Welcome Lin!

This week we are so pleased to announce a new addition to the Lisa’s Law family! Lin Niu has come in as a Legal Assistant and has already proven herself to be a massively important and extremely hard-working individual within our legal team.

Lin graduated from Brunel University London with an MSc in Marketing, having previously held positions in Hangzhou China Travel Ltd, All Nippon Airways and Gucci UK. She has adapted brilliantly to her new role, showing herself to be highly intelligent and a fast learner.

Lin can speak Mandarin, English and basic Japanese. In her free time she enjoys traveling, singing, cooking and running with her dogs!

Welcome Lin!

Want to launch an enquiry? Get in touch today!

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

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Migration Advisory Committee conduct deep-dive into the Intra Company Transfer visa route – what did they find and what is going to change?

The Migration Advisory Committee (MAC) is an independent, non-statutory, non-time limited, non-departmental public body that advises the government on migration issues. Recently, they conducted a review of the Intra-Company Transfer visa route to explore what is working about it and review what needs to be changed. This inspection was requested by the Home Secretary Priti Patel in order to ensure the route complies with the UK’s commitments under free trade agreements and to open a debate on eligibility criteria for workers being transferred and the sending organisations transferring them.

What is the Intra-Company Visa?

An Intra-company visa allows international companies to send staff between their UK and overseas branches, either to provide or receive training or work on a particular project for a short period of time. By such visa, an applicant is able tto come to or stay in the UK to do an eligible job in the UK.

There are 2 types of Intra-company visa.

Intra-company Transfer visa

This visa is for more skilled workers. It should be applied for where the applicant is being transferred by their employer to a senior role in the UK.

The applicant will need to have worked for the employer overseas for more than 12 months, unless that company is going to pay such an applicant £73,900 a year or more to work in the UK.

This visa has replaced the Tier 2 (Intra-company Transfer) Long-term Staff visa.

Intra-company Graduate Trainee visa

This visa is for junior staff who are transferred to the UK as part of a graduate training programme for a managerial or specialist role.

Applicants will need to have worked for their employer overseas for at least 3 months immediately before the date they apply.

This visa has replaced the Tier 2 (Intra-company Transfer) Graduate Trainee visa.

Eligibility

To qualify for an Intra-company visa, you must:

Have worked for the overseas sending company for a certain period of time as stated above.

Work for a UK organisation that’s been approved by the Home Office as a sponsor

have a ‘certificate of sponsorship’ from your employer with information about the role you’ve been offered in the UK

do a job that’s on the list of eligible occupations

be paid at least £41,500 for an Intra-company Transfer visa or at least £23,000 for an Intra-company Graduate Trainee visa

What were the advantages of the ICT according to the MAC?

The main remaining advantages of using the ICT route, according to the MAC, are:

the lack of English language test requirement; unlike the general skilled worker visa where applicants will need to have an English level of no lower than B1, ICT visa does not need applicants to possess any English.

The inclusion of some allowances, particularly housing costs, when assessing whether a worker meets the salary threshold;

The multiple-entry aspect of the visa allows more flexibility for time spent in the UK over the duration of the visa; and

The requirement for workers to only meet the salary threshold for the route when working in the UK (rather than throughout the validity period of the visa).

What does the MAC recommend changing?

Switching and settlement:

One of the more significant recommendations we can see is that the MAC said the ICT route should be a route to settlement and time spent on it should count towards settlement if the worker switches into another route. This could be a vital change for those workers who want to make the UK their permanent home.

Salary thresholds:

It was suggested in the report that salary thresholds for this visa should be calculated in the same manner and with much the same thresholds. However, one exception is that the ICT threshold could increase from £41,500 to £42,400 and Intra-Company Graduate Transfer threshold be set at the same level as graduates on the Skilled Worker route, being £20,480 rather than the current £23,000, or the ‘going rate’ for the occupation with a 30% discount, whichever is the higher. Salary thresholds for the route should be updated annually.

Allowances and reported salaries:

Another minor suggestion made by MAC is that the sponsors should be more transparent with the applicant’s remuneration by providing a complete breakdown of allowances so that the Home Office can easily decide whether the reported salary is accurate to prevent any abuse going on within the route.

Sole representative of an Overseas business:

Notably, the MAC made two important recommendations regarding the sole representative visa for an overseas business or newspaper/media, which are:

The maximum term of the visa should be reduced to two years, which will enable the representative to establish the subsidiary/branch which he/she is sent for. As soon as the mission is done, the representative should switch to skilled worker visa. These two years will also count toward settlement, should the representative decide to apply for it in the future.

There should be a trial ‘team subsidiary’ visa, of up to five applicants per team, where at least one member of the team meeting the criteria of the current Representative of an overseas business visa route, while the other members of the team must at least meet the requirements of the Skilled Worker route. It would remain necessary to have a sponsor licence for the team members. This visa would also last for two years.

This is an interesting idea, as a team of workers coming to the UK could be beneficial for both the sponsoring company and the UK as a whole, attracting hard workers who come to the country with an ambition of building up a business to be successful here.

Short-term assignments:

The MAC also suggested that the permitted activities under the Immigration Rules under the visitor route should be expanded to allow ICT workers to carry out specialist technical work which only requires a few days or weeks to complete. If needed, this could potentially put in place a fast-track system if the workers were only going to be in the UK for a short amount of time. This will save the workers from applying for an ICT visas which are more expensive and take longer to be granted.

What do we think?

There are some positive ideals here, particularly in the case of the ICT visa being a route to settlement, which could open doors for a more permanent stay in the UK for many people. Why should time spent on the ICT not count towards time leading up to settlement? The applicant is in the UK and working on a legitimate visa, so we see no reason to oppose this notion. It also makes sense to allow visitors to undertake a certain short term of ICT work.

As to the sole representative visa, the recommendation is more in line with the primary purpose of such visa. Once the subsidiary is established, the sole representative’s job is done. If he/she wants to stay in the UK, it will have to be in another capacity.

Have questions? Get in touch today!

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

Email us on info@lisaslaw.co.uk.

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

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Can a judgement summons be used purely to commit a debtor to prison?

When marriages end, the effect on those involved can be emotionally intense. Many difficult, but necessary, aspects of a life previously shared must be divided up and responsibilities need to be assessed and assigned. Where money is involved, things can take a nasty turn, particularly when one partner owes the other a significant amount.

What then can the courts do to assist in resolving issues such as these, and can things get so bad that prison sentences start being discussed? Today’s blog will look into this topic and focus on a recent case where a woman takes her a judgement summons to court on the basis of sending her ex-husband to prison for not paying her back the over £2m debt he accrued.

What is a Judgement Summons?

To quickly clarify before getting into the case, a judgement summons is a summons for a debtor to appear in court in order to reveal income and assets under oath. In this way it can be assessed what means the debtor has and why payments on the debt have not been made. If it is found out that the debtor has the means to pay, but nevertheless refuses or neglects to pay the ordered debt, the Court has power to commit the debtor to prison up to six weeks.

In family proceedings, only debt orders issued by a family Court can be enforced by a judgment summons. This could be an order requesting the debtor to pay periodically or a lump sum towards the creditor’s maintenance.

It should be noted that, despite the facts that the proceedings happen in a family Court and carries a maximum of imprisonment of only 6 weeks, a judgment summons is a criminal procedure. All the relevant rules in criminal prosecutions apply. They include that the creditor needs to prove his/her case beyond reasonable doubt, rather than the civil one of balance of probability and that the debtor has the right of silence and cannot be compelled to give evidence.

Applications for judgment summons can be made at the High Court or a Family Court, depending on where the relevant debt was issued. It is governed under Part 33 of the Family Procedure Rules and County Court Rules Order 28 of the Civil Procedure Rules.

The established position is that a judgment summons should primarily be used as the last resort to compel the debtor to pay off or reduce his debt order. The question is: can it be used purely for the purpose of imprisoning the debtor? This question was considered by the Court in a recent case Rogan v Rogan.

The case Rogan v Rogan (2021)

Back in May 2018, a former married couple, the Rogan’s, entered a financial dispute in which the wife applied for her ex-husband to be sent to prison for non-payment of a significant debt amounted from arrears of spousal maintenance following their divorce. In response, the husband applied for a variation on the amount owed and an alternative payment plan, where he would provide periodical payments.

As stated above, a judgment summons is a criminal proceeding. As the debtor has the right of silence, following the case Inplayer Ltd (formerly Invideous Ltd) v Thorogood, it has been established that other proceedings, which are civil and related to the same case, should be heard first. The wife’s judgment summons application was stayed after the husband’s variation application, which was not heard until the summer of 2020. By that hearing, the court decided to discharge all the subsisting orders in relation to spousal maintenance and the lump sum, and other payments, and to substitute an order for a single composite lump sum of £1,750,000.

Following this, On 19 February 2021, the ex-husband was declared bankrupt based on a petition presented by the wife.

The wife now renewed her judgment summons application, requesting for a committal order against the husband.

Should the husband be sent to jail?

During the hearing, it was accepted by the Court that the husband had been dishonest when dealing with the Court and that he had prioritised his wedding ceremony over the ordered maintenance debt at the sacrifice of the wife. Although the Court did not condone such conduct, it dismissed the wife’s application on the following grounds:

1) the primary purpose of a judgment summons was to compel the debtor to pay the debt, not committing him to prison. With the debtor a bankrupt now, such purpose had become unachievable. It would have been an abuse of process to continue the procedure; and

2) the wife’s judgment summons application was made in relation to previous judgment orders which had since been discharged. The ground of the wife’s application had vanished subsequently as well.

Hindsight?

In petitioning that her husband was bankrupt, the ex-wife was counterproductive to her own objective. Due to the husband being bankrupt, the courts could not reasonably expect him to be able to pay up on his debt, which was the aim of the original judgement summons. Despite the fact that he made poor financial choices, by spending large sums of money on wedding ceremonies for him and his new partner, the fact that he was now bankrupt eradicated any chance of him going to prison for his debts as he was no longer in control of his finances or expenditure. Essentially, the courts hands were tied.

Further, even if the husband had not been bankrupt, the wife’s application was doomed to fail, as the relevant debt order did not exist any longer. The wife should have issued a new judgment summons in relation to the lump sum payment order issued in summer 2020.

Have questions? Get in touch today!

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

Email us on info@lisaslaw.co.uk.

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Will divorce become easier?

Written by Xinlei Zhang.

The new legislation Divorce, Dissolution and Separation Act 2020 will come into force on 6^th April 2022. The significance of this legislation is that it will introduce “no fault” divorce for the first time in the UK. In this article we will discuss the reason behind the passage of the legislation and how will the divorce proceeding be affected by the new regime.

As we all known, the divorce in the UK is fault based at the moment. That is to say, in order to establish the marriage is irretrievably break down, the party who wishes to make a divorce petition needs to prove one of the five facts stated in the Matrimonial Causes Act 1973, and unreasonable behaviour is the most common cause of divorce in England and Wales, according to the National Statistics.

Let us delve into the Supreme Court case, Owens v Owens, which resulted in the enactment of the new legislation.

Mrs Owens was aged 68. Mr Owens was aged 80. They were married over 37 years and have two adult children. Mrs Owens first consulted her solicitor about a divorce in June 2012. In May 2015, Mrs Owens issued the petition based on the fact that Mr Owens had behaved in such a way that the petitioner could not reasonably be expected to live with him. The examples given in the petition were the following, Mr Owens had prioritised his work over their life at home; lacked love or affection; that Mr Owen had often been moody etc.

In practice, defended divorces are rare, however Mr Owens denied the allegations about his behaviour and alleged that, the marriage had been successful and that he and Mrs Owens had learnt how to “rub along”. The conclusion given by the Supreme Court was that Mrs Owen must remain married to Mr Owens for the time being. The judges has explained clearly what that law requires that is for “unreasonable behaviour” the behaviour is not what should be unreasonable but “the expectation of continued life together should be unreasonable.” In the meantime, the court made it clear that it was not for the court to change the law laid down by Parliament – the court’s role was only to interpret and applied the law that Parliament had given to them.

The case puts the pressure on the legislative institution to reconsider the divorce procedure in the England and Wales. In 2019, the Government published its response to the consultation, and announced a commitment to legislation introducing no fault divorce. On 15 June 2020, the legislation received Royal Assent.

The section 1 of the new legislation removes requirement to establish facts, and introduces the divorce application brought by both parties. The statement by the divorce applicant or applicants that the marriage has broken down irretrievably will be conclusive evidence to the court. Therefore, the blame game of the current regime will be officially ended. However, as for the divorce procedure, the legislation introduces a new minimum period of 20 weeks from the start of proceedings to when the first order (Conditional Order) can be made. In the meanwhile, the cooling period of 6 week is still in force between the Conditional Order and when the Final Divorce Order can be made.

Overall, the application should be getting easier; and it will be a good news to those parties whose partner may wish to contest the divorce.

However, on the other hand, it will take longer to obtain the Final Divorce Order because of the new minimum period of 20 weeks, while currently, the applicants can apply for the Conditional Order as soon as the respondent responds to the services. Clearly, the current procedure might be beneficial to the parties who both consent to the divorce and wish to get over with the procedure quickly.

Have questions? Get in touch today!

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

Email us on info@lisaslaw.co.uk.

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

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The Creative Worker Visa – Who is it for and how does it work?

In this blog we will take a deep dive into the Creative Worker Visa route, examining who the route is for, what the requirements of it are, and where it can lead for those who are accepted on to it. This visa, while it may seem to some to be exclusive in nature, is actually wider reaching than you may first assume.

Who is the creative visa route for?

As you may be able to deduce from its name, this route is made for applicants coming to work in the UK in a creative role. This could be musicians, comedians, actors, models, magicians and more. However, you do not have to be the main star to apply for this route, you can also be part of the production team, such as a sound engineer, personal assistant or light operator etc, so long as you are coming over for the same reasons as the main star and have a previous working relationship with them.

How long does the visa last?

Broadly speaking, if the applicant is successful, they will be able to stay for whatever is shorter between:

a period starting 14 days before the first engagement and ending 14 days after the final engagement, if the applicant has consecutive engagements

the period of the role on the CoS plus 14 days before and after, if the applicant does not have consecutive engagements; or

12 months.

Can their stay be extended?

This route does have the option for the applicant to extend their permission up to a maximum of 24 months (if continuing to work for the same sponsor). However, this is not a route that can lead expressly to settlement.

Applicants may have to consider whether they can combine such stay with other lawful residence in the UK so to apply for settlement based on 10-year lawful long residence in the UK.

What are the eligibility requirements of this visa?

There are various requirements that applicants must bear in mind. These include, but are not limited to, the requirements that the applicant:

has a valid Certificate of Sponsorship (CoS) from an approved sponsor for the role they will undertake – if they are undertaking consecutive engagements, they will need a separate CoS from each sponsor

genuinely intends, and is able, to do the role for which they are being sponsored

does not intend to intend to undertake employment other than in the role for which they are being sponsored, or as otherwise permitted by their conditions of stay – see section S8 of Part 2: Sponsor a worker for information on conditions of stay

where relevant, meets the financial requirement (If the applicant is applying for entry clearance from outside the UK or has been in the UK for less than one year at the date of application, they must show they have enough funds to support themselves and any family members in the UK.)

if aged under 18, meets the parental consent requirement

What is the cost of applying to the visa?

The fee for this route is £244.

Dependents?

Yes, creative workers are allowed to have their spouses and children under 18 to come with them or stay with them in the UK.

Other options for creative workers

When it comes to being a creative worker, it is not necessary to put all your eggs in one basket. The Global Talent route could also be considered in some circumstances.

The Global Talent route is for leaders, or potential leaders, in the fields of academia or research, digital technology, or arts and culture. Fields of arts and culture covered include:

combined arts, dance, literature, music, theatre or visual arts

architecture

fashion design

film and television, including animation, post production and visual effects

We cover the Global Talent route in our article UK Immigration Rules: Let’s keep up with the changes!

Alternatively, applicants may want to consider the skilled worker route. If their performance has impressed their employers during their stay in the UK, they may want to sponsor the applicants on the skilled route which will enable them to settle in the UK after 5 years.

What do we think?

This visa is fairly standard in the grand scheme of things, and we would hope that no major issue should be faced by those looking to apply for it, as long as they have the relevant credentials. After the nearly two years that everyone has had with the pandemic, we would hope that creatives and entertainers will be made to feel welcome here in the UK, especially as events such as festivals, plays and films are starting to operate as normal again!

Have questions? Get in touch today!

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

Email us on info@lisaslaw.co.uk.

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

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

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Can you sell your matrimonial home in divorce proceedings?

Written by Xinlei Zhang.

As we explained in our previous article, the Court will generally apply the equal-sharing principle in resolving financial dispute in divorce. In most cases, the parties’ matrimonial home will probably be the most valuable asset. The Court has power to make such adjustment order and/or order for sale as it thinks fits after considering all the factors of the case.

The relevant factors will include, but not limited to, the parties’ financial position, their ability to buy each other out, mutual intention, disability and housing needs. In situations where both parties want to keep the property, but neither can buy the other out and there is no other exceptional circumstance, the Court’s default position will be for the property to be sold.

In circumstances where minor children or children with special needs are involved, the best interest of the children, particularly, their housing need, will take priority in the Court’s consideration. A recent case JM v KK [2021] EWFC 54, is worth studying to understand the Court’s approach when it comes to decide whether to order a sale of the property.

Background

The husband in the case was a British national aged 50. The wife was an Indian national aged 41. They had been married for 14 years. They had one child from the marriage, who was under the age of 18. As for the child arrangement issue, the judge concluded that the child should live with her mother in India and be educated there but spend approximately 2 months a year in England with her father and such other times with him, as he was able to be in India. This article will only focus on the dispute in finance provision below.

Dispute in assets division

The husband owned a 2-bedroom ground floor flat in Kent. The child had friends in the area having attended school in England both remotely and physically in the time that she was in England. Meanwhile, there were two properties in India. It was not disputed that the property in Kent had much higher value than the ones in Indian.

The wife submitted that the Court’s approach had to be a strictly arithmetical division so as to divide/share equally all the net assets: (i) assess what assets the party owned; (ii) take off what the Court found the debts to be; and (iii) divide the balance by two. Since the husband was unable to buy out the wife, which meant the property in Kent needed to be sold and then the couple share the proceeds of the sale equally.

Judgment

However, in this case the Court disagreed with the wife’s approach. One of the main reason was that the Court had to have as its first consideration the interests of the child. The Court found a departure from equality was justified in the child’s interest, to ensure that child could be properly looked after and accommodated whenever she stayed with either parent. Consequently, the Court ordered that the Kent property should remain in the husband’s name, rather than being sold and he would pay the wife a lump sum at the absolute upper limit decided by the Court of what he could afford. In the meantime, the Court ordered the transfer of the two Indian properties to the wife at her expense.

An unrelated issue?

Although it was not part of the financial dispute, the issue of costs cannot be overlooked in this case. By the time the case was disposed of, the parties had incurred almost £140,000 legal fees together, which was slightly less than the value of their total asset. One cannot help wonder what they would eventually receive, despite the above judgment.

This case once again serves as an alarm bell. Family litigation can be disproportionately expensive and should be avoided whenever possible. It will be in everyone’s interest if it can be resolved by talk, by negotiation, failing which mediation should be seriously considered.

No one can walk out of an expensive war a winner.

Have questions? Get in touch today!

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

Email us on info@lisaslaw.co.uk.

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

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Were Asylum cases considered between 2005 – 2014 under the unfair Detained Fast Track Rules unlawful?

Written by Mahfuz Ahmed.

Asylum seekers flee their home country to travel to the United Kingdom to seek protection. They sometimes go through tremendous suffering, adversity and hardship in their travels.

Once they arrive in the United Kingdom and claim asylum, the UK have a responsibility to consider their claim.

Detained fast track (‘DFT’) rules

Due to the large amount of asylum claims, the Detained fast track (DFT) procedure was introduced in 2000 to facilitate these claims. DFT is a process, defined in policy, for the speedy processing of asylum claims whilst the applicant remained in detention.

In 2003, the DFT procedure was expanded to allow the Home Office to detained asylum seekers from the start of their claim, and if unsuccessful until their removal from the UK. Their cases where expedited and therefore claimants were given very limited time.

Detention Action brought a legal challenge against the DFT 2005 rules and in 2015 the Court of Appeal found in favour of Detention Action and held that the system was unfair and unjust. Accordingly, DFT 2005 was suspended by the Home Office in July 2015.

In 2017, Justice Ouseley held in the case of TN (Vietnam) & US (Pakistan), R (On the Applications Of) v Secretary of State for the Home Department & Anor [2017] EWHC 59 that rules introduced in Detained fast track 2014 were not too dissimilar from the rules in 2005 and therefore were unlawful and ultra vires. This meant that that almost a decade of cases (2005 to 2014) considered under the DFT rules could potentially be unlawful.

This leads to the question, what options do you have now if your case was considered under these rules?

R (TN (Vietnam)) v Secretary of State for the Home Department [2021] UKSC 41

Recently the Supreme Court considered the matter. They were asked to decide as to whether all of the decisions of asylum cases processed under the unfair DFT rules were unlawful and should therefore automatically be set aside.

The Supreme Court upheld the Court of Appeal’s decision, that is to say that each case should be considered on an individual basis to assess whether the case was considered unlawfully.

Our comments

The 2005 Detained Fast Track rules were rightly found to be procedurally unfair. Many of the applicants who claimed asylum under these rules were not able to present their cases fairly or seek legal representations due to the limited timeframes imposed.

It appears that the recent judgement by the Supreme Court saves the Tribunal from reviewing all related previous judgments and it further deters relevant appellants from requesting an overturn of their cases.

If your asylum case was considered under the DFT Rules between 2005 and 2014, then please do contact us as there may be merits to set the decision aside.

Have questions? Get in touch today!

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

Email us on info@lisaslaw.co.uk.

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

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

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International Sportsperson Visa – Something new or a simple rebranding?

You may have recently seen that the UK’s Immigration Rules had a fairly significant update, with many visa routes and procedures being tweaked, added and removed. We summarised some key points within the new rules in our article UK Immigration Rules: Let’s keep up with the changes! One visa route in particular that got a fair bit of coverage within the new rules is the new International Sportsperson visa, which is presented as different to sports related visas of the past, such as the T2 Sportsperson visa. This new visa type will open from 11 October 2021.

In this article we will examine the requirements and allowances that come with this visa type and examine whether or not the Home Office have indeed added a new and exciting route to their arsenal, or if this is simply a rehashing of old routes.

Who is the International Sportsperson visa targeted at?

As you may have guessed from the name, this visa is for sportspeople across the globe to come and showcase their skills in the UK. However, it is worth remembering that this visa can be used for both players and coaching staff.

The official description of a person eligible to apply to this route is as followed:

‘The International Sportsperson route is for an elite sportsperson or qualified sports coach who is internationally established and can make a significant contribution to the development of their sport at its highest level in the UK.’

The visa is designed, allegedly, to allow such applicants easier access into the UK. The Home Office have even gone so far to call this new route a ‘fast-track’ option for sporting professionals.

How long is the International Sportsperson visa and can it be extended?

The applicant can apply for a visa up to 3 years for the first time, provided that he/she possesses an English level of no lower than A1, unless the applicant is applying for a visa not exceeding 12 months. In such case, there is no requirement for English.

After the expiry of the first 3 years, the applicant will be able to apply for further extension of another three years. This means that the applicant will be able to stay as an international sportsperson/coach in the UK for a maximum of 6 years.

If the applicant wants to apply for a new visa, he/she will have to prove that he/she will be paid an annual salary of no less than £35,800.00.

Can this route lead to settlement?

It is possible that this route can lead to settlement. In fact, one of the main differences between this new route and the previous T2 Sportsperson route is that the continuous residency requirement for settlement as an International Sportsperson can include time spent on the visa’s short-term route. Previously, such a time period would not count towards continuous residency.

The requirements for settlement under this route, among others, are as follows:

The applicant has held international sportsperson visa for no less than 5 years;
The applicant has been paid or will be paid in a near future for no less than £35,800 per year;
The applicant has never been away from the UK for more than 180 days in any 12 consecutive months; and
The applicant has an English level no lower than B1 and has passed the Life in the UK test.

What are the requirements of the route?

The International Sportsperson requires a Certificate of Sponsorship from a club. Different sports will have their own Governing Body Endorsement (GBE) criteria that has been previously consulted and agreed to by the Home Office.

Once the GBE has been checked and agreed to, the sponsoring club will issue a Certificate of Sponsorship, allowing the applicant to stay in the UK and work legally. Also, biometric information will have to be obtained at a visa application centre – unless the person is an EEA or Swiss national. In this case they should be able to access the UK Immigration ID Check app to verify their identity.

The Immigration Health Surcharge will also have to be paid under this route, and the applicant must be aged 16 or over at the time of the application. Further, the applicant must have funds of at least £1,270 on the date of their application.

It is also worth mentioning that this route is also points-based, bringing it in line with the points-based system and there is a requirement to demonstrate English language ability for those who apply for a stay that exceeds 12 months, as stated above. The necessary points are attainable by meeting the sponsorship, biometric and financial requirements listed above.

Dependent family members

International sportspersons are allowed to bring their family members with them to the UK. They include their spouses and any children who are less than 18 years old. Such family members are also able to settle in the UK with their main applicants, provided that they satisfy the following requirements:

Having been holding a dependent visa of their sponsor continuously for no less than 5 years;
Having not been away from the UK for more than 180 days in any consecutive 12 months;
Possessing an English level of no lower than B1; and
Having passed the Life in the UK test.

So, is this a brand new route or a simple rebranding?

In our opinion, there is not enough of a difference between the new International Sportsperson route and the previous T2 Sportsperson route to get truly excited about, but there are some small improvements.

To call this a fast-track route is to exaggerate quite dramatically. Much of the requirements are the same as they ever have been, and it does not appear to us that the process has been significantly streamlined. The one significant change, being that time spent on the temporary visa can count towards eventual settlement, is something worth celebrating. This should allow more people to make the UK their home based on this visa.

Full details of this visa are available from page 72 of Immigration Rules.

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Paragraph 39E of the Immigration rules and whether application for leave to remain is considered to be made ‘in-time’.

Written by Mahfuz Ahmed.

An application for a leave to remain must be made prior to the expiry of your existing leave to ensure that you are not an overstayer. Overstaying in the UK will subject you to the hostile environment, which means there will be restrictions in renting, employment, accessing medical treatment and long term consequences, such as being banned from re-entering the UK for up to 10 years.

Overstaying can also be detrimental to any new immigration application that you wish to make which may refuse you for being an overstayer.

There is a an exception to overstaying in Paragraph 39Eof the Immigration Rules allows the current period of overstaying to be disregarded. Paragraph 39Eof the Immigration Rules states:

39E. This paragraph applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time; and

(b) within 14 days of:

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

(3) the period overstaying was between 24 January and 31 August 2020; or

(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, the period of overstaying was between 1 July 2020 and 31 January 2021.

The Secretary of State for the Home Department v Ali [2021] EWCA Civ 1357 (14 September 2021)

Mr Ali is a Pakistani national who entered the UK as student in 2010. He was granted a Tier 1 (Post-Study) Migrant visa on 8th March 2013 which was valid until 8^th March 2015.

Prior to the expiry of his visa, he made an application to remain as a Tier 1 (Entrepreneur) Migrant, which was refused on 8^th May 2015, and he subsequently appealed this decision. During this time, Mr Ali had Section 3C leave until the appeal was concluded as the initial application was made before the expiry of his leave.

The First-tier Tribunal refused Mr Ali’s appeal and he became appeal rights exhausted in October 2016, which resulted in Section 3C leave coming to an end and Mr Ali was an overstayer.

On 9^th November 2016, Mr Ali made a new application to remain as a Tier 1 (Entrepreneur) Migrant (made within 28 days) which was refused following administrative review on 16^th February 2017.

On 4^th March 2017, Mr Ali once again made another new application for leave as a Tier 1 (Entrepreneur) Migrant (made within 14 days following the refusal of the last application), however this time, the application was refused on the basis of paragraph 245DD(G) of the Immigration Rules which excluded those who had overstayed, unless paragraph 39E applied.

Mr Ali sought Judicial Review as he believed the exceptions in section 39E applied as he made the application ‘in-time’. The Secretary of State accepted that Mr Ali’ first application as made ‘in-time’, in relation to his second application, the period of overstaying was disregarded as it was made within 28 days of his first refusal. However, they argued that in relation to Mr Ali’s third application, he had been an overstayer for 5 months and therefore paragraph 39E did not apply.

The Upper Tribunal considered the matter and concluded that section 39E applied to Mr Ali and therefore granted Mr Ali’s application. The Secretary of State appealed the decision.

The case was before the Court of Appeal who concluded that the Upper Tribunal had erred in law in reaching the conclusion that paragraph 39E applied to Mr Ali’s case.

The Court concluded that the interpretation of “in-time” as meaning before the expiry of a period of existing leave which is also supported by the reference to section 3C in paragraph 39E(2). A person can only obtain an extension of leave under section 3C if they have made an application for leave prior to the expiry of their leave to remain. Paragraph 39E has no role to extend section 3C leave.

Our Comments

The Court has confirmed that an application is considered ‘in time’ only if it is submitted prior to the expiry of a person’s visa. The rationale behind the decision is to prevent people from relying on the grace period given in paragraph 39E twice. Paragraph 39E has no role to extend section 3C leave and its role is to simply disregard the short period of overstaying when a new application is considered which would otherwise be refused mainly on the ground of overstaying.

This decision shows the importance of ensuring that great care is taken in any application for leave to remain, subsequent administrative review or appeal, first time, as you may not be entitled to the same exemptions second time around.

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Childlessness and Short-lived Marriages are not Decisive Factors in Family Asset Division

Written by Xinlei Zhang.

When considering financial resolution in divorce, usually couples are able to agree on financial arrangements between themselves or with the help of solicitors. If this is not possible, you may seek help from family mediation or, as a last resort, seek a Court order. Let us delve into the legal principles when determining financial disputes.

Statutory Factors under Matrimonial Causes Act 1973

What are factors should be taken into account in order to adjust the financial position of the parties to a marriage by the Court? The answers is that the Court has duty to have regard to all the circumstances of the case in exercising such discretion by the virtue of the legislation. That is to say, the outcome will depend on each case’s own facts; there is no ‘guaranteed result’. It should be noted that the first consideration should be given to the welfare while a minor (not attained the age of eighteen) of any child of the family, other matters listed in the legislation are:

the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the Court be reasonable to expect a party to the marriage to take steps to acquire;
the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
the standard of living enjoyed by the family before the breakdown of the marriage;
the age of each party to the marriage and the duration of the marriage;
any physical or mental disability of either of the parties to the marriage;
the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
the conduct of each of the parties, if that conduct is such that it would in the opinion of the Court be inequitable to disregard it;
in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit . . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Case law principle

In the meantime, the case law makes fairness the overriding objective in financial proceeding, aiming to achieve a fair outcome between the parties. Largely, the fairness is achieved by the means of equality of division of the marital assets. In the recent case E v L [2021] EWFC 60, the judgement underlined the sharing principle.

EvL

In this case, the husband was aged 66, and the wife was aged 61, no child between them. The parties engaged in September 2016, married on 20 June 2017, and separated in 2019. The wife is a housewife, while the husband is a highly successful production manager.

There are two key issues facing the Court in this case:

Childlessness

It was the husband’s argument that due to the fact that there had been no child from the marriage, the general rule of equal division was not applicable to this case.

Unfortunately, the Court was not persuaded on this issue. According to the judgment, ‘the sharing principle looks at the value accrued during the span of the marital relationship and, deeming the parties’ incommensurable contributions to that accrual to be of equal worth, divides that value equally. Why should the presence of a child make a difference?’ When the Court applying for the sharing principle, the key point to bear in mind is that a marriage is a marriage, it is not the Court’s position to ask why there are no children. Therefore, the judge concluded in this case that childlessness should be banished from any consideration of whether there should be a departure from the application of the equal sharing principle.

Shortness of the marriage

The husband also argued that their marriage was very shortly and only lasted for less than three years, which justified the departure from the general rule of equal division. This argument did not stand well with the Court as well.

The Court ruled that the quality of a marriage had nothing to do with its duration. A short marriage did not necessarily mean that the marriage between the parties were not good. When considering the issue of asset division, the shortness of the marriage would be reflected in the nature of things by the fact that, in a short marriage, the accrual of the family’s assets would almost inevitably be less than in a longer marriage, it is not unfair to apply the sharing principle of the marital acquest in the case. Therefore, the equal sharing principle is applicable as much to short marriages as to long marriages, and the shortness of time will inevitably affect the quantum of the result not the quality of the principle, unless there are extreme factors to be taken into account in order to achieve the fairness between the parties.

Summary

Although there is no established presumption of an equal division of assets in financial provision in the case law, we can understand that there have to be a good reason for a Court to depart from an equal division of the marital assets. The fairness must always prevail. The equality is a starting point in assessing the case, while statutory factors still play important roles in considering the appropriate outcome in each case.

Have questions? We are here for you!

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

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