Here is an article for Lexis Nexis from November 2018 – a comment piece on when the Court of Appeal (Criminal Division) can re-open a conviction.
Re-opening an appeal against conviction after determination (R v Ibori and others)
The case of Gohil can be found on BAILII here.
Reproduced by kind permission of Lexis PSL. You can get more articles like this from Lexis at this web address – www.lexisnexis.com/uk/lexispsl
Here is an article for Lexis Nexis on the new (as of October 2018) proposals in the Registration of Overseas Entities Bill that is supposed to curb the use of UK property for money laundering
New proposals to tackle money laundering in the property market
Reproduced by kind permission of Lexis PSL. You can get more articles like this from Lexis at this web address – www.lexisnexis.com/uk/lexispsl
This privacy notice contains information about the information collected, stored and otherwise processed about you and the reasons for the processing. It also tells you who I share this information with, the security mechanisms I have put in place to protect your data and how to contact me in the event you need further information.
Who Am I?
I collect, use and am responsible for personal information about you. When I do this I am the ‘controller’ of this information for the purposes of the GDPR and the Data Protection Act 2018.
If you need to contact me about your data, or the processing carried out, you can use the contact details at the end of this document.
When carrying out the provision of legal services, or other activity undertaken by me in my professional life, I collect personal information that may include the following:
The same categories of information may also be obtained by me from third parties, such as other legal professionals or experts, members of the public, your family and friends, witnesses, courts and other tribunals, investigators, government departments, regulators, public records and registers.
I may use your personal information for the following purposes:
If I have been instructed to act in a case involving you or to provide advice, then your personal information has to be provided, to enable me to provide that service and to comply with my professional and accounting obligations.
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I may also be required to disclose your information to the police or intelligence services, where required or permitted by law.
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I will normally store all your information:
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You have the right to withdraw this consent at any time, but this will not affect the lawfulness of any processing activity I have carried out prior to you withdrawing your consent. However, where I also rely on other bases for processing your information, you may not be able to prevent processing of your data. For example, if you have asked me to work for you and I have spent time on your case, you may owe me money which I will be entitled to claim.
If there is an issue with the processing of your information, please contact my clerks using the contact details below.
Under the GDPR, you have a number of rights that you can exercise in certain circumstances. These are free of charge. In summary, you may have the right to:
If you want more information about your rights under the GDPR please see the Guidance from the Information Commissioners Office on Individual’s rights under the GDPR.
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I will aim to respond to you within one month from when I receive your request.
The GDPR also gives you the right to lodge a complaint with the Information Commissioners’ Office if you are in the UK, or with the supervisory authority of the Member State where you work, normally live or where the alleged infringement of data protection laws occurred. The Information Commissioner’s Office can be contacted at http://ico.org.uk/concerns/.
I do not intend to process your personal information except for the reasons stated within this privacy notice. If this changes, this privacy notice will be amended and placed on the website.
This privacy notice was published on 24th May 2018 and last updated on 24th May 2018.
I continually review my privacy practices and may change this policy from time to time. When I do it will be placed on the website.
If you have any questions about this privacy notice or the information I hold about you, please contact me.
The best way to contact me is to email me at Daniel.bunting @ 2drj.com
Here is a look ahead to what we can expect on the immigration front in 2017, from me and two others for Lexis Nexis.
immigration looking ahead to 2017
Here is an article I wrote for Lexis Nexis in the Public Law analysis section on access to justice and the recent (2016) review by the Equality and Human Rights Commission.
Access to justice for Black and Ethnic Minorities
Reproduced by kind permission of Lexis PSL. You can get more articles like this from Lexis at this web address www.lexisnexis.com/uk/lexispsl
There is a lot of new law in the 2016 Immigration Act, some of which I have been looking at and digesting as they. One into force.
Here’s a piece I did for Lexis looking at the key provisions relating to inspection and enforcement powers.
Immigration Act 2016 – Inspection and Enforcement Powers
*This article was first published on Lexis®PSL Immigration analysis on 17 June 2016. Click for a free trial of Lexis®PSL.*
Introduction
On 12th July 2016 we will see the biggest shakeup in the law relating to illegal working for the last 10 years. These are contained in Chapter 2 (ss34-38) Immigration Act 2016.
Set out below is an overview for both employers and employees as to what the law will be when this is implemented.
For employers
The current offence is widened considerably. The main points to note are :
Overview of offence
A person, A, commits the offence if they –
Who is ‘disqualified from working’?
Someone will be ‘disqualified from working’, if :
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing the person from doing work of that kind.
The fact that an employer does not know that that their employee is disqualified is not a defence. If they have ‘reasonable grounds to believe’ that somebody is disqualified – i.e. if another person looking at the grounds would believe so (as a rough guide – it’s a bit more complicated than that) then they will still be guilty.
What is meant by ’employ’?
There is a definition of employment in s25 Nationality, Immigration and Asylum Act 2006 which states that employment means “employment under a contract of service or apprenticeship, whether express or implied and whether oral or written“.
Although it appears straightforward, this can be an incredibly complicated question of employment law, where a number of different factors come into play.
In addition it should be noted that, sightly confusingly, this is different to the test for somebody who is an employee for that offence, although in practice this will probably not make much of a difference.
Who in a company is liable?
This can get quite technical – if there is any issue then you would be advised to seek legal advice.
But as an overview, if someone in the company (or other body) who has responsibility for the employment is in a position where they know, or should know, that someone is being employed illegally, then the company will be liable.
In addition, any ‘officer’ of the body (Director, Manager, etc) will be liable provided that they also have the requisite state of mind.
Sentence and Procedure
The maximum sentence is increased from 2 years to 5 years.
The case is either way – meaning that somebody charged with it can have their trial in the Crown Court in front of a Judge and Jury if they want.
For employees
There has never been a simple offence of working illegally. Those that did so often faced other charges (fraud being an obvious example) as well as enforcement action by the immigration authorities.
The Immigration Act 2016 introduces a ‘catch all’ offence of illegal working. This is achieved by way of an addition to the Immigration Act 1971 (a new s24B).
An employee commits an offence if they :
Who is ‘disqualified from working’?
Someone is disqualified from working if :
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing the person from doing work of that kind.
This is the same test as for an employee.
If somebody is disqualified from working, then they will fall foul if the law if they know that they are disqualified, or if they have ‘reasonable cause to believe’ that they are. That is an objective test, and so if someone buries their head in the sand and ignores the obvious, it does not mean that they can get away with it.
What is ‘work’?
For the purpose of the offence, employment is defined as someone who works :
You should note that this is different definition of employment to the one that applies to employers under s21 Immigration, Nationality and Asylum Act 2006.
Sentence and Procedure
The offence is summary only, and so the maximum penalty is 6 months imprisonment and/or an unlimited fine.
The kicker here is that the prosecution can apply for the case to go to the Crown Court for confiscation proceedings under the Proceeds of Crime Act 2002.
Will this apply to people who started employment prior to 12th July 2016?
A very good question. The law normally has ‘transitional provisions’ – guidance as to what happens to people when the law comes into force, but there aren’t any in this case.
So we are left to guess. As always, if there is any doubt then seek legal advice. My view, for what its worth, is that Courts will interpret ’employs’ to be a continuing act – i.e., if you start your employment on 1st July 2016 then come 12th July 2016 the offence will be committed, provided the relevant person has the relevant knowledge. That should not be taken as a legal opinion however.
Conclusion
This law will potentially have a big impact on those who are, or who employ, foreign nationals. If you are in that category then you should take stock of your position to ensure that you stay on the right side of the law.
*As always, this is an overview of the law and is not intended to be legal advice, and is not a substitute for legal advice. If you want to ask me any further questions, then please contact me*.
Introduction
Well, against all expectations from the pollsters and the bookies (and the bookies are always right, aren’t they?) the UK has voted to leave the EU.
If you’re an EEA national in the UK (or an EEA family member) what should you do?
What happens now?
Ultimately, we don’t know. That may sound unhelpful, but it is a sad consequence of the paucity of the debate over the vote that there was no real discussion as to what was going to happen if the UK voted to leave.
The legal position is (relatively) clear – google Art 50 (there’s a post here, but there’s many others) – but there is already confusion as to what is going to happen and when. When he resigned, Mr Cameron said that it would be for the next Prime Minister to do this (so not before October), but the EU leaders are keen for the UK to get on with it.
Don’t panic …
The laws today are the same as they were on Wednesday 22nd June 2016 – we haven’t withdrawn from the EU, EU law is still part of UK law, and you have the full panoply of Freedom of Movement rights.
It will take a long while to unpick the relationship with the EU, and this will take time. In theory the UK could clamp down tomorrow on free movement rights, but that would put the UK in breach of its international obligations and is unlikely.
In addition, working out what to with the 3 million EU citizens is not an easy task.
So, right now, although there is understandably anxiety, there is no need to panic.
… but do plan
Like it or lump it, the UK has voted to leave. Although of course things could change, it is overwhelming likely that that is it, and the UK will be out – it’s best to discount second referendums, etc, and plan for the future.
It’s difficult, because so much is up in the air. It may be that the UK decides it has to have access to the EU internal market which may mean not only that the UK has to grant the same freedom of movement rights as now, but they may have to go further and sign up to Schengen (which would be ironic).
Whatever happens, we can be reasonably confident of two things – (1) there will be provision for many EU citizens to remain under the Immigration Rules, and (2) some people who are in the UK exercising treaty rights will be excluded.
For example, someone from Germany working at a bank in the City will probably have no problems, even if she has to go through more hoops and paperwork. It would be surprising if there was not some sort of blanket position for some people – a provision that grants categories of people leave to remain, or something similar, automatically.
On the other hand, someone who is an American citizen with a history of overstaying and/or who has committed offences but is in the UK based on a marriage to a German may be in a pretty precarious position.
It is worth seeing if you can apply for British citizenship (a complicated area of law), as if you have that, then you’re probably safe.
Even if not, then it is worth checking your position and seeing if you could or should apply for a Residence permit, or to see what your position would be under the Immigration Rules.
Should I dust off my tartan?
Politically, Scotland has become more and more a different country. Even before the SNP laid waste to every other party in the 2015 election, it was a different beast. And in the Referendum, Scotland voted overwhelming to stay in the EU.
This may trigger another referendum in Scotland, or throw a spanner in the UK leaving. Again, who knows?
But, it’s not beyond the realms of possibility that Scotland becomes an independent country that is in the EU (with all the benefits that brings), but in some sort of free trade/Common Travel Area with the rump of the UK, and possibly the Channel Island and the Isle of Man, which may make Scotland (a lovely country in any event) an even more attractive place.
What about the ECHR?
This is separate from the EU and the UK pulling out of the EU doesn’t, of itself, mean that we will leave the ECHR, although there may be renewed political pressure.
This means that Art 8 arguments may still be used to challenge removal. Again, this is a complicated area, and the protection offered by Art 8 is less than that of the EU. But it is better than nothing.
Any other thoughts?
Just one – if anyone says that they know what will happen, or what the legal position is, then ignore them. This is unchartered territory. David Cameron and Boris Johnson don’t know what is happening, and if even they don’t then certainly nobody else will.
*update* – this will probably change as events will move quickly. For example, it seems that Jersey will give some form of residual rights to EU nationals living there. What impact will this have? Probably very little, but it is an example of one of the many, many things that had probably not been considered.
Also – I should have made it clearer that the position of Irish Citizens will probably be very different due to the historical arrangements between the UK and Ireland which pre-date the EU.