Immigration Changes for EEA Nationals from Jan 2021 – What you need to know!

From 1 January 2021 the UK is bringing in new immigration rules in line with the country’s decision to leave the EU as a result of Brexit. A major part of these new rules is that EEA nationals will have to go through to the same immigration controls as non-EEA nationals. This has not been the case for many years and promises to change UK immigration massively from the New Year onwards.

This article will focus more on long term visas rather than visitor visas for EEA nationals. For information on short term visits in the New Year see our article: EEA Nationals – What to expect from Jan 2021 when entering the UK.

Visa Applications

New immigration routes will open later this year for applicants to work, live and study in the UK from 1 January 2021. They will be able to apply and pay for their visa online and when they apply, they will be asked to provide their biometric information. The process for this as followed:

EU, EEA and Swiss citizens

For most visas they will provide a digital photo of their face using a smartphone app. They will not have to give their fingerprints.

For a small number of low volume routes (to be confirmed later this year) they will need to go to an overseas visa application centre to have their photo taken.

Non-EU citizens

They will continue to submit their fingerprints and a photo at an overseas visa application centre.

Visa route breakdown

Some categories have been issued different names as part of the revamped immigration system:

Tier 2 (General) becomes the Skilled Worker route

Skilled migrant workers are to be sponsored by organisations who have an official and in-date sponsor licence, granted to them directly from the Home Office. Any migrant workers undertaking permanent employment will usually be sponsored under the Skilled Worker route, while those who are employed overseas and are being sent to the UK on a temporary intra-group assignment will usually be sponsored under the Intra-Company Transfer route.

For those applying under the Skilled Worker route, from January 2021, the job they are offered will need to be at a required skill level of RQF3 or above (equivalent to A level). They will also need to be able to speak English at B1 level (lower intermediate) and be paid the relevant salary threshold by their sponsor. This will either be the general salary threshold of £25,600 or the going rate for their job, whichever is higher.

If the applicant earns less than this – but no less than £20,480 – they may still be able to apply by ‘trading’ points on specific characteristics against their salary. For instance, if they have a job offer in a shortage occupation or have a PhD relevant to the job.

If you have a question about a specific set of circumstances, feel free to contact our immigration team today.

You can find the Shortage Occupation List here.

One more thing which is worth remembering about this route, and this is not a new aspect but rather one that has not been changed, is that applicants go through a 12 month cooling off period, meaning they cannot apply for a new Tier 2 visa within 12 months of their previous Tier 2 visa expiring unless they earn over £159,600.

Plus, from the employers point of view there will not be a general route for employers to recruit at or near the minimum wage.

If you are an employer but are not already a licensed sponsor and you think you might want to sponsor migrants through the skilled worker route from January 2021, you should apply now. If you need assistance, you can always contact our specialist immigration team.

Tier 1 (Exceptional Talent) becomes the Global Talent route

This route has actually not been altered to a large extent. Under this route, talented individuals will be granted immigration permission to work without restriction as long as they are endorsed by a specialist endorsing body following an official peer review.

With this route the Home Office may also offer an ‘Australian style’ points based system, whereby visas would be granted based on academics, age, earning potential etc. without the need of a job offer.

Lower skilled workers left behind?

As you may have gathered from the lack of recruitment of low paid workers, there will be no dedicated visa route for low skilled roles which is defined as those roles below the RQF 3 skill level, for example roles in agriculture, retail, manufacturing and haulage.

Tier 1 (Graduate Entrepreneur) and Tier 1 (Entrepreneur) was replaced by the Start-Up and Innovator categories in March 2019

The Start-up and Innovator routes are designed to attract entrepreneurial talent and innovative, scalable business ideas to the UK.

Applicants can be individuals or teams. The Start-up route is for those setting up a business for the first time, who need to work to support themselves while developing their business ideas. The Innovator route is for those with industry experience and at least £50,000 funding, who can dedicate their working time to their business ventures, or those moving from Start-up who are progressing their business.

Each applicant for Start-up and Innovator must have the support of an approved Endorsing Body. Endorsing Bodies are either Higher Education Providers or business organisations who have a track record of supporting UK based entrepreneurs and the support of a Government Department. Endorsing Bodies assess each application to ensure it is innovative, viable and scalable, and are responsible for monitoring the progress of the businesses they endorse.

International students and graduates

Student visa routes will be opened up to EU, EEA and Swiss citizens. Applicants will be able to apply for a visa to study in the UK if they:

have been offered a place on a course

can speak, read, write and understand English

have enough money to support themselves and pay for the course

A new graduate immigration route will be available to international students who have completed a degree in the UK from summer 2021. They will be able to work, or look for work, in the UK at any skill level for up to 2 years, or 3 years if they are a PhD graduate.

Family routes

There are no major changes to the route allowing partners to join British citizens and those with permanent residence in the UK.

This is of high importance to EEA nationals who obtain either pre-settled or settled status under the EU Settlement Scheme, as their partners will have to satisfy the requirements of this route if their relationship began after 31 December 2020.

Essentially, EEA nationals who have a status under the EU Settlement Scheme who wish to bring their partners to the UK will have to demonstrate they are earning a minimum of £18,600 a year or have at least £62,500 in savings.

For more on the EU Settlement Scheme check out our article: A Clearance Of The Past? – How Can You Benefit From the EU Settlement Scheme?

What do we think?

These changes are not surprising to us as they have been in the pipeline since Brexit talks began, offering a general tightening up of the borders and bringing in new rules for EEA citizens which essentially puts them on the same tier as everyone else. In terms of how these changes are coming in due to Brexit, they do seem fairly reasonable at this point.

The only change that sticks out is the fact that lower skilled workers do not really have an option to come to the UK, which could be a cause for concern if people who are already living in the UK do not take up such low skilled work. It could become an issue but we will have to wait and see how it transpires.

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Alternative Dispute Resolution (ADR): Faster, Cheaper and Equally Capable Of the Job?

Written by Lavinder Kaur.

What is Alternative Dispute Resolution?

When you have a contractual or commercial dispute, it is not granted that you must go to court to have your grievance addressed. Parties usually have a choice to opt for one of the methods of an Alternative Dispute Resolution (“ADR”) to resolve their disputes and differences.

ADR has now become an important and necessary consideration as an alternative to litigation. Civil Procedure Rules (“CPR”) defines ADR as a ‘collective description of methods of resolving disputes otherwise than through the normal trial process’. The court has a duty as part of its case management to encourage the use of ADR.

Types of ADR

Round table discussion

This should always be the starting point of every disputes to reduce litigation costs as an attempt to settle the matter as amicably as possible. Parties could have a formal discussion to state their position and you may be able to evaluate the strength and weaknesses of your case. Your practitioner should always make sure that it is done on a without prejudice basis to allow a more open discussion without repercussions on the litigation process.

Mediation

This is a very common method of settling disputes out of court; an independent third party mediator will be appointed to hold the mediation in private. Before the mediation, all parties involved will be requested to sign a confidential agreement. In the mediation, parties are then free to negotiate without being bound by any legal argument and evidential rules (but to genuinely settle the matter, please always put forward a reasonable proposal!) on a without prejudice basis.

Any outcome of negotiation is non-binding until parties sign a settlement agreement. It is therefore very crucial to have your legal representative to be presence throughout the process to draft and review the settlement agreement in your best interests.

It is the author’s view that parties should always try to mediate especially if the value of the claim is not more than £150,000 for the obvious costs consideration.

Arbitration

Arbitration is a type of ADR conducted in private by an independent third party, the arbitrator. The decision made by the arbitrator is usually binding on the parties and enforceable. Arbitration plays an important role in many industries and you will often find it in many commercial contracts as the dispute resolution clause.

The Arbitration Act 1996 governs the arbitration practice in England & Wales.

Arbitration is usually expensive, as is litigation, but it preserves the confidentiality of the disputes as opposed to public court hearing.

One of the first things a practitioner will check when a dispute arises is if the contract contains an agreement to resolve disputes by arbitration. If there is such clause, parties will generally be bound to go through an arbitration process.

A UK Supreme Court recent decision in Enka Insaat Ve Sanayi AS v OOO Insurance Co Chubb clarified the principles which govern the determination of the law applicable to the arbitration agreement. A useful summary could be found in paragraph 170 of the judgment. The crux of the decision is that where the parties have chosen a system of law to govern the main contract, that choice will generally apply to the arbitration agreement which forms part of the contract; and where they have not, the applicable law will generally be the law of the seat of the arbitration, which is usually the place chosen for the arbitration in the arbitration agreement.

Conciliation

This is similar to mediation but the conciliator is usually more proactive and may propose his or hers own solutions. This is more commonly used in employment disputes.

The Executive Tribunal

This method of ADR is commonly used in resolving commercial disputes, parties involved usually have a more structural tier of management. Senior representatives of the parties who have not been directly involved in the dispute will form a panel sit together with a neutral adviser. After parties present their case, the panel from both sides will try to negotiate a commercially viable settlement. The independent adviser will provide a non-binding advisory opinion as and when needed.

Judicial or Expert Determination

Often, parties could decide to jointly instruct a senior retired judge who will make a written appraisal after both parties submitted their written submissions. Your legal representative will seek your instructions as to the extent of instructions and whether the appraisal will be binding. This is crucial as once it is binding, it could only be challenged on limited grounds.

It is proven to be a very pragmatic approach as it could be used to determine on preliminary issue such as determination of liability, parties could then negotiate on the quantum of the damages as other part of the claim.

Early Neutral Evaluation

As the name suggests, an independent legal practitioner could be jointly appointed to consider the issues and advises on the likely outcome of the matter on an early stage. The advice is not binding but it enables parties to re-evaluate their position with the likely outcome in mind.

Adjudication

This is a form of adjudicative dispute resolution and frequently used in constructions and engineering disputes. A party will begin the process by serving the other party a notice of intention and nominates an adjudicator. There are strict time limits to follow. The decision is binding unless and until it is appealed to the High Court.

Conclusion

Parties may not always reach a settlement through ADR, but it is often useful to enter into some form of negotiation to evaluate the other side’s strength and weaknesses and to re-consider your position. If ADR fails, your legal representative should then be able to pitch a strong Part 36 offer to the other side which will attract costs consequences with conditions.

Although ADR remains voluntary, you may well face costs sanction and penalty if you have unreasonably refused to enter into any form of ADR.

There are circumstances where an ADR is not a suitable avenue to settle your disputes, it could be that your case and evidence is strong enough to warrant a summary judgment; an emergency injunction ought to be sought from the court; or it is a matter of public interest. It is always prudent to seek immediate legal advice should you foresee any possible legal disputes.

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EEA Nationals – What to expect from Jan 2021 when entering the UK

From the very beginning of 2021 the more tangible effects of Brexit will be felt, especially for people entering the UK from abroad. This blog will focus on what EEA nationals will need to bear in mind when entering the UK for short trips in the New Year.

If you are an EU, EEA or Swiss citizen

Nothing changes for Irish citizens as they will continue to be able to enter and live in the UK as they do now.

EU, EEA and Swiss citizens will continue to be able to travel to the UK for holidays or short trips without needing a visa. They will be able to cross the UK border using a valid passport.

They will not be able to use their EEA or Swiss national ID card to enter the UK from 1 October 2021.

However, EEA nationals can continue to use their national ID card to enter the UK until at least 31 December 2025 if they:

have settled or pre-settled status under the EU Settlement Scheme

have a frontier worker permit

are an S2 Healthcare Visitor

are a Swiss Service Provider

Travellers must have the correct documents to show at the UK border if they are travelling to the UK from 1 January 2021. They will not be able to use any documents to enter the UK that are not listed in the above.

You can use automatic eGates at some airports if you have a biometric symbol on the cover of your passport and you are 12 or over. Using the eGates is usually faster.

Controls on cash

Individuals travelling from the EU to the UK with £10,000 or more in cash will need to make a declaration.

Cash includes:

notes and coins

bankers’ drafts

travellers’ cheques

cheques (including travellers’ cheques) that are signed but not made out to a person or organisation

If you are travelling as a family you need to declare cash over €10,000.

Healthcare and Insurance

If you are visiting the UK make sure you:

bring your European Health Insurance Card (EHIC) with you

have travel insurance that covers the duration of your trip – an EHIC is not an alternative to travel insurance because it does not cover everything

Have questions? We are here for you!

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The Home Office Has Made Covid-19 Concessions on Financial Requirements in Family Visa Applications

In the current times we find ourselves in it is important to try and focus on even the smallest of positives. While the COVID-19 pandemic has taken a massive toll on everyone in the nation, migrants living in the UK have some extra concerns on their minds in terms of how their and their family members’ visas may be affected.

To alleviate the very serious impact the virus has had on migrants, the Home Office has usefully updated its guidance to its caseworkers when dealing with family visa applications made under Appendix FM of the Immigration Rules. The updated guidance allows some leeway in relation to the minimum income threshold for entry clearance, limited leave to remain and indefinite leave applications.

What are family visas?

They generally refer to visas family members apply for to live and settle with their loved ones in the UK under the Immigration Rules. They include applications for partners (spouse, unmarried partner, civil partners), bereaved partners, victims of domestic violence, children, parents and dependent adult relatives. Majority of such applications are currently dealt with by Appendix FM of the Immigration Rules, although occasionally they also fall into the realm of other paragraphs.

What are the financial requirements for such visas?

Under the Immigration Rules, the financial requirements for such applications are high and rigid in two ways:

One: applicants are normally required to meet certain minimum income threshold. It is an annual income of £18,600 for one applicant, £22,400 for two applicants and plus £2,400 for each additional applicant thereafter.

Two: applicants need to provide a certain set of specific documents to demonstrate that they have met the requirements. In the context of employment, they will normally be six months’ payslips, 6 months bank statements and employer’s confirmation to confirm the income. In the context of self-employment and specified companies, Normally 12 months’ evidence of income is required.

Applications are likely to be refused if the applicants fail to meet both of the above requirements.

What have the Home Office revealed?

In the latest guidance the Home Office have said that certain concessions will apply where there is a temporary loss of income between 1 March 2020 and 1 January 2021, meaning people are less likely to face consequences if they have been unable to generate the income needed to meet their visa requirements.

The concessions are as followed:

a temporary loss of employment income between 1 March and 1 January 2021, due to coronavirus, will be disregarded provided the minimum income requirement was met at the required level for at least six months up to March 2020

an applicant or sponsor furloughed under the government’s Coronavirus Job Retention Scheme will be deemed as earning 100% of their salary

a temporary loss of annual income due to coronavirus between 1 March 2020 and 1 January 2021 will generally be disregarded for self-employment income, along with the impact on employment income from the same period for future applications

evidential flexibility may be applied where an applicant or sponsor experiences difficulty accessing specified evidence due to coronavirus restrictions

These are much welcome and necessary allowances, which the Home Office have said are there to “ensure applicants are not disadvantaged as a result of circumstances beyond their control because of COVID-19.”

What do we think?

We are pleased to see the guidance updated in this way, as we understand many people will have been deeply concerned about their financial situation amid the pandemic. It is a good move by the government to take the pressure off some migrants who have found their work and income has been impacted by coronavirus. It also allows them to have taken advantage of the financial support scheme offered by the government without fear of it negatively impacting their visa in the future, which would ultimately be counter-productive and illogical.

Although the above concessions are stated for family visa applications made under Appendix FM of the Immigration Rules, it is our belief that the same principles and spirits should equally be applied to other types of visa applications, whenever there is evidence to show that the applicants have been affected by the pandemic due to no fault of theirs and are unable to meet the relevant requirements or produce the relevant specified documents.

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Litigators Beware! Double hurdles ahead! The latest implication on setting aside default judgement

Written by Yitong Guo.

Case concerned:

Penta Ultimate Holdings Ltd and another v Storrier [2020] EWHC 2400 (Ch)

The Case

This is a claim brought in the Chancery Division in the High Court, concerning a dispute on alleged professional negligence by the former chief financial officer of the claimant.

A default judgment was made against the defendant. The default judgment only covered liability, with causation and quantum being held over to a later date.

Notably, the defendant applied promptly to set aside the default judgment, supported by a 25-page witness statement, although no draft defence.

Some six months later, and only a week before the hearing, the defendant served another witness statement with a draft defence.

The Double Hurdles: CPR13 and the Denton criteria

Master Kaye who heard the case made such summary and remind litigators shall pay attention when making application to set aside default judgement, namely, they must meet both tests set out in CRP13 and requirements from Denton (Denton v White [2014] EWCA Civ 906).

In the Judgement^[1], Master Kaye elaborated on the legal principles concerned.

CPR13

The Defendant therefore first needs to overcome the threshold test set out in CPR 13.3(1)(a) and (b), that there is a real prospect of successfully defending the claim or there is some other good reason why a judgment, validly obtained, should be set aside. Further pursuant to CPR 13.3.2 the Court must have regard to whether the application was made promptly.^[2]

The Judge dealt with Promptness and Prospect of Défense Succeeding in depth relating to this test.

Denton Criteria

Master Kaye then went on in his judgement in regard to the second ‘hurdle’:

An application to set aside default judgment is recognised to be an application for relief from sanctions (Regione Piemonte v Dexia Crediop SpA [2014] EWCA 1298) and so also engages the three-stage test in Denton v TH White Ltd [2014] 1 WLR 3926 (“Denton”)^[3].

The principle was applied as in Gentry v Miller [2016] EWCA Civ 141, which sets out how the relief from sanctions test in applications to set aside default judgment.

Master Kaye considered the 3 stage test in depth and applied in turns, namely, Serious and Significant; Reason and All the Circumstances.

Subsequently, the Judge found on the facts that:

there were serious issues to be tried on liability, and that the defendant had a potential defence with real prospects of success.

the defendant’s application had been prompt, although he criticised the defendant had delayed progress of the case more generally.

relief from sanctions threshold considered. The failure to serve a defence on time was a serious and significant failure.

Nevertheless, Master Kaye made a conditional order (on the condition that the Defendant to repay loan admitted) to set aside the default judgment as the quantum was considerable and the case was complex. Interestingly, the judgment sets out how such conditions may be used as a case management tool.

Lesson Learned

The Judge indeed made his observation that in regard to the two hurdles in applications to set aside default judgement, there are examples of an applicant succeeding on the first but failing on the second.

The CRP13 test and the Denton criteria are not unfamiliar to the practitioners. The significance of this case was not in new application of the tested criteria, but in the clear implication demonstrated as a reminder to parties in such proceedings not to overlook the double hurdles in future applications.

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Long-term renters! You may have to pay SDLT on your tenancy!

Stamp Duty Land Tax (SDLT) is usually something people associate with purchasing a property or land rather than with renting tenants, but it may surprise you to know that certain long term renters have had to pay 1% SDLT since 2003.

Who is effected?

People who have been renting for a substantial amount of time, having made £125,000 worth of rental payments, may have to pay 1% SDLT on the property. SDLT may be due on the grant of a lease (tenancy agreement) and is assessed by reference to the ‘Net Present Value’, meaning the total value of the rent.

Many tenants have been caught out by this clause simply because they are unaware of their tax obligations, leaving them in with a horrible surprise when SDLT arises as an issue they must deal with.

£125,000 threshold

To be clear, the threshold currently sits at £125,000 – the threshold for zero rate band SDLT for residential conveyancing. It means people who are paying rent which has equated to more than this sum are obliged to pay up. In the current state of affairs, with many people falling under the umbrella term of Generation Rent, with the amount of people renting increasing while homeownership falls, it is highly probable that more and more people will find themselves paying this surprising Stamp Duty.

Net present value is calculated by taking into account the highest 12 monthly rent in the first 5 years of the tenancy. It is done via a complicated formula which maybe the HMRC is only capable of understanding. If anyone is interested in test it, their online calculator is available here: https://www.tax.service.gov.uk/calculate-stamp-duty-land-tax/#/intro .

Roughly speaking, if someone’s rent adds up to £17,800 each year then they may be liable to pay the 1% SDLT in their seventh or eighth year of the tenancy.

It should be noted that when calculating the term of the tenancy, it is likely to include both fixed term tenancy and periodic tenancy (where the tenancy continues after a fixed term).

Consequences of not paying?

Failing to pay in what is described as a ‘timely fashion’, which actually means within three months of the filing date, the renter could incur a £100 fine.

Where no payment is made after three months passes that penalty will rise to £200, and could continue to rise to the full amount of the tax due if the return is 12 months overdue.

What is more, and will come as another blow to the renting community, is that although the Stamp Duty holiday is currently being taken advantage by many, it does not apply to renting arrangements. The reason for this is because the scope of the holiday relates to tax being lifted for buyers rather than renters, which will offer no comfort to those who do not own their homes.

What can you do to check?

We advise people to take action to discover what their personal situation is, as in cases such as this ignorance is not bliss; it is better to be prepared rather than be caught off guard.

If a person is close to reaching the threshold, they are encouraged to reach out to HMRC, who should be able to offer further advice on the amount which needs to be paid, and how the tax should be met.

Of course, in matters like this Lisa’s Law are able to offer advice and peace of mind for anyone who finds themselves worrying about such things.

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Shareholder claims and principle of ‘reflective loss’ – What can be learnt from Broadcasting Investments Group Ltd v Smith?

Written by Rosa Huang.

In the most recent case, the Broadcasting Investments Group Ltd v Smith, application of principle of ‘reflective loss’ in the Supreme Court decision in Marex Financial Ltd v Sevilleja was considered by court, shareholder of a shareholder of a shareholder of the claimant company seeking an order of specific performance, has been allowed to proceed to trial.

The principle of ‘reflective loss’

If a third party did something wrong to a company, can shareholder of that company bring a claim for its own loss against the third party?

Under the UK law, a shareholder can only bring a derivative action for losses of the company, and may not claim a loss in its personal capacity for its personal loss. This is the principle of ‘reflective loss’, or ‘no reflective loss’ rule, which is intended to avoid the double recovery of losses.

In the leading case Prudential Assurance v Newman Industries Ltd, the court ruled that shareholder of a company ‘cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in dividend’.

Subsequent authorities extends the scope of “no reflective loss” rule beyond the diminution of value of shares and the loss of dividends to non-shareholder creditors and employees.

The Marex Financial Ltd v Sevilleja

The judgment in another leading case, Marex Financial Ltd v Sevilleja, however, cut back the scope of the ‘reflective loss’ principle. In this case, Lord Reed of The Supreme Court drew the distinction between claims brought by a shareholder in relation to loss which he or she has suffered in the capacity of shareholder, and claims which a shareholder or anyone else may bring in any other capacity, for example as a creditor or employee of the company.

As concluded by the court in Marex Financial Ltd v Sevilleja, the considerations to justify the ‘no reflective loss’ rule are:-

The need to avoid double recovery from the defendant by the claimant and the company.

Causation – if the company chooses not to claim against the wrongdoer, the loss to the claimant is caused by the company’s decision and not by the defendant’s wrongdoing.

The public policy of avoiding conflict of interest; particularly that if the claimant has a separate right to claim it would discourage the company from making settlements.

The need to preserve company autonomy.

The need to avoid prejudice to minority shareholders or other creditors.

Whether the company is able to pursue an action itself – the rule will not apply where, as a consequence of the actions of the wrongdoer, the company no longer has a cause of action and it is impossible for it to bring a claim or for a claim to be brought in its name by a third party.

Broadcasting Investments Group Ltd v Smith

The Marex Financial Ltd v Sevilleja applied to a claim brought by a shareholder of a shareholder, in a decision handed down by court in Broadcasting Investments Group Ltd v Smith, on 21 September 2020.

Background

Mr Burgess, Mr Smith and others entered into an oral agreement for a joint venture and agreed that a public company, Streaming Investments plc, would be incorporated as the vehicle for the joint venture. Broadcasting Investments Group Ltd (‘BIG’), owned as to 51% by VIIL, which is controlled by Mr Burgess, would have a 39% shareholding in Streaming Investments plc.

Following the incorporation of Streaming Investments plc, and the fulfilment of certain financing obligations, Mr Smith was to procure the transfer to the company of all the shares in two companies, SS Ltd and TVP, which were developing certain technology.

Mr Smith, however, failed to procure the transfer to Streaming Investments plc of the shares in SS Ltd and TVP, after Streaming Investments plc was incorporated and the financing obligations were fulfilled.

SS Ltd became insolvent and a liquidator was appointed.

Mr Burgess and BIG brought proceedings against Mr Smith and others alleging breach of contract. BIG claimed damages for breach of contract and an order that Mr Smith specifically perform the contract by procuring the transfer to Streaming Investments plc of all the shares in SS Ltd and TVP.

Mr Smith applied to strike out the claims of BIG and Mr Burgess. The grounds are that the claims were barred by the reflective loss principle, the loss suffered by Mr Burgess was the diminution in the value of his shareholding in BIG consequent on the diminution in the value of BIG’s shareholding in Streaming Investments plc.

The court’s decision

The court believed that while Prudential Assurance v Newman Industries Ltd was correctly decided, the reflective loss principle was an incident of company law and was limited to the very specific circumstances where:

a shareholder in a company and the company suffered an injury which was actionable by both of them, and

the loss claimed by the shareholder was limited to the diminution in the value of their shares in the company or in the dividends or other distributions which the company might make to them consequent on the loss suffered by the company.

The principle extended beyond claims for damages to any relief claimed by a shareholder in respect of such loss.

The court decided that:

BIG was a shareholder in Streaming Investments plc and the loss that it claimed was the diminution in the value of its shareholding in Streaming Investments plc or in the dividends and distributions that it might receive from that company.

Streaming Investments plc, while not a party to the contract, was entitled to enforce the contract pursuant to section 1 of the Contracts (Rights of Third Parties) Act 1999 and thus was able to bring its own claim for the loss that it had suffered. Accordingly, BIG’s claims were barred by the rule in Prudential v Newman and were struck out.

Mr Burgess sought only an order of specific performance by Mr Smith of his contractual obligation to procure the transfer to Streaming Investments plc of the shares in SS Ltd and TVP. Mr Burgess was not a shareholder in Streaming Investments plc and the rule in Prudential v Newman did not therefore bar his claim, which would be allowed to proceed to trial.

Comments

In relation to any wrongdoing by third parties, it is important for shareholders to appreciate what claims properly lie with the company and what claims the shareholder may bring in their own right. Where a diminution in shareholdings is attributable to loss caused to the company by a third party, it is the company which will generally have the claim, not the shareholders themselves.

However, as the court’s decision in the two latest cases, Marex Financial Ltd v Sevilleja and Broadcasting Investments Group Ltd v Smith demonstrate, reflective loss principle was an incident of company law and was limited to the very specific circumstances.

Further, there are other recourses for shareholders who believe they or the company have been wronged, for example the recourses of unfair prejudice claim (section 994, Companies Act 2006 (CA 2006)), derivative claim (Part 11, CA 2006), or petition for winding up on just and equitable grounds (section 122, Insolvency Act 1986).

In summary, there are remedies for shareholders but generally speaking, remedies for shareholders are not straightforward and shareholders’ claims are restricted due to the “no reflective loss” rule.

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Restraint of trade – out with the old, in with the new

Written by Salina Lim.

In the recent case, Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36, the Supreme Court has shed light on the law and questions posed in respect of contractual restraints which restrain the use of the land.

On 19 August 2020, in the case of Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36, the Supreme Court regarded that the ‘trading society’ test was the proper test for the restraint of trade by agreement. The ‘trading society’ test replaced the ‘pre-existing freedom’ test which was recognised in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269.

**Salient facts of Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd as follows:**

In 1979, a property developer owned land in Londonderry. The property developer intended to build a shopping centre.

In February 1981, the property developer granted a lease to Dunnes Stores (Bangor) Ltd (“Dunnes”).

The lease indicated that the property developer was “…to promise not to cause or permit the establishment on any other part of the site of a unit measuring more than about 3,000 square feet for the sale of food or textiles” at paragraph [4] (“the covenant”) to Dunnes.

Dunnes constructed its store.

In October 1982, the shopping centre opened.

Later, the property developer’s interest in the land and covenant was assigned to Peninsula Securities Ltd (“Peninsula”)

Peninsula argued that the shopping centre became unsuccesful due to the covenant but Dunnes disagreed.

Subsequently, Peninsula brought a claim against Dunnes that the covenant was unenforceable under the doctrine against restraint of trade (“the doctrine”).

Initially, the case was dismissed by a judge who deemed that Peninsula had given up pre-existing freedom to use the land due to the assignment of the land and covenant.

Peninsula then appealed the case with success.

Subsequently, Dunnes appealed to the Supreme Court.

What was the Supreme Court decision?

In Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd , the Supreme Court considered the law on the restraint on trade. Also, the Supreme Court considered whether the doctrine was engaged at all. The Supreme Court agreed with Dunnes and determined the covenant was reasonable and, hence, enforceable.

The Supreme Court found that the ‘pre-existing freedom’ test used in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd had the following issues:

it had been constantly condemned for more than half a century;

there was “no principled place within the doctrine” at paragraph [50];

the reasoning was difficult to defend; and

it was rejected in common law jurisdictions, for example some parts of Canada and Australia, and produced legal issues in terms of consistency between common law countries.

It is noted that for the “trading society” test, the doctrine of the restraint of trade does not apply to restrictive covenants that are accepted because it has “passed into the accepted and normal currency of commercial or contractual or conveyancing relations” at paragraph [46], that has progressed due to demands of various factors such as competition, negotiation and public policy. These types of covenants can now be understood to be acceptable as a part of the trading society.

Implications to note

The Supreme Court in Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd departed from ‘pre-existing’ test to ‘trading society’ test because they deemed that there was no defence of it and for public policy reasons.

It is imperative that for this type of covenant, that commercial landlords and tenants should be aware and have a reasonable understanding of what is considered to be a trading norm.

Legal advisors, commercial landlords and tenants should take note that:

they should review these types of covenants carefully;

the anchor tenants (larger tenant in shopping malls) benefit from these types of covenants;

landlords should reassess the risks they have taken to filling vacant land because they may breach these restrictions; and

common law jurisdictions in this world have confirmed and accepted that is normal for a grant of a long lease in part of a shopping centre to contain a covenant in relation the landlord’s use such as in the case of Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd.

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Case reference: Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36

Date of judgment: 19 August 2020
Court: Supreme Court
Judge: Lord Wilson, Lord Carnwath, Lord Lloyd-Jones, Lady Arden, Lord Kitchin

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Can you discharge or modify the Restrictive covenant, easement / right that is affecting your land?

Written by Jessie Cheow.

Creebray Ltd v Deninson and another [2020] UKUT 262 (LC) – Unsuccessful application to modify or discharge covenant.

Background

The applicant company, the registered proprietor of a vacant plot of land (Oldways) applied to discharge or modify a restrictive covenant pursuant to section 84 of the Law of Property Act 1925 (LPA 1925). It intended to build a house on Oldways and a planning permission had been granted by council but it is in a position that would breach the restrictive covenant as the covenant prevents building in front of a line 50 feet away from its rear boundary. There had been a house on Oldways, which had been demolished in 2008. The planning permission was for a six-bedroom family house over three levels (including accommodation in the roof space), and a triple garage with a gym above it. Its footprint would be larger than that of the demolished dwelling. The registered proprietors of the house next door to Oldways had the benefit of the restrictive covenant. The objectors genuinely believe that the building line protects their privacy and outlook, that the new building would overlook Severalls and the inhabitants of the new house will be able to see them, hence, it would have a very significant impact on its value as it affected their privacy and seclusion. Further, there is an interference with the right of light as the new house will overshadow Severalls. Therefore, they have objected to its discharge or modification because of the detrimental effect they claimed the breach of the covenant would have on their property.

The Relevant Law

Section 84 of the Law of Property Act 1925, subsections (1) (aa) and (c). Section 84 provides, so far as is relevant:

“84(1) The Upper Tribunal shall … have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to dis-charge or modify any such restriction on being satisfied-

(aa) that (in a case falling within subsection (1A) below) the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user; or

and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the following heads, that is to say either –

(i) a sum to make up for the loss or disadvantage suffered by that person in consequence of the discharge or modification; or

(ii) a sum to make up for any effect which the restriction had, at the time, when it was imposed, in reducing the consideration then received for the land affected by it.

(1A) Subsection (1)(aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of the land in any case in which the Upper Tribunal is satisfied that the restriction, in impeding that user, either –

(a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or

(b) is contrary to the public interest;

and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.

(1B) In determining whether a case is one falling within section (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Upper Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.

(1C) It is hereby declared that the power conferred by this section to modify a restriction includes power to add such further provisions restricting the user of or the building on the land affected as appear to the Upper Tribunal to be reasonable in view of the relaxation of the existing provisions, and as may be accepted by the applicant; and the Upper Tribunal may accordingly refuse to modify the restriction without some such addition.”

Issues and Decisions

The applicants have reliance ground (aa) and (c), however the applicants have accepted that ground c is not applicable in this case. Therefore, the court will look only at ground (aa) and decide the following issues accordingly:

Whether the proposed use of Oldways is reasonable;

Decision: The building of a house on Oldways is obviously reasonable and indeed desirable. This particular proposed house is large and could be regarded as overbearing but it has planning permission and we regard its construction as a reasonable use of the land.

Whether the covenant impedes that use;

Decision: The objectors’ Statement of Case stated that the covenant did not impede a reasonable use of the land because it was open to the applicant to build a house behind the building line; in other words, there were reasonable uses that were not prevented by the covenant. However, the objectors stated that LPA 1925 s 84(1)(aa) required that the proposed use would be a ‘reasonable use’ and ‘the restrictive covenant impedes that use’.

It was not in dispute that the building of the proposed house would be a breach of the covenant. Accordingly, the covenant impeded that reasonable use of the land (see [52] of the decision).

Whether the impeding of the proposed use secures practical benefits to the objectors; and 4) Whether, if so, those benefits are of substantial value or advantage;

Decision: The restrictive covenant, in preventing the building of the proposed new house in front of the building line, secured a practical benefit to the objectors, regarded as being of substantial advantage to them. The rural leafy outlook of those properties, in which buildings did not intrude, was a big attraction and the whole character of Severalls would be changed if the view in front of the house included the building next door in front of the building line, of whatever size, and especially one so tall and bulky as was being proposed. That was not a ‘de minimis’ intrusion in front of the line. It was a very large house, most of which was in front of the line. It would certainly be visible at times of the year when the hedge was thin, and that view would completely change the outlook from the front garden of Severalls and the character of Severalls as a property (see [66] of the decision.

5) If they are not, whether money would be an adequate compensation.

Because of that conclusion the court do not need to consider the further question of whether by impeding the proposed use the restriction secures to the objectors practical benefits of substantial value but the court have commented on the expert evidence provided by Mr Smith. The assessment of the diminution in the value of Severalls at between £250,000 and £450,000 seemed to be arbitrary; the only explanation he offered was his asserted skill and judgment as a valuer. He also relied as his main comparable upon the sale in 2018 of Oakendell, a property adjoining Oldways but without the benefit of the covenant and therefore likely to have been reduced in price because of the prospect of the 2016 planning permission being implemented next door. Mr Smith did not think the adverse effect upon Oakendell would be as great as that on Severalls, but the main part of the proposed house would have been closer to Oakendell than to Severalls and there would, in the judgment, have been some adverse effect on value. Mr Smith does not appear to have considered the benefit of the restriction to Severalls when analysing the sale of Oakendell for use as a comparable.

Conclusion

Application dismissed. The court decided that the restrictive covenant had secured a practical benefit to the objectors, regarded as being of substantial advantage to them, for the purposes of LPA 1925, s 84(1A). The rural leafy outlook of the properties, in which buildings did not intrude, was a big attraction and the whole character of the objector’s property would be changed if the view in front of the house included the building next door in front of the building line, of whatever size, and especially one so tall and bulky as was being proposed by the applicant company.

Opinions

The restrictive covenant produces a design for the three adjacent properties that ensure a leafy outlook to the south without sight of buildings. It does not restrict the size of the houses on the plots, and it does not need to because it places a tight restriction on position. If the applicants are willing to compromise and amend their plan/ drawing, perhaps this matter can be resolved amicably.

The only real protection the objectors have from the visual intrusion of a bulky three-story building visible from the objector’s garden is the hedge, in its current state. Based on the fact that the court is concerned that it will not provide adequate screening in winter. In my opinion, the respective parties may consider imposing a positive obligation on the owner or future owner of Oldways and Severalls to ensure that they will maintain the hedge. This could be registered as an additionally restrictive covenant on the registered title and require the future owner to observe and perform the positive covenant. For the safeguard, the current owner may also request an indemnity covenant from the future owner to secure their interest.

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Compliance is Key! Naturalisation, EEA Nationals and the ‘Good Character’ Requirements

When applying for naturalisation or attempting to register as a British citizen, adults and children aged ten or over must meet what is known as ‘the good character’ requirement. This is said to vet undesirables from integrating into the UK permanently by checking that the applicant has not taken part in illegal activity or ignored certain immigration laws.

Certain behaviours which will negatively affect applicant’s chances in meeting the requirements are obvious, such as:

Having committed a serious crime in the past

Associating with known criminals

Being linked to any kind of terrorist organisation

Being a persistent offender

These types of offences are clear cut and easy to understand, but where does the Home Office stand when it comes to blurrier territory relating to immigration laws?

Complying with immigration requirements

The Home Office recently updated its guidance and has focussed more on those who have been in breach of immigration rules within the last 10 years leading up to their naturalisation application.

The following behaviours will ‘normally result in refusal’ according to the latest guidance:

Failure to comply with conditions imposed under the immigration laws, for example:

- Accessed public funds when prohibited from doing so.
- Worked in the UK without permission to do so.
- Studied in the UK without official permission.

Where working is concerned, some people may find it harsh that applicants will be penalised for trying to earn some money, however in the eyes of the Home Office illegal working causes damaging social and economic problems for the UK. It is to be avoided at all costs if a person is serious about being naturalising as British citizen.

Overstaying

- Where a person has overstayed at some point in the 10 years prior to an application for citizenship, discretion to overlook this breach will normally only be considered if it is the only adverse factor weighing against the person’s good character. It is considered a serious issue.
- Certain factors will be taken into consideration by the Home Office, for example if the period without leave was not the fault of the applicant, say where it arose from a Home Office decision to refuse which is subsequently withdrawn or quashed or which the courts have required the Home Office to reconsider.

For more information of applications for overstayers, follow this link.

Illegal Entry

- If an applicant entered the UK illegally, an application for citizenship will normally be refused if the illegal entry is confirmed as having occurred during the preceding 10 years.
- In terms of asylum seekers, where people make themselves known at the earliest opportunity to UK immigration officials, some discretion may be granted to them in their favour in certain circumstances.
- Refugees will normally be refused citizenship because they entered illegally and chose not to claim asylum at the first available opportunity, or only claimed after enforcement action was taken against them. This will not be looked upon kindly by the Home Office.

EEA Nationals and their family members

The above rules apply to everyone, including EEA nationals, but with EEA nationals the EEA Regulations 2016 will also be taken into account.

People who are entitled to reside in the UK under the EEA Regulations 2016 do not require leave to enter or remain as the Home Office will take into account whether the applicant was subject to the EEA Regulations 2016 or the Immigration Act 1971 and whether they complied with the relevant requirements.

It is important to remember, however, that if a person has acquired EEA rights, any breaches of other Immigration Acts will still be taken into account.

Permanent Residence Cards

If an EEA or Swiss national or their family member has a permanent residence card, the Home Office will likely accept that they complied with immigration requirements in the UK for the 5-year period before it was issued, and the period since then. This is provided they have not lost their permanent residence, for example by being out of the UK for more than 2 years.

Comprehensive Sickness Insurance

Comprehensive sickness insurance is a form of medical health insurance required across the EU.

The UK Home Office defines comprehensive sickness insurance as ‘any form of insurance that will cover the costs of the majority of medical treatment’ in the UK.

Comprehensive Sickness Insurance (CSI) is a legal requirement for EEA and Swiss students, self-sufficient persons and their family members who are residing in the UK with them. If an applicant does not have CSI, the Home Office will take this into consideration with dealing with the person’s application and it is possible to be refused due to the lack of it.

How can Lisa’s Law help?

Our immigration team are experts in this area and are able to provide advice and guidance in relation to naturalisation and registration applications, ensuring the highest chance of success. If you are interested in making an application but find yourself worrying about your immigration history, conduct or any other matter, Lisa’s Law is here for you!

Get in touch on 020 7928 0276 or email info@lisaslaw.co.uk and one of our lawyers will be happy to assist you and put your mind at ease.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

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Also, you can find the complete government guidance of the Good Character requirements here.

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