Guides - The Africa News

How to successfully apply on compassionate grounds

It is difficult to give an accurate figure of how many overstayers there are in the UK, but it would be sensible to suggest a figure in excess of 1 million. An “overstayer” can be defined as a person who remains illegally in a country after the period of authorised leave (visa) has expired.

An “illegal entrant” in the UK can be defined as a person who unlawfully enters or seeks to enter the UK in breach of the immigration laws or seeks to enter the UK by means which include deception by another person.

The reasons for people choosing to remain in the UK even after their leave has expired are many: there are those who have overstayed their visas and do not want to or cannot return to their home country to apply for entry clearance at the British Embassy in order to return to the UK; others wish to be in the UK for a better standard of living, or because they have established a private or family life in the UK and have ties in the UK which make it undesirable for them to return home. 

Such individuals can apply for Discretionary Leave to remain in the UK.

A discretionary leave application is just that: a person asks the Secretary of State to exercise her discretion in their favour so that they may remain in the UK.

Discretionary Leave is granted outside of the Immigration Rules and often includes claims made on a human rights basis, but it can also be granted in cases where a human rights claim fails.

Article 8 of the Human Rights Act 1998

One of the most common grounds argued by a person is his or her rights under Article 8 of the Human Rights Act 1998 which provides that authorities must have respect for an individual’s private and family life.

A public authority cannot intervene in an individual’s private or family life except in the interests of national security, public safety or the economic well-being of the country. Therefore, people who are in the UK who have overstayed their visas and have formed a relationship with a British citizen or somebody who has a permanent legal status and even perhaps had children with them, are considered to have ultimately established what can be argued a family life in the UK. Such persons can successfully make an application for legal residence in the UK.

Making an application for Discretionary Leave

If you feel your case has human rights grounds and want to look into the possibility of making a Discretionary Leave application, you should obtain thorough legal advice from an accredited Immigration Solicitor.

It should be noted that if an application for discretionary leave is made after a visa has expired or at a time when the applicant had no legal status to remain in the UK, then they will not be given a right of appeal in the event that the Home Office refuse their case; therefore it is best to apply for discretionary leave whilst you still have a valid visa.

The Home Office have recently shown great efficiency in deciding Discretionary Leave applications. It currently takes between 2-6 months to receive a decision.

How to successfully apply for Discretionary Leave

A good discretionary leave application will seek to argue a person’s circumstances and backgrounds such as their:
• age;
• length of residence in the UK;
• strength of connections within the UK;
• personal history including character, conduct and employment record;
• domestic circumstances;
• previous criminal record and nature of any offence for which a person has been convicted;
• compassionate circumstances; and
• any representations received on the person’s behalf.

An application for Discretionary Leave will be strengthened by one thing alone: evidence.

Evidence includes letters of support from friends and family (this is particularly important where a claim under article 8 of the Human Rights Act is being made) as well as the support of your local M.P.

Where the person is married, they should include their marriage certificate, children’s birth certificates, children’s school records over the years, and photographs of themselves with friends and family over the years.

It is important to show that the person has integrated him or herself in British society. For example, they may have benefited from further education and obtained educational qualifications or they may have been working and have made tax contributions.

It is also vital to set out a detailed case explaining the background of the case and in particular any compelling, exceptional or compassionate circumstances that may warrant a person being granted leave to remain in the UK: for example serious medical problems where the person’s life will be at peril if returned home because only the UK can offer suitable medical treatment.

The length of the person’s residence in the UK is very important. The longer the person has been in the UK, it infers the more ties they have to the country. Under the Immigration rules, there is a legal right for persons who have been here for 14 years or more to make an application for indefinite leave to remain in the UK.

Case Examples

Case 1

Gladys is a Ghanaian national. She came to the UK on a visitor’s visa in 2004 but did not return to Ghana when her visa expired. She instead remained in the UK and formed a relationship with a British citizen and they have been engaged for the past two years.

Gladys helps to look after her partner’s mother Mary, who is disabled and requires day-to-day help; all three live together in a house owned by Mary. Gladys recently found out that she is four months pregnant. She makes an application to the Home Office for discretionary leave to remain in the UK on the basis of having established a private and family life in the UK and as she is due to give birth to a British child.

The Home Office consider Gladys’ case and decide that they do not want to grant her discretionary leave, but rather decide to grant her indefinite leave to remain as she has established a strong family and private life in the UK and her legal status needs to reflect this.

Case 2

An Iranian lady by the name of Yasmin enters the UK on a two-year spouse probationary visa as she recently married a British citizen. Unfortunately, the marriage breaks down only after a few months and after the birth of their first child. The child obtains British nationality by virtue of her father being a British citizen.

The Iranian mother seeks to make an application to remain in the UK permanently on the basis of her child being British and as she has nothing to return to in Iran and wishes to form a life in the UK. An application is submitted to the Home Office requesting that Yasmin be permitted to vary her leave from a spouse visa to Discretionary Leave on the basis that the father of her British baby daughter wishes to be part of his daughter’s life despite him no longer being with her mother, and this constitutes an article 8 claim.
The Home Office grant Yasmin Discretionary Leave to Remain in the UK for three years, which is subject to renewal at the end of the three years.

Case 3

Femi is from Nigeria. He came to the UK when he was 15 years of age to study and has held a student visa throughout the past 10 years. However, on two separate occasions, Femi was late in applying for a student visa and there has been a gap of a few days in between his visa expiring and him being granted a new student visa. Femi cannot therefore apply for indefinite leave to remain in the UK on the basis of 10 years continuous lawful residence because of the small number of breaks in his visa. Femi therefore applies for indefinite leave to remain in the UK under article 8 of the Human Rights Act 1998 and argues that two of his sisters live in the UK and are British citizens and that he has been with his British girlfriend for the past three years and that they wish to marry. Femi is granted discretionary leave to remain in the UK under article 8 of the Human Rights Act.

By Raheela Hussain,
Principal Solicitor,
Greenfields Solicitors,

www.greenfieldssolicitors.com

* Please note that the above article does not relate to nationals of the European Union.
 
Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. Information is offered for general information purposes only, based on the current law when the information was first published.

You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact Greenfields Solicitors for a Consultation with a Solicitor:
Tel. +44 (0)20 8884 1166
E-mail
This email address is being protected from spambots. You need JavaScript enabled to view it.">This email address is being protected from spambots. You need JavaScript enabled to view it.

For questions regarding the subject covered in this guide, please visit migreat.com.

Christmas shopping top tips from the Consumer Direct

The Department for Business, Innovation and Skills (BIS) is encouraging shoppers to remember their consumer rights when buying Christmas presents this year.

BIS conducted research as part of the ‘Know Your Consumer Rights’ campaign with Consumer Focus, the OFT and Consumer Direct. The research showed that many are still uncertain of their entitlements, and three-quarters of UK consumers don’t know that they have an extra right when buying online – shoppers have an extra 7-day cooling off period for most purchases.

It is important that consumers should know their rights in the run-up to the festive season. It is predicted £6.4 billion will be spent online alone over Christmas, up from £5.5 billion in December 2009. However, recent research from Which? has shown that returns and refunds policies are not widely known or considered when making a purchase.

Customers should be able to buy goods that

FIT THE DESCRIPTION GIVEN - Goods have to conform to the descriptions given to them

BE OF SATISFACTORY QUALITY - You have the right for the goods you buy to be safe, work properly and be free from defects

BE SUITABLE FOR A PURPOSE - Anything that is sold to you must be capable of doing what it’s meant for.

Consumer Minister Edward Davey said: “There has been a huge revolution in how people buy goods and we are now Europe’s biggest online shoppers, so it’s important we all know what our rights are, both on and offline. What I want are confident consumers who can stand up for their rights and get a good deal. This is especially important when times are tight and everyone wants to make sure they have value for money.”

The ‘Know Your Consumer Rights’ campaign is being supported by B&Q, Citizens Advice Bureaux and Trading Standards offices distributing nearly 400,000 leaflets, with ASDA giving out nearly 20,000 Christmas posters with their deliveries.

Michele Shambrook, Operations Manager for the OFT-managed advice service Consumer Direct, said: “As Christmas approaches, people are looking for value for money - a savvy shopper that has done their homework before hitting the shops will not only be able to pick up the best bargains but will also be able to resolve any problems with their purchase quickly.
“If things do go wrong, the Consumer Direct website can help you find out what your rights are and gives you advice on what steps you can take to secure a replacement, refund or get the item fixed.”

CHRISTMAS SHOPPING TOP TIPS

1. Online is fine - if you buy goods on the internet, you have the same rights as if you were shopping on the high street. In addition, you have the right to a seven day ‘cooling off’ period from the date you receive the goods, with the right to a full refund regardless of the reason for return. Remember though that this doesn’t apply in some situations, for example if the goods were personalised for you, were perishable, or are not in the same condition as when they were delivered.

2. Returning it to the retailer - when you buy goods, your contract is with the retailer not the manufacturer and you should always go back to the retailer in the first instance to request an exchange or refund. If you have a manufacturer’s warranty you can contact them as well as the retailer. And don’t delay – act as soon as you discover the fault.

3. No receipt required - you do not need a receipt to obtain a refund for faulty goods. However, you may be required to show proof of purchase with a credit card slip or bank or credit card statement.

4. Check at the checkout – although you do not have the legal right to take back goods bought on the high street just because you’ve changed your mind, many stores do offer a ‘no questions asked’ refund or exchange policy. Check the store policy when you buy.

To find out more visit www.consumerdirect.gov.uk

What you need to pay special attention to

If you have been refused a visa to enter or stay in the UK, it can be very frustrating and upsetting. However, depending on the visa you have applied for, you may have an opportunity to appeal the visa refusal so that the visa may be successfully granted. 

Appeals are determined in the UK by an Immigration Judge appointed by the First-tier Tribunal (Immigration and Asylum Chamber).

It is advisable to consider obtaining professional legal representation at this early stage so you have the optimum chance of succeeding in your appeal hearing from the beginning of the appeal process. Should you choose to undertake an appeal hearing without legal representation, then the procedure will be as follows.

APPEALS TO THE SECRETARY OF STATE

The Secretary of State (Home Office) is responsible for deciding upon immigration applications made inside the United Kingdom for people already in the United Kingdom.

If you made an immigration application whilst in the UK, which has been turned down by the Secretary of State, you may challenge the refusal decision by appealing to the Immigration and Asylum Chamber (IAC), i.e. the Immigration Court.

The Secretary of State may also refuse a visa for which you have a right of appeal under the points based system, such as Tier 1 or Tier 4 visa, visa extension applications, EEA applications and Article 8 claims. Once you lodge your appeal, the Court is very likely to set an appeal hearing date for you within a couple of months.

Appeals Procedure

1) LODGING THE APPEAL

Within the specified appeal deadline, complete the relevant appeal forms and draft grounds of appeal explaining why you disagree with the refusal notice and what you would like done. I.e.: for the Immigration Judge to agree that the Secretary of State has made an error of law and/or fact in refusing your visa application under the relevant immigration law and therefore you should be granted the requested visa.  At this stage, you can request whether you would like to give evidence at the appeal hearing by way of selecting an “oral hearing” or whether you would like the Immigration Judge to decide the case on papers only, this is called a “paper hearing”.

2) PREPARING FOR THE APPEAL HEARING:

Once you have lodged the appeal forms to the Immigration and Asylum Chamber, you will shortly thereafter receive a court hearing date.  You will then need to start preparing your case for the appeal hearing.

You should then prepare a statement which should include as much detail as possible explaining your case and why the Secretary of State was wrong to not grant you the visa. It is important to raise legal arguments if possible such as citing the relevant immigration rules or case laws that support your case, how these rules apply to you and how the Secretary of State has misapplied the laws in your case and incorrectly refused you the visa.

Statements should also be obtained from any witnesses whom you will ask to provide evidence at the appeal hearing.

It is also important to include as much helpful documentation to assist the Immigration Judge in deciding whether the refusal notice is unfair or incorrect. This information may include information to help clarify why the Secretary of State got her facts wrong. For example, the Secretary of State may have refused a visa as she was not satisfied that you had provided documents as requested by her, when in fact you did send documents to her and have proof of postage such as a postal delivery receipt, which the Secretary of State failed to take in to consideration.

The bundle of papers you wish to rely upon should be neatly numbered with an index and should be photocopied in triplicate – 1 bundle for the Immigration Judge, 1 bundle for the Home Office Presenting Officer (who will represent the Secretary of State), 1 bundle for yourself. The Home Office will also be required to send you a copy of the bundle of papers they intend to rely upon when arguing their case- both bundles will need to be lodged at least 5 days before the appeal hearing date.

3) AT THE APPEAL HEARING

At the appeal hearing, it is likely that the Home Office will send a representative (Home Office Presenting Officer) to argue the case on behalf of the Secretary of State. Also present will be an Immigration Judge who should have read all the papers you have submitted in advance of the hearing along with the Home Office’s bundle of papers which they will seek to argue at the appeal hearing.

The Immigration Judge will generally be seeking to identify the relevant issues to be discussed and argued at the appeal hearing. You and your witnesses will be asked to give answers to the Immigration Judge and answer any questions the Home Office Presenting Officer may have. Your witnesses will also be provided with the same opportunity. It is important that you provide as much information and evidence as possible at this appeal hearing as this will ultimately be the best opportunity to argue this case.

Usually Immigration Judges reserve their decisions in cases – this means the Immigration Judge will not usually indicate their decision but instead choose to write to you within a short period of time with their decision and the reasons why.

APPEALS TO THE BRITISH EMBASSY

Visa or other entry clearance applications made outside the United Kingdom are decided upon by the British Embassy where the application was initially submitted.

If you believe that an Entry Clearance Officer (ECO) has made a mistake in evaluating your visa application to come to the UK (e.g. for a family visit, for a fiancé visa, to settle on the basis of marriage to a British citizen or to somebody permanently settled in the UK) and thus decided incorrectly, you can appeal their decision at the British Embassy.

Appeals lodged against an Entry Clearance Officer decision at a British Embassy will generally follow the same procedure as above, but the waiting time to obtain an appeal hearing is much longer: currently 6-8 months from the date of the refusal decision.

This is because the British Embassy is provided more time to collate and lodge their bundle of papers which they will send to the Immigration and Asylum Chamber and the Home Office Presenting Officer’s Unit, who will represent the British Embassy on their behalf at the court hearing.

When the IAC has recorded your appeal, they will send a Notice of Receipt to the visa section that refused your application. When the visa section receives the Notice of Receipt, an Entry Clearance Manager (ECM) will review the decision to refuse your application in light of your Notice of Appeal and any supporting documents (‘Entry Clearance Manager Review’). If the ECM is then satisfied that your application meets the Immigration Rules, the original decision may be overturned, and entry clearance issued.

If the ECM does not overturn the decision, you will receive a statement explaining why they decided to uphold the decision to refuse your application. The case will then be sent to the IAC in the UK for an appeal hearing.

* PRACTICAL ADVICE: The whole procedure can be made more expedite by requesting an Entry Clearance Manager Review at the same time you lodge the appeal forms. In this way, you would not need to wait for the Court to record your appeal and then contact the ECM – the procedure would be direct.

In practice, if the review is successful, refusal notice can be overturned within 1-2 months of being lodged. For example, if a wife applies for a spouse visa to join her British husband in the UK but the ECO refuses, because there is insufficient documentary evidence to prove that the wife and husband have a subsisting marriage (this is a very common refusal ground in spouse visa applications), the wife may then provide further documentary evidence within 28 days to the Entry Clearance Manager requesting him to review the refusal decision and overturn it (completed appeal forms should also be included).

This can be successful but in the event it is not, the case will be sent to the IAC in the UK for an appeal hearing.

Obtaining professional legal advice from the onset of receiving a refusal decision is highly recommended; appeals can be difficult, lengthy and require knowledge of immigration law and practice and therefore you should seek the help of an experienced immigration solicitor if you are considering appealing a visa refusal decision.

By Raheela Hussain,
Principal Solicitor,
Greenfields Solicitors,
www.greenfieldssolicitors.com
 
Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. Information is offered for general information purposes only, based on the current law when the information was first displayed on this website.

You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact Greenfields Solicitors for a Consultation with a Solicitor on 020 8884 1166.

 

A summary of common problems encountered by Applicants and the consequences when refused a visa

The Home Office receive thousands of applications every week and often have to deal with applications submitted by individuals who have chosen not to use lawyers to help them with their case.

There is no requirement for an individual to instruct a lawyer to help them apply for a visa, but generally it is a good idea to obtain legal assistance so as to ensure the visa application is correctly completed and the immigration rules have been properly complied. This ultimately increases the chances of obtaining the required visa.

For even the most experienced of lawyers, the ever-evolving immigration rules and laws can cause complexities when representing clients. The points based system introduced in 2008 has seen frequent re-drafting of Home Office guidance notes and polices and challenges made by lawyers who have found the Tier points based system unfair and difficult to satisfy for many Applicants.

Many Applicants have found themselves “caught out” by their not abiding by a certain paragraph in the guidance notes-many guidance notes in fact resemble more a text book in their own right as they can be up to 50 pages in length!

Unfortunately, the points based system has shown many pitfalls for Applicants and refusals have been quick to come and plenty. The following is a summary of common problems encountered by Applicants and the consequences when refused a visa, when making a Tier visa application.

IMMIGRATION ISSUE

1. Maintenance- An Applicant falls  below £800.00 during the last 3 months from the date of application (even by a few pence)

CONSEQUENCES

Refusal of Tier application under the basis that the Applicant has failed to maintain the required amount throughout the three month relevant period. However, if the decision is appealed it may be successfully argued that an individual can maintain themselves if they can show that in any other accounts they had funds throughout the relevant three month period before the time of the application. Legal advice should be sought in such an instance.

IMMIGRATION ISSUE

2. A Tier application submitted out of time i.e.: after a person’s visa has expired.

CONSEQUENCES

Generally the application will be refused as the Tier system requires Applicants to have valid leave at the time of applying for a Tier visa. Also, where an application is submitted out of time, there will be NO right of appeal against the refusal decision. The Applicant must consider returning to their home country to re-apply for entry clearance as a Tier migrant since overstaying a refusal decision for more than 28 days would cause them to be banned from returning or unsuccessfully making an application to remain in the UK for a minimum 1 year period.

IMMIGRATION ISSUE

3. Incomplete or incorrectly drafted applications.

CONSEQUENCES

Likely to be returned by the Home Office to the Applicant requesting that the Applicant correctly complete the application with any additional supporting documents. However, if the application is returned by the Home Office to the Applicant AFTER their visa has expired, then the Applicant should not re-apply as they will fall into 2) above. The Home Office do not take responsibility for delay and lateness in notifying Applicants of their decision.

IMMIGRATION ISSUE

4. Failure to provide supporting documents for the Tier application in strict adherence of the guidelines i.e.: Example: Internet bank statements not showing stamp of the bank.

CONSEQUENCES

Refusal of Tier application on the basis that the Applicant has failed to comply with the Tier guidance requirements.

IMMIGRATION ISSUE

5. Applicant has failed to include or erroneously provided information which is correct (even if this was a genuine error by the Applicant).

CONSEQUENCES

Paragraph 320 on refusal: the Applicant may be banned for up to 10 years from applying successfully for a visa or re-entering the UK on the basis of the Home Office alleging that the Applicant sought to use deception in an application. If an Applicant has a right of appeal, they can seek to appeal on the basis of making an “innocent mistake”.

The Green Paper which introduced the system, A points-based system: making migration work for Britain, stated: “Applicants will find the system simpler to understand and the rules for entry clearer and more consistently applied. It will be quicker and simpler for employers and educational institutions to bring in the migrants they need, and there will be more certainty about whether prospective migrants will be able to come to the UK. The public will better be able to understand who we are allowing into the UK and why, and have confidence that the system is not being abused. It will also be more straightforward for entry clearance officers and caseworkers to administer”.

In reality, however, the points based system can be criticised as being a “fall down system”.

Immigration lawyers have noted that the design of the points based system effectively seeks to prohibit individuals from accumulating 10 years continuous lawful residence to apply for indefinite leave to remain.
There are arguably too many clauses in the guidance notes that make it difficult for individuals to follow and abide by.

A recent challenge has been made by a leading Barrister by the name of Michael Fordham QC, who led the assault on the entire points based scheme (for all points based system applications) as being unlawful or “ultra vires”,  on the basis that the policy ‘guidance’ is unlawful, or at least cannot be law as it is not contained within the immigration rules.

It has been argued that the Home Office should use discretion in applying guidance and Immigration Officials must consider the underlying purpose of the guidance, not merely mindlessly apply its strict terms. It is expected that a decision will be released in the next few weeks on the matter. This could have a severe impact on the points based system overall.

To the untrained or unfamiliar eye, it may be best for individuals to obtain the advice of an experienced immigration solicitor in advance of making an application under the points based system so as to ensure that the lengthy Tier application form has been properly and thoroughly completed and so as to ensure that the documents the Applicant provides sufficiently and correctly support the Tier application, thereby giving the Applicant the highest chance of success.

By Raheela Hussain, Principal Solicitor of Greenfields Solicitors

Please note that the above article does not relate to nationals of the European Union. The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors for a Consultation with a Solicitor on 020 8884 1l66.

How an employee can resist a proposed alteration of his or her contract

Many businesses are finding trading conditions difficult at the moment.  Many offered generous packages to attract and retain their staff, which they thought would pay for itself. Some employers have found the cost of these packages unsustainable during this economy crunch and the spending cuts. One of the avenues open to businesses is redundancy, but some businesses do not believe that such a drastic measure is appropriate at this stage at least. Some believe that with some alteration to the packages offered to staff, they could remain competitive and more importantly, would be in a stronger position to take advantage of any upturn in demand.

For most, the alteration required involves a diminution in the benefit packages offered to employees, or the redesign of the working arrangement to the detriment of the employees. The question many employees are asking now is, “can my employer alter the benefit package without my consent?” Employees are concerned about salary cuts, diminution of overtime rates, etc. This article provides a guide to dealing with this issue, especially where the employee is minded not to consent to such alterations. 

It is a fundamental principle of English contract law that changes must be mutually agreed by the contracting parties. Consequently a unilateral variation to the contract could give raise to a claim for breach of contract and/or constructive dismissal, if the employee resigns as a result of the breach. 

How can an employee resist a proposed alteration of his or her contract?

Step One: Is it a change in a contractual term?

The first question to ask is whether the term to be altered is in fact a contractual term or not.  If it is not, a change to the term cannot give raise to a claim for breach of contract. 

Identifying what is and what is not a contractual term will require you to take legal advice.  In France v Westminster City Council EAT/0214, the Employment Appeal Tribunal (the “EAT”), held that an arrangement entitling an employee to work from home in certain circumstances did not constitute a contractual term; hence the withdrawal of such an arrangement was not a breach of contract; hence the employee could not resist the change.  By contrast, the same Tribunal in Land Securities Trillium Ltd v Thornley (2005) IRLR 765, held that a job description was a contractual term, therefore moving an employee from a ‘hands-on’ role to a more managerial position, amounted to a breach, entitling her to resign and consider herself constructively dismissed.

Step Two: Does the employer have the contractual right to change your terms?

Once you have determined that the proposed changes constitute a variation of a contractual term, the next step is to determinate whether the contract itself gives the employer the right to alter the terms. This could be expressly provided or could be implied into the contract of employment.  

In Land Securities Trillium Ltd v Thornley, the EAT held that a clause that provides that the employee will undertake work as his employer should reasonably require, does not give the employer the right to move an employee from a ‘hands-on’ role to a more managerial position. By contrast, in Burnett –v- F A Hughes and Co Limited EAT 109/77, the EAT held that a salesman whose sales territory was enlarged could not claim constructive dismissal because there was an implied term in his contract that he should be responsible for such areas as his employers should reasonably require. 

In International Packaging Corporation (UK) Ltd v Balfour & ors EAT 31/02, the EAT held that the right to vary wages cannot be implied. By contrast, in Airlie & ors –v- City of Edinburgh DC (1996) IRLR 516, the EAT held that an employer was not in breach of contract when, having consulted but failed to reach agreement with the employees’ union over proposed changes to the employees’ bonus incentive scheme, it unilaterally reduced the amount to be paid to employees under the scheme. This is because the agreement contained provisions for the scheme to be periodically reviewed in order to ensure its continued relevance and effectiveness.  Although this case was not referred to in Bateman & ors –v- ASDA Stores Limited (2010) IRLR 370, the EAT reached a similar conclusion.

Step Three: Working under protest

Where the employer has no power to alter the contract of employment or is unsure whether such powers exist, they may seek to terminate the old contract and offer a new one with the proposed changes or simply impose the new contract. 

In such a circumstance you are advised to immediately notify your employer that you do not accept the changes to the terms.  You would then continue to ‘work under protest’, thereby protecting your position. If an employee accepts the new contract or simply carries on working, he may be deemed to have accepted the new contract and may be barred from bringing any claim for breach of contract or constructive unfair dismissal. 

In Jones –v- Association Tunnelling Company Limited (1981) IRLR 477, the EAT held that where an employee stays silent and continues working under changed terms without objecting, this may amount to an implied agreement to the variation in his terms.  In GAP Personnel Franchises Ltd v Robinson EAT 0342/07, the EAT held that an employee may not claim for breach of contract when his contractual mileage allowance was reduced by his employer, as he continued to work without protest, thereby affirmed the employer’s unilateral variation of contract.

Step Four: Employer’s defence

Where the new terms are imposed and you have rejected the terms and are thus working under protest, your employer may consider implementing the new terms to see if you will resign, or may terminate the old contract and offer the new one. 

In both cases, the employer may have a defence, if they can show that the dismissal was for “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” (section 98(1)(b) Employment Rights Act 1996). This will include the need to restructure the business to remain viable. 

In Scott and Co v Richardson EAT/0074/04, the EAT held that an employee dismissed for refusing to agree to a new shift pattern that would have resulted in his losing overtime earnings was dismissed for ‘some other substantial reason’. The EAT went further to hold that it is not for the court to determine if the changes would in fact assist the business.  This emphasizes that this is a business decision which only the employer is capable of making. 

Step Five: When employer’s defence is not applicable

If the employer is able to establish that your dismissal was for ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’, the Tribunal would still need to determine if your employer acted reasonably in treating it as a sufficient reason for dismissing the employee having regard to the size of the organisation. 

In the case of Willow Oak Developments Ltd t/a Windsor Recruitment v Silverwood and ors (2006) IRLR 607, the employer was not able to use the defence because it was held that the employees were given little opportunity to consider the proposed changes or to seek professional advice and were not warned that they would be dismissed if they rejected the new terms.

In conclusion, where an employer unilaterally alters the contract of employment, it would be prudent for the employee to notify the employer of the non-acceptance of the changes immediately to preserve his position and seek legal advice as soon as possible.

By Seyi Clement
Solicitor with Beacrofts,
This email address is being protected from spambots. You need JavaScript enabled to view it.">This email address is being protected from spambots. You need JavaScript enabled to view it.
www.beacrofts.co.uk

Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. Information is offered for general information purposes only, based on the current law when the information was first displayed on this website.

You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact Beacrofts Solicitors for a Consultation with a Solicitor on 020 830 18183.

 

Here's what you must pay special attention to

If you are a British citizen, have indefinite leave to remain, have a points based migrant visa to remain in the UK or if you have some other legal status in the UK and you are married or will be getting married and want to bring your husband or wife to the UK to live with you, then your foreign spouse will have to satisfy the relevant immigration rules to ensure that they will get a visa to come to the UK to be with you.

The foreign person applying for entry clearance is called an “Applicant” and the settled spouse in the UK is called a “Sponsor”.

If you have permanent legal status in the UK (such as British citizenship or Indefinite Leave to Remain) then your spouse will need to apply for a settlement visa at the British Embassy closest to where they live. The current application form used to apply for the settlement visa is a VAF4a - this form can be obtained at the British Embassy or alternatively, can be downloaded from www.ukvisas.gov.uk.

If however, you have temporary visa status in the UK, such as a Tier 1, 2, 3, 4 or 5 visa, then you will need to apply for your foreign spouse to join you in the UK on the basis of your limited leave in the UK. You will need to use a different application form, usually this will be a PBS Dependant application and your spouse will receive a visa for the same period of time for which your visa in the UK is valid.

The relevant immigration rules for the foreign spouse to satisfy when applying for the visa are contained under paragraph 281 of the immigration rules and are as follows:
“281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
__(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
__(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and
(ii) the parties to the marriage or civil partnership have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity”

It should be noted that certain countries request the application to be completed online as they will not accept hand delivered applications any longer- it is important you check this in advance with the relevant British Embassy.

What documents should be submitted?

Your foreign spouse will have to submit a substantial amount of documents to support their application for the spouse visa to the British Embassy. These documents would need to be originals or certified/notarised copies. They should include your:
1. Evidence of Sponsor’s legal status in the UK by way of passport
2. Marriage certificate
3. Photographs of you and your spouse together, over period of time including any recent photographs and the wedding ceremony photographs
4. Evidence of you and your spouse communicating such as itemised phone bill/e-mails/love cards for the past 3-6 months
5. Sponsor’s bank statements/savings accounts for at least 3 months (preferably 6 months)
6. Sponsor’s payslips for the past 3 months (preferably 6 months)
7. Sponsor’s employment contract
8. Sponsor’s tenancy agreement/most recent mortgage statement
9. Photographs of the accommodation where you both will live
10. Independent property inspection report to confirm there will be no overcrowding
11. Letters of support from mutual friends and family of the couple confirming the nature of their relationship
12. Birth certificates of any children
13. Divorce certificates/Decree Absolute showing you/your spouse was free to marry and that your marriage is valid

It must be remembered that most of the documents will need to be provided by the Sponsor. The Entry Clearance Officer may then want to interview the foreign spouse before deciding whether they should be granted a visa. The Entry Clearance Officer will look at the following:
a. Whether there is a genuine and subsisting marriage
b. Whether there is sufficient accommodation in the UK without the need for the UK based spouse to have to claim additional welfare benefits for the foreign spouse that is joining them
c. Whether there is sufficient financial maintenance in the UK without the need for the UK based spouse to have to claim additional welfare benefits for the foreign spouse that is joining them

Where the UK based spouse claims welfare benefits, they can still apply for their foreign spouse to enter the UK but they will need to convince the Entry Clearance Officer that additional recourse to public funds will not be made if their foreign spouse joins them in the UK. This can be quite difficult as the Entry Clearance Officer will analyse the Sponsor’s income and outgoings and calculate whether there is enough monthly disposable income to support the Applicant if granted entry clearance for settlement. Any potential job offers available to the spouse once in the UK is a good way of convincing the Entry Clearance Officer of this as well as evidence of their savings/assets.

It is also important to note that the Entry Clearance Officer will look at the accommodation which the married parties will occupy in the UK. It is acceptable for accommodation to be shared with other members of the family so long as there is a bedroom for the exclusive use of the married parties and there are no issues of overcrowding.

What are the main reasons for the visa to be refused?

In practice, Entry Clearance Officers mostly refuse marriage visa for two main reasons. Firstly, that they do not believe the marriage is genuine and subsisting and secondly, because they do not believe the spouse in the UK has sufficient monetary funds to maintain the Applicant.
To convince an Entry Clearance Officer that the marriage is genuine and subsisting, the items listed at points 2-3 above should be included with the application.  

In cases of an arranged marriage or marriage by proxy, it is important the couple meet before the application is made to the British Embassy. If either party was married before, then he/she must include the divorce absolute confirming they are divorced.

To show sufficient evidence of finances, the items listed at 5-8 above should be included. The more evidence of financial funds available to the parties, the better the application. There is no recommended amount of monies required, but a minimum figure of between £3000-4000.00 for a married couple is generally a good figure to show.

It is always a good idea to include a cover letter with your application, listing all the documents you are submitting as well keeping a photocopy of the application and documents you submit for your own records. It would be also helpful to include the requirements of paragraph 281; this is particularly useful in instances where Entry Clearance Officers claim that insufficient documents were provided or where there is a refusal decision because certain documents were not provided with the application when they in actual fact were. Many British Embassies now delegate administrative work including applications and documents to local staff so administrative errors such as missing documents is becoming more common.

If the marriage visa is refused, you have the option to appeal the refusal decision within a Court in the UK. An Immigration Judge will decide whether the Entry Clearance Officer was correct or incorrect to refuse the visa and has the power to overturn the refusal decision to let the foreign spouse enter the UK. However, it could take about six months for a Court hearing date in the UK, so to avoid a possible refusal, it is very important that you put in as many documents as possible to convince the Entry Clearance Officer that a marriage visa should be granted.

It should be noted that refusals can also be based under paragraph 320 of the immigration rules which is where false representations have been made or false documents have been submitted (whether or not material to the application, whether or not to the applicant’s knowledge and irrespective of the applicant’s age or the category of visa sought), or material facts have not been disclosed. It is therefore very important that entry clearance application is completed totally, honestly and accurately so there can be no refusal under paragraph 320 which could result in a 10 year ban for the Applicant coming to the UK. If you are concerned that there could be issues in a case, legal advice should be sought.

Once in the UK

If your foreign spouse (and any dependants) are granted a visa it will initially be for a 2-year probationary period. They can then enter the UK and live with you. The foreign spouse (and any dependants) can work full-time, study, or enjoy the benefits of living in the UK. The spouse from abroad will be prevented from claiming welfare benefits during the probationary period. At the end of the two year period, your spouse (and any dependants) will be able to apply for indefinite leave to remain in the UK, on the basis that the marriage is continuing. Welfare benefits can be granted after indefinite leave to remain has been granted. After a further three years and assuming the spouse in the UK is British, the foreign spouse can apply for British citizenship. If during this period the marriage has broken down, then your foreign spouse may not apply for indefinite leave to remain on the basis of the marriage and would need to look at alternate options to regularise their legal stay in the UK.

Non-EU spouses of EU nationals

An EU national who wishes to bring their non-EU spouse to the UK can apply for an EEA Family Permit from the relevant British High Commission in the country where the non-EU spouse resides. An EEA family permit is issued for six months in all cases and is free of charge.

The requirements for issuing an EEA family permit are that:

“1. The applicant is the family member of the EEA national (marriage certificate, birth certificate or other evidence of family link)

2. The EEA national is residing in the UK in accordance with the EEA Regulations (as qualified person if more than 3 months) and the non-EEA national is joining them; or the EEA national intends to travel to the UK within six months and will have a right to reside under the Regulations on arrival, and the non-EEA national will be accompanying or joining the EEA national; and

3. If applying as a spouse or civil partner, there are no grounds to consider that the marriage or civil partnership is one of convenience and

4. If applying as dependent family members (dependent children 21 and over and dependent relatives) they are dependent on the EEA national or the EEA national’s spouse or civil partner; and

5. Neither the applicant nor the EEA national should be excluded from the UK on the grounds of public policy, public security or public health”.

Once in the UK, the non-EU spouse should make a further application to extend their legal status in the UK. For a non-EEA national family member of a person required to register under the Accession State Worker Registration Scheme, they should apply for a Family member residence stamp. For a non-EEA or non-Swiss national family members of EEA or Swiss nationals, they should apply for a Residence card. Both applications would need to be submitted to the Home Office in the UK and both applications are assessed free of charge.

Residence cards

Family members who come to the UK with an EEA or Swiss national, but who are not themselves nationals of an EEA country or Switzerland, can apply for a residence card (with some exceptions - see ‘Family member residence stamp’ below). The residence card confirms their right of residence under European law.

A residence card is normally valid for five years, and takes the form of an endorsement that is placed in the holder’s passport.

Family member residence stamps

Residence cards are not immediately available to all family members. Family members who are not themselves nationals of an EEA country or Switzerland, and who are in the UK with a national of Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia or Slovenia, cannot apply for a residence card until the national of that country has been employed continuously in the UK for 12 months.

Until this 12-month period is completed, a family member who is not an EEA or Swiss national can apply for a family member residence stamp.

Permanent residence

After you have lived in the UK for a continuous period of five years, you can apply for confirmation of your permanent residence. You will need to have been in employment, self-employment, studying or self-sufficient in the UK throughout the five-year period.

For your residence in the UK to be considered continuous, you should not be absent from the UK for more than six months each year. However, longer absences for compulsory military service will not affect your residence. Additionally, a single absence of up to 12 months for important reasons such as pregnancy, childbirth, serious illness, study, vocational training or posting overseas will not affect your residence.

EEA and Swiss nationals will be issued with a document confirming that they are permanent residents in the UK. This document has no expiry date.

Non-EEA nationals will be issued with an endorsement, which is placed in their passport. This endorsement is valid for 10 years.

Written by Raheela Hussain, Principal Solicitor of Greenfields Solicitors.

Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors on 020 8884 1166 for a Consultation with a Solicitor.

The Human Rights Act 1998 gives further legal effect in the UK to the fundamental rights and freedoms contained in the European Convention on Human Rights. These rights not only impact matters of life and death, they also affect the rights you have in your everyday life: what you can say and do, your beliefs, your right to a fair trial and other similar basic entitlements.

Most rights have limits to ensure that they do not unfairly damage other people’s rights. However, certain rights – such as the right not to be tortured – can never be limited by a court or anybody else. You have the responsibility to respect other people’s rights, and they must respect yours.

Your human rights are:

- the right to life
- freedom from torture and degrading treatment
- freedom from slavery and forced labour
- the right to liberty
- the right to a fair trial
- the right not to be punished for something that wasn’t a crime when you did it
- the right to respect for private and family life
- freedom of thought, conscience and religion, and freedom to express your beliefs
- freedom of expression
- freedom of assembly and association
- the right to marry and to start a family
- the right not to be discriminated against in respect of these rights and freedoms
- the right to peaceful enjoyment of your property
- the right to an education
- the right to participate in free elections
- the right not to be subjected to the death penalty

If any of these rights and freedoms are breached, you have a right to an effective solution in law, even if the breach was by someone in authority, for example, a police officer.

Human Rights law plays an integral part in UK Immigration law. Human Rights law can be argued on its own merits in an Immigration law application. This article will focus on Article 8 of the ECHR 1998, which is commonly relied upon when arguing that refusing a person the right to stay in the UK or removing them from the UK, will constitute a breach of their human rights. This is what Article 8 states:

ARTICLE: 8 RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Case Examples

Example 1

Benjamin is a 24 year old Ghanaian man who has been convicted of Aggravated Burglary and is sentenced to two years imprisonment. He has no legal status in the UK as he entered illegally and overstayed. He has a 1 year old daughter with his British born girlfriend and no other family in the UK. He has been in the UK since the age of 17 and this is his first conviction. He was working as a Chef before he was arrested and was paying taxes and living with his British girlfriend and daughter, as a family. He has now been served with a deportation order to return to Ghana on completion of his sentence but he does not want to return as his girlfriend and daughter are in the UK and they cannot move abroad.

What can Benjamin do? Benjamin can raise arguments under Article 8 of the ECHR 1998, that not only would his human rights be affected under Article 8, but so would his girlfriend’s and their child’s if he was not granted legal status to reside in the UK. Benjamin can argue that he has been in the UK since he was a minor and that he may not have any family ties in Ghana but only in the UK, with his girlfriend and child.

Furthermore, as this was his first offence, it will be important to look at the Probation Officer’s report on whether they believe Benjamin will re-offend or not, and if there is a low likelihood of re-offending, then this will be a favourable factor in arguing against deportation, in that he can argue he has learnt the error of his way and his presence in the UK will be conducive to the public good as he will intend to work, pay tax contributions and live as a family man.

Example 2

A Jamaican woman by the name Loretta is an overstayer with a 5 year old son called Winston who was born in the UK, but he is not British. However, Loretta wants her son to grow up in the UK as he has spent his whole life here, and she has been in the UK for the past 8 years. The child has cousins, aunts and uncles and other family relatives from his father’s side, who do have permanent legal status in the UK. The woman wonders if she can get legal status for and her son.

What can be done: This case could seek to argue the human rights of Winston as he was born in the UK and has grown up in the UK, and this is the only lifestyle he knows. In December 2008, the “7 year concession” was removed from the UK- this was where families who had been in the UK with a child who had also been in the  country for more than 7 years could automatically apply for indefinite leave to remain.

The current law requires the Secretary of State to consider whether removing Winston (and his mother who would also make a claim to remain based on arguing that she has established a private and family life in the UK during her 8 years residence) would be a breach of Winston’s and Loretta’s article 8 human rights. The following questions must be asked by the Secretary of State when considering removal against a child:
a) Whether a child had formed a protected “private life” and whether removal would interfere with his private life
b) Whether the interference (by way of removal) was in accordance with the law
c) Whether the interference (by way of removal) was proportionate

Example 3

Clive has been in the UK for 7 years. He came to the UK on a student visa but was unable to complete his studies and stopped studying but did not return back to Kenya because he wanted to work and earn money as he had to help finance his family in Kenya. Clive has a girlfriend in the UK with a home. He wants to know if he can make an application to remain in the UK on the basis of his being in the UK for a lengthy period of time and his life with his girlfriend.

What can Clive do? Clive could consider making an application for Discretionary Leave  to remain in the UK and he would need to also argue his right to private life based on his lengthy residence in the UK. However, he would be limited in arguing his private life under article 8 as he has no family life in that he is not married to his girlfriend and has not been living with her. Clive should also consider that if the relationship is serious enough for both, and he and his girlfriend want to marry, then he can return to Kenya to marry his British girlfriend and then apply for a spouse visa from the British Embassy in Kenya to return to the UK. Though Clive has overstayed in the UK, the British Embassy will not necessarily refuse him a visa to join his spouse in the UK so long as he satisfies the other immigration criteria to successfully obtain a spouse visa.

Home Office’s current position

The Home Office are currently indicating a hard line approach. When assessing applications under Article 8, they will also consider whether there are any “exceptional, compassionate and compelling circumstances”. The Home Office will consider factors such as the length of time the person was married before the breakdown, the length of time the person has been resident in the UK, any children the person has and their legal status, the proportion of time spent abroad before entering the UK and whether there are any children of the marriage.

They will seek to decide whether a partner and any children can move aboard to the person’s home country if they are refused leave and if not, why not.

Applications made under Article 8 ECHR 1998 can be complex, lengthy and difficult. If you think you have a case worth putting forward under the basis of Article 8 ECHR 1998, you should seek immigration advice from specialist Immigration lawyers who can advise you fully on the pros/cons of putting forward such a case.

By Raheela Hussain, Principal Solicitor of Greenfields Solicitors

The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors on 020 8884 1166 for a Consultation with a Solicitor.