienced mediators are essential

Official recommendations

Our thoughts

Have questions? We are here for you!

Have questions? We are here for you!

First things first, what does right to rent mean?

Who has the right to rent?

How can landlords conduct a right to rent check?

Recording and retaining the check

New service coming soon: Online right to rent checks

Right to rent checks for EEA and Swiss nationals

Consequences for failing to carry out the check?

Our thoughts

Have questions? We are here for you!

What is continuous Lawful Residence?

Backgrounds and Issues

Decisions

Thoughts

Have questions? We are here for you!

Initial hearing arrangements

Emails and correspondence

Special measures to preserve privacy

Our thoughts on the guidance

Support for victims of domestic abuse

We are here to help!

Have questions? We are here for you!

First things first, what does HMO mean?

Important Changes

HMO and the law

Safety is paramount!

Room sizes must be considered

Consequences of breaking the rules?

Rent repayments – a new normal?

A case study

Our comments

Have questions? We are here for you!

The “Breathing Space” guidelines

The Guidelines

Comment

Have questions? We are here for you!

What was the case about?

So, how did the Court decide the issues?

Conclusion:

Have questions? We are here for you!

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