The Future of Immigration: Tier 2 to devour EU, as well non-EU migrants

No preferential treatment for EU migrants – is the headline from today’s long-awaited Migration Advisory Committee’s (MAC) report.  The MAC has issued recommendations around the future of the UK’s immigration policy and, in particular, the system which EU nationals should face if they arrive after December 2020.

But it’s not just this headline which is rather surprising; it’s the proposal that the much-maligned-by-business, Tier 2 of the Points Based System, the model which currently regulates non-EU migrant workers, will envelop EU nationals. The MAC is thereby extending a scheme which has high costs for businesses, both financially and administratively.  This model also restricts the available positions to EU nationals to higher paid jobs in the 25th percentile of earnings, making free movement a distant memory.

Why this report is so important

The MAC report is highly important as it is likely to form the basis of the UK’s future immigration system.

Around half of all migrants come to the UK under EU free movement provisions. Whilst the position for EU nationals currently here, and those who arrive prior to December 2020, is now fixed, the Government has refrained from taking a position on EU nationals who arrive after 2020, stating that it will be informed by the findings of this MAC report. As the MAC is an independent quango, albeit sponsored by, and having a secretariat comprised of, Home Office civil servants, it was considered best placed to provide more of an ‘evidence-based’ approach to this notoriously politicised issue.

The transition model

After Britain leaves the EU, the rights-based, free movement system will formally end. However, the same rights will effectively be transposed into domestic legislation and so free movement will, to all intents and purposes, carry on until December 2020. The major proviso is that all EU nationals will have to register under the EU Settlement Scheme.

The future – key facts

The MAC report states that, post-December 2020, there should be no preferential treatment for EU nationals, over non-EU nationals.  Should this change materialise, then this would be a remarkable shift from the current model.  As noted, the MAC proposes to bring EU migration under the Tier 2 system, which is considered to be  unwieldy by those businesses currently unfortunate enough to be running a Tier 2 sponsor licence.

The MAC attempts to soften the blow with some changes to the Tier 2 model, including the abolition of the cap on the number of workers coming from abroad who can be sponsored (although those applying from within the UK are already exempt from the cap); stopping the requirement to undertake a resident labour market test; and reducing the minimum skill level for migrants from RQF Level 6 to Level 3, so lower skilled workers can be sponsored.

However, employers may still be dismayed by the recommendation that the minimum salary level is retained at £30,000, meaning that, in reality, few lower skilled positions will be capable of sponsorship.  Furthermore, the MAC recommends the retention of the Immigration Skills Surcharge of £1,000 per year, per migrant worker.  Thus, a small business which wants to sponsor an EU migrant, and which doesn’t currently hold a sponsor licence, would have to fork out a whopping £3,776 to sponsor a single migrant for 3 years (the migrant would then have to pay significant visa and NHS fees).

Last thoughts

It’s one thing to decide that there should be no preferential treatment for EU citizens, given that the UK is leaving the EU. But it’s quite another to reduce the EU model to the dysfunctional system which currently applies to non-EU nationals.  The MAC also fails to address the perennial question, which whilst clichéd remains no less prescient: who is going to do the jobs which settled workers can’t, or won’t do?

Louis MacWilliam

Louis MacWilliam

Louis MacWilliam
Associate Solicitor
Business Immigration Team
LMacWilliam@lawBlacks.com
0113 322 2842

Posted in Business Immigration | Leave a comment

The shape of things to come?

Whilst the most common way to register a trademark is using a word or logo “mark”, there are other options available if your business uses something that is sufficiently distinctive enough, for example a colour, a smell or a shape.

The common hurdles for registering a trademark that must be overcome include:

  • the “mark” must not be descriptive or generic or common place in the industry;
  • it doesn’t infringe an existing “mark” in the same class of goods or services; and
  • it can’t be misleading or offensive.

Although the general rule is that the mark must be distinctive, there is still a possibility that it can be registered if it can be shown that it has “acquired a distinctive character in relation to the goods or services for which it is registered”.

A good example of this is the shape of the iconic London black cab.

In 2014 an application was made by the London Taxi Corporation (“LTC”) to register the shape and design of the London black cab.  Whilst the application was initially refused the LTC were able to demonstrate to the Intellectual Property Office (“IPO”) that there was sufficient evidence to prove that both the shape and design were distinctive enough.

Unfortunately for the LTC, when the application was eventually published, it was opposed by a rival company who claimed that the design was too generic or, in other words, it was a car.  This resulted in the Court of Appeal rejecting the LTC’s argument and refusing their application.

This ruling is important for the business owner who is looking to register an unusual “mark” as, although the LTC didn’t succeed, it did result in up to date, useful guidelines.

So what do these guidelines mean?

Well, one of the most important factors is whether or not the “average consumer” associates the “mark” with the product or service being offered.  In the LTC case, the Court of Appeal ruled that the “average consumer” saw a taxi and not specifically a “London Black Cab”.  Therefore it was not “sufficiently distinct”.

This isn’t the first time that the courts have made similar rulings when it comes to the registration of shapes as trademarks.  Another great example that people can relate to is Nestle’s attempt to register the Kit Kat shape – it was ruled that because there were other similarly shaped chocolate bars on the market, it wasn’t capable of being protected.

The end result is that it remains difficult to register a shape as a trademark.  The reason for this is that when you register a trademark, you gain a monopoly on that “mark” – therefore if it is something that is in regular or day to day use, the courts will be reluctant to stop people from being able to use it.

Pete Konieczko-Hansom

Pete Konieczko-Hansom
Associate
Corporate and Commercial Team
PKonieczko-Hansom@LawBlacks.com
0113 227 9384

Posted in Intellectual Property | Leave a comment

Is this finally the end of the blame-game in divorce?

The UK government are set to announce a consultation on ‘no-fault divorce’ as Justice Secretary David Gauke described the current system as creating “unnecessary antagonism” following the case of Owens v Owens. It was reported that David Gauke now plans to call for the existing fault-based system to be overhauled.

We reported on the case of Owens -v- Owens back in July where the Supreme Court ruled the Mrs Owens must stay in a loveless marriage. Mrs Owens will now have to wait until they have been separated for 5 years in order to obtain her divorce. Despite this outcome, solicitors are welcoming the potential for no fault divorce to be introduced.

Under current legislation that has remained unchanged for decades, anyone seeking a divorce must prove their partner is at fault for committing adultery, desertion or unreasonable behaviour. The current non-fault grounds require consent for a divorce after 2 years of separation but otherwise 5 years of separation without consent which is where Mrs Owens currently stands. The consultation would hope to address the long overdue need for reform and would be a significant change to divorce law in England and Wales.

Nigel Shepherd, a former chair of family law organisation Resolution reported that “Today’s news has the potential to be a landmark moment for divorce law in England and Wales. For far too long, couples have been forced into needless acrimony and conflict in order to satisfy an outdated legal requirement.”

We look forward to the announcement of the consultation and hope that it will be a positive step towards putting an end to the blame-game and helping reduce conflict within divorce.

Paul Lancaster

Paul Lancaster
Partner
Family Law Team
PLancaster@LawBlacks.com
0113 227 9215

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Reforming the Law on Wills – Time For Change?

In recent years the Law Commission have made clear their view that the law relating to wills should be updated and brought into the modern age. While this is still under review, the circumstances of the recent case of Ubbi v Ubbi [2018] EWHC 1396 (Ch) brings this issue back to the forefront; highlighting the need for the current law to be compatible with modern life.

Current legislation dates back to 1837 and the Commission have suggested that the rules surrounding wills, and what makes them valid, are unclear and out of touch with the digital age. Under their proposals the Commission would like to see the likes of of text messages, notes, emails and voicemails having some bearing on the determination of what a person’s true wishes are after they have died. This would involve enabling the courts to dispense with formalities for a will where it’s clear what the deceased wanted.

In Ubbi, Mr Ubbi’s had been leading a “double life” prior to his death. He had two households; one with his wife (from whom he was in the process of obtaining a divorce at the time of his death) and one with his partner, Bianca Corrado, with whom he had fathered two children. When he died, Mr Ubbi had not updated his will to make provision for his children. Ms Corrado brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 on behalf of her children and was eventually awarded £386,000 from Mr Ubbi’s £3.5 million estate.

At a time when divorces are on the increase and the number of blended families are growing,  until legislative change occurs the courts will continue to hear costly litigation surrounding the validity of wills and what the deceased’s real intentions were. The Law Commission’s proposals would allow less formal types of documents to be considered as a will and could potentially avoid, or certainly reduce, these types of scenarios.

Until the law in this area is modernised we advise that your will should be updated whenever necessary, and particularly after separation, divorce or remarriage.

Nadine Owens

Nadine Owens
Solicitor
Private Client Team
NOwens@LawBlacks.com
O113 322 2824

Posted in Wills and Probate | Leave a comment

Indemnities and Guarantees – what’s the difference?

Indemnities and guarantees are both a form of what the law terms as suretyship.  A surety is a person who is liable for the payment of another person’s debt or the performance of another person’s obligation in the event of the failure by that person to comply with his obligations.

An indemnity is a contractual promise whereby one party promises to another party that he will compensate the loss or damages occurred to him by the conduct of another person.  In a contract of indemnity there are two parties, one who promises to indemnify the other party, the indemnifier, while the other one whose loss is compensated is known as the indemnified.  One of the most common examples of an indemnity is a contract of insurance where the insurance company promises to pay for the damages suffered by the policyholder in return for the payment of insurance premiums by the policyholder.

A guarantee is a contractual promise by a guarantor to ensure that a third party fulfils his obligation and/or that the guarantor will pay an amount owed by the third party if the third party fails to do so.

Guarantees and Indemnities are often confused and used interchangeably.  Below are the key differences between indemnities and guarantees and its importance as the distinctions can be relevant such as when one has to consider their enforceability:

  • In a contract of indemnity, one party makes a promise to the other that he will compensate for any loss incurred to the other party because of the act of the promisor or any other person.
  • In a contract of guarantee, one party makes a promise to the other party that he will perform the obligation or pay the liability, in the case of default by a third party.
  • In an indemnity there are two parties involved, the indemnifier and the indemnified but in a contract of guarantee, there are three parties – debtor, creditor and surety.
  • The liability of the indemnifier in the contract of indemnity is primary whereas in a guarantee the liability of the surety is secondary because the primary liability is that of the debtor.
  • Unlike an indemnity, a guarantee must be in writing or signed by the guarantor in order for it to be effective.

Guarantee documents can include both a guarantee and an indemnity so that the beneficiary can have the benefit of both and they are often executed as deeds to overcome any argument about whether good consideration has been given.

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Luke Patel

Luke Patel
Partner
Commercial Dispute Resolution Team
LPatel@LawBlacks.com
0113 227 9316
@LukeLawBlacks

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The continuing myth of the Common Law Marriage

It is a widespread misconception that there is such thing as the ‘common law marriage’ with many people believing that if they are in a long-standing relationship, often with children involved, they will begin to acquire the same rights as married couples or those in a Civil Partnership.

The truth is the legal protection available to cohabitees is vastly different to those who are married or in a Civil Partnership, with cohabitees often being left in a worse financial position than they anticipated when their relationship ends or their partner dies.

A recent Supreme Court ruling, relating to an unmarried mother of four children, casts light on this regularly visited topic.  Ms McLaughlin lives in Northern Ireland and had been in a cohabiting relationship with her partner, Mr Adam, for 23 years.  Although they had four children together they had never married.

Sadly in 2014 Mr Adams died and Ms McLaughlin was left providing for the family.   As Mr Adams’ surviving partner, Ms McLaughlin wanted to claim Widowed Parent’s Allowance (WPA) to help her provide financially for their children. However, the current rules state that WPA can only be claimed if you were the spouse or Civil Partner of the deceased.  As she had never been married to Mr Adams, Ms McLaughlin was therefore told she was unable to claim.

Taking her case all the way to the Supreme Court, Ms McLaughlin asked the Court to consider her claim and whether the restriction is incompatible with Human Rights laws. By a majority ruling, the Supreme Court decided that it is.  Whilst the ruling doesn’t change the current rules for receiving WPA it is hoped that it will put pressure on the Government to make changes in this area allowing for more protection for cohabitees.

Of course this is not the only circumstance where cohabitees may find themselves in a difficult position if their partner dies or the relationship breaks down.  Worryingly many people are not aware that the same provisions available for spouses or Civil Partners in respect of benefits, inheritance or claims relating to property, pensions and maintenance upon the relationship breakdown are not available to them as cohabitees.

As more and more couples are choosing not to marry this is an area of law which is often a topic for debate.  However, until the law is reformed cohabitees should take practical steps to secure their position as much as possible by checking they have up-to-date Wills and obtaining legal advice upon property ownership, their rights as unmarried parents and whether they would benefit from a Cohabitation Agreement to record how they want to deal with their finances in the event of a separation.

Charlotte Gannon

Charlotte Gannon
Solicitor
Family Law Team
CGannon@LawBlacks.com
0113 322 2852

Posted in Family Law | Leave a comment

A Crackdown on the Way for Can’t pay? Won’t Pay! in Divorce

Are the government about to reform enforcement measures for family financial orders?

The Law Commission has previously published a report recommending various proposals aimed at making it easier to enforce family financial orders. The summary of the Law Commission report can be found here.

The aim of the recommendations is to make the enforcement of family financial Orders more effective, more accessible and fairer. The report highlights that enforcement measures are an important of law but are often somewhat overlooked.

It has been estimated that approximately £15-£20 million of payments that have been ordered by the Court currently remains unpaid. Non-compliance with Orders can cause significant difficulties for the person that is owed the money. The Law Commission’s proposals are primarily aimed at those who can pay, but choose not to do so by making it harder to avoid compliance.

The Justice Minister Lucy Frazer has now recently written to the Law Commission to confirm that the government shares the Law Commission’s concerns about the current enforcement system for family financial orders addressing that more should be done. She has also requested that officials should work with the senior family judiciary, Family Procedure Rule Committee and HM Courts & Tribunals Service for a more ‘clear and comprehensive procedural framework for enforcement which is easier for litigants in person and practitioners to navigate’ by considering changes to court rules. This would appear to be a positive step for reform of this area of law.

Although this is definitely a step in the right direction, the demands on parliamentary time and issue of complexity of this area of law remain and we are left wondering when and how any reforms will be put in place.

An area of the recommendations made by the Law Commission that we feel that would most likely assist with enforcement of Order is the suggested introduction of what the Law Commission refer to as “coercive orders” i.e. orders designed to apply pressure to make a payment. This would require a change in the law but the suggestion made is that the Courts should be able to disqualify a non-payer from driving or prevent them travelling outside of the country until they pay up what has been ordered. If this was introduced we feel that it would have a significant impact on parties who can pay but choose not to so.

Paul Lancaster

Paul Lancaster
Partner
Family Law Team
PLancaster@LawBlacks.com
0113 227 9215

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Knowing the Boundary

Pursuing boundary disputes through the courts can be a very costly and stressful exercise. The parties usually end up incurring legal costs disproportionate to the value of the land itself and often end up falling out irretrievably with their neighbour.   In the light of this a new protocol, known as the Protocol for Disputes between Neighbours about the Location of their Boundary (The Boundary Disputes Protocol) was introduced towards the end of last year.

The Protocol is not new law and instead it has been written by senior members of the legal and surveying professions and is, for the moment, entirely voluntary.  The Protocol applies to commercial and residential properties and its aim is to focus the parties’ minds on early and effective compromise by providing a structured process for dealing with disputes which includes:

  • Setting a timetable for exchange of information by the parties with a view to leading to discussions about settlement or an alternative method of resolution such as negotiation or mediation.
  • Where legal advisers are instructed in relation to the dispute, those advisers should consider whether further negotiations or mediation is appropriate and keep that under constant review.
  • Outlining the stages at which the parties should consider appointing an expert and in most cases it would be disproportionate for the parties to each instruct an expert and therefore it advocates the appointment of a single joint expert.
  • Setting out a timetable for the instruction of an expert or experts and for the preparation of his or their reports.
  • Providing for a final consideration of whether the dispute is capable of being resolved and if not, whether an alternative form of dispute resolution should be adopted or proceedings issued.
  • Setting out how the parties should record any agreement reached.

As the Protocol is not compulsory it does not at the same status as other protocols contained in the Civil Procedure Rules (the court procedural rules which govern civil cases) for certain types of disputes where the non-compliant party risks receiving costs penalties should the matter subsequently be litigated.

Notwithstanding this, the Protocol is a welcome step in providing a process by which warring neighbours can save themselves unnecessary costs and upset in resolving boundary disputes whilst at the same time saving on valuable court resources.  The introduction of the Protocol is part of a continuing effort by lawyers, judges and the government to encourage parties to engage with each other and attempt to resolve their disputes without having to go to court.

Picture of Luke Patel

Luke Patel

Luke Patel
Partner
Commercial Dispute Resolution Team
LPatel@LawBlacks.com
0113 227 9316
@LukeLawBlacks

Posted in Commercial Dispute Resolution | Leave a comment

What a load of croc!

Love them or hate them, Crocs have become synonymous with summer months, gardening and splashing about in the surf.  But did you know that they recently lost their patent protection in the EU?  This means that you can expect to see the shops flooded with copycat designs and variations.

Whilst the process of registering a patent can vary from country to country, patents are generally seen as a way of providing inventors with an incentive to keep coming up with new ideas.  In short, patents grant the inventor a monopoly over the invention meaning they can exploit the invention without fear of competition for up to 20 years (subject to ticking all the administrative boxes).

After the 20 years has expired, the invention becomes part of the public domain and anyone is free to do what they want with it.   This is in contrast to other types of Intellectual Property such as copyrights and trademarks which come with their own unique set of rules.

When it comes to registering a patent, there are a number of hurdles that need to be overcome.  One of these hurdles is that the invention must not have been released to the public prior to the application having been made.

The recent Crocs case before the European Union Intellectual Property Office (“EUIPO”) is a perfect example of what happens if a patentable invention is released to the public prior to patent protection having been granted.

Crocs originally obtained the patent for their ubiquitous shoes in 2004.  However, following a legal challenge by a competitor (and following on from a similar decision in the US) the EUIPO have ruled that because Crocs showcased their shoes at a trade show in Florida in 2002 and were featured on the company website in 2003, they were deemed to have been granted the patent in error and the patent has been revoked.

The key takeaway is that if you have come up with a great idea that you think may be capable of being patented, it is vital that you seek legal advice as soon as possible to reduce your chances of missing out on protection.

Pete Konieczko-Hansom

Pete Konieczko-Hansom
Associate
Corporate and Commercial Team
PKonieczko-Hansom@LawBlacks.com
0113 227 9384

Posted in Intellectual Property | Leave a comment

Partnership Disputes

A partnership is essentially a business run by two or more people with a view to making a profit.  Unlike an incorporated company it is very simple to set up a partnership.  In fact a partnership can be formed by an oral agreement between the parties without any paperwork involved.  Indeed, many people do not realise that by going into business with someone else they are effectively setting up a partnership.  However, it is a fact of life that people will have disagreements and some will eventually fall out.

If the parties have entered into a partnership without a formal partnership agreement having been drawn up then any dispute between the partners will be dealt with under the Partnership Act 1890.  However, compared to a detailed partnership agreement, the Act can be somewhat lacking in its provisions as it only covers the bare essentials of a partnership.  For example, there is no provision within that Act for removing an errant partner. This therefore means that in the event of a dispute where there is no partnership agreement setting out a procedure for resolving that dispute, the partnership would have to be dissolved.

Dissolution of the partnership could be very disruptive to a business as the partners would have to deal with the repayment of partnership debt as well as facing the potential of a protracted dispute amongst themselves regarding various partnership issues.

By contrast, a properly drawn up partnership agreement can specify what should occur in certain scenarios and what is expected of each partner within the partnership.  For example, if a partner was to leave the partnership, the partnership agreement could stipulate the circumstances in which the departing partner could withdraw his capital from the partnership, the payment of his share of the partnership debt as well as determining what are personal and what are partnership assets.  The partnership agreement could also deal with the introduction of new partners to replace departing ones.  Further, a partnership agreement will normally have a mechanism setting out the circumstances as to when a partner can be removed and what should happen to his share of partnership assets and the payment of partnership debts.  There could also be provisions which allow a partner to be bought out by the remaining partners with a detailed mechanism for valuing the outgoing partner’s share of the partnership.

Properly drafted partnership agreements can prevent disputes from arising as they will detail the rights and obligations of the partners in any dispute.  Where disagreements do arise the partnership agreement can provide a mechanism to resolve those disputes.  A partnership agreement can therefore provide a clear framework for resolving any issues that arise between the partners.  The time and expense incurred in having a proper partnership agreement prepared will far outweigh the time, cost and stress which would be spent in dealing with a partnership dispute without such an agreement.

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Luke Patel

Luke Patel
Partner
Commercial Dispute Resolution Team
LPatel@LawBlacks.com
0113 227 9316
@LukeLawBlacks

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