• 31 May 2021

    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 […]

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  • 31 May 2021

    Deportation 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 […]

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  • 31 May 2021

    The 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 […]

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  • 29 May 2021

    Calculating 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 […]

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