Brexit and Your Legal Status in the UK

Brexit and Your Legal Status in the UK – What Next?

The election of the Conservative government and its large majority means that Brexit is due to leave the EU on 31st January, 2020. The exact shape of Brexit and the potential deals involved is likely to occupy the government for much longer.

In the meantime, the situation for people living in the UK who aren’t British citizens is going to remain similarly uncertain for some time to come, with the possibility of a no-deal Brexit further muddying the waters.

Immigration and residency issues

Whether you’re looking to come and live or work in the UK, or are already here, post-Brexit immigration law and your rights are still far from settled. The issues regarding registration requirements are likely to be particularly complex.

At present, a points-based system regulates immigration from outside the European Economic Area (EEA), which consists of EU and other European countries. The government has been proposing a new Australian-style points system, but the nature of this has so far yet to be made clear.

Speculation and leaks have suggested that, in some ways, the system will be similar to the current points-based system. You can view this on our Immigration Law page.

Tier 1 (highly-skilled migrants) will remain broadly similar.

Tier 2 (skilled migrants) will instead be ‘skilled workers’ and in most cases will require a specific job offer.

Tier 3 (low-skilled workers) has already been abolished under the current system. Tier 4 (students) and Tier 5 (temporary workers) will be ‘sector-specific rules-based’ – in other words planned centrally to match demand from specific areas of the economy.

But at the moment, nothing has been formally announced.

Rights for workers is another complex issue that’s likely to become only more complicated in the months ahead. That’s the case whether you work in an EU country, are an EU citizen working over here, or are an employer of EU nationals.

Whatever happens, you can be sure that our professional Brexit solicitors will be here to clarify, advise and, above all, help.

Brexit and Family Law

Currently, there’s no agreement for European family law legislation to continue on a reciprocal basis between EU member states and Britain after withdrawal takes place.

There are many issues that could potentially arise after Brexit if you are divorcing or separating and one of you has connections with an EU state.

Here are just a few questions that could arise with a no-deal Brexit:

  • How will a maintenance order be enforced if my former spouse or partner lives in an EU country?
  • In what ways will Brexit affect my prenuptial agreement?
  • What protections will I have if my ex moves to an EU country and wants to take the children there?
  • If my partner is from an EU country, where will a divorce take place? Will there have to be duplicate proceedings or will a UK divorce suffice?
  • Will my same-sex marriage or civil partnership be recognised by EU states after Brexit?
  • I’m from an EU member country. What rights do I have to stay in the UK after my divorce from a British citizen?

Our family law team will be able to advise you on these and other issues related to Brexit. For more information, see our Family Law section.

Softening the impact of Brexit

The cost of Brexit and its financial impact, positive or negative, will be debated for many years to come. But we believe that whatever happens, those at the sharp end should not suffer unduly, whether from uncertainty or financial loss. That applies to whether you need professional advice, or are making a UK visa application, or anything else related to Brexit.

Most of our work is funded by legal aid, and, for private clients, you’ll find that our fees are substantially lower than those charged by most other law firms. We’re based in Aldershot, Hampshire, and have offices all over the UK, which means we can likely help you wherever you are.

For more details, please call +44 (0)1252 268 068 or fill in our contact form.


Ancestry Visa

Ancestry Visas – A Little-known Route to Living and Working in the UK

The discussions surrounding Brexit have often focused on the matter of passports and citizenship. It is well-known that if you have Irish grandparents then you qualify for an Irish passport. The number of applications for Irish passports/citizenship via the ancestry route have rocketed over the past couple of years.

What is not so well known is the “ancestry” criteria for a visa that allows an individual to live and work in the UK. Citizens from Commonwealth countries who are able to show that one of their grandparents were born in the UK, Channel Islands or the Isle of Man, can apply for a visa, allowing them to work in the UK unrestricted.

The Ancestry Visa basically provides the applicant with a five-year visa that allows them to take up employment or study in the UK, without any restrictions. The applicant can also change employers, without having to fill in a new immigration application.

The requirements for an application under the Ancestry route are both clear and at times open to interpretation. Note that step-parents and their lineage are excluded from the criteria. The main points of the criteria that need to be met, with some of our own comments and queries, are:

  • the applicant needs to be a Commonwealth citizen.
  • applying from outside the UK.
  • must be able to prove that one of their grandparents were born in the UK.
  • the individual is planning on living and working in the UK. (why would they apply otherwise?)
  • are aged 17 or over.
  • have sufficient funds to support themselves and any accompany dependants during their time in the UK.

Sufficient funds is one of those terms that is heavily open to interpretation and provides fertile grounds for the immigration focused legal profession, even though the Government does provide its own criteria over what is regarded as sufficient! Please also note that the applicant cannot access public funds on this type of visa.

The criteria for what are accepted as evidence of a grandparent being born in the UK is covered by three areas. The grandparent must have been born:

  • In the UK, including the Channel Islands and the Isle of Man.
  • Before 31 March 1922 in what is now Ireland.
  • On a British-registered ship or an aircraft.

We are curious as to how many grandparents would have been born on an aircraft given i) the lack of access to flights at the time and ii) just the chances of being born on an aircraft full stop and iii) what if the aircraft was stopping over at a foreign country at the time?

Interestingly there is no provision to switch to this visa if the individual is already in the UK under the rules governing another type of visa. Presumably the lack of provision to switch it partially down to the earlier criteria that the applicant must be outside the UK when making an initial application.

With regard to dependent family members, they are allowed to accompany the successful applicant and they can also apply for settlement after living and working in the UK for the five years stipulated by the Ancestry Visa. They will need to satisfy the requirements of settlement. Even if they are not able to meet the settlement requirements, there is an option to extend the Ancestry Visa for a further five-year period.


If you need further assistance with your Ancestry Visa, get in touch with Bison Solicitors in Aldershot. We also have offices in Cambridgeshire, Isle of Wight, London, Oldham and Taunton.

Call us on +44 (0) 1252 268 068 or complete our contact form.


Liberty Protection Safeguards Scheme

Liberty Protection Safeguards Scheme

An overview of the new Liberty Protection Safeguards scheme ("LPS"), set to come in to force in October 2020.

The Mental Capacity Act 2005 provides for situations where a person who lacks capacity can lawfully be deprived of their liberty within a care home or hospital setting. Associated case law provides the circumstances which amount to a deprivation of a person’s liberty.  At present the process for authorising the deprivation of a person’s liberty in those settings, is governed by the Deprivation of Liberty Safeguards (DoLS), a set of rules contained within Schedule A1 of the Mental Capacity Act 2005. However, now that the Mental Capacity (Amendment) Act 2019 has received Royal Assent and become law, this is all set to change.

The DoLS are due to be replaced by the Liberty Protection Safeguards (LPS) from 1st October 2020, at which point no new standard or urgent authorisations under the DoLS will be made. Existing authorisations will be permitted to continue until their expiry date, when a new authorisation under the LPS will then be required.

What are the Deprivation of Liberty Safeguards (DoLS)?

The DoLS are the rules which must be followed when an adult without mental capacity to consent to the arrangements for their care and residence (referred to as ‘P’) is deprived of their liberty. P is considered to be deprived of their liberty if they meet the following requirements:

  • They are under continuous supervision and control; and
  • They are not free to leave.

This is a test implemented by the Supreme Court in a case known as Cheshire West and is referred to as the “Acid Test”. If both elements of this test are met and P lacks capacity to consent to being deprived of their liberty, the relevant local authority, in their role as Supervisory Body, may make a standard authorisation in order to legally detain P in a care home or hospital.

When a standard authorisation is in force in relation to P a representative is appointed, called the Relevant Person’s Representative, whose role is to visit P regularly and consider whether they are objecting to their deprivation of liberty and whether it is in their best interests to make an application to the Court of Protection to challenge the standard authorisation. This person can be a family member, friend, or a professional advocate.

In circumstances where P is deprived of their liberty in a location other than a care home or hospital, no standard authorisation can be made by the Supervisory Body, who must instead make an application themselves to the Court of Protection in order to authorise P’s deprivation of liberty.

How are the LPS different from the DoLS?

There are three major differences between the DoLS and LPS regimes.

  1. The LPS can be used to allow the Responsible Body to authorise a deprivation of liberty in any setting. This means that the Court of Protection will no longer hear cases requesting authorisation for deprivations of liberty in the community, as these will now be able to be authorised by the Responsible Body in the same manner as a deprivation of liberty within a hospital or care home environment.
  2. Authorisations made under the Liberty Protection Safeguards Scheme will be portable and variable. Unlike standard authorisations under the DoLS, which are location specific and expire if P moves to a new placement, the LPS will allow the Responsible Body to vary an authorisation if it is reasonable to do so. This will mean that, for example, an authorisation can be granted for P to be deprived of their liberty in Care Home X, but P can then be moved to Care Home Y if the responsible body thinks it is reasonable to do so and no new authorisation will be required.
  3. The LPS will apply to 16 and 17 year olds, unlike the DoLS, which only apply to those aged 18 years and over. This will bring the law on deprivation of liberty into line with the rest of the Mental Capacity Act 2005, which (with some limited exceptions) applies to those aged 16 years and over.

When can a Responsible Body make an authorisation under the LPS?

A Responsible Body may only authorise arrangements that give rise to a deprivation of liberty when P lacks capacity to consent to the arrangements, P has a mental disorder with the meaning of section 1(2) of the Mental Health Act 1983, and the arrangements are both necessary to prevent harm to P and proportionate to the risk and seriousness of harm occurring.

When considering P’s capacity and whether they have a relevant mental disorder, the Responsible Body is permitted to rely on previous assessments if it is reasonable to do so. They are required to consult with a number of people before authorising the arrangements, unless they consider that it is not appropriate or practicable to do so. These include P, anybody named by P as somebody they would like to be consulted, anybody engaged in caring for P or interested in their welfare, any donee of a lasting or enduring power of attorney, any deputy appointed by the Court of Protection, any appropriate person and any independent mental capacity advocate (IMCA).

Before authorising the arrangements, the Responsible Body must also complete a pre-authorisation review, which must be carried out by a person who is not involved in the day-to-day care or treatment of P and does not have a prescribed connection with the care home in which P lives. This person can be either an approved mental capacity professional (AMCP) or another health or care professional which will be set out in the statutory guidance when it is available.

It is also permitted, in the case of arrangements proposed to take place in a care home and where P is aged 18 years or older, for the Responsible Body to decide that the care home manager should arrange the necessary assessments and evidence to present to the Responsible Body, which will then decide whether to make an authorisation on the basis of the information submitted.

What is an AMCP?

The role of AMCP – approved mental capacity professional – is a new role which is similar to that of a best interests assessor under the DoLS, but which expands upon that role. The government have indicated that all professionals who are currently eligible to be best interests assessors will be eligible to be AMCPs.

Local Authorities will be responsible for approving individuals AMCPs and ensuring that there are enough approved AMCPs for their local area. The government is expected to prescribe, by way of regulation-making powers, the criteria for approval of AMCPs and bodies that may approve their training, however these regulations are not yet in place.

The LPS requires that a pre-authorisation review must be done by an AMCP in the following circumstances:

  • When it is reasonable to believe that P does not wish to live or receive care or treatment at a particular place;
  • The arrangements proposed involve P receiving care or treatment mainly in an independent hospital; or
  • The Responsible Body refers the case to an AMCP who accepts the referral.

What is an IMCA?

An IMCA – independent mental capacity advocate – is an advocate who has been specially trained to support people who lack capacity to make important decisions for themselves, such as where they should live or whether they should receive medical treatment.

Under the LPS a Responsible Body has a duty to take reasonable steps to appoint an IMCA if P has capacity to consent to an IMCA being appointed and requests one. They must also do so if P lacks capacity to consent to the appointment of an IMCA, unless the responsible body is satisfied that it would not be in P’s best interests to be supported by an IMCA.

However, this duty does not apply when there is another appropriate person to support P, such as a family member or friend. An appropriate person must consent to being appointed to the role and it cannot be a professional, or somebody who is paid to care for or provide treatment to P. P must consent to the appointment of the appropriate person if they have capacity to do so, or if they lack capacity to consent the Responsible Body must be satisfied that it is in P’s best interests for the appropriate person to be appointed.

How long does an authorisation last?

Under the DoLS a standard authorisation cannot last more than one year and it cannot be renewed. At the expiry of a standard authorisation a whole new application and assessment process must take place before a new standard authorisation can be granted.

Under the Liberty Protection Safeguards Scheme an authorisation can be granted for an initial period of up to 12 months, after which it can be renewed for a second period of up to 12 months, and then for periods of up to three years at a time.

In order to renew an authorisation the Responsible Body must carry out consultations before renewal and be satisfied that the conditions for the authorisation are still met and that it is unlikely that there will be a significant change in P’s condition during the renewal period which may affect whether they continue to be met.

Authorisations must be reviewed regularly, and in particular:

  • before an authorisation is varied (or as soon as practicable after variation);
  • if a reasonable request is made by a person who has an interest in the arrangements;
  • if P becomes subject to mental health arrangements (as the LPS cannot be used for psychiatric treatment of a P who is detained under the Mental Health Act); or
  • if there has been a significant change in P’s condition or circumstances.

There is no formal process by which authorisations will be terminated under the LPS. An authorisation ceases if the Responsible Body believes or ought reasonably to suspect that the conditions are no longer met.

How can an authorisation be challenged?

In the same manner as an application can be made under s.21A of the Mental Capacity Act 2005 to challenge a standard authorisation under the DoLS, the LPS provides for P, their IMCA or their appropriate person to apply to the court to challenge an authorisation.

When such an application is made the Court of Protection can consider whether the Liberty Protection Safeguards Scheme apply to the arrangements in question, whether the conditions for authorisation are met, the duration of the authorisation and what the authorisation relates to. The Court of Protection can then vary or terminate the authorisation, or can direct the Responsible Body to vary it.

Further information about the new Liberty Protection Safeguards Scheme including preparation for implementation and details on the associated Code of Practice can be found here

By Lindsay Da Re

Solicitor - Human Rights & Court of Protection


Domestic abuse

Domestic Abuse – Getting Tough at a National Level

Earlier this year the Government announced that it will make it a legal duty of Councils across England to provide safe and secure locations for victims of domestic abuse. The situation has been a bit of a “post code lottery” with facilities varying widely depending on where you are living. The Government is looking to standardise access to safe-houses and accessible help for victims of domestic abuse, across the country.

Up to this date there has never been a statutory definition of domestic abuse. The Domestic Abuse Bill looks to not only provide a definition but also to include, for the first time, financial abuse and non-physical controlling and coercive abuse.

What impact will the Domestic Abuse Bill have on family court proceedings? Not surprisingly if more “behaviours” are identified as domestic abuse then there should be an increase in allegations of domestic abuse and, in particular, children proceedings. The courts consider that domestic abuse (in the widened definition) is harmful to children whether they are subjected to domestic abuse or witness one of their parents being abusive to the other parent or live in a home in which domestic abuse is perpetrated. It is perceived that children may suffer harm directly from the abuse of a parent, or indirectly where the abuse impedes the parenting capacity of either of the parents. This widening of the definition of abuse has been largely welcomed by the legal profession but the problem is that the implementation of the widened definition is being hampered by the lack of resources within the family courts.

The rules governing how the Court behaves during family law and in particular, children proceedings, are very clear When an allegation of domestic abuse is made within children proceedings, the Court is obliged to identify at the earliest opportunity the factual and welfare issues involved, the nature of any allegation of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order.

In particular, under paragraph 25 of Practice Direction 12J, in circumstances where the allegations are undetermined, the court must consider whether it is in the interests of the children to allow interim contact with the accused parent. The point being that the risk of harm is paramount in assessing whether contact is appropriate. Judges will often simply prohibit any interim contact until a hearing can be heard and a fact-finding process has reached its conclusions.

Ideally the judge should determine whether a finding of fact is necessary “as soon as possible”, but the current situation in the family courts, where courts are closing, and the remainder are underfunded and understaffed. The result being that hearings are listed many months in the future, sometimes as much as 6 months. For this period the accused parent is prevented from having contact with their children. Another result can be that even where a falsely accused parent is vindicated, it is all too often the case that restarting contact can become its own issue, causing further acrimony and leading to more delays and problems. Obviously the delays can also mean that the victims of abuse, themselves, can be left waiting far too long for the Courts to make an order protecting those who are at risk of harm.

As with many areas of life, good intentions are great as long as they can actually be implemented. The government needs to ensure that these welcome reforms reach the people they are intended to help. The family courts need to be able to adequately provide services for those in family disputes. Without sufficient Court staff, time and resources, parents are let down and delays will continue. Sadly the eye of the present administration is elsewhere and the commitment to be able to successfully introduce change, perhaps, isn’t quite what it should be!


CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 (6 March 2019)

CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 (06 March 2019) 

 

Kate Churchouse for Bison Solicitors acted for the appellant (CB) by her litigation friend the Official Solicitor in an appeal to a Tier 3 Judge of the High Court against a decision of a Tier 2 Judge in the Court of Protection within s.21A proceedings. The appeal considered the circumstances under which it is appropriate to give summary judgment in proceedings when a person's Article 5 rights are engaged. The position of the Official Solicitor was that the Judge at first instance had erred by giving summary judgment at a directions hearing on 8 November 2018 without any prior notice to the parties and that her judgment was formed an opinion based on assumptions rather than evidence. The argument put forward on behalf of CB was that while the judge had the authority to summarily dismiss the application, she incorrectly exercised the judicial discretion in a manner that was wrong and unjust. Mr Justice Hayden delivering his judgment allowed the appeal recording ‘what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases.’

Bison Solicitors instructed Oliver Lewis of Doughty Street Chambers who represented CB at both the permission hearing and the appeal hearing.


Bison Solicitors, Aldershot

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

 


Bison Solicitors, Aldershot

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 United Kingdom (UK) on ongoing family life in the UK under FLR (M) and FLR (FP).

What Is the Difference between FLR(M) and FLR(FP)

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.

Spouse Visa Application 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 other Immigration Lawyers

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 Bison Solicitors, Aldershot

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


Case Study: MM

We act for MM in his challenges to seek freedom from hospital detention under Mental Health Act. Following a decision of the Court of Appeal, MM (a client of Bison Solicitors) is seeking to take his case to highest court in the land – the Supreme Court. Bison acts for MM in his appeals.

Case background:
MM has previously been diagnosed as possessing mild learning disability and autistic spectrum disorder. Resulting behaviours include pathological fire starting, which in 2001 led to a conviction for arson. A criminal court imposed hospital order pursuant to s.37 of the Mental Health Act 1983 (MHA) and a restriction order under s.41 MHA. Although MM was conditionally discharged under s.73 of the MHA in 2006, his behaviour deteriorated and he was recalled to hospital in 2007.

Throughout, MM has possessed capacity regarding the question of whether liberty should be deprived and expressed his wish to agree to a lesser form of restriction than hospital whilst adhering to a strident care plan. The essence of MM’s case is that any deprivation of liberty would be lawful if he consented to it and that any condition imposed by a First-Tier Tribunal (FtT) requiring him to comply with a care plan would not in itself deprive MM of his liberty; although the terms of the care plan would.

Decision of the First-Tier Tribunal:
Despite the logic of MM’s case, the FtT did not discharge MM into the community. In making this decision the tribunal relied on RB v Secretary of State for Justice (RB) where the court refused to allow the FtT to impose conditions that deprived a patient of his liberty.

Decision of the Upper Tribunal:
MM was granted appeal of the FtT decision by the Upper Tribunal (UT). President of the Administrative Appeals Chamber of the UT, Charles J, applied Secretary of State for Justice v KC & Anor (KC) stating that a FtT does in fact jurisdiction to impose conditions on a conditional discharge that involve a deprivation of liberty, and that a patient with capacity could give valid consent to such conditions. The Secretary of State appealed this decision to the Court of Appeal.

The Court of Appeal’s decision:
The Court of Appeal disagreed with Charles J, favouring the position of the Secretary of State who argues that the scope of RB is ‘plain’ and the tribunal has ‘no power’ to impose a condition of a conditional discharge that is an objective deprivation of the patient's liberty. This position appears to conflict with the stance of the ECtHR who have previously held that if a person has validly consented to his confinement, there can be no deprivation of liberty. This conflict in authority between RB and KC is hopefully an issue the Supreme Court can clarify. Such clarification would ensure the courts are adhering to their responsibilities under s.3 of the Human Rights Act 1998 (HRA).

Human rights principles:
Before considering further why MM has reached the Supreme Court and the nature of the arguments our counsel may put forward, it is important to note the human rights issues at the heart of the case. Article 5 of the European Convention on Human Rights (ECHR) provides that no one should be deprived of his liberty save for few exceptions, including the lawful detention of persons of unsound mind.

The landmark case Cheshire West lowered the threshold regarding what constitutes a deprivation of liberty pursuant to Article 5 of the ECHR. Cheshire West established three key components to identifying a deprivation of liberty, namely:

1. The presence of an objective deprivation of liberty for a not negligible length of time;
2. The subjective element of lack of consent; and
3. The deprivation of liberty is imputable to the state.

One must bear in mind that in cases such as MM, it is the human rights of the patient upon which legal argument surrounds. Article 34 of the ECHR (and s.7 of the HRA) states that only the person who can challenge a public body on human rights grounds is the victim of the breach. Therefore if that persons opts not to complain, not even the Secretary of State can rely upon human rights arguments when challenging the decision of the tribunal. This is perhaps a criticism one can make of the Court of Appeal’s decision to rule in favour of the Secretary of State in MM.

Potential grounds for appeal to the Supreme Court:
In addition to the RB/KC conflict, one must also hope that the Supreme Court can directly address the key issue in MM’s case. This issue is that on one hand MM wishes to be discharged into less restrictive environment yet the court will not allow this on the grounds that doing so means MM must be subject to a care plan which will constitute a deprivation of liberty. Consequently, MM is denied greater freedom because imposing conditions (to which MM consents) would breach his rights under Article 5 of the ECHR. Such rigid application of human rights detriments MM’s Article 5 rights by enforcing an unnecessary and unjustified extension of his detention in hospital. Additionally, it may also constitute a breach of the court’s duty to give effect to domestic legislation in a manner which is compatible with Convention rights.

Our counsel may put forward that there are a number of problems with the courts’ rigid application of human rights. Firstly, it assumes that any conditions the tribunal would attach to MM’s community care plan would give rise to an unauthorised deprivation of liberty. However, s.73(4)(b) merely states that a patient has a duty to comply with the conditions and there is no mechanism for enforcing this duty. Therefore any condition requiring MM to live in a specific location, or be accompanied by someone at all times when he leaves this location, cannot give rise to an enforceable legal obligation on MM to comply with such a duty and thus cannot deprive him of his liberty.

In RB the tribunal rejected the notion that if a patient lawfully consents to such unenforceable conditions, a deprivation of liberty cannot be present. This is because they did not deem the patient’s consent as ‘unfettered consent.’ Our counsel may expose a number of reasons why this approach appears wrong in principle. Firstly, the fact that an individual has only a set of unattractive options to choose from does not, in law, mean that his freedom of choice is negated. The analogy of a person opting to risk having dangerous surgery or leave their condition to worsen and potentially lead to their death is a way of highlighting this point. In such instances, the absence of attractive options does not invalidate a person’s right to consent to an unattractive option. Article 8 of the ECHR indicates that the state has a duty to respect the private life (and therefore the autonomy) of every individual. Human rights apply universally and are inalienable (see Cheshire West) thus meaning that the human rights provisions apply equally to those detained under the MHA. It is very difficult to see how refusing to acknowledge that a patient has the right to give consent to abide by a set of (unenforceable) conditions can be compatible with Article 8 of the ECHR.

Summary:
It will ultimately be for the Supreme Court to settle the RB/KC conflict and determine whether MM can consent to a strident community care plan. So far, the reluctance of the courts to set such a precedent is based on issues of fluctuating capacity and the scenario that a patient simply changes his mind regarding compliance with any conditions attached to a care plan. However, one must remember that a patient who opts to break the conditions of his discharge will do so with the knowledge that this may lead to him being recalled to hospital. These circumstances are applicable regardless of whether a patient is being deprived of their liberty by the conditions or not.

1[The Secretary of State for Justice v MM [2017] EWCA Civ 194
2[2012] 1 WLR 2043
3[2015] UKUT 0376 (AAC)
4[The Secretary of State for Justice v MM [2017] EWCA Civ 194 at para 21
5[see Stanev v Bulgaria (2012) 55 E.H.R.R. 22
6[Cheshire West and Cheshire Council v P [2014] AC 896


Bison Solicitors on Unity 101 Radio – Bison’s Service

Interview 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


Mental Health Solicitors

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 Lasting Power of Attorney (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.