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Want to hire non-EU workers? New laws mean the process is changing

What does this mean for UK businesses seeking to employ non-EU nationals? Leading London employment lawyer Rodney Hylton-Potts explains.

The changes – and their implications:

Previous Tier 1 (General) visas

These have been abolished and replaced by the “Tier 1 (Exceptional) Talent Visa scheme”. Only 1,000 applicants may receive these visas per year. To qualify, they must be internationally recognised as a world leader in the arts and sciences, or possess potential world-leading talent in the arts and sciences.

A score of 75 points must be attained under the new system. All points are scored under only one requirement: the applicant must have an official endorsement by a “Designated Competent Body”.

This is bad news for businesses, since the old Tier 1 General visas were associated with individuals, not jobs. This allowed the visa holder to move into whichever job they liked without their employer having to apply for a new visa.

Previous Tier 2 (General) and Tier 2 (Intra-company transfer) visas

Visas available in this category have been capped at 20,700. Those earning more than £150,000 a year will not be included in the cap. It is now more difficult for the applicant to gain points under prospective earnings and the minimum salary to gain points has been increased to £20,000.

The “established staff’ sub-category of Tier 2 (Intra-company transfer) is now abolished and replaced with two new sub-categories: short-term staff and long-term staff.

All non-EU nationals hired by a UK company will have to come in under a Tier 2 Visa. The number of Tier 2 visas has been increased with the new cap to take account of the reduction in those entering on Tier 1 visas.

However, the increase is not substantial enough. There will be a shortfall of 7,400 visas in total. Additionally, employers seeking to hire non-EU nationals on Tier 2 visas must first prove that the skills couldn’t be found at home. This involves passing the resident labour market test, requiring advertising the job for four weeks.

So what do you have to do to hire non-EU talent?

To employ a non-EU skilled migrant under a Tier 2 visa, employers must ensure the job fulfils the requirements laid out in the relevant code of practice. These codes can be found on the UK Border Agency web site and specify the skill levels and salaries required needed to qualify.

Having established that the job fulfils the skills and salary conditions, employers must then complete the resident labour market test and show that no suitably qualified settled worker can fill the job.

This must be satisfied for any job that is not on the list of shortage occupations, does not have a salary of over £150,000 and is not aimed at existing employees.

To complete a resident labour market test, the employer must ensure that they comply with the advertising methods permitted by the code of practice for the sector/job.

How long can workers stay in the UK?

Non-EU workers coming to the UK under Tier 2 will, initially, be given permission to stay for up to three years, depending on the length of their expected employment in the country. The migrant can then apply to extend their permission to stay if they continue to have a sponsor.

Employers must, essentially, jump through a number of loops and in particular, fulfill the onerous resident labour market test to employ non-EU nationals. But, before they do this, employers will have to apply to be sponsors and then they will be allocated with a number of “restricted” certificates they can then use to sponsor non-EU nationals.

The new laws, designed to protect British interests, may, in fact, result in limited labour choices for businesses already battling with the harsh economic times.

The following appeared on the Guardian.co.uk’s live coverage of the News of the World closure (link here);

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Owen Bowcott has been looking into claims from the media lawyer Mark Stephens that the News of the World closure might enable a liquidator to shred a backlog of potentially incriminating emails and documents.

“Why would the liquidator want to keep [the records]?” Stephens told the news service Reuters. “Minimizing liability is the liquidator’s job.”

But the London insolvency practitioner Rodney Hylton-Potts dismissed the idea as legally implausible. “In a liquidation, a liquidator takes over all the books and records but that does not affect the obligations of a liquidator or a director to bear in mind any criminal inquiry,” he said.

“The leading case in this is Enron, where the accountants, Arthur Anderson, sent around an email saying that they should shred things. They were severely criticised for that and it finished the [accountancy] firm.

“We know there are police inquiries going on into the News of the World and anybody who removed records now would be personally liable. It would be perverting the course of justice and a crime. I don’t think liquidation will make any difference [to the firms records].

“Indeed, the News of the World policy since January has been to cooperate with the police and in a solvent liquidation [like the NoW], the liquidator has a duty to follow the company’s policy.”

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For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

W v W (Minor) (Mirror Order) [2011] EWCA CIV 703

The case concerns the nature of the Mirror order, the jurisdiction of the High court to make one, and the consequential effect of one.

Where a parent has a final Order affecting children abroad, and wishes to visit England/ Wales, a wise precaution is a Mirror Order obtained in England/Wales.
This is an Order to confirm the regime laid down by the foreign court Order during on a visit to the UK.

A parent however must take care that the child does not become habitually resident in England and Wales, which could then give the other parent the chance to open up dual jurisdiction, and challenge the foreign Order’s application in England/ Wales.

This was the issue in this case. The mother attempted to demonstrate that because the father had applied for a Mirror Order, he was conceding jurisdiction by virtue of European law concerning jurisdiction in matrimonial matters and in matters of parental responsibility.

The Court of Appeal overruled the High Court Judge upholding the father’s position that rule 12(3) of Council Regulation (EC) 2201/2003 had not been engaged because he had not accepted jurisdiction merely by applying for a Mirror Order.
The Mirror Order was to uphold a foreign judgment, not to give jurisdiction in English/Welsh court.

The judgment is helpful in focusing on the need to avoid the child remaining in England and Wales for a period which could amount to habitual residence. The court did not rule on what that might be but clearly a brief visit or holiday of perhaps a month would not amount to habitual residence or presence.

Practitioners should bear in mind that the visit might become longer than planned unintentionally (illness, weather (volcanic ash?)) and to advise accordingly.

The grey area unresolved issue is the length of time that the child can safely remain in England/Wales without thereby granting jurisdiction.

A thought out and well worded letter to the other party prior to visiting England/Wales setting out the plans and specifically saying that jurisdiction is not to be granted if for any reason the visit was extended for a reason beyond the parent’s control is a good starting.

Another wise tactic is to include the foreign court Order, as specific provision saying that if the order is mirrored in foreign country, it is not intended to grants jurisdiction to that country.

Further in the application in England/Wales, it should be specifically stated that nothing in the application is designed or deemed to grant a jurisdiction to England/Wales.
There is still no clear jurisdiction to make a Mirror order, if the child is not physically present in England/Wales.

For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Family Procedure Rules

Came into effect on 6 April 2011

Some familiar phrases will be consigned to history, with the most notable changes being:

• ‘Ancillary relief’ becomes ‘financial order’;
• Divorce proceedings become ‘matrimonial proceedings’
• A petition will simply become an ‘application’

Costs

The presumption that each party pay their own costs is excluded from applications for maintenance pending suit/interim periodical payments.

This should therefore mean that the losing party in such applications will be facing the risk of cost order. Applications to vary maintenance pending suit/interim periodical payments orders are not included within this exception.

Mediation.

Apart from certain exceptions, such as applications for enforcement in Children Act proceedings, or applications for avoidance of disposition orders within financial proceedings, there must be compliance with the pre-action protocol prior to instigating proceedings, which require the applicant to arrange mediation.

If the applicant then makes an application to the court, they should at the same time file a completed family mediation information and assessment form, confirming the attendance at a mediation information and assessment meeting, or giving the reasons for not attending.

There are circumstances in which an applicant is not expected to attend a mediation information and assessment meeting.

Those include domestic abuse; the dispute concerns financial issues and one party is bankrupt; the whereabouts of the other party is unknown to the applicant; the application is being made without notice to the other party; the prospective application is urgent (which includes a risk to the life, liberty or physical safety of the applicant, or any delay in attending mediation could cause significant harm to a child, risk of miscarriage of justice or unreasonable hardship to the applicant); or that no mediators are available to conduct an initial meeting within 15 working days, subject to certain provisos.

These rules will have a big impact on divorce and children practice.

To learn more consult the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

A man escaped a driving ban after being caught speeding to his critically ill son’s bedside has received no fine and no points after being clocked at 128mph.

Lloyd Ansermoz was relaxing at home on a warm summer evening when the phone rang. It was the call every parent dreads: his son had collapsed and was to be rushed to hospital in a critical condition. Ansermoz left his home in Runcorn, Cheshire, jumped into his Mercedes and sped off towards a hospital in Sutton Coldfield, 60-odd miles away in the West Midlands. He would say later that he knew he was driving fast — probably too fast — but that his only thought was to get to his son as quickly as possible.
He may not have noticed just how fast he was going, but a speed camera on the M6 did. It clocked him driving at 128mph — a speed that would usually result in an outright ban, a hefty fine of up to £2,500 and six points on his licence.

However, Ansermoz was given an absolute discharge; he received no penalty points and no fine.

The argument used by his lawyers was the “special reasons” one. This allows drivers to claim that there were extenuating circumstances surrounding their crime that should be taken into account. If the court accepts there were indeed special reasons, it is then able to waive any mandatory penalty.

The clause is aimed at giving the court discretion over drivers who go over the limit in a genuine emergency.

So, what exactly constitutes “special reasons”, and how fast is too fast? According to lawyer Rodney Hylton-Potts “special reasons” is not a defence against the charge, but it allows a court the discretion not to impose the mandatory sentence.

This means that the driver will not be acquitted of the offence but can escape punishment.

There is no handy list of acceptable circumstances; instead the court is guided by a vague set of guidelines laid down by the Court of Appeal. Drivers must show that the situation was unforeseen and, in the little time that they have, they must already have explored other options, such as calling the emergency services.

It is not just the courts that can take a driver’s circumstances into account. In the Home Office’s Revised Guidance on the Operation of the Fixed Penalty System for Offences in Respect of a Vehicle, police forces are advised: “An officer will at all times consider the circumstances of the offence when reaching a decision whether to take no further action, give a verbal warning . . . complete an FPN [fixed penalty notice] or report for summons, bearing in mind any mitigating or exacerbating factors which may be present.”

If you have a motoring problem, including speeding, and keeping your licence is important, consult the experts.

For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

A Court of Appeal case has made it easier for a business owner to ring fence business assets, or either spouse to ring fence inherited assets.

The starting point in divorce settlements is 50/50, but this is not the finishing point.

Mr Jones, who started work at the age of 15 as a marine engineering apprentice, built a career in the North Sea oil and gas industry and now lives in a castle near Aberdeen.

Before the couple were married, he spent 10 years expanding a specialist gases business supplying the oil industry. At the time of their divorce proceedings in 2007, Mr Jones sold the company for £32m, which netted him £25m.

The case centred on how much the husband’s business was already worth when the couple married in 1996 and how much could be excluded from the divorce settlement.

The original judge ruled that 60 per cent of the value of the business – or £15m – had been built up before the marriage. He ruled that 40 per cent of the sale proceeds were available to be split equally between the couple, and awarded the wife £5m

Mrs Jones contested the settlement, claiming she should be paid £10m. The decision was overturned after she took her legal fight to the Court of Appeal.

Lord Justice Wilson, found that the valuation of the business built before the marriage should be adjusted downwards to be £9m rather than £15m. This reflects “passive growth” as rising markets pushed up the value of the business.
The Court of Appeal noted that the FTSE All Share Oil and Gas Producers Index had seen a percentage increase of 116 per cent between 1996 and 2007.

Leading lawyer Rodney Hylton-Potts said

‘There is some relief for wealthy spouses. Provided there is enough money to meet the parties’ needs, assets brought to a marriage can be ringfenced and not be shared on divorce. But a pre-nuptial agreement was always advisable for wealthy parties getting married.

“Pre-nups” are not legally binding in English law, but the Supreme Court ruled in the case of German heiress Katrin Radmacher that in many cases a pre-nup can have decisive or compelling weight.

Your assets may be smaller than Mr Jones or Mrs Radmacher, but the principles are the same. If you have business assets, or inherited assets, but you want to protect on your divorce speak to the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Click here to read the full article about the divorce of Katie Price and Alex Reid.

Leading London lawyer Rodney Hylton-Potts told new that Alex should expect a chunk of Jordan’s earnings.

“In all divorces, the starting point is 50:50,” he said. “But that doesn’t always apply in shorter marriages, as we saw with Heather Mills -who got half what Paul McCartney earned during the four years they were together.

“There’s money from magazine and TV deals, which arose because Katie met Alex. With a good lawyer, he’ll get half her net earnings after tax for the entire period they were together.”

“Either Katie is avery clever girl or she has been taking clever advice. The longer it goes on, the more he gets, so she wants the world to know it’s over as evidence, because that will determine the relationship infinancial purposes.”

“She may argue that the marriage never worked and that their quality time together as a couple only amounts to six months.”

“In terms of the children, Alex could apply for a court order for contact but the will have to prove the depth of the relationship – do they call him ‘Daddy’? Has he got texts or emails that show this? He won’t get very far if Peter Andre objects.”

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Come to the divorce experts. For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

The Bribery Act could make it illegal to wine and dine a client at Wimbledon. No one can say for sure what will and will not be allowed

Wimbledon hospitality tents may be quieter.

There are 150 executive boxes at Twickenham, the home of English rugby, packed out on match days

Fuelled by a roast lunch and champagne, their occupants will cheer on Martin Johnson.

It could be a different story in future. New Laws could make corporate hospitality an offence. Flying in guests from overseas to the rugby or the tennis at Wimbledon might be construed as bribery.

The Bribery Act 2010 will have a profound impact on business. The problem is that nobody can say for sure what will and will not be allowed under the new rules.

Companies will be expected to decide for themselves what counts as “reasonable” or “proportionate” hospitality and then hope they do not incur the wrath of the authorities. It may catch all manner of conduct many would not consider to be corrupt.

The Bribery Act 2010 is the most powerful weapon yet developed to fight corruption.

The law makes no exceptions for things such as facilitation payments — that is, low-level bribery of public officials to do routine tasks, such as ensuring that lorries clear customs quickly, or phones are connected on time. So beware slipping a tenner to the BT engineer.

The legislation creates a new offence that puts the onus on companies to stamp out bribery at all levels of the organisation.

In the past a company could say [if an employee was found to be bribing people], we did not know about that, we didn’t authorise that. It was difficult to get at the company. Now it has been switched round.

To defend themselves against corruption charges, companies must show they have “adequate procedures” in place to prevent bribery. Quite what constitutes “adequate procedures” is not been made clear.

If a company wants to build a factory in a foreign country, it is common to bring government officials to Britain to show them an existing factory.

They would be put up in a hotel, wined and dined. Will that now be illegal? And will a Travelodge be acceptable but not the Savoy?

Another tricky scenario could be where a British company bids for a contract to build a factory or power plant overseas. The deal could depend on the bidder pledging to finance a school or hospital, too. Such promises could be a crime under the Bribery Act, if there is no explicit exemption written into the law of the overseas country.

The solution

Companies must ensure they have adequate procedures in place.

Consult the experts – for more information or a free legal opinion, telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

The default retirement age (DRA) will be consigned to history from October 2011.

Employers will no longer be able to require people to stop working at 65, purely because of their age.

Employers should think of having a much older retirement age – 70 or 75.

Employers would no longer be able to issue compulsory retirement notifications under the DRA procedure from 6 April 2011.

Between 6 April and 1 October this year only people who were notified before the April cut-off date can be compulsory retired.

From 1 October 2011 employers will only be able to operate a compulsory retirement age where they can objectively justify it as a ‘proportionate means of achieving a legitimate aim’.

The solution. Dismiss older employees before April 2010, or you could have until they are 75 !

Consult the employment experts – Call us on 020 7381 8111  or email law@rhplaw.co.uk

Couples who break up following a live-in relationship are paying tens of thousands of pounds in settlements to their former partners.

A new phenomenon of ‘break-up payments’ is increasingly common because more and more couples are living together for several years without marrying. When a marriage collapses, a spouse is usually entitled to half the couple’s assets, but for cohabitees the legalities can be a minefield.

Some people were willing to pay up to £100,000 to former partners to avoid lengthy legal action which can last up to 18 months, it said. Recent actions have involved custody of children, jointly owned property, bank accounts and even pets. There are 2.3million cohabiting couples and the number is expected to double in the next 25 years. One in four children is born to cohabitees.

The problem is partly due to such disputes being dealt with using property rather than family law, as no legislation had yet been passed making clear the rights of unmarried partners when they split up. It can ultimately be a case of “he said, she said” – one partner’s ability to be more convincing than the other in court can be crucial in determining how cases are settled.
Some disputes involved individuals who had genuinely made contributions to building up joint assets, others featured demands which could best be described as ‘nuisance’.

We have seen instances in which people have issued demands to complicate their exes’ new relationships.’

If you are involved in a relationship breakup consult the experts

For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.