Don’t Bite the Hand that Feeds You
Because you might just need that hand to rebuild ‘Broken Britain’. Frantz Gregory Coming to the UK can be a great upheaval journey for most foreign workers. We all have experienced it one way or the other. Some of us who haven’t experienced it may have seen the TV programme ‘Wanted Down Under’ where families considering a move to Australia are given a taste of what it would be like. Imagine that for a moment then think about how much stress and strain the move would have caused you and your family. You settle down, make a life for yourself and your family, supporting and contributing to the society in which you have made your home. Then 5 years down the line, the government pulls the rug out from under your feet. “What the .…” is probably how some may choose to express the unfairness of it. Highly skilled foreign workers in such a situation must feel used. How long do you think they would let Britain use them? Many of you will have heard the phrase ‘Broken Britain’ bandied about in the media and by the Conservative Party and may have wondered what it meant? It means Britain is in a perceived state of social and economic decay and now do you know what the first rule of social and economic improvement is? – supply and demand. You create the opportunity for the best foreign talents to help improve the economy, give them some of the good stuff Britain has to offer and make them want more so that they remain committed and loyal to Britain. But the moment you take away the opportunities and the safety net they have built for themselves and their families in the UK, you get the type of headline grabbing news “Migrant Salary Rules May Cost NHS Nurse Jobs”, and the situation spirals out of control with uncertainty for themselves and their families. From 6th of April 2016, the Secretary of State intends to apply a payment requirement for those, under the Tier 2 (General) and Tier 2 (Sportspersons) visa categories, who intend to apply for indefinite leave to remain (ILR). ILR is a settlement route to naturalising as a British citizen. The reasoning behind this is to break the link to British citizenship that currently exists for foreign workers who arrived prior to 6th of April 2011 and who will meet the 5 years continuous lawful residence requirement. The Secretary of State seems to think that it is fair game to use highly skilled foreign workers to help improve the British economy and yet simultaneously deny them the opportunity to settle and have a secure family life in Britain. The cut-off point for the payment requirement is 6th of April 2011. Those who were granted leave under the applicable Tier 2 category before this date can settle after 5 years of continuous lawful residence subject to meeting all the other requirements. Those who were granted leave after this date will only be eligible to apply for settlement after 5 years if they meet certain relevant requirements or earn a minimum sum. The […]
Read moreDeportation Digest
Deportation is described as the forced removal of a non-excluded person from the UK. A person is excluded from deportation if they are a British citizen (in law) or have right of abode [i] or are a Commonwealth citizen who was ordinarily resident in the UK on the 1st of January 1973 and has lived in the UK continuously for 5 years prior to the offence or deportation decision. Deportation is split into two types: automatic deportation – applied when a non-excluded person is given a criminal sentence in the UK of over 12 months imprisonment and non-automatic deportation – applied when automatic deportation does not apply and the Secretary of State considers that the person’s continued presence in the UK is not conducive to the public good. The introduction of automatic deportation limits the use of the court’s power to recommend deportation. Where a person is sentenced to more than 12 months, deportation will take place after the sentence has been served. However, where a person is sentenced to less than 12 months, deportation will only take place after the sentence has been served if it is decided that it is conducive to the public good to deport. Administrative removal occurs when a person has no leave to remain in the UK and the leave to remain application has been refused, then the person will be removed from the UK. In deportation cases, a notice of decision to deport is served and a deportation order will be issued. In administrative removal, removal directions are issued followed by a removal notice stating the date and details of removal. The appeals system changed radically when the Immigration Act 2014 commenced. The purpose of an appeal is different depending on whether the decision is a Borders Act decision or an Immigration Act decision. Foreign criminals[ii] and their family members who receive a decision after 20th October 2014 will no longer have a right to appeal against a deportation or request administrative review. However, if you have a genuine protection or human rights claim, we may be able to help. It is difficult to re-enter the UK after a deportation. If the person’s criminal sentence was 4 years or less, a deportation order will not normally be considered if an application for revocation is made before 10 years have elapsed. This is known as the exclusion period. If the person was sentenced to a period of imprisonment of at least 4 years, the deportation order will continue unless the continuation will breach the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances. [i] A person who is free from immigration control. All British citizens have right of abode. The following also have right of abode: (a) commonwealth citizens born before 1 Jan 1983 who had a parent born in the UK where the father must have been married to the mother. (b) women who were commonwealth citizens before 1 Jan 1983 and married before that date to a man born, registered or naturalised in the UK or who is a commonwealth citizen with parent born in […]
Read moreThe Immigration Act – The Hidden Agenda
With the coming into force of the Immigration Act 2014 (The “Act”) and the new Immigration Bill (The “Bill”), which is currently going through parliament, there is an inherent air of unfairness towards migrants who are contributing immensely to the UK. The purpose of the changes was to create a hostile environment for foreign criminals and illegal immigrants but there are unfair unintended or perhaps intended consequences in store for legal, genuine and legitimate immigrants contributing to our society. British citizens, genuine immigrant families, children, husbands, wives, partners and individuals have their rights to family or private life denied by the Home Office and are being forced out of the UK. More worrying are the whispers of the uncanny similarities in principle with the Home Office’s acquired powers and the tale of Mugabe and the White Africans. The Mugabe Principle “I will always stick to my principles to cater for the public interest” but is it really …? Questions and Answers Question#1 – Do the new changes give Immigration Officers new and unprecedented police-like powers to create a hostile environment for migrants and their families? Answer – Yes. What is particularly concerning is that there are little or no safeguards, as there are against the abuse of police powers, to protect individuals and families against the abuse of immigration powers. Question #2 – I am married to a British citizen. Does the Home Office have the power to remove me from the UK without notice if my visa is refused? Answer – Yes. There is no right of appeal against any Home Office decision to refuse a visa except under human rights grounds or refugee protection grounds. Human Rights grounds are very difficult to succeed. Question #3 – My husband and I are British citizens. My sister’s visa was refused. Does the Home Office have powers to enter and search my home? Answer – Yes. The new powers allow immigration officers to enter and search the premises of a third party if there are reasonable grounds to believe that relevant documents may be found there. Question #4 – If I give shelter to a vulnerable mother and child whose visas were refused, can I go to prison? Answer – Yes. With the new Bill, you can go to prison for up to 5 years if you knowingly rent to a migrant who does not have the right to rent. The new changes also give the Home Office powers to issue civil penalties against landlords who fails to check and record the immigration status of a tenant. Question #5 – If the Home Office refuses my visa, can I have the decision independently reviewed? Answer – No. With the new changes in place, appeal rights have been replaced by Home Office administrative reviews. Only the Home Office sitting in judgment can review its decisions except where human rights grounds or refugee protection grounds have been raised. Question #6 – If the Home Office refuses my visa and I raise human rights grounds, can the Home Office deport me? What if I am an EEA citizen? Answer – Yes. A person liable to be deported who raises human rights grounds by default can be removed from the UK […]
Read moreCalculating Damages in Trademark
Assessing Damages When assessing damages in any trademark infringement case, there are many factors to be considered. The first point is the circumstances surrounding the supposed infringement. You would need to investigate how the trademark was infringed, for example: a) identifying the infringing products and the description that was presented. b) whether the infringing party was aware of the infringement. c) how long was the infringement going on for before any action was taken. All these are important factors when assessing the potential case as these answers may have a significant effect on the outcome. Once all the information has been gathered, the potential breach will then need to be assessed and a remedy should be sought as soon as possible in order to rectify the issue effectively. So how would a remedy be concluded and how would the damages be calculated? There are two possible options that a trademark owner should consider. The trademark owner would be free to choose between them; however, they may not have the benefit of both. The outcome of either option may be uncertain. The two options are: a) an inquiry as to damages b) an account of profits. Inquiry as to Damages: The purpose of this remedy is to determine the extent of the trademark owner’s losses and to attempt rectification by compensating the trademark owner and putting them in the same position they would have been had the defendant not committed the infringing act. The burden is on the trademark owner to prove that the sum of the losses accumulated was sustained from the defendant’s wrongdoing. An inquiry would require the courts to assess and compare. They would assess the outcome had the tort not have been committed and compare this with the actual conclusion which occurred. The trademark owner would have to prove a casual link between the act and the loss and then the courts would determine causation on the balance of probabilities. If on the balance of probabilities, the courts decide the loss was caused by the act, then the trademark owner would be entitled to compensation amounting to the sum of the loss. A good case which illustrates this remedy is AP Racing Limited v Alcon Components Limited 2016. An Account of Profits This is an equitable remedy which requires the defendant to pay the trademark owner any profits accumulated through the infringing act. The trademark owner would usually ask the defendant prior to proceedings to disclose the amount of profits they obtained within a certain period. It would be highly likely that the defendant would deter from disclosing this information, as the trademark owner would be able to evaluate the losses accrued against the profits the defendant obtained and they would most likely bring an action on the defendant with the higher equation of the two. So, the trademark owner would have to seek the remedy of an account of profits through the courts. An account of profits is not guaranteed to be granted. This is because the defendant’s accounting records would have to be examined in order to determine which profits derived from the infringing act. This can prolong proceedings which in […]
Read moreDiscrimination by Inference
Summary Discrimination by Inference. Nadia Otshudi worked for Base Childrenswear Limited from 16 February 2016 up until she was dismissed on 19 May 2016. Her former employer, Mr Granditer had told her that she was being dismissed for redundancy. Nadia stated that she did not believe the redundancy reason was true and claimed she was a victim of discrimination. Mr Granditer claimed he was so upset and disappointed by this allegation that he dared her to repeat the statement. She was told to collect her belongings and leave. Nadia lodged a grievance five days later, claiming her dismissal was discriminatory. Mr Granditer chose to ignore the grievance. Nadia lodged her claim to the tribunal and Mr Granditer lodged his defence claiming the redundancy was made “purely for financial/economic reasons.” The claim was out of time, however the tribunal allowed an extension for 1 alleged incident of racial harassment. About 15 months later in August 2017, roughly three weeks before the hearing, solicitors instructed by Mr Granditer amended his defence to grounds of resistance. A new explanation had been presented. Mr Granditer claimed that two of his staff members believed they saw Nadia attempting theft of clothes whilst working. There was no investigation and Mr Granditer dismissed Nadia by using redundancy to minimise the potential confrontation. The tribunal found in favour of Nadia and she was awarded £27,505.29. Facts of the case Mr Granditer appealed to the Employment Appeal Tribunal on 31 August 2018 but HH Judge Stacey dismissed this. Mr Granditer now appeals in the Court of Appeal (Civil Division.) The issue here is to decide whether the decision of the Employment Tribunal was legally flawed. Was it unreasonable for the court to draw an inference that the dismissal was racially-motivated? The tribunal took into account that Mr Granditer had no background of treating Nadia unfairly. Nadia also requested to work separately and Mr Granditer had given her permission to do so. It was even agreed that Nadia was a talented photographer. The difficulty was trying to determine whether there was any link between Nadia’s race and her dismissal. Ratio Decidendi With all facts considered, it was held that it was appropriate to draw the inference that there was a racial element to the dismissal. This is because there were too many concerns within Mr Granditer’s argument. Mr Granditer only mentioned the suspected theft 3 weeks before the hearing. The false explanation to avoid confrontation ceased to be operative once court proceedings began. He dared Nadia to repeat her allegation of discrimination, which was earlier described as an attempt to intimidate Nadia. No investigation was carried out and there was little evidence to prove an attempted theft. Mr Granditer also chose to ignore the grievance. Mr Granditer failed to prove that the protected characteristic had no link to the dismissal, so it could be inferred that Mr Granditer had reached his conclusion that attempted theft had taken place due to Nadia’s race. The appeal was dismissed and the tribunal’s decision was upheld. Contact Information If discrimination by inference is something that you need help with, Frantz Gregory & Co can support you in bringing […]
Read moreDemistifying Asylum Seekers
Unfortunately the media in Britain plays a significant role in corrupting the minds of well meaning citizens of our community and causing a lot of anxiety amongst asylum seekers in the UK. Everyone who comes to Britain to live and work has a story to tell. The story of an asylum seeker is always that of fear. Many of them flee their country by any and all means possible because of fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or possession of a certain political stance – essentially for who they are. Where has our compassion gone? We hear a lot about how asylum seekers are taking our jobs, taking advantage of our benefit system, being given priority over social housing and so on. If there is any truth in these, it would be because of a failure in government policies and not because of immigration. However, these are myths being portrayed as truth. There is so much misinformation and misunderstanding about immigration and asylum and sadly the media isn’t helping particularly in the run up to the General Election. It is worth taking a moment to dispel some of the entrenched myths I have come across in my five years of Immigration and Asylum Practice. But first I need to make a distinction between an asylum seeker, a refugee and an illegal immigrant. In the UK when a person makes an application for asylum they are referred to as an asylum seeker. However, if their application is successful they are granted refugee status and are referred to as a refugee. A refugee is granted a five year leave to remain in the UK without any condition The Home Office can at any time before the end of the five year period revoke a refugee status and if not, Indefinite Leave to Remain (indefinite visa) would be granted. A person is an illegal immigrant if they enter the UK without a visa and have not made themselves known to the authorities, or where they have overstayed, or failed to comply with the conditions of their visa without a reasonable excuse. Myths and Facts Myth – Asylum seekers take our jobs. This is not true. Fact – Asylum seekers are not normally allowed to work. However, they can apply for permission to work only in occupations with a shortage of suitable candidates and they must meet certain strict conditions. Myth – Asylum seekers take our benefits. This is not true. Fact – Asylum seekers do not have access to mainstream benefits. However, those who are at risk of homelessness and destitution may be able to apply for housing and money through asylum support previously known as National Asylum Support Service (NASS) and not through the local authorities. Asylum support is means tested with very strict terms and ceases when an asylum claim is finally decided. Myth – Asylum seekers are draining our economy. This is not true. Fact – There is no single profile of an asylum seeker. They come from all works of life in their country of origin. They may be highly skilled professionals fleeing their country […]
Read moreNigel Farage’s Top 10 Immigration Gaffes!
Gaffe #1 – Introduce an Australian-style points based system to manage the number and skills of people coming into the country. Fact – A British-style points based system already exists within the Immigration Rules. It was introduced in 2008 and subsequently amended in 2012 to include stricter criteria where for example applicants are required to show that their intentions are genuine. The amendment had a significant effect in some of the migration routes into the UK and reduces the abuse of immigration control. The British-style point based system is notoriously tough. There is currently no right of appeal for those who have been refused a visa under the system save for those refused an extension and in very specific circumstances. Gaffe #2 – Refuse entry to those with HIV and life-threatening diseases. Fact – The Immigration Rules allow for situations where an applicant can or sometimes must be refused entry into the UK if one of the general grounds for refusal applies. Applicants with life-threatening diseases will be refused entry if there is confirmation from the Medical Inspector that, for medical reasons, it is desirable to refuse entry. Gaffe #3 – Work visas should be issued to skilled and key workers under an Australian-style points based system. Fact – Work visas are already issued to skilled and key workers under a British-style points based system. The system is designed to manage the number and skills of people coming into the UK for students and some workers. Gaffe #4 – Those arriving on work visas will not be granted permanent leave to remain however they can apply for British citizenship. Fact – Under the Immigration Rules, permanent leave to remain is a step to naturalising as a British citizen. Breaking this link would mean that extra requirements to ensure that an applicant meets the criteria are removed. Some have argued that this extra requirement is redundant while others have argued that removing this extra requirement makes the British Nationality law a soft touch. Gaffe #5 – Students not attending courses in the UK will have their visas withdrawn and the colleges not reporting absenteeism will be barred from accepting international students. Fact – Educational institutions recruiting students from outside the EEA need a Home Office sponsor licence and they must apply for Highly Trusted Sponsor status. There are existing obligations on all educational providers wishing to retain their sponsorship licence to comply with strict licence requirements. The Home Office can and will suspend or revoke an institution’s status or licence if, for example, it fails to report any unauthorised absence. Gaffe #6 – It is important that British citizens and those with permanent leave to remain in the UK can form legal family relationships with non-British citizens. So we will abolish EEA family permit schemes. Fact – The very purpose of the EEA family permit is to enable all EEA nationals and British citizens exercising treaty rights and their family members to form and maintain a legal family relationship in the UK. EEA nationals and their family members automatically acquire permanent rights of residence in the UK after 5 years and they may wish to apply for a document certifying this for the sake of convenience. The idea […]
Read moreRight to Rent in the United Kingdom
What does the new law on right to rent mean for landlords? landlords What does the new law on right to rent mean for landlords? The Immigration Act 2014 introduced a new legal requirement on private landlords in England to carry out immigration checks on all new prospective tenants from February 2016. The new law applies to residential agreements including tenancies, leases of less than 7 years, licences and sub-tenancies or sub-leases. British citizens, EEA nationals and Swiss nationals are all relevant nationals that can rent accommodation BUT must show evidence that they are relevant nationals. Anyone who is not a relevant national BUT has been granted a visa to enter or remain in the UK has a right to rent accommodation. What does this mean for landlords? It is important that landlords carry out checks on all the adults over the age of 18 who will be living in their properties and take steps to ensure that all adult tenants will live in their property as their only or main home.The right to rent obligation only apply to new tenancies from 1st February 2016. The 3 golden rules are (a) Obtain original documents from the tenant showing they have the right to rent. (b) Check that the documents are valid with the tenant present and (c) make Copies of the original documents and record the date you made the checks. Landlords should be aware that: There are monetary penalties of up to £3,000 for non-compliance based upon each illegal migrant being housed. Enforcement measures are now active. This means that if they are found to be in breach, they are automatically considered as committed an offence on notice from the Home Office. They can be sentence to up to 5 years imprisonment and an unlimited fine. They are obligated to keep track of their tenant’s leave to remain. They can pass their obligation to carry out right to rent to an agent but this must be done in a written agreement clearly stating that the agent takes full legal responsibility for carrying out the checks and any penalty. There is a legal responsibility to meet tenants face to face or via a medium such as Skype. What does this mean for tenants: Tenants may find that their landlord can terminate their tenancy agreement by: Mutual agreement. Serving notice upon the tenant in accordance with usual procedure for that tenancy. Following eviction routes for disqualified people in England. Tenants may also find that if they are caught, they will be arrested and would likely be removed/deported from the UK. Who has the Right to Rent? Those who are subject to pre- entry control, more commonly known as a visa with leave to enter incorporated. Those with permission to enter into the UK granted to non-visa nationals visiting the UK. Those with leave to remain in the UK usually granted in-country to those with existing leave. Those with a time limited leave (to enter or remain), granted for a certain period with a specified expiry date. Those with unlimited leave that has no expiry date but can be lost if conditions are not met. If you would like advice on how the Act might affect you, […]
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