Author: Jay Visva

GDPR for Landlords of Commercial and Residential Tenants

General Data Protection Regulation came into effect from 25^th May 2018. Don’t forget Data Protection Act 2018 should be read side by side with GDPR. Under the GDPR landlords must keep tenants and other parties such as occupiers, guarantors, and referees informed about the landlord’s use of their personal data and about their legal rights in respect of that data.

As for other establishments, in order to comply with their GDPR obligations, landlords should carry out a data audit and use their findings to prepare a privacy notice. The privacy notice should then be provided to all existing tenants, occupiers, guarantors and other relevant people before 25^th May 2018 and to new applicants at the point their data is collected.

A privacy notice must cover the following key points:

• What personal data is collected from tenants and guarantors;
• What that data is used for;
• The legal basis and reasons for using it;
• How long the landlord will hold data for successful and unsuccessful tenancy applicants;
• The third parties (such as utility companies) with whom the landlord will share the data.

The notice must also give information about tenants’ and guarantors’ rights, including the right of access to their data and the right to withdraw consent (where applicable). It is advisable to include relevant wording for GDPR in the Tenancy Agreements. You may be able to provide a separate document explaining above said grounds for keeping, use of the data and tenants’ rights to be forgotten.

Landlords may have to register with the ICO and appoint a data protection officer for this purpose. If you do not comply with the GDPR requirements you may be fined for noncompliance up to the larger of 4% of your turnover or 20 million Euros.

Law Society Publishes Practice Note for Solicitors on Immigration and Asylum Appeal

The Law Society has published its practice note on immigration appeal which includes detailed advice on the following and it has been supported by the Council of Immigration Judges:

• best practice in the conduct of asylum appeals
• protection and human rights claims
• case management in the First-tier Immigration and Asylum Chamber
• preparation of evidence for hearings
• best practice in the appeal hearing
• onward appeals
• costs
• funding

Although, it is prepared for the benefit its members-Solicitors, it may be adopted by anyone who is in the business of representing immigration appellants, such as individuals who are not solicitors but supervised by them-caseworkers and paralegals. It is a very useful tool for lawyers representing applicants’ cases involving the followings appeals:

1. Refusal of a human rights or protection claim and revocation of protection status. These appeal rights are in Part 5 of the 2002 Act.
2. Refusal to issue an EEA family permit as well as certain other EEA decisions. These appeal rights are in Regulation 26 of the Immigration (European Economic Area) Regulations 2006.
3. Deprivation of citizenship. Section 40A of the British Nationality Act 1981 applies.

Anyone wants to have access to the document should register with the Law Society but it will assist you to possess a better understanding of the appeal procedure and any related case law.

You can click the link below to register and access the Practice Note.  https://www.lawsociety.org.uk/support-services/advice/practice-notes/immigration-appeals/

Jay Visva Solicitors secures Law Society’s conveyancing quality mark

Jay Visva Solicitors in Hayes, Middlesex has secured membership to the Law Society’s Conveyancing Quality Scheme – the mark of excellence for the home buying process.

Jay Visva Solicitors underwent rigorous assessment by the Law Society in order to secure CQS status, which marks the firm out as meeting high standards in the residential conveyancing process.

Law Society President Andrew Caplen said that the CQS accreditation is the hallmark of high standards and establishes a level of credibility for regulators, lenders, insurers and consumers.

“CQS is the quality mark of the home-buying sector and enables consumers to identify practices that provide a quality residential conveyancing service. With so many different conveyancing service providers out there CQS helps home-buyers and sellers seek out those that can provide a safe and efficient level of service.”

Mr Jeyarajan Visvalingam, Principal and Solicitor says: “Jay Visva Solicitors is delighted to have secured CQS status. Buying and selling a home can be a stressful time. By looking for a CQS firm like Jay Visva Solicitors, the public can seek out a firm that has proved its commitment to quality.

“The overall beneficiaries will be clients who use Jay Visva Solicitors when buying a home. They will receive a reliable, efficient service as recognised by the CQS standard.”

The scheme requires practices to undergo a strict assessment, compulsory training, self reporting, random audits and annual reviews in order to maintain CQS status. It is open only to members of the Law Society who meet the demanding standards set by the scheme and has the support of the Council of Mortgage Lenders, the Building Societies Association, Legal Ombudsman and the Association of British Insurers.

Ends

For more information on the Law Society’s Conveyancing Quality Scheme visit www.lawsociety.org.uk/cqs

Or contact the CQS Unit on 020 7316 5550 or CQS@lawsociety.org.uk

Jay Visva Sollicitors’ Contact Details: Tel. 02085736673; email: info@jayvisva.co.uk; website: www.jayvisva.co.uk

The Court of Appeal overturned the earlier decision of the Upper Tribunal which ended the right of appeal of extended family members of EEA Citizens

The Court of Appeal overturned the earlier decision of the Upper Tribunal which ended the right of appeal of extended family members of EEA Citizens.

Background: The Upper Tribunal ruled in the case of Sala (Sala (EFMs: Right of Appeal) [2016] UKUT 0411 (1AC)) that the extended family members of EEA nationals will not have appeal rights following refusal of their applications by the Home Office as the First Tier Tribunal inherently lacks jurisdiction to hear these appeals. However, a panel of three Court of Appeal Lord Justices have indicated in the case of Khan-v-SSHD-C9-2016-4413-23 that the Upper Tribunal was wrong to conclude that First Tier Tribunal lacks jurisdiction to hear the appeals of extended family members of EEA nationals in the case of Sala.

In the case of Khan, Lord Justice Irwin states “the issue in this case derives from an earlier case: was Sala wrongly decided? Is there jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the Secretary of State for the Home Department to exercise her discretion to grant a Residence Card to a person claiming to be an Extended Family Member? At the conclusion of the argument we indicated our view that Sala was wrongly decided. We now give our reasons”.

It is understood that many cases have been pending with the First Tier Tribunal for the decision of this appeal and therefore it is now time for the Tribunals to list the appeals for hearings. However, some commentators observe that these appeals have been pending with the Tribunals for more than a year to be listed for hearings. Therefore, considering the workload of the Tribunals, it may take even longer for the First Tier Tribunals to hear these pending appeals.

Letter from the British Prime Minister for EU Citizens in the UK

The British Prime Minister has given some positive gestures for EU Citizens in respect of their residence in the UK after the Brexit. However, it will really help legal advisers, if the press releases give more information on how the Govt. is going to deal with individuals who have not completed 5 years in the UK in compliance with the relevant EEA Regulations. For example, disabled, pensioners, single parents, students, dependents who have now attained majority, victims of domestic violence, widowed, full-time carers, seasonal workers, people engaged in economic activity but fail to meet the primary threshold set by the rules and individuals have become unemployed for various valid reasons. I think these are the groups of individuals who are really worried about their future in the UK. click the link below to read the Prime Minister’s Letter.

https://jayvisva.co.uk/wp-content/uploads/2017/10/Email-from-the-Prime-Minister.pdf

Offences and Defences under the Licensing Act 2003

If you are an owner of a business selling alcohol for consumption, you should know the offences that may be committed under the Licensing Act 2003 and any defences available for you. It is very important you know the law so that you do not commit any offences related to the sale of alcohol and your defences, if you believe you have complied with the statutory requirements.

Looked at the table of offences and defences provided by a local authority below.

View PDF

UK Offers Unrestrictive Permanent Residence to EU Citizens

The UK Government has proposed guaranteed right of return to UK for EU Citizens obtained settled status in the UK, even if the settled EU Citizens stayed outside the UK for more than two years. This means, EU Citizens will be allowed to come back to the UK and to stay with the same rights and privileges. This offer is subject to other EU Member States agreeing to provide same level of guarantee to the UK Citizens. In respect of enforcement of these rights, the UK has rejected to allow the European Court of Justice to have the jurisdiction, however it has confirmed to the Member States that it has committed to deliver these promises.

In order to read the two recent emails received by Jay Visva Solicitors from the Home Office, please click the links below.

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Widely expected important new Spouse Visa Guidance are now out following the amended family Visa rules coming into force from 10th August 2017.

Following the changes to the spouse visa rules from 10 August 2017 (you can read the Appendix FM and SE here), the Home Office has published its Guidance on family visas- Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a, August 2017 as stated in the Memorandum to the Statutory Instrument. The Guidance is 104 pages long and has dedicated around 13 pages for Article 8 related claims. You can read it here. Although it was released on 10^th August 2017, some of the links referred to therein are not working. As the Guidance is not a piece of legislation or rule, the civil servants have reproduced some of the relevant rules contained in the Appendix FM in the Guidance itself in order to make it easier for the readers to relate the Guidance to the rules.

Among other things, the Home Office claims that it is the most comprehensive provisions and the guidance in respect of human rights claims which reads as “the Statement of Changes in Immigration Rules HC 290, which came into effect on 10 August 2017, restructured Appendix FM such that it now provides a complete framework for our Article 8 decision-making in cases decided under it”.

In addition to the above Guidance, the Home Office also has published the ‘Immigration Directorate Instruction, Family Migration: Appendix FM Section 1.7 Appendix Armed Forces, Financial Requirement, August 2017’ (you can read it here). Again this not a piece of legislation but only a Caseworkers’ Guidance. This Guidance has some useful work-out examples and case studies on how various income requirements can be met, as the rules did not provide these detailed information. The prospective applicants can get help from this Guidance to understand how the Appendix FM and Appendix FM SE will be interpreted by the decision makers in the Home Office. The last paragraph ‘10’ is mainly allocated for the applicants in exceptional circumstances which is around 6 pages long. A proper understanding of this Guidance will really help the decision makers, advisers and the prospective applicants alike (if they have better understanding of this Guidance). It appears to the writer that if someone relies on this Guidance but their application is refused they might argue that they relied on the Guidance of the Home Office and it should not be allowed to go back on it. In the meantime, a decision based on the failures to comply with the Guidance may be challenged by the prospective applicants for its lack of legal authority i.e. the instruments which are not placed before the Parliament and approved.

The Guidance also provides many useful clarifications on the interpretations of documents and how different documents should be looked at depending on the applicant’s circumstances, as no one size fits all solution, particularly evidential burden and flexibility (paragraph 3.4) wherein the Guidance reflects on some realities, such as the authorities or institutions in some countries may not issue documents and evidence in the form and with the details that the relevant Appendix requires. Therefore, the decision maker cannot simply refuse an application for lack of compliance with the rules. The question is whether the burden of proof is on the Applicant or it is up to the decision maker to appreciate the custom and practice in a particularly country. This is more relevant if the entry clearance decisions are taken in the UK-whether the decision makers have been trained on the custom and practice in a particular country.

The legal advisers will appreciate that some employers, even in the UK refuse to provide all the requisite details in their confirmation of employment letters claiming these details are in the payslips and P60s and the Home Office can extract these details from them. They further add in their letters that it is their policy to provide only certain information in their letters and if further information required Home Office can contact them. As far as employees are concerned they face imminent refusal of their applications since the burden of proof is on the applicants.

To summarise, if anyone wants their application to be successful they should read and understand the Appendix FM and SE and the above Guidance before they make their applications. Anyone wants to know more about the new rules they can read our blog published on 2^nd August 2017.

Hundreds of Refugee settlement applications of Sri Lankan refugees pending decisions at the Home Office

Hundreds of settlement applications made by the refugees from Sri Lanka have been pending with the Home Office without decisions for more than a year.

An FOI Request disclosure made by the Home Office shows that hundreds of refugee settlement applications are pending decisions for more than a year. Although the Home Office claims that it aims to process 98% of applications within 6 months and they would make decisions in these pending applications as soon as possible it has not given any substantial or compelling reasons for these delays.

The prolonged delays in making decisions have caused so many issues to the refugees (some) who have been waiting for years for decisions. The refugees are having numerous problems with their studies, change of employment, sponsoring their spouses, renting or buying a property, starting business and so on.

To read the FOI Request and disclosure, click here

Important Spouse Visa Rules Changes from 10 August 2017

Following the Judgment of the Supreme Court in the case of MM (Lebanon) & Others v the Secretary for the Home Department [2017] UKSC 10, the Home Office had laid down the Statement of Changes in Immigration Rules (Memorandum) before the Parliament on 20^th July 2017 in order to give effect to the Judgement and make minor technical changes to the Appendix FM and Appendix FM SE. These amendments will come into force from 10^th August 2017.

Important changes from 10^th August 2017 are:

1. The Home Office must assess circumstances of particular applicant based on the evidence provided by the applicant with a view to grant visa/leave to remain to an Applicant, if they have not met the minimum earning threshold (£18600 for the Applicant; £22400 for the Applicant and one child and so on) as set out in the Appendix FM. The Home Office will consider whether the Applicant is destitute or whether it is in the best interest of the child to grant visa or leave to remain. Therefore, the Home Office must ask itself whether refusing the visa will result in a breach of Article 8 because it will lead to unjustifiably harsh consequences for the applicant, their partner or a child under the age of 18 years.
2. .The Home Office will also have to look into the promises of third party financial assistance. This is similar to the provisions in Part 8 of the Immigration rules. However, the third party financial assistance should be ‘credible guarantee of sustainable financial support from a third party; credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or any other credible and reliable source of income or funds available to the couple.’ It appears that prospective Applicants could be able to rely on their parents’ or other relatives’ promises of financial supports but these should be sustainable income. It appears that the bank statements and other evidence of guarantors’ income must be submitted with the Applications.

3. If leave to enter or remain is granted outside immigration rules under Article 8 as a partner or parent this will be on a 10-year route to settlement (Indefinite Leave to Remain), with scope to apply later to enter the five-year route where they subsequently meet the relevant requirements.

4. Some important technical changes also have been made particularly, some provisions to ensure that the partner of a person here with refugee leave or humanitarian protection cannot qualify for Indefinite Leave to Remain before that person has done so; and
5. In exceptional circumstances, Applicants will be able to apply for welfare benefits but there should be exceptional circumstances and it will be decided by the Immigration Officer when they consider the applications so that they can place a note on the status or biometric documents.

The Home Office stated that it would publish a guidance, possibly to assist caseworkers and potential Applicants however, some observers comment that these changes are ‘devil is in the details’. Although it appears that these are straight forward amendments, lots of applications may still be refused for lack of evidence and will end up in the Immigration Tribunal, especially when the prospective lay Applicants submit the applications without proper legal advice from a competent immigration adviser. Therefore, again it may take more than a year to have a hearing date at the Tribunal to see whether they are able to join their family in the UK.

To read more please click the link below:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/630926/60429_HC_290_Accessible.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/630938/60429_HC_290_EM_Print.pdf