Can I qualify for a UK Global Talent visa?
UK Global Talent visa has been in high demand over the past few years since it is an unsponsored route with a possibility to settle in the UK after 3 years for world-leading talents. Prospective applicants are often overwhelmed with the endorsement requirements as well as puzzled as to what documents can be provided in support of their application. And this is normal; simply because gaining the endorsement can significantly boost applicants’ career prospects.
Regardless of age or experience in your field of talent, you still have a shot at the endorsement. If you are looking to get an endorsement for the field of digital technology, the fundamental rule of identifying whether to apply for a “talent” or “promise” endorsement is the length of your work experience in the chosen field. Namely, if your professional experience in the field amounts to less than 5 years, you have a higher chance of being endorsed as a leading talent (“promise”). However, if the length of your experience is 5+ years, an application for a “talent” endorsement can be made. Remember that sometimes your achievements so far, such as innovations, creativity, or your significant contribution to the company’s growth, matter more than the length of your professional experience.
The next step is to identify whether you are a technical applicant or a business applicant. The examples of suitable skills are listed in the Tech Nation guidance, however, the list is not exhaustive. If you are at the forefront of the digital technology sector but you have not found skills that make you unique in your field, do not be discouraged. The best way to prove the Tech Nation’s independent panel that you are a leader or prospective leader in your field is to provide evidence of your skills and achievement thus far in relation to the relevant mandatory and two optional criteria.
Most importantly, remember that Stage 1 – endorsement application is not an immigration application. As long as you still have enough time on your current visa, there is absolutely no reason why you should not try your luck and test your chances of securing the well-desired endorsement.
The same principle works with other endorsing bodies, not only with the Tech Nation. Don’t fear failure. Be afraid of not trying.
Please note that requirements may vary from case to case based on the nuances of your situation, and the information on this page is not intended to replace legal advice.
Changes to the Immigration Rules announced on 10 September 2021: Skilled Worker, International Sportsperson, Global Talent, and more
This article will address some of the most noticeable upcoming changes to Immigration Rules that were presented to Parliament on 10 September 2021 (HC 617).
Coronavirus (COVID-19) concessions
Tier 1 (Entrepreneur) (come into effect on 6 October 2021)
Under COVID-19 concession, Tier 1 (Entrepreneur) migrants were able to extend their leave as long as they have created the equivalent of two full-time jobs for settled workers at the time of application. They did not have to demonstrate that the jobs have existed for a minimum of 12 months.
However, the 12-month minimum job requirement, in addition to the usual job creation requirement, needs to be met in order for applicants to qualify for settlement.
EU Settlement Scheme (come into effect on 6 October 2021)
From 6 October 2021, coronavirus-related absences from the UK for people with pre-settled status under the EU Settlement Scheme will cease to operate and will be replaced by changes to Appendix EU.
Skilled Worker route and Tier 2 Sportsperson route (come into effect on 6 October 2021)
Those, who applied for a Skilled Worker visa in the UK between 24 January 2020 and 30 June 2021, were allowed to start working for their sponsor while waiting for a decision on their visa application. The Home Office is now introducing changes to the rules so that in future settlement applications, the time applicants were waiting for their Skilled Worker visa would be counted towards the five years that are required for settlement as a Skilled Worker. This also applies to settlement applications as a Tier 2 Sportsperson.
International Sportsperson route (come into effect on 11 October 2021)
A new International Sportsperson route has been announced to replace both the Tier 2 Sportsperson visa and Tier 5 Temporary Worker – Creative and Sporting visa for professional sporting workers. This new route provides a dedicated visa category that is more straightforward for professional sportspeople and their sponsors. The route requires both an endorsement from a Sports Governing body and a Certificate of Sponsorship from a club. There is also a requirement to demonstrate English language ability for those who apply for a stay that exceeds 12 months.
Global Talent route (come into effect on 6 October 2021)
In the field of arts and culture, letters of recommendation required by the endorsing body must specifically come from well-established ‘arts and culture’ organisations. Also, changes will be made to make it easier for applicants who are members of groups (e.g., internationally recognised orchestras or dance troupes) to qualify.
The minimum number of examples required for each of the exceptional promise criteria will also be reduced from two to one. In addition, being a board member of a product-led digital technology company is a role that can be used as evidence of being an exceptional talent in this field in relation to endorsements.
In the endorsed funder fast track pathway, the length of time remaining on an employment contract or hosting agreement has been reduced from two years to one year, to allow greater flexibility for individuals working on qualifying research (minimum of two years in duration).
The new changes also mean that there are more qualifying prestigious prizes that will be able to qualify on the Global Talent route without obtaining an endorsement from a Global Talent endorsing body. It needs to be noted that prizes must be given to named individuals, not to specific works or organisations. The prizes must also be open to all nationalities and the winners must be determined by experts or peers, rather than a public vote.
Youth Mobility Scheme (come into effect on 1 January 2022)
There are also changes to the Youth Mobility Scheme (formerly known as the ‘T5 (Temporary Worker) Youth Mobility Scheme). Iceland is being added to the Youth Mobility Scheme country list as a country without Deemed Sponsorship Status. India is being added to the list of countries where invitation to apply arrangements apply. Moreover, the Scheme will allow citizens of applicable countries/territories without Deemed Sponsorship Status to apply for this route from any post that accepts such applications worldwide.
EUSS Family Permits (come into effect on 6 October 2021)
The amendments also addressed the concession which allows a joining family member of an EEA citizen to apply to the EUSS as a visitor. From 6 October 2021, this concession will cease to exist for certain family members.
ID cards and Travel Documents (come into effect on 1 October 2021)
It has previously been confirmed that consistent with Citizens’ Rights Agreements, EEA citizens and certain EEA family members who are resident in the UK by the end of the transition period (31 December 2020) can continue to use their EEA national ID cards to enter the UK until at least the end of 2025.
On the other hand, EEA citizens that are outside the Citizens’ Rights cohort (e.g. who do not have pre-settled or settled status under the EUSS) will need a passport to enter the UK, like other nationalities. Please be reminded that this will come into effect on 1 October 2021.
Should you have any questions regarding the upcoming changes please do not hesitate to contact our Immigration team.
Please note that requirements may vary from case to case based on the nuances of your situation, and the information on this page is not intended to replace legal advice.
Divorce and Financial Settlement
We understand the divorce process is emotional and we are here to assist you in the process. Our family law team holds a wealth of experience and they are here to make this process as painless as possible for you.
This article sets out the procedures, some facts and some options for you in relation to issues concerning finances and properties. This is intended to be a general guide for readers to have an idea of the procedure, principles and FAQs for Financial Proceedings in UK.
Introduction:
There are three elements in the divorce process :
- Divorce petition – i.e. ending a marriage;
- Financial arrangements – how should the matrimonial assets be divided; and
- Arrangements for any dependent child – contact arrangements.
We discussed the first element in our previous article. If you are interested, please visit click here.
Can I initiate financial proceedings in UK if my divorce petition was finalised in China/countries other than UK?
We understand the position of the Courts in other countries maybe reluctant to address how matrimonial assets should be divided if those assets are located in England and Wales.
The courts in other countries are reluctant because when they give a court order, the judge will have to take account of whether they have “jurisdiction” to order how assets in UK should be divided between parties.
In simple terms, the courts in other countries will need to decide whether they have both the authority/power to determine a dispute between parties (i.e. in this case how UK assets shall be divided).
The usual procedure is that before you can issue financial proceedings against your husband/wife, there will be a permission hearing listed. The purpose of this hearing will be for the court to decide whether they accept they have jurisdiction to divide your matrimonial assets in the UK.
If the court grants permission then the usual steps for a financial proceedings apply.
How many hearings will there be in financial proceedings?
Generally there will be three hearings if parties cannot reach settlement, the hearings are: -
- First Appointment Hearing (FA)
- Financial Dispute Resolution Hearing (FDR)
- Final Hearing (FH)
We will discuss what will happen in each hearing in our next article.
Do I have to make financial disclosure before, during and after any hearing?
Once a party issues financial proceedings with the court and prior to the First Appointment Hearing, the court will give directions for parties to make full and frank financial disclosure by way of filling in a Form E.
Form E is a detailed questionnaire which helps the court to understand parties’ financial circumstances. Parties must disclose their global assets and liabilities and provide various supporting evidence to verify the financial information they provided to the court. For example, each party is required to provide the latest 12 months bank statements for each bank account held in his/her name or which he/she has interest in. This is for the other party and the court to check whether you have provided full and frank financial disclosure.
Before each hearing, the court will order parties to provide updating disclosure as parties have a continuing obligation to notify the court if their financial circumstances change.
Why do I have to make financial disclosure?
The court has to take into account parties’ income, capital, property and financial needs when they decide how to divide the matrimonial assets fairly and therefore court requires parties to provide full and frank financial disclosure of their global assets when they signed their Form E and in any subsequent updating disclosure.
What are the factors the court will take into account when dividing matrimonial assets?
The factors are set out in section 25 of the Matrimonial Causes Act 1973. These are also called “section 25 factors”.
The court will have to take into account all the circumstances of a case, first consideration has to be given to welfare of any children under 18 years old, and the following factors: -
- Parties’ income and earning capacity, capital, property and financial resources
- Parties’ financial needs
- Parties’ standard of living during marriage
- Parties’ ages and length of marriage
- Any physical or mental disabilities
- Financial and domestic contributions each party made during the marriage
- Any conduct which will be unfair for the court to ignore.
My Husband is the breadwinner of the family and I am a housewife, is he entitled to more of the matrimonial assets as he made greater financial contributions?
The court would look into the contributions of the wife in looking after the home and upbringing of the children. The court recognises the housewife’s contribution to the family which enables the husband to work and make financial contributions. The wife’s contributions will then be assessed and how the evidence is presented to the court.
The court may rule a housewife has made equal contribution as that made by the breadwinner husband.
If you want to know more about what will happen in financial proceedings and how will your matrimonial assets be divided if the matter goes to court, please contact us for further information.
In our next article, we will discuss section 25 factors in more detail and what will happen in each hearing.
Chan Neill Solicitors Wish To Congratulate Joey U In Becoming A Solicitor
Members at Chan Neill Solicitors Mayfair office wish to congratulate Ms Joey U on her qualification in becoming a solicitor as of 3rd Sept 2021.
Joey first joined Chan Neill as a paralegal. Because of her dedication to work and supporting the firms clients, she was offered and awarded a training contract. She has trained with some of our senior solicitors over the last two years and we are all delighted to share this milestone with her.
We wish Joey a very successful legal career over the many years to come.
What do the upcoming changes to the Home Office Sponsorship System mean to me as an Employer?
Since the introduction of the new UK points-based system back in December 2020, the Home Office has been introducing changes to the sponsorship system that can speed up operations for both employers and the Home Office.
The Home Office has so far:
- Removed the Resident Labour Market Test;
- Suspended the cap on Skilled Workers;
- Made the sponsor licence application process paperless;
- Introduced pre-licence priority service which speeds up application processes for businesses; and
- Introduced Chip Checker which enables holders of certain biometric passports to prove their identity from their own home or workplace.
These changes have significantly reduced the length of process to recruit an overseas worker by up to 8 weeks and have so far been proven popular as there was an increase of 9% on the register of work sponsors compared with last calendar year.
Moreover, the Home Office has recently published a Roadmap for the upcoming changes that will be implemented in 2021 and 2022, and here is an overview of the upcoming changes.
By Q4 of 2021, new changes will be introduced to reduce the burden on the sponsor to maintain their licence by introducing an enhanced Skilled Worker eligibility checking tool. This makes it easier for employers and workers to understand if a particular job is eligible under the Skilled Worker route. They will also introduce a new salary check pilot with HMRC to make sure employees are being paid accordingly. By Spring 2022, improvements will be delivered to ensure that the time it takes to obtain a sponsor licence (from application to approval) will be significantly reduced.
To reduce the processing time of applications even more for sponsorship licences and Skilled Worker visa, a brand-new sponsorship IT system will be introduced in 2023. By Q1 of 2024, the IT system will be fully rolled out. The new system comes with features such as automated checks with HMRC and Companies House will reduce the burden on employers in providing paperwork. For prospective employees, this will greatly reduce the time and difficulty of visa application, as application forms will already be pre-filled with the employer’s information. This means that employers like you will take less time to get a sponsor licence.
Besides sponsorship of workers, in Spring 2022, the Home Office will launch the new Global Business Mobility route, allowing overseas businesses to establish a presence here or to transfer staff to the UK. The changes mentioned above will also make the process a lot easier for overseas businesses.
There are also plans for changes to sponsoring students. The Home Office are working with education providers to explore ways on how to deliver reforms that will benefit users. More details will be provided by the Home Office soon.
The upcoming changes will make the sponsorship system more digital, simplified and modern. This certainly has given users and stakeholders more confidence in the sponsorship system as the Home Office continue to seek ways to improve and streamline the process for users.
Should you require assistance with obtaining sponsorship license or sponsorship of migrant workers, please do not hesitate to contact our immigration team.
Please note that requirements may vary from case to case based on the nuances of your situation, and the information on this page is not intended to replace legal advice.
Key Stages of a Purchase Transaction for Individual Purchaser
The following is a general guide to the key stages of a conveyancing transaction for an individual purchaser when buying a property:
- Instructing a Solicitor and Client Due Diligence
Once you have instructed a solicitor to act, you should receive a Letter of Engagement, which includes details such as agreed fees and scope of work. Your solicitor will then ask for monies on account to cover the cost of search fees and other disbursements.
Your solicitor is required to carry out proof of identity checks in compliance with the Anti-Money Laundering Regulations and will obtain the following documentation from you:
- Proof of Identity: Original or certified copy of your passport or UK driving licence;
- Proof of Address: Original or certified copy of your bank statements or utility bills (within the past 3 months); and
- Proof of Funding: Original or certified copy of your bank statements (full copy) showing the funds required for your purchase have been deposited in your bank account for at least 3 months in a UK bank account or 6 months in an overseas bank account.
You will need to inform your solicitor if you have a related sale and/or require mortgage finance for the purchase.
If you are buying with the assistance of a mortgage, you will need to provide details of your solicitors to your lender so that they send a copy of your mortgage offer to your solicitors.
You will also need to inform the Estate Agent the details of the solicitors you have instructed so that they can issue a “Memorandum of Sale” to all parties.
Your solicitors will then write to the Seller’s solicitors to confirm instructions and request the draft Contract pack. For leasehold properties, your solicitors will also usually request the Seller’s solicitors to provide the Sales Management pack from the Landlord or the Managing Agent.
- Searches and enquiries
Once the draft Contract pack has been received, your solicitor will review the documentations and instigate the appropriate searches. Please note that the turnaround time for searches may sometimes take more than 10 days depending on the Local Authority.
Your solicitor will raise any enquiries if necessary.
Your solicitor will also discuss a potential completion date as soon as there are no outstanding enquiries.
- Pre-exchange
Your solicitor will prepare a report on title for you outlining the details of the property and drawing your attention to any issues or information you should be aware of.
If you wish to proceed, your solicitor will invite you to sign the Contract together with any other documentation and to transfer the deposit monies (usually 10% of the purchase price) in readiness for exchange of contracts.
Your solicitor will also advise that you to obtain quotations for building insurance for the property as you will take on the risk from exchange of contracts, unless stated otherwise. Please bear in mind this is usually a must for lenders.
- Exchange of contracts
Your solicitor will proceed to exchange contracts as soon as they have received your original signed Contract and deposit.
At this stage, you will become legally obliged to purchase the property and the agreed completion date will become final. In the event that you fail to complete on the completion date, you will be liable under the Contract to pay interest and expenses incurred by the Seller. You may even lose your deposit if the delay continues.
- Pre-completion
Prior to completion, your solicitor will prepare a completion statement calculated up to the completion date. It is recommended that you transfer the completion funds to your solicitor at least 1 business day before completion to avoid any delays which may affect your ability to complete on the completion date.
Your solicitor will carry out all the necessary pre-completion searches.
You should arrange a pre-completion visit with the Seller or Estate Agent to ensure that the property is in an acceptable condition. If there are any issues at this point, you should notify your solicitors as soon as possible.
If you are buying the property with mortgage finance, your solicitor will submit a Certificate of Title to request drawdown funds from your lender. However, please note that most lenders will require a minimum of 5 working days’ notice for drawdown requests.
- Completion
On the day of completion, your solicitor will remit the completion funds to the Seller’s solicitors before the contract time which can vary from 12.30pm to 2pm and the Seller’s solicitors will notify your solicitor upon receipt. The Seller’s solicitors will then confirm completion and inform the Seller and/or the Estate Agent to release the keys to your new property to you.
Your solicitor will advise you when completion has taken place so that you can collect keys at the designated place, which is usually with the estate agents.
- Post-completion
Following completion, your solicitor will deal with post-completion formalities which includes paying any Stamp Duty Land Tax and lodge an application to the Land Registry to register your interest in the property. Please bear in mind that the Land Registry may take at least a few months to register your ownership of the property.
If the property being purchased is Leasehold, your solicitor will serve a Notice of Assignment to your Landlord and/or Managing Agents to ensure that your details are updated. Where you are mortgaging the property, then the Landlord or Managing Agents will need to be notified by way of a Notice of Charge.
In most cases, you are required to pay the fees for receipted notices mentioned above and any other compliance fees.
Once the registration at the Land Registry has been completed, your solicitor will forward you the registered title confirming your ownership of the property. If you purchased with assistance of a mortgage, your solicitor would send a copy of the registered title to your lender evidencing that their charge has been registered.
Divorce Proceedings
We understand the divorce process is emotional and we are here to assist you in the process. Our family law team has wealth of experience and they are here to make this process as painless as possible for you.
Scope of this article:
The divorce process can involve up to three separate elements. These elements are interlinked but we must also consider them separately.
The three elements are: -
- Divorce petition – ie ending a marriage;
- Financial arrangements – how should the matrimonial assets be divided; and
- Arrangements for any dependent child – contact arrangements.
This article addresses the first element of the divorce process.
Who can get a divorce in UK?
Either party to the marriage can initiate divorce proceedings (section 1(1), Matrimonial Causes Act 1973 (MCA 1973)).
What are the legal requirements of divorce in UK?
There are three legal requirements that the petitioner of the divorce has to meet before issuing a divorce:
1, The parties must have been married for at least one year.
2, The court must have jurisdiction to hear the divorce . Whether or not the court has jurisdiction will depend on the parties’ habitual residence or domicile. You must satisfy one of the following criteria: -
- Both parties to the marriage are habitually resident in England and Wales;
- Both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;
- The Respondent is habitually resident in England and Wales;
- The Petitioner is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
- The Petitioner is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
- Both parties to the marriage are domiciled in England and Wales; or
- The Petitioner or the Respondent is domiciled in England and Wales.
3, The marriage must have irretrievably broken down. To support the irretrievable breakdown of the marriage, you must prove one of the five facts: -
- Adultery;
- Unreasonable behaviour;
- Desertion;
- Two years' separation with the consent of the respondent; or
- Five years' separation (see Practice note, Divorce and dissolution: five years' separation).
If you are uncertain if you can satisfy all of the above legal requirements, please contact our family law team at chinadesk@cnsolicitors.com.
After I filed for divorce, what’s next? (Petitioner’s perspective)
After you file the petition for divorce and pay the court fee (£550), the court seals your divorce application form and sends it to the Respondent. The Respondent is required to complete and return an acknowledgement of service. This document will confirm that (1) he/she has received your petition; and (2) inform the court whether he/she wants to defend the case.
If the Respondent decides not to defend the case, you are required to prepare and file with the court, an application for Decree Nisi, supported by a signed statement.
The court will consider your application for Decree Nisi and statement and if they are satisfied that the marriage has irretrievably broken down, the court will send you a certificate of entitlement to a Decree Nisi. This will set out the date a judge will pronounce the decree.
You will need to wait 6 weeks from the date you receive your Decree Nisi, to submit your application for a Decree Absolute.
How long does it take to get divorced?
An uncontested and straightforward divorce typically takes six to eight months, provided that both parties deal with the court papers promptly.
Does it make any difference who files for the divorce?
Generally, this should make no difference to the final outcome.
However, this may become relevant in certain circumstances.
For instance, if your spouse wants to file for divorce in China and divide the matrimonial assets based on the Chinese legislation, while you consider it is more appropriate to file for divorce in UK and divide the matrimonial assets here, then you should obtain legal advice as soon as possible.
If your spouse issues divorce proceedings in China first, you may not be able to issue the same proceedings in the UK and you may be bound to deal with your divorce proceedings in China.
Do we have to agree a financial settlement and child arrangement before the divorce can go through?
No. The three elements of divorce are interlinked but shall be considered separately.
It is advisable for an agreement to be reached on financial terms as this gives certainty to both parties that they have no claims on the other spouse’s assets and more importantly you can live a separate life from your ex-spouse.
It is also advisable to try and reach an early agreement for any child arrangements to minimise the impact of the divorce to the child. It will be in the best interest of the child if this can be agreed in advance.
If I get married in China or in other jurisdiction, can I get a divorce in UK?
Provided your marriage is recognised by the Family Court of England and Wales and your circumstances satisfies the above three legal requirements, then you should be allowed to get a divorce in the UK.
If you are uncertain whether your circumstances are considered habitually resident and/or domiciled in the UK, please contact chinadesk@cnsoliciotrs.com for further information.
Road Traffic Accident
It is mid-August which means summer is coming to an end soon, and most importantly, a new academic year is on the horizon.
For the past year and a half, most students have gone from going to school for classes to attending classes for their GCSE, A-Levels and university courses from their desks at home. However, as coronavirus restrictions ease and face-to-face classes resume in the UK, students will have to start commuting to their schools/universities again.
As exciting as this sounds, many of us may need some time to get adjusted to navigating busy roads, especially during rush hours as we are beginning to feel the "old normal".
Some of us might have got used to the new normal of the quiet town/city centres and have forgotten about the real dangers of the accidents if we are not careful enough as pedestrians.
This brings us to the touchy subject of road traffic accidents. As unfortunate as it is and this isn't something that we want to have happened to us. In 2019 alone, the number of pedestrians aged 16 to 24 killed or seriously injured in road accidents in Great Britain is 941.
If you are moving to a new city/town for university, especially if you are an international student, you might want to take more caution as a pedestrian. A research done by Sussex Research Institute in 2008 found that overseas visitors are three times more likely to get into road traffic accidents compared with local residents. Therefore it is vital to be careful when crossing the roads, no matter how busy you might be.
But what if you, unfortunately, get into a road traffic accident and have been injured by a motorist? At Chan Neill Solicitors LLP, our experienced personal litigation team will be able to assist you in your matter to ensure that you will receive the compensation that you deserve.
The process is as follows:
- First, you (or a representative of you if you are physically or mentally incapable of doing so) need to speak to a solicitor specialising in personal injury to enquire whether you have a claim or not. After the solicitors agree to take on your case, they will begin collecting more information from you regarding the road traffic accident to build your case.
- The most crucial thing in a personal injury claim is negligence. In order to have a successful claim, we have to be able to prove that the other party (the motorist in this case) has the duty of care and that the duty of care has been breached - in this instance, it would be that a motorist should follow the Highway Code and ensure the safety of other road users including pedestrians, and they failed to do so which resulted in causing your injury in the road traffic accident.
- Once we can show that there is negligence, we (as the claimant) can issue a claim against the motorist (as the defendant) detailing the defendant's liability and damages.
What happens next:
If the defendant admits that the accident is their fault, they can accept the claim and pay the damages.
However, there is always a chance that the other side will contest the claim or the amount of damages, and the defendant could make a counteroffer.
In some scenarios, if there is a dispute as to which party is at fault, i.e. the defendant rejects the claim that they had negligence, and you have exhausted your settlement options, you will go to court. Your solicitor will then instruct a barrister to represent you in court.
Most solicitors provide services on a conditional fee agreement (also known as a "no-win-no-fee") basis, which means you only have to pay for the legal services if you win the case. For example, at Chan Neill Solicitors LLP, all personal injury claims are charged on a no-win-no-fee basis.
We hope that this article has reminded you of the possible dangers you may encounter as a pedestrian and that you have found this helpful in learning the basics about the personal injury (road traffic accident) litigation process.
Chan Neill Solicitors LLP is one of the leading law firms in London which houses an established Personal Injury practice. Our experienced team of lawyers can offer specialist advice and provide solutions. If you would like to learn more about our Personal Injury practice, please visit https://www.cnsolicitors.com/practice-areas/personal-injury/.
If you have any enquiries, you can fill in and submit the contact form at https://www.cnsolicitors.com/contact-us/. You can also contact us at +44 020 7253 7781.
Chan Neill Solicitors LLP has been shortlisted for a prestigious Law Society Award
The Solicitors and the whole team at Chan Neill Solicitors LLP are humbled and delighted to hear the news that our firm has been shortlisted for one of the Law Society 2021 awards. The Partners recognise that any recognition is through a team effort. Our team have worked extremely hard during this past difficult year and have been thrilled to hear of this recognition of their efforts.
The previous 18 months have been a very difficult time for most businesses and solicitors practices are no exception as we have had to adapt to working from home, with all the extra difficulties in communication that this entails. Client meetings were a daily necessity before the pandemic and this hasn't changed, just the mode of communication has had to change.
As a law firm, we have always strived to find innovative ways to service our international clients' needs. Utilisation of modern technology has been the key to ensuring that our staff and lawyers have been able to function as smoothly as possible through the pandemic months. This has given us the ability to fully function whilst, most importantly, also allowing us to maintain our trademark high levels of client care. As every business plots a path out of lockdown, we hope our efforts to innovate and develop our legal services to existing clients and new clients will see the firm grow from strength to strength as the firm approaches its third decade of operation.
The Law Society of England and Wales President I. Stephanie Boyce said: “Congratulations to all those who have been shortlisted. After an extraordinary year, it has never been more important to celebrate the outstanding work of our profession.”
“Solicitors play a vital role in times of crisis as people turn to trusted professionals, to explain the law, advise them on their rights and their obligations, and give them some sense of certainty.”
“As the country emerges from the pandemic, solicitors will be there every step of the way to help people and businesses get back on their feet and ensure access to justice and the rule of law.”
Paragraph 39E of the Immigration Rules
What Paragraph 39E of the Immigration Rules is all about and how to use it in practice?
To those who do not practice UK Immigration on a regular basis, the Immigration Rules might look complex, confusing and, somewhat, restrictive on what applicants can or cannot do in the United Kingdom. For this reason, it does not come as a surprise when applicants attempt a UK visa application themselves and fail on technicalities or simply because they were not aware of the requirements attached to the chosen visa category. Thankfully, there is a provision of the Immigration Rules which allows the applicants to not only not became overstayers in the UK but also to make another attempt at a visa application within the UK following the refusal.
If applying for a visa within the UK, on the date of application, the applicants must not have remained in the UK after the expiry of their current visa, in other words, must not be overstayers. On 24 November 2016 the Immigration Rules were amended to abolish the 28 day grace period and paragraph 39E was introduced, which allows for the current period of overstaying to be disregarded.
The paragraph 39E reads as follows:
“39E. This paragraph applies where:
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
(3) the period overstaying was between 24 January and 31 August 2020; or
(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, the period of overstaying was between 1 July 2020 and 31 January 2021.”
Overstaying and Section 3(c) leave
There are two aspects of paragraph 39E: overstaying and Section 3(c) leave of the Immigration Act 1971.
Firstly, the period of overstaying will be disregarded if there is a “good reason” beyond the control of the applicant or their representative as to why the applicant’s visa application was not submitted before their UK visa expired, provided that the application is made within 14 days of the expiry of leave.
Example:
Candice is a Chinese national, who is working in the UK. She was admitted to a hospital, which prevented her from making an in-time application to extend her Skilled Worker visa. She submitted her extension visa application to the Home Office straight after being discharged from the hospital, which was also within 14 days of the expiry of her Skilled Worker visa. She provided a letter from her doctor in support of her visa application. The delay in submitting her visa application in time was beyond Candice’s control, therefore, the Home Office is highly likely to accept that there was a “good reason” for the delayed visa application.
Secondly, the period of overstaying will be disregarded where a visa application, which was submitted before the expiry of leave, was refused and a new visa application was made within 14 days of:
- i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Example:
Joey is a Chinese national. He is present in the UK under the Innovator visa. He made an in-time visa application within the UK to switch to a Skilled Worker visa, however, it was refused by the Home Office because the sponsoring company assigned him an incorrect type of Certificate of Sponsorship (“COS”).
The sponsoring company then applied for a correct type of COS and assigned it to Joey once allocated by the Home Office. Joey submitted a fresh application to the Home Office within 14 days of the date of the refusal of his previous Skilled Worker visa application. His new application is granted.
Another aspect of paragraph 39E is Section 3(c) leave of the Immigration Act 1971. The purpose of this section is to prevent an applicant, who makes an in-time application within the UK, from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending.
Example:
From the previous example, Joey’s leave was extended by Section 3(c) until his initial Skilled Worker visa application was refused, which prevented him from becoming an overstayer.
If Joey decided to challenge the Home Office’s decision in a way of an Administrative Review, his Section 3(c) leave would have been extended until his Administrative Review is concluded.
It is important to note that Section 3(c) leave cannot be relied on twice. This was concluded earlier this year by the Court of Appeal in the case of Kalsi & Ors v Secretary of State for the Home Department.
Consequences of overstaying
Overstaying is a breach of UK Immigration law, and, in essence, a criminal offence, which can carry long-term consequences. The overstayers can be banned from re-entering the UK for a period of up to ten years in some circumstances.
If someone becomes an overstayer in the UK, they will be exposed to the UK hostile environment, which means to have restrictions on renting accommodation in the UK, open a bank account or even access medical treatment.
Conclusion
It is advisable to avoid overstaying in the UK. Immediate actions must be taken if someone is at risk of becoming an overstayer or has already overstayed their leave, and paragraph 39E can be a solution.
If you are concerned about your immigration status in the United Kingdom, please do not hesitate to contact our Immigration Team for guidance.
Please note that requirements may vary from case to case based on the nuances of your situation, and the information on this page is not intended to replace legal advice.