How do I Avoid the Brexit Effect?

By Rabia Aleem

How to Avoid the Brexit Effect

Following the mounting ambiguity in terms of the UK position following the referendum, the United Kingdom finally reached an arrangement with the European Union in December 2017, an agreement echoed within a draft treaty published in March 2018 intended to circumvent any negative Brexit repercussions for these individuals, for whom many have already re-established their lives here in the UK.
Significant points of that agreement being:
As per Home Office new announced policy EU Nationals  living lawfully and continuously in the UK for a least 5 years before 31 December 2020 can make a settled status application.

Settled status means that they will be able to stay in the UK indefinitely, with access to public funds and services. They can then go on to apply for British citizenship should they choose.

  • EU citizens in the UK on that date but who can’t fulfil the 5 years’ residence requirement can apply to stay in the UK until they have 5 years’ residence, when they can then apply for settled status.
  • EU citizens who arrive in the UK after the date we leave the EU but during the transition period will also be able to register for temporary residence status after 3 months, with a view to obtaining settled status after 5 years.

Treaty rights draft additionally contains provisions covering family members, extending past the 31st of December 2020, so far as the relationship had already existed at that date. Those hoping to make an EEA application will have to wait while negotiations continue between the UK government and those of Iceland, Norway, Switzerland and also Lichtenstein.

 

Types of Applications

Settled Status Application
Specialising in European applications from a long period of time. Our views about settled status applications? This new system is intended to be initiated during 2018, and we understand the Government has published information on its website with some basic information, however nobody is certain what form the settled status will take.

Points to be noted
An online application with options to submit a paper-based application will be available.

  • Applicants will be required to verify their identity together with a recent photograph, as well as a declaration of any criminal convictions.
  • Existing data in relation to supporting your application will be gathered via existing government records such as HRMC and DWP, given that the data will already be linked to the application, the information will be readily available.
  • Options to verify applications will also be available where government data or evidence is incorrect or inaccessible.

Whereas indications from the Theresa May’s Government have suggested that settled status applications would apply to individuals exercising their treaty rights and working within the UK, Immigration minister, The Rt Hon Caroline Nokes MP has suggested that basic conditions to be met may be that of the EU citizen establishing residency in the UK for the given 5-year period.With many more matters related to settled status yet to be fully agreed upon, it does appear that system is geared towards a partiality of consenting settled status in the majority of cases, with the exception of a refusal potentially being refused based on the grounds of serious criminal convictions.

Temporary applications

EEA Nationals who by the end of transition, have resided within the UK for less than the 5-year period will still be permitted to remain within the UK, however will be required to apply for temporary residency status by the 30th of June 2021. This enables them to stay long enough to acquire their 5 years residence following this with an application for settled status.

The other eventually being should the European Union nationals arrive after the UK has left the European Union, but prior to the end of the transition period, they will be required to make an application for temporary residency after a period of 3 months, despite the fact they will be permitted to live and work. The individual will then be permitted to reside for a period of 5 years to make an application for settled status.

 

Deadlines still apply for a settled status application
Considering how the Windrush overwhelmed the lives of many venerable Commonwealth citizens who lived for many years in the UK without any legal status. In a comparable parallel, EU citizens within the UK have been living in ambiguity in terms of their future in the UK.

Situation that demonstrates resemblances of the Windrush scandal, an opportunity to make an application for settled status, or to obtain temporary residence status, allowing individuals to accrue 5 years residence, will only remain open until the 30th of June 2021. Individuals missing this deadline may find themselves in a similar situation to the Windrush generation.

Resolving the status of EU and EEA citizens is part of our expertise as Immigration experts’ .We specialises in Immigration, Human rights and law related to EEA Nationals.

We guarantee that you will be given the time and respect that your immigration case deserves and that our immigration experts will always provide you with advice that is:

  • Honest
  • Effective
  • Clear
  • Updated
  • Friendly

Should you have any questions relating Brexit, obtaining residence permit and permanent residence permit as a qualified EEA National or as a family /extended family member please contact us.

Email: rabia.aleem@bisonsolicitors.co.uk

Telephone: 01252 268068

 


Spouse Visa Applications - Which Application Will Work For Me?

By Rabia Aleem

 

Spouse Visa Applications Under FLR(M) and FLR(FP)

Applying for a visa could be quite stressful as the applicant is required to put together a range of important documents while ensuring that they meet the eligibility criteria. However, being properly informed can significantly ease the process.

Today we will talk about the two different in country applications for leave to remain in the UK on ongoing family life in the UK under FLR (M) and FLR (FP).

 

What Is the Difference?

The FLR(FP) application is based on Family Life under the Appendix FM or the Private Life under Part 7 and stands for the further leave to remain in these two categories.

  • Family life

This category includes the right to apply as a parent of a child that is settled and not eligible to apply as a partner. The child can be British, for example. This is usually recommended when parents are divorced and the child lives with one of the foreign spouses.

There are also some exceptions if you apply for this kind of visa if you don’t have legal status in the UK, but you have a British child with your partner. If that’s the case, then the child is allowed to stay in the UK. However, this a special case. That’s why each situation is evaluated individually.

So, to cut the long story short, in order to qualify for this category, you be a parent, partner or a dependent child. Also, you can apply based on your private life in the United. If the application is approved, it will last for 2.5 years.

  • Private life

Although it has the same form, this kind of application is representative for the people who spent years in the UK and now want to legalise their stay. If approved, you will get a 2.5-year visa in a 10-year route. After ten years, you will have the possibility to secure your permanent residency.

 

The FLR (M) is an application that is based on the marriage of an individual to a person that is already settled in the UK, under the Appendix FM. However, it is not enough to be married to an English citizen to get this permission. In order to do so, you will have to meet all the requirements, including your status in the UK and the Financial Requirement. If the requests are met, then you will get a 2.5-year in the 5-year partner route.

Now that we know what these visas are, let’s talk about the new online form for them.

First of all, you can use the online form as an alternative to the paper forms because it is obviously quicker to use. You will no longer have to manually type down all the data like you would with a paper form, so the process will be faster.

With this online application, you can apply to remain in the UK as a partner or a family member of:

  • a person who has a humanitarian protection in the UK or a refugee leave
  • a British citizen
  • a person who is settled in the UK

Moreover, you can add other family members that are dependent on you in your application such as children, for example. All of you can now apply on the same online application.

In addition, you can use this form to apply for private life in the UK, too. However, before you do so, you must know if you are eligible, what documents are required and what fees you must pay.

 

Requirements

Well, for a start, it’s normal to say that you must prove if you are married or in a civil partnership. Maybe you are a fiancé, or you proposed, and your marriage will begin soon (6 months after you arrived in the UK). In any case, it is important for your relationship to be recognised by the UK.

Another requirement is the knowledge of English. You want to live in the UK, so you must prove that you are capable of speaking their language.

Finally, you will have to show if you are financially independent or you depend on someone.

However, one can still apply for a visa even if you don’t meet these requirements. These are the special situations as mentioned earlier.

 

How we are different from others

We guarantee that you will be given the time and respect that your immigration case deserves and that our immigration experts will always provide you with advice that is:

  • Honest
  • Effective
  • Clear
  • Updated
  • Friendly

 

Why choose us

By taking a dynamic approach to each and every case and using our extensive knowledge of the law, we consistently exceed our clients' expectation and deliver results that serve their long term immigration goals. We take the time to understand our clients need to provide them with the best bespoke and individually tailored service. Our dedicated teams top immigration experts’ work closely with you to understand your requirements

We provide a fast, friendly, reliable, honest, affordable and professional immigration service. As specialist immigration and human rights lawyers.

If you have any questions relating FLR (M) or FLR (FP) or any other application under Immigration rules or Human rights Act please contact us.

Email: rabia.aleem@bisonsolicitors.co.uk

Telephone: 01252 268068

 


MM - Supreme Court Appeal 2018

Lawfulness of discharge conditions for mental health patients to go to the Supreme Court

 

The Supreme Court has granted permission to appeal in the case of The Secretary of State for Justice v MM [2017] EWCA Civ 194 This is the latest case in a series of decisions about whether detained mental health patients can be subject to conditions on discharge where the cumulative effect of the conditions amounts to a deprivation of liberty.

In March 2017 the Court of  Appeal ruled that imposing conditions which deprived a patient of his or her liberty as part of a community discharge was a breach of the patient’s human rights even though the patient had consented to the conditions and the discharge would have reduced the degree of restrictions on the patient.  That decision followed the earlier case of RB v Secretary of State for Justice [2012] 1 WLR 2043 where such conditions were held to be a breach of the patient’s human rights.

The RB and MM decisions have been hugely contentious amongst those advocating for the rights of mental health patients.  RB was not followed by Mr Justice Charles in Secretary of State for Justice v KC & Anor [2015] UKUT 0376 (AAC), who held that the First Tier Tribunal had jurisdiction to impose conditions on a conditional discharge that involve a deprivation of liberty and that a capacitated patient could give valid consent to such conditions.   The KC decision was not disapproved by the Court of Appeal in MM.

The Supreme Court will, in effect, be asked to resolve this difference of judicial views.

 

David Lock QC and David Blundell are instructed by Bison Solicitors on behalf of MM (but they did not act for MM in the Court of Appeal).  David Lock QC acted for KC in MM.


Bison Solicitors on Unity 101 Radio – Mediation Services

Listen to Nicola Beasley and Komal Joshi talk about the Mediation Service provided by Bison Solicitors – 

They give an overview of what mediation is, why is is a worthy course of action when resolving a dispute, and what the pros and cons of mediation are!

 

Listen here at Unity 101 Radio: – http://www.podcast.canstream.co.uk/unity101/index.php?id=17840


Bison Solicitors on Unity 101 Radio – Bison’s Service

nterview with Komal Joshi and Millie Garden

Click the link below to hear two members of our team chat to Unity 101 Radio about the services provided by Bison Solicitors!

Listen on the Unity 101 website here: – http://www.podcast.canstream.co.uk/unity101/index.php?id=17655


How Does The Mental Health Capacity Act Affect Family Proceedings

By Nicola Beasley

Mental Capacity issues arise in all sorts of legal matters. In order to give instructions and litigate any type of matter, the client needs to be deemed to have capacity to do so, under the Mental Capacity Act 2005.

In family matters, the Mental Capacity Act most often crosses into the case where the client loses capacity during the litigation, often due to age. We are at a stage now where, due to the rising costs in divorce proceedings, the reduction in legal aid and the need to find “fault” in order to be granted a divorce, we are seeing more and more situations where a couple has separated but has not legally divorced, and they are now elderly and considering how best to manage their estates, when the inevitable time of passing is approaching.

In a situation where older parties are divorcing, if there is any sign that capacity may be an issue, the solicitor has a duty to raise any concerns surrounding capacity to the Judge at the earliest possible stage. The loss of capacity during proceedings can often lead to any decisions made up to that point being voided, resulting in increased legal costs when the process has to begin again.

In the event of concern of lack of capacity, an expert assessment of capacity should be undertaken, specifically focusing on the party’s capacity to undertake certain relevant tasks including the ability to instruct for the purpose of litigation, and to manage their finances after the proceedings.  The tasks will be relevant to the matter at hand. Someone may be able to instruct their solicitor in the proceedings confirming that they want a divorce, but may at the same time be unable to manage their finances after the proceedings.

However, if someone lacks capacity, it does not mean that they are completed restricted from accessing the family proceedings. If deemed to lack capacity under the MCA 2005, then the Family Procedure Rules 2010 Rule 15 provides clear guidelines on how a party may proceed.

A litigation friend should be appointed to act in the best interests of the party who lacks capacity. A litigation friend is expected to make decisions in the best interests of the party, do everything they can to keep the party up to speed, tell them what’s happening in the case and find out their wishes and feelings and work with their solicitor to get advice but also give instructions to them in the other person’s best interest. A litigation friend can be anyone as long as their interests do not conflict with the parties and they are able to make decisions about the case in a fair and competent manner.

If a litigation friend cannot be sourced then the Court of Protection can appoint a deputy to make decisions on the behalf of a person lacking capacity, although these proceedings usually also carry with them further costs.

Lack of capacity affects the divorce proceedings the most. A party cannot rely upon the grounds for divorce for 2 years separation with consent, and cannot engage in any consent orders.

This can cause increased fees for parties who may have been able to mediate/negotiate and reach an agreement previously, who now will be deemed to be unable to do this, therefore causing a full Court proceeding to take place.  It can also cause delay’s where parties want to divorce after 2 years separation with consent, but are deemed to not have capacity to consent, and are therefore forced to wait for 5 years separation without consent.

Solicitors today often advise that parties enter into an LPA when they are at a younger age, in order to be protected should they lose capacity in the future. This would allow the person with the LPA to act in the best interests of the party immediately, and they will have usually discussed with the party their wishes in situations like this during the preparation of the LPA, which allows for the wishes of the party to be more likely fulfilled.

Having an LPA would reduce the risk of wasted costs and delays during family proceedings, should one or more of the parties loose capacity during the proceedings. It is common practice now, when working with an older client, to confirm the person responsible for their LPA prior to proceedings beginning and having that person fully involved throughout for the protection of the interests of all parties.


Human Rights and What the Future Holds

By Emma Yemm, Paralegal.

Talk of Brexit has dominated the news but the manifesto promise of repealing the Human Rights Act seems to have been placed on the back burner. There had been discussions about replacing the Act with a British Bill of Rights, but what effect would that have on our rights and will it provide greater protection for the people of the UK?

The Act Itself

The Human Rights Act 1998 was enacted to incorporate the European Convention of Human Rights into UK legislation to ensure UK citizens could have a remedy to a breach of rights on domestic soil at a quicker rate and with less expense. However since the mid 2000’s the act has been under much scrutiny and criticism in British media with focus being placed on there being “too much” protection for foreign criminals and thus costing the taxpayer thousands.

Whilst the act has protected the rights of some unsavoury characters, it has also protected the rights of the most vulnerableand those most at risk of discrimination. For example, the case of Ms C highlighted the need for “choice, independence, autonomy and dignity” for disabled people in the provision of health care services after the trust informed her that she would no longer be guaranteed female nurses to tend to her intimate care needs. And the case of Mr Mendoza allowed for same sex couples to succeed in tenancies and for the Rent Act provisions to be read to prevent further discrimination.

The Future

However in the 2015 election manifesto, The Conservatives made a formal proposal to change the way our rights are covered and to introduce a Bill of Rights that is specifically designed to fit British needs and traditions. It is aimed to allow judges to apply a “margin of appreciation” to take account of British culture and history and recover their sovereignty.  But how and when this pledge will be fulfilled is still unclear.

The Bill is expected to cover wider economic, social and environmental rights as well as a possibility of introducing specific duties or responsibilities that would sit alongside our rights that are already covered. It is unlikely the UK will leave the European Convention of Human Rights but whilst this is considered a positive, by repealing the Act, it is likely the already restrictive access to our courts by Judicial Review will also be repealed and once again seeking a remedy from a breach may once again become costly and time consuming.

And whilst remaining a party to the European Convention, the human rights of those unsavoury characters that appear to be used to dismiss our Human Rights Act will still be safeguarded. The Bill of Rights therefore has a risk of being designed as a tool of convenience for our government and negatively impacting on the UK’s long standing reputation of advocating human rights.

The End?

Conversation about our Human Rights remains generalised and arguments to repeal the Act still remains weak. The effect of Brexit is yet to surface on the current Act and Theresa May has expressed her want to delay any constructive debate surrounding the topic. But with sceptics still expressing their unease with the Human Rights Act and the desire from politicians to reduce the implication of the European Convention of Human Rights, the future of our Human Rights Act still remains misty and uncertain.

1. R (C) v Royal Devon and Exeter NHS Foundation Trust [2004]

2. Ghaidan v Godin Mendoza [2004]