Better late than never! How can those who missed the deadline for the EU Settlement Scheme still apply, and what are the requirements?

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

However, the purpose of this article is not to repeat information relating to the EUSS, as we have covered this topic well in such previous as A Clearance of the Past? – How Can You Benefit From the EU Settlement Scheme? and EU Settlement Scheme – Coronavirus related absences to be overlooked by Home Office? This article concerns those who missed the deadline of the EUSS and what options there are available in terms of late or alternative applications.

Later deadlines apply to some people

For some people, the deadline of 30 June 2021 did not apply. This is true if you are one of the following:

the family member of someone from the EU, Switzerland, Norway, Iceland or Liechtenstein who was living here by 31 December 2020, and you joined them in the UK on or after 1 April 2021

applying for your child, who was born or adopted in the UK on or after 1 April 2021

the family member of an eligible person of Northern Ireland, but they could not move back to the UK by 31 December 2020 without you – you must be from outside the EU, Switzerland, Norway, Iceland or Liechtenstein

exempt from immigration control, or you stopped being exempt from immigration control after 30 June 2021

here with limited leave to enter or remain in the UK (for example, if you are here on a work or study visa) which expired after 30 June 2021

a family member of a British citizen who you lived with in the EU, Switzerland, Norway, Iceland or Liechtenstein – you must have lived with them in that country by 30 December 2020, and returned to the UK with them

When do such people need to apply?

If you are applying as a family member to join someone in the UK, you have 90 days to apply from when you arrive in the UK. This only applies if you join them in the UK on or after 1 April 2021. If you joined them before that date, your deadline to apply was 30 June 2021.

If you are applying for your child who was born or adopted in the UK on or after 1 April 2021, you have 90 days from when they were born or adopted. If they were born or adopted in the UK before that date, your deadline to apply was 30 June 2021.

If you are the family member of an eligible person of Northern Ireland, and they could not move back to the UK without you by 31 December 2020, you have 90 days to apply from when you arrive in the UK.
If you are exempt from immigration control, you do not have to apply to the scheme. If you choose to do so, you can apply at any time. If you stop being exempt, you will have 90 days to apply.

If you have limited leave to enter or remain in the UK which expires after 30 June 2021, you must apply before your leave expires.

If you are applying as a family member of a British citizen who you lived with in the EU, Switzerland, Norway, Iceland or Liechtenstein, you must apply by 29 March 2022.

It is important that potential applicants find out the deadline that applies to their precise situation, as it is not a one size fits all matter. We are here to answer any questions you may have regarding this issue.

Reasonable grounds for late applications

If the original deadline would have applied to you in regular circumstances, there are some circumstances that will be considered reasonable and allow you to continue to apply even after the relevant deadline if you have missed it.

For example:

where a parent, guardian or Local Authority has failed to apply on behalf of a child

where a person has or had a serious medical condition, which meant they were unable to apply by the relevant deadline (this may include both mental and physical health issues).

where someone is a victim of modern slavery or is in an abusive relationship

where someone is isolated, vulnerable or did not have the digital skills to access the application process. For more information regarding vulnerable people and the EU Settlement Scheme, see our article EU Settlement Scheme – Do not fall through the cracks!

where a person was unable to apply by the relevant deadline for compelling practical or compassionate reasons – including in light of the coronavirus pandemic

Once again, this list is not extensive and it is likely that other scenarios may render late applications reasonable. It is always worth talking through your situation with a legal advisor. In any case, the sooner an application is made the better.

What do we think?

We are pleased to see that these allowances are being made for alternative and late applicants. The EUSS was notoriously confusing and many people were vague on its details and requirements. It is understandable that many people missed the deadline, and to punish them for it would be immoral. Where vulnerable people are concerned, we are of the opinion that more support should have been offered by the Home Office in the first place. While there were some advertisements regarding the scheme, over the radio and occasionally the television, these were few and far between and did not cater towards vulnerable individuals. For something so important, you would think more advice and support would have been readily available.

Have questions? We are here for you!

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

Email us on [email protected].

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James Cook

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Welcome Alex!

We have been growing steadily over the past couple of years, and with an ever expanding client list comes the need for more excellent lawyers to deliver the quality legal service that we are known for!

So, without further ado let us introduce Alex Yang, the latest member of the Lisa’s Law family!

Alex qualified as a solicitor in 2020 after successfully passing his Qualified Lawyer Transfer Scheme exams. He is also a qualified attorney in the State of California after completing his Juris Doctor degree from the University of California, Los Angeles.

Alex practised commercial and civil litigation in California and US federal courts before joining Lisa’s Law. He is looking forward to using his vast prior experience to deliver a fantastic service to our clients, while also building on his own legal knowledge here in the UK.

Alex speaks fluent English, Mandarin, and Cantonese. In his spare time, Alex enjoys cooking, swimming, and playing keyboard with The Usual Suspects, an all-lawyer cover band at his church.

Welcome aboard, Alex!

Need legal advice? We are here to help!

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 [email protected].

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

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

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James Cook

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Wrongful vs Unfair Dismissal: What is the difference and what role does ACAS Code of Practice on Disciplinary and Grievance play?

Wrongful or unfair dismissal is a reality of employment, one that the majority of people do not have to go through, but for those that do face it will know well enough how stressful it can be. While the two may sound similar, they are in fact very different.

In this article we will explore the difference between wrongful and unfair dismissal and the compensation claimants can receive from being dismissed. We will also look at a real case which can inform us on the ACAS Code of Practice on Disciplinary and Grievance Procedures, which is very important when talking about these issues.

Wrongful Dismissal vs Unfair Dismissal

Wrongful dismissal is rooted in the breaching of employment contracts, specifically the contractual obligations of the employer. There is no particular length of service that an employee must have had completed to be able to bring up a claim of wrongful dismissal.

On the other hand, unfair dismissal revolves around the employer’s reason for dismissing their employee and how the employer conducted themselves during the process of such a dismissal. The employee must have served for two years under the employment to have the right to apply for unfair dismissal.

The ACAS Code of Practice on Disciplinary and Grievance Procedures

The Acas Code of Practice on disciplinary and grievance procedures is the minimum an employer should follow for handling these kinds of issues in the workplace – it acts as the base guidelines. A failure to follow the Code does not automatically make a person or organisation liable to proceedings, however, employment tribunals will take the Code into account when considering relevant cases.

For example, tribunals are liable to award claimants with financial awards when employers are found to be in breach of the Code.

Full details of the code can be found here, but to give an idea of what it involves, see the below points:

Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.

Employers and employees should act consistently.

Employers should carry out any necessary investigations, to establish the facts of the case.

Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.

Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.

Employers should allow an employee to appeal against any formal decision made.

In a recent case the Employment Appeals Tribunal concluded that breaches of ACAS’s Code of conduct on Disciplinary and Grievance process exists independently of any findings an employment tribunal may have found and can lead to an uplift or reduction in any award to be made.

Let’s look at the case

In Brown v Veolia ES (UK) Ltd, the claimant was employed as a Business Development Manager. She was suspended and then dismissed for gross misconduct related to bullying. In response to this, the claimant pursued a case of both unfair and wrongful dismissal.

As the case progressed, the employment tribunal dismissed the notion of unfair dismissal, but upheld that of wrongful dismissal. The fact that the unfair dismissal aspect of the situation was seen to be just was that the reason came down to conduct issues on the part of the claimant. It was found that the dismissing party had enough grounds to successfully follow through in this regard.

However, the claimant’s plea for wrongful dismissal was agreed to by the tribunal for a few reasons. Firstly, it was found that while the claimant had been guilty of misconduct, she had not committed gross misconduct within the meaning of the respondent’s relevant policy, thus leaving potential room for debate in terms of the misconduct itself in the context of this particular organisation. Furthermore, the respondent was found to be in breach of the ACAS Code of conduct on Disciplinary and Grievance. This was because they had not allowed the claimant enough time to prepare a rebuttal nor had she been allowed to call witnesses to bolster her argument.

Unfortunately, as the breach of ACAS code is relevant to the issue of fairness and the Employment Tribunal had ruled that the Claimant was not dismissed unfairly, the Employment Tribunal concluded that the breach of ACAS code did not entitle the Claimant an uplift. The Claimant appealed against two of the Employment Tribunal’s rulings: there was no unfair dismissal and that there should be no uplift for breach of the ACAS code.

At the Employment Appeal Tribunal (EAT), it was held that breaches of ACAS codes on disciplinary and Grievance is capable of existing independently of the Tribunal’s other findings. The fact that there may not be any procedural unfairness in the employer’s investigation process does not necessarily mean that the Claimant is not entitled to an uplift, as soon as the Tribunal has found that the ACAS codes are breached.

Further, the EAT also held that breach of ACAS codes carries penal consequences. It held that the Claimant’s dismissal was unfair as well in this particular case.

What do we think?

This case highlights the importance of the relevant ACAS codes, as they provide guidance for parties to act reasonably and fairly. Each party is requested to adhere to the provision of the codes; otherwise, there will be sanction, irrespective of whether the wrongdoing party is the employer or employee.

Need some legal advice? We are here to help!

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 [email protected].

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

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

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James Cook

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Multiple Dwellings Relief denied in recent case! When is it an option for buyers?

Anyone who has been fortunate enough to purchase a second property of their own, or even those who know someone else who has done so, are likely to have heard of Stamp Duty Land Tax. Usually, this tax will have been spoken about in negative terms, as an additional cost that is sometimes left unbudgeted for and can add some extra strain to an already stressful process. First time buyers are usually spared having to pay SDLT for the first £300,000 of their purchase, as long as their purchase is under £500,000, but for everyone else this tax is fairly inescapable.

One way in which SDLT can be reduced, in certain situations, is the Multiple Dwellings Relief (MDR), whereby the amount of tax paid is essentially divided by the number of properties involved in the single purchase. However, there are of course some requirements that come with MDR. We will examine a recent case in this blog to further explore this topic.

How does Multiple Dwellings Relief work?

MDR was brought in to encourage investment in residential property by reducing the SDLT payable on multiple or bulk purchases, therefore making buying multiple properties more appealing.

It is possible to claim this relief when you purchase more than one dwelling where a transaction or a number of linked transactions include freehold or leasehold interests in more than one dwelling.

If you claim relief, to work out the rate of tax HMRC charge you must:

divide the total amount paid for the properties by the number of dwellings

work out the tax due on this figure

multiply this amount of tax by the number of dwellings

The minimum rate of tax under the relief is 1% of the amount paid for the dwellings.

It sounds daunting, but when you are purchasing a property your solicitor will be able to walk you through it step by step.

An example may help to explain it, let’s say:

You buy 5 houses for £1 million.

£1 million divided by 5 is £200,000.

The amount of SDLT you pay on £200,000 is £1,500 (0% of £125,000 + 2% of £75,000).

£1,500 multiplied by 5 is £7,500.

As this is less than 1% of £1 million (which is £10,000), the amount of tax you pay is £10,000.

So in the end, the rate of SDLT is based on that average price instead of on the total consideration (subject to a minimum rate of 1%) and the SDLT payable is multiplied by the number of dwellings acquired. In most cases, it will lead to substantial reduction of the SDLT bill.

It should be noted that when relying on the MDR relief, the applicant will have to prove that each relevant property is capable of being a single dwelling. It is the definition of a single dwelling that has been a heavily litigated area between purchasers and HMRC.

Let’s take a look at a recent case

The case of Fiander and Brower v HMRC deals with issues of property purchase and Multiple Dwellings Relief. Essentially, the appellants purchased a house which had an annex attached to it. Both the house and the annex had living areas, sleeping areas, kitchens and bathrooms. The properties were connected by an internal corridor, so where there was no door but a door could easily be installed.

In the opinions of the appellants, the purchase of the property and adjoining annex should have constituted their right to MDR. They saw the two dwellings as separate entities. However, their opinion did not match that of the First Tier Tax Tribunal, and nor were they able to convince the Upper Tribunal when they continued their appeal.

The decision of the tribunals was rooted in the current state of the property, rather than its historic use or its intended use in the future. The fact that a property is capable of being a single dwelling after some alteration is irrelevant. In the meantime, the Upper Tribunal re-affirmed the position that on the issue of MDR, the relevant legislation shall be interpreted purposely.

When assessing whether a property qualifies as a single dwelling, the Court should take into consideration all the relevant facts objectively. The key issues are whether the property has adequate security, self-sufficiency and privacy, so that an ordinary person is willing to call it a single dwelling.

In conclusion, the Upper Tribunal held that the First Tier Tribunal’s initial ruling was correct and that the annex did not qualify as its own single dwelling. Therefore, Multiple Dwellings Relief did was not an option for the appellants.

What can we learn from this?

This case can provide us with some useful lessons. Firstly, it is always best to properly assess property before purchasing it, especially when attempting to apply for MDR as there are eligibility requirements that must be met in order to have it granted. Even if a property has a reputation of being two spate dwellings, this may not be the case presently.

Similarly, if the buyers’ intention is to use the property as multiple dwellings, but the building itself does not meet the requirements, the intention becomes meaningless in the eyes of the law.

Also, the condition of the property and its level of self-sufficiency, privacy and security is of vital importance – especially when being assessed objectively when pursuing Multiple Dwellings Relief for Stamp Duty Land Tax.

Need some legal advice? We are here to help!

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 [email protected].

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

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

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James Cook

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Termination of parental responsibility – when can it occur and what can we learn from a recent case?

As a law firm we understand that families can go through hard times as well as good times. Often, when issues arise they can be sorted out. Alternatively, the issues cannot be completely fixed but a reasonable compromise can be made, and people can come to an arrangement that works for everyone. However, when things are irresolvable and the relationship has completely broken down, people will sometimes want to put as much distance as they can between themselves and someone they once considered family, particularly when children are involved or when safety becomes an issue.

A case we will be looking at today involves a woman who wanted to halt her ex partner’s relationship with herself and her two daughters by terminating the father’s parental responsibility. We will explore what parental responsibility is, when it can be removed, and take a look at the case itself to explore this topic further.

What is parental responsibility?

Essentially, parental responsibility is exactly what it sounds like. All mothers and most fathers have legal rights and responsibilities as a parent – known as ‘parental responsibility’.

If you have parental responsibility, your key roles are to:

provide a home for the child

protect and maintain the child

You are also responsible for:

disciplining the child

choosing and providing for the child’s education

agreeing to the child’s medical treatment

naming the child and agreeing to any change of name

looking after the child’s property

If the parents are separated, the parent who lives with the children must still include the other parent when making important decisions in the child’s life, for example moving abroad.

When can parental responsibility be terminated?

Obviously, terminating parental responsibility is a huge decision. It is a matter that will be decided by the courts and the law around this issue is suitably complex; each case is assessed individually on its own terms. It is worth noting that it is usually in very extreme circumstances that a termination of parental responsibility will be considered, for example if the parent has become a danger to the children or the other parent.

Unless the child is adopted, parental responsibility cannot be officially removed from the mother, although of course if the mother has become a danger to the children her contact with them can be limited and controlled. Similarly, if the parents are married parental responsibility cannot be officially removed from the father, but contact between him and the children can be controlled.

When it comes to a father who is not married to the mother, parental responsibility is very unlikely to be officially removed for things such as not paying child maintenance, not showing interest in the child or refusing to see the child. It is more common for responsibility to be removed in cases of abuse or putting the child’s life in danger intentionally.

Let’s look at a real case

In a recent case, Child X and another A mother v A father the mother wanted to terminate the father’s responsibility and also change the children’s surname (to remove their fathers surname).

The father is currently in prison and will not be eligible for release until 2033. He is in prison for the attempted murder of the mother, have stabbed her a staggering 15 times. He was also convicted of stalking, making troubling calls regarding the mother and possessing a deadly weapon. The mother therefore brought the two applications to the court in response to this behaviour.

What did the courts decide?

The courts accepted the mother’s request, which is not surprising considering the extreme nature of the situation. Key factors were that the father was a clear danger to the mother and children, and they were unmarried so there was no barrier there. Also, the fact that the father will be in prison for a long time means that he will not be able to exercise his responsibility as a father in a significant way, which he had not been doing while out of prison either.

It was also decided that the emotional welfare of the children would benefit from his responsibility to them being as a father being removed, and that he could potentially use his responsibility to coerce the mother.

In terms of the name change, the courts saw no reason as to why this should not happen. One of the children had no memory of the father, while the other attributed past traumas to experiences involving the father. Therefore, it was decided that to permit the mother to change their names would be consistent with their welfare and allow her to act protectively of her children. Further, the children had no close relationships with any extended paternal family members.

What do we think?

When it comes to the case above, we are in full agreement with the court’s decision. The case clearly met the threshold of extremity needed for such drastic measures, and the safety of the children and the mother was greatly improved with the father parental responsibility being terminated. The changing of the name will also allow the children to detach themselves from the father with greater ease, and hopefully lead them to live happier and fuller lives.

Need some legal advice? We are here to help!

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 [email protected].

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

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

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James Cook

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Celebrating Our Staff at Lisa’s Law!

It is no secret that the past year and a half has been challenging in a unique way. The Coronavirus pandemic was unprecedented and took a huge toll on everyday life, including how businesses could operate.

One thing we have learned during the pandemic here at Lisa’s Law is that our staff are extremely resilient, hard-working and refuse to give up in adversity! That is why we have been focussing on celebrating them this week, to say thank you for being so brilliant during this challenging time!

Elin Lee and the Conveyancing team

We want to give our conveyancing team a big shout out. They have been particularly busy during the pandemic, especially over the course of the Stamp Duty Land Tax holiday. This holiday caused a huge spike in people purchasing property, which meant Elin and her superb team have been working extra hard to deliver a great service to an ever expanding list of clients.

They have been so successful, you only have to look at all of our recent 5 star Google reviews to see how happy our clients have been! We already knew how knowledgeable and dedicated they were, but they have really gone above and beyond, exceeding their targets and working brilliantly as a team to achieve success! They deserve so much credit (and a good rest!)

Here is our Managing Director Ding handing some well-earned flowers and a gift card to Elin Lee, who is the Head of our Conveyancing department. Elin has stayed late at the office after often being the first one to arrive, always handles her cases perfectly while supervising and advising her team, never once complaining and always doing it with a smile on her face. We are so lucky to have her and appreciate everything she does!

The all-star Conveyancing team! They have achieved so much together and proven that they can work together to get the job done no matter what! We are truly proud of them!

To find out more about our conveyancing services, click here!

Not forgetting everyone else!

We had to say thank you, not only to the conveyancing team, but every single members of staff – from our brilliant receptionists, amazing accounts team, marketing department and of course all of our case workers. They have done so well, keeping up our high standards and definitely deserve a treat!

Every member of staff received a delicious Well Box! It is filled with goodies and is just a way for us to say a huge thank you to everyone for their hard work and dedication. Everyone working from home had a box delivered to their door, nobody missed out!

The boxes contain a great range of treats, such as chocolate popcorn, spiced almonds, gummy sweets, biscuits, tea and more!

Salina, one of our fantastic lawyers here at the firm, with her Well Box in one of our meeting rooms at our London based office.

Ruyun is part of our marketing team here at Lisa’s Law – we wonder what snack she will try first!

Yvonne has been working hard and definitely deserves her box of treats!

There you have it!

We have continued to grow and thrive over the past year and a half, and that is all down to our brilliant staff. We know how lucky we are to have each and every one of them, as they each bring their own individual spark to our firm!

Need some legal advice? We are here to help!

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 [email protected].

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

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

Links to download below:

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James Cook

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Landmark Ruling Could Unlock EU Settlement Scheme for Zambrano Carers!

We have said it before, and we will say it again: the deadline for the EU Settlement Scheme is right around the corner on 30 June 2021. This must be a priority for all EU citizens and their family members, as if they do not register or submit their applications in time, they may not have another chance. If that happens, it will mean those who are staying in the UK currently will become overstayers and and may lose their jobs, homes, NHS benefits and any financial support they require.

A recent case, Akinsanya v Secretary of State for Home Department (SSHD), which we are covering in this blog, should be at the front of many people minds, as it has potentially opened the door to the EU Settlement Scheme for a large demographic – people who are not from an EEA state but whose residence is needed in the UK to allow a British childto live in the UK. These people are otherwise known as Zambrano carers.

To be clear, the premise of a Zambrano carer is relatively simple. If a person, be that a child or a dependant adult, is an EU citizen, they have the right to enjoy all the rights that EU citizenship brings. One of these rights is living in an EU territory, meaning that if their primary carer, in a child’s case, is expelled from that territory and the citizen would realistically have to go with them, their rights would be violated. This means that the carer must also be granted residence in the EU state. As the UK was previously a part of the EU, such people need to be protected now that the UK has left the union. The protection of EU citizens is the main reason for the EU Settlement Scheme.

Up until now it has been the Home Offices policy that you cannot have two immigration applications or status running at the same time. In the event that this occurs, usually the first application/status is cancelled/superseded by the second one. While the Home Office are likely to appeal, the Akinsanya case has challenged this way of thinking, and the result could be of huge benefit to many looking to get onto the EU Settlement Scheme as Zambrano carers.

Case overview

The all-important case is Akinsanya v Secretary of State for Home Department (SSHD) , in which the claimant is a 39 year old Nigerian woman who has a child who is a British national, of whom the claimant is primary carer.

Over the course of a few years, the claimant had made applications for derivative residency, leave to remain on the basis of the family/private life ten-year route and finally was granted 30 months’ limited leave to remain until 11 January 2022, with no condition preventing recourse to public funds, which she was previously denied as her status was a Zambrano carer.

When the EU Settlement Scheme opened, the claimant applied to it with a view of obtaining indefinite leave to remain on the basis that she was a Zambrano carer with five years’ continuous residence in the UK. However, the Secretary of State denied her application, deciding that she was not eligible for the EU Settlement Scheme as she had already been granted limited leave to remain on a separate application.

When the claimant appealed this, the Administrative Court found that the theory that the existence of a concurrent limited leave to remain of itself automatically extinguished a claim for Zambrano residence was wrong, and in fact a limited national leave to remain, and a wider Zambrano right to remain would frequently co-exist in many cases.

The importance of this judgement

This result is of huge significance, as it means that the Home Office will have to look at its policy regarding Zambrano applications to the EUSS. This would mean that people who are holding 2.5 leave to remain based on being the primary carer of British children may be eligible to apply for settled or pre-settled status, and such an application would not affect their current status.

Essentially, in addition to their current status, they may be eligible to register under the EU Settlement Scheme and if they succeed, it only takes 5 years to settle (some even may already have been eligible without knowing it). In addition, registration under the EU settlement scheme is free, while a settlement application based on domestic immigration law will cost £2,389 per person.

The Home Office may now have to reconsider their guidance regarding the Zambrano carers and the EU Settlement Scheme, redrafting Appendix EU of the Immigration Rules.

What do we think?

The judgement will be music in the ears of parents of British children looking to get in on the protections granted by the EU Settlement Scheme, and we wholeheartedly support that the rules be redrafted to accommodate them. We see no reason at all why Zambrano carers should be excluded, and we feel that the more people able to access the scheme the better.

We also would like to see an extension to the EU Settlement Scheme deadline, considering that this judgement has come so close to the finish line. People should be granted every opportunity to apply before the possibility of reprimanding them is even considered.

Have questions? We are here to help!

We understand that the EU Settlement Scheme can seem daunting, but you do not have to face it alone. We are here to help you every step of the way. If you are not quite sure of your rights or how to apply for your status, please do not hesitate to contact us.

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 [email protected].

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

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

Links to download below:

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

James Cook

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EU Settlement Scheme – Coronavirus related absences to be overlooked by Home Office?

The deadline to the EU Settlement Scheme is at the end of this month (30 June 2021), meaning that EU nationals and their family members will have a limited amount of time to apply for visas to either continue to stay in the UK or come into this country, depending on their personal circumstances. For the majority of people who need to apply to the scheme, they may not have much problem with their application, but others may have concerns about falling short of the requirements. One such worry could come if the applicants have been away from the UK for some time, as in many cases, applicants are required to stay in the UK for certain number of days, failing which their applications may be refused.

It may be comforting to know that the Home Office has released guidance which reveals some periods of absence will not affect applications to the EU Settlement Scheme (EUSS), with clarification concerning COVID-19 related absences. This article will focus on what kinds of absences will be admissible and how the Home Office will see certain reasons for applicants being away from the UK for prolonged periods of time.

Absences of up to 12 months due to Covid-19

Under the new guidance an EUSS applicants ‘continuous qualifying period’ of residence will not be broken where they have been absent for a single period of up to 12 months for an ‘important reason’. Some examples of an important reason are pregnancy, overseas posting, studying or training. Each reason will be judged on its own merit. The Home Office’s guidance now is that an important reason may include coronavirus complications, for example, where you can show you were:

ill with coronavirus

in quarantine, self-isolating or shielding in accordance with local public health guidance on coronavirus

caring for a family member affected by coronavirus

prevented from returning earlier to the UK due to travel disruption caused by coronavirus

advised by your university that, due to coronavirus, your course was moved to remote learning and you were advised or allowed to return to your home country to study remotely

advised by your university or employer not to return to the UK, and to continue studying or working remotely from your home country

absent from the UK for another reason relating to coronavirus, for example, you left or remained outside the UK because there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas

These rules are the same if the applicant did not intend to exceed 6 months away from the UK initially, but ended up doing so, but their absence did not exceed 12 months.

This should offer some peace of mind to the many people who were unable to travel back to the UK due to coronavirus related issues. It would indeed be highly unfair to penalise these applicants for being away from the UK for such reasons.

Evidence needed to prove length and reason for absence

Examples of acceptable evidence include (but are not limited to):

used travel tickets confirming the dates you left the UK and returned

confirmation of flight cancellations detailing the dates and times

doctor’s letter confirming you contracted coronavirus

doctor’s letter confirming you were identified as vulnerable and advised to shield

email or letter confirming you, or a person you were living with, received a positive coronavirus test result

official letter confirming you were in coronavirus quarantine

doctor’s letter confirming your family member, who you have been caring for, contracted coronavirus or was identified as vulnerable and advised to shield

email or letter confirming your family member, who you have been caring for, received a positive coronavirus test result

letter from a university advising you that, due to coronavirus, your course was moved to remote learning and you were advised or allowed to return to your home country to study remotely

letter from a university or employer advising you not to return to the UK, and to continue studying or working remotely from your home country, due to coronavirus

letter or other evidence from you accounting for your absence for another reason relating to coronavirus, for example, you left or remained outside the UK because there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas

The Home Office may ask applicants to provide copies of these documents, and in some cases they may require the original copies – so it is important to keep them safe!

What about absences of more than 12 months?

Absences of more than 12 months are treated slightly differently. They will be seen as having broken the continuous qualifying period, but the wording in the guidance suggests that such applicants can still apply to the EUSS if they can prove they were:

absent for an important reason (including a coronavirus-related reason), and

‘coronavirus meant they were prevented from, or advised against, returning to the UK within 12 months and for a period thereafter’

This means that where, after an absence of 12 months for an ‘important reason’, coronavirus meant you were prevented from, or advised against, returning to the UK within 12 months, you will be treated as not having broken your continuous qualifying period of residence.

Student applicants – 12 months away could be an issue?

One difference between the wordings that we can identify is that with absences over 12 months, it appears there must be a direct suggestion for student applicants to be away from the UK, rather than the applicant choosing to remain away from the UK. However, it is different for applicants who have been outside the UK for less than 12 months.

In the former scenario, applicants will have to produce evidence to show that they are requested by their education providers not to return to the UK; while in the latter, it should be that they are suggested or allowed not to return. In another words, one is compulsory to stay outside the UK; while the other one is optional, depending on the applicants’ own decision.

To show what we mean, see the below text regarding reasons for being outside the UK from the guidance around periods of absence of over 12 months:

What do we think?

We are pleased to see that considerations have been made for people being away from the UK. The last year and a half has been difficult for everyone, and travel options have been highly limited. It would be terribly unfair to penalise people for being away from the UK when they have not had a chance to return, or have not been able to return due to illness or other unforeseen circumstances.

Also, for those who have obtained pre-settled status before leaving the UK, they should be able to rest easy in that their period away from the UK will not affect their potential to move on to settled status, in cases where coronavirus or another important reason has meant they were unable to return to the UK. This is another big positive for many people.

Have questions? We are here for you!

We are ready to provide you with a fantastic legal service and there are many ways for you to contact us!

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 [email protected].

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

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

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James Cook

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Denial of homeworking or furlough request from employees due to fears of COVID-19 may not itself amount to unfair dismissal

Coronavirus has been a huge part of our lives for almost one and a half years now and the effects of it have reached far and wide. It has taken many lives, ravaged the economy, put thousands out of work and made people homeless. The nature of the virus makes it unpredictable, as new variants keep rearing their villainous heads – such as the new Delta variant which is said to be more transmissible than those that came before it. We get peaks of hope and troughs of despair, as cases go down only to rise again when lockdowns are ended. It is emotionally and physically draining, striking fear into the hearts of many, with the vaccine being the only real route out, so far as we can see.

Turning our minds to a more specific matter related to coronavirus, we are looking into a legal issue related to employment and business within the pandemic. The issue revolves around an employee’s potential fear of the pandemic leading to rights for them to be furloughed or given permission to work from home, and how employers can respond to such a claim.

Can an employee demand to work at home or be put on furlough? If the request is denied, can the employee refuse to work?

The furlough scheme, otherwise known as the Job Retention Scheme, has proved a massive asset in keeping people’s heads above water during the pandemic, allowing them to receive 80% of their wages if their employer is willing to sign them up to the scheme. This is still in place and many people are furloughed until September 2021, with even this date susceptible to being pushed back. Similarly, the ability to work from home has been essential in keeping cases down, with the Prime Minister Boris Johnson actively pushing employers to allow workers to work from home if they possibly can.

For the majority of people, at least one of these options has been feasible. However, with the furlough scheme it comes down to whether or not the employer chooses to put an employee forward for the scheme, and with working from home the employee must be able to carry out their duties from home. This will not be the case for everyone, particularly key workers. Therefore, if an employee is denied both of these options but still refuses to work, there are likely to be consequences. To explore this issue more we turn to a case that has its roots early in the pandemic, March 2020.

A case study: Accattatis v Fortuna Group (London) Ltd

Mr Accattatis was employed by Fortuna Group, a company which produces personal protective equipment (PPE), of which we have all become familiar with during the pandemic. He started working for this company in a sales and project co-ordinator role on 8 May 2018.

Due to the unprecedented huge demand for PPE because of COVID-19, employees of Fortuna Group were considered key workers and the firm remained open over the course of the first lockdown. However, a series of emails from management related to COVID-19 safety regulations were sent out, such as staff sitting alone in the canteen to maintain social distancing and using the provided hand sanitizer.

On 30 March 2020, Mr Accattatis developed coronavirus symptoms and self-isolated. He initially informed his employer that he would be back to work on 6 April, however after still feeling unwell he obtained two self-isolation notes to explain his extended absence from the workplace.

The main issue arose when, still not having returned to work, he wrote to his manager and asked to be furloughed, claiming that it would be good for all parties. This was a matter on which Mr Accattatis and his employer did not see eye to eye.

By this point, Mr Accattatis has only been receiving Statutory Sick Pay (SSP). He argued that the government announced that people should work from home if possible and that he did not feel safe travelling into work. He gave the employer two options, allow him to work from home (which given his role was impossible), or put him on furlough.

After one last email to his line manager requesting to be put on furlough after claiming the HMRC Job Retention Scheme helpline confirmed that the grant was available for employees that are in self-isolation, he received a reply informing him that his contract with the company had been terminated. The email specified that the termination was due to his breach of company policies and guidelines over a period of months.

Looking through a legal lens

In terms of the law, Mr Accattatis, in his own opinion, was acting in line with Section 44 and 100 of the Employment Rights Act, whereby workers are protected from being penalised for exercising their right to leave their workplace. Such penalisations could be having their wages reduced, being suspended or being dismissed. To be protected under such rights, the worker must have a ‘reasonable belief’ that their workplace poses a serious and imminent threat to them, their family, or members of the public. With this at the front of his mind he took his dismissal up with the Employment Tribunal.

The Judgement of the Tribunal

One point of interest taken by the tribunal was the speed at which the decision was taken to dismiss Mr Accattatis, and that how his dismissal came very close to when he would have qualified to bring a claim forward for ordinary unfair dismissal (after two years of service). Due to the problems Mr Accattatis was causing, it seemed likely to the tribunal that his employer wanted to remove him before he reached his second working anniversary with them. However, Mr Accattatis main point of contention was that his dismissal was unfair in terms of Section 100 of the Employment Rights Act.

While the tribunal was somewhat sympathetic to Mr Accattatis, in that they saw how he could have perceived himself to be in a dangerous position at work. However, they ultimately decided that he had not taken appropriate steps to protect himself from this danger. His appeals to be furloughed or to be allowed to work from home were not applicable to him, therefore he could not rely on them to solve his issue.

Furthermore, Mr Accattatis was dismissed due to a myriad of reasons, not just refusing to come to work during the pandemic. He had also caused problems by complaining about his wages, working hours and difficulty of his job.

This, paired with his fixation on being put on furlough or being granted permission to work from home led to his employer firing him before he qualified for protection against regular unfair dismissal.

Our thoughts

Firstly, we will say that the pandemic has been tough for everyone, with some being affected more than others. We are all built differently, with different anxieties, health concerns and cognitions.

However, it is also equally important that businesses and economy (and life) need to move on. This requires both the employers and employees to work together as a team to walk out the current crisis successfully hand in hand.

Employers should take every reasonable steps to protect their employees. This includes considering actively whether homeworking and furlough are available to employees so to reduce unnecessary risks. If homeworking or furlough is not feasible, the employers should consider how to make their workplace as safe as possible. This involves maintaining social distance, requesting wearing of masks and provision of hand sanitisers.

On the other hand, the employees should also do their part of work. Under employment contract, employees are required to carry out their duty whenever possible. Provided that employers have taken reasonable steps to make the workplace safe, it will be wrong for employees to insist that they will not work because of their self-conceived fear. Even if they do fear more than others, they should have taken extra steps to protect themselves. There is no evidence to prove that the virus has become so deadly that no work can be safely carried out. Should that be the case, the government’s guidance would have stated so.

Covid-19 is dangerous; however, it may not be a trumpet card for employees to refuse to work in all circumstances.

Have questions? We are here for you!

We are ready to provide you with a fantastic legal service and there are many ways for you to contact us!

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 [email protected].

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

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

Links to download below:

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

James Cook

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Splitting up the family? The importance of Retained Rights of Residency for family members of EU citizens.

With the deadline to get onto the EU Settlement Scheme rapidly approaching, people all over the UK who have come to know this country as their home will be feeling tense and confused about where they will stand come the 30^th of June. While the Home Office often sugar-coats the immigration system as straight forward and easy to navigate, this is often not the case in reality. One such area of complication is the rules regarding retained rights of residency, particularly when it comes to family members of EU/EEA citizens who have lost their sponsor due to circumstances out of their control.

For example, what happens to the parents of a non-EEA national who have come to join their child in the UK who has married an EEA national, only for that marriage to dissolve? That marriage was an essential part of their right to be in the UK, as far as the guidance lays out. The marriage was the glue that binds them to the UK, so when that glue is melted away, where are the parents left? Or if a son or daughter of EEA nationals is left by their parents, on whom they relied on for their status? The answer lies in the notion of retained rights of residency, which is what this article will explore.

What are retained rights of residency?

A retained right of residency is when a person who previously had the right to remain in the UK is permitted to continue to legally reside in the country even when their circumstances change, for example through bereavement or divorce. Each case will be measured on its own facts, and being successful in achieving a retained right of residency will depend on the applicants specific situation.

With a retained right of residence, people are free to apply to the EU Settlement Scheme by the 30^th of June, whereby if they are successful they can legally remain in the UK. One difference would be that those applying under the retained rights of residency cannot then go on to sponsor another person looking to come to the UK, they would be cementing only their own right to remain.

This sounds too harsh to many people and unreasonable. By the law of natural justice, a person should not be penalised through something which is no fault of his/her. As stated above, people who have retained their right of residency have done nothing wrong. In some cases, they are even victims of crime, like domestic violence. Should their circumstances have not changed, say, their marriage continues, they would have been able to sponsor other family members or relatives (like parents, children or stepchildren or even cousins or nephews) to the UK. It will not be fair if they are stopped from being doing so now.

So, who is eligible for retained rights of residency?

There are many ways in which someone could be eligible for retained right of residency. For example, if your eligible family member passes away, you get divorced or a member of your family gets a divorce, or a relationship has broken down due to domestic abuse or violence.

In general, where an eligible family members passes away, their dependents would retain a right of residency if they had lived continuously in the UK as their family member for at least one year immediately before their death.

Or, thinking along different lines, let’s say a child of an EEA national is left by their parents in the UK. If that child is enrolled in an educational course in the UK immediately before the relevant EEA citizen (or, as the case may be, the qualifying British citizen or the relevant sponsor) left the UK, died or ceased to be a relevant EEA citizen), and continues to attend such a course, the child will be able to apply on the basis of retained rights of residency.

In terms of a divorce or relationship breakdown, those who were in the relationship and their family members can apply to the EU Settlement Scheme so long as one of the following applies:

the marriage or civil partnership lasted for at least 3 years and the couple had both been living in the UK for at least one year during that time

you have custody of the EU, EEA or Swiss citizen’s child

you have been given right of access in the UK to the EU, EEA or Swiss citizen’s child and the child is under 18

you or another family member was the victim of domestic violence or abuse in the marriage or civil partnership

You can also apply if a family member had an eligible marriage or civil partnership and you lived in the UK when it ended. You must be their:

child or grandchild under 21 years old

dependent child or grandchild over the age of 21

dependent parent or grandparent

You can apply if your family relationship with an EU, EEA or Swiss citizen has broken down permanently because of domestic abuse or violence.

You can apply if you are or were there:

spouse or civil partner

unmarried partner

child or grandchild under 21 years old

dependent child or grandchild over the age of 21

dependent parent or grandparent

Of course, these are general circumstances that we feel will affect many people in a broad sense, but there will be many more types of circumstances where retained rights of residency could come into play. Each case will be judged on its own merits, and it should not be taken for granted that if your situation is similar to those listed above that you will automatically be successful in your application.

EU Settlement Scheme Maze:

Although the Home Office launched its EU settlement scheme more than two years ago, due to its complexity, many people are still struggling to get grips with its requirement and application procedure. We would like to summarise it here very briefly for those who are entitled to retained right of residence.

To be clear, if the family members have not already applied to the EU Settlement Scheme, they must apply based on retained rights of residence before 30 June 2021.

If the family members have already applied to the EU Settlement Scheme for pre-settled status as the family members of a relevant EEA national, but during the 5-year pre-settlement, the marriage of the EEA national breaks down or the EEA national dies, the family members does not need to apply for pre-settled status again if they have retained right of residence. They simply need to prove their retained right of residency after the relationship broke down when they apply for settled status.

If the family members already has settled status, their relationship with the EEA national will not affect their settled status.

Have questions? We are here for you!

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

Email us on [email protected].

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

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

Links to download below:

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

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