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Jess Hopkins, third-seat Trainee Solicitor, shares her experience of working remotely during the Covid-19 pandemic.

7:00: I wake up and prepare for another day working from home. I usually do a 30-minute HIIT workout with my housemates (which includes a pharmacist, cardiologist and meteorologist, so we are well equipped for any emergency …).

8:30: Whilst the Michelmores system on my laptop / screen is booting up, I make my first coffee of the day. My research skills have vastly improved since working at Michelmores, which did help me decide which Nespresso machine to buy (other brands are available).

8:31 I start my commute to work.

8:32: I have arrived.

8:33: I settle down at my designated work from home area (a desk two metres from my bed counts, right?) and eat my breakfast whilst checking my emails to see what has come in since the previous evening, allowing me to prioritise my workload.

9:00: I am currently in my third seat in the Planning team, a seat that offers a lot of variety in terms of day-to-day work. My first task of the day involves reviewing and making amendments to some contracts where we are acting for the Acquiring Authority in the making of a Compulsory Purchase Order and Side Roads Order for a large link road scheme in Cornwall.

11:00: Time for a MS Teams catch-up with the team. I am accused of ‘blurring’ my background, but turns out my white walls are actually just that boring. Besides the temperamental Wi-Fi connections, surprise pet appearances and frequent ‘you’re on mute Jess’, it’s a great way to keep updated and connected with everyone.

12:00: I am asked to do an urgent bit of research. I know I need to prioritise this because the client needs the advice as soon as possible. As a trainee in Planning, research tasks are a fairly normal assignment to undertake. These can help broaden your knowledge and enable you to learn about unusual area of law you might otherwise not come into contact with (this has ranged from police helicopter sites to flower pots on a roof terrace)! I produce a report setting out my findings and considering any practical advice we can give the client.

13:30: I jump onto one of Michelmores ‘Coffee Roulette’ sessions over lunch, which are designed to recreate the conversations we currently miss through not being in the office together. They are run every week where you are placed randomly into a MS Teams break out room with three other colleagues from the Firm. This is a great way to get to know people across different teams, locations and roles. After this, I head out on my bike for a quick cycle ride.

14:30: I deliver a Knowledge Session on the Use Class Order 1987 and recent changes brought about by the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020 No.757) to other members of the Planning team. There has been a hive of activity in this area, and it is my job to keep on top of it!

15:30: I look through my emails and reply to those I can and add any tasks to my to-do list. My supervisor springs a random MS Teams upon me so I can help her decide what coat (there were several) to return.

16:00: I work with my supervisor on some urgent planning due diligence and combine our findings for a Report on Title, working closely with colleagues in Transactional Real Estate.

17:30: I sign off for the day. A solicitor, pharmacist, cardiologist and meteorologist walk into a bar … how lucky! I head off to IKEA to pick up some decoration to ‘spice’ up my MS Teams background.

The Court of Appeal has just handed down judgment in the telecoms case of Cornerstone Telecommunications Infrastructure (CTIL) v Ashloch Limited (1) & AP Wireless II (UK) Limited [2021]. Over the last year or so we have seen a flurry of telecoms cases, many of which have been  considering a fundamental issue; namely the cross-over in operation between the new Electronic Telecommunications Code (“Code”) and the Landlord & Tenant Act 1954 (“1954 Act”). The question of whether a particular arrangement is governed by the Code or the 1954 Act can impact on several critical issues, including the level of rent which can be demanded and the type of renewal procedure.

In his Judgement Lord Justice Lewison provided useful guidance of the relevant issues regarding the renewal procedure for 1954 Act leases, which are subsisting agreements under the Code. We consider this guidance and its consequences.

Summary of findings

The first issue under appeal was whether the lessor, A P Wireless (APW)) was able to confer Code rights under Part 4 in circumstances in which they were not in occupation of the site.

The conclusion was that there should be no departure from the proposition established in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755 (“Compton Beauchamp”) which found that only the occupier can confer Code rights, except for certain limited situations set out elsewhere within the Code.

The second issue was who is the occupier? This question was also considered in Compton Beauchamp and as this decision is being appealed, it will now be for the Supreme Court to decide the identity of the occupier and, if necessary, overturn the Court of Appeal’s decision in Compton Beauchamp.

Finally, the Court of Appeal approved the reasoning of the Upper Tribunal in rejecting CTIL’s arguments that it could use Part 4 of the Code to renew the subsisting agreement, rather than the 1954 Act procedure. This means that the rent for the renewed lease will be calculated in accordance with the 1954 Act rather than the Code.

This provides significant advantages to landowners, who will be able to rely on the open market rent provisions of the 1954 Act, as compared to the “no network” assumptions of the Code, which have a marked downward effect on rent.

The conferral of Code rights

The first issue considered whether Code rights could be imposed on a landowner in favour of an operator, occupying a site as a statutory periodic tenant under section 24 of the 1954 Act. We considered the Upper Tribunal’s (“UT”) decision on this point in our article “Electronic Communications Code: Interaction between the Code and the LTA 1954“.

The UT had said that Part 4 was about imposing agreement on landowners, whereas subsisting agreements were equivalent to Code agreements already granted in accordance with Part 2. Therefore, CTIL argued, Part 4 did not need to be excluded, as it could never apply. Furthermore, Part 5 could not  be used to obtain a new lease and so the 1954 Act procedure had to be followed.

That meant a higher 1954 Act rent would apply and ongoing uncertainty for cases in which the operator was the occupier on lease renewal sites; this led to this appeal by CTIL.

The law & facts

Paragraph 9 of the Code confirms that “a code right in respect of land may only be conferred on an operator by agreement between the occupier of the land and the operator.”

This case concerned a rooftop site and APW argued that CTIL could not use Part 4 of the Code as it was already in occupation as the operator and could not contract with itself. On this issue the Compton Beauchamp appeal had already established that rights could only be conferred by the occupier. However we currently await the outcome of an appeal to the Supreme Court on that case, which looks likely to focus on who the occupier is, rather than whether they are the only party, which can confer Code rights.

On this appeal, Lord Justice Lewison, in his leading judgment, confirmed that the Government’s policy on the Code was that it should not be retrospective. Subsisting agreements should be allowed to run their course as they may have been “carefully negotiated agreements made under the existing code.” The interpretation argued for by CTIL would undermine that policy, as they were arguing that the Compton Beauchamp decision meant that an operator could not seek additional Code rights during the term of an agreement.

Court of Appeal decision

The Court of Appeal rejected this argument finding that such a right would amount to a unilateral weapon, wielded only by the operator. It would be contrary to Part 5 of the Code, which allows a request for additional Code rights, but only after the site provider could end the agreement in any event. If the operator could use Part 4 to circumvent this provision, what would be the point of the Part 5 limitation in the first place?

A further argument advanced by CTIL was that paragraph 40 (8) of the Code says that an operator in situ may not have an order made against it requiring the removal of apparatus at the end of the agreement, if there is a pending application under paragraph 20, which deals with how and when a Code rights agreement can be imposed.

The Court of Appeal said that this did not expand paragraph 20 and that the original agreement may well have been terminated, because of serious operator default. It would be very strange if the operator could simply start all over again by applying for a new agreement under paragraph 20.

The conclusion was that there should be no departure from the proposition established in Compton Beauchamp, which is that only the occupier can confer Code rights except for certain limited situations set out elsewhere within the Code.

Who is the occupier?

The second issue was who is the occupier? This question was also considered in Compton Beauchamp and it was not accepted in that case, that the operator can never be the occupier. Occupation primarily means physical presence on the land and control thereof. However, an operator would have management and control over the land, if it had been granted a lease, even if the land could be described as unoccupied in a physical sense.

So, even if CTIL was not the occupier in the primary sense of the word, it did not mean that APW was, particularly given their lack of physical presence and the fact that CTIL enjoyed a lease of the rooftop. It will now be for the Supreme Court to decide the identity of the occupier and, if necessary, overturn the Court of Appeal’s decision in Compton Beauchamp.

Subsisting Agreements

The transitional provisions of the Code aim to provide continuity and clarify the circumstances in which the new law is to apply. The basic principle is that all subsisting agreements under the old code take effect as new Code agreements, but certain qualifications apply where the 1954 Act applies.

A telecoms lease excluded from security of tenure will be renewed in accordance with the Code, whereas the 1954 Act will apply to a renewal of a similar lease, whose primary purpose was not to grant Code rights.

Where the parties have not contracted out of security of tenure, then a telecoms lease must be renewed in accordance with the 1954 Act, but will thereafter be regarded as a Code agreement.

Court of Appeal view

The Court of Appeal reviewed the UT’s reasons for rejecting CTIL’s arguments, that it could use Part 4 of the Code to renew the subsisting agreement, rather than the 1954 Act procedure. The reasoning of the UT was approved and Lewison LJ added that a landlord under the 1954 Act regime could oppose the grant of a new lease, where it intended to occupy the site for the purposes of its own business. No such opportunity existed within the Code and to deprive a landlord of such a right in the context of an ongoing lease would be a significant and unjustified erosion of their legal rights.

The point was made that CTIL’s arguments were principally a list of complaints about the way the transitional provisions worked, rather than defects in the Code itself. The issues raised in the appeal only arise in the context of subsisting agreements, as any renewed lease will be a Code agreement, which will then, itself, have to be renewed in accordance with Part 5 of the Code.

Davis LJ, in agreeing with the leading judgment, made some interesting comments as to how CTIL’s attempts to reopen the arguments, aired in Compton Beauchamp, could not be allowed. It was also observed that CTIL was a commercial outfit, albeit one engaged in providing an efficient telecommunications service. There was a tension between that obvious public benefit and the need to recognise the private property rights of landowners. In attempting to find the right balance in this case the Judge described the Code as being “fiendishly complex”; there are few involved in this area of work who would disagree.

A school’s obligations

The Safeguarding Vulnerable Groups Act 2006 (SVGA 2006) introduces various obligations on certain employers to enable them to check the suitability of employees or volunteers who are applying to work with children or vulnerable adults.

The following five types of activity are potentially regulated activity relating to children:

• Teaching, training or instruction.
• Care for or supervision of children.
• Advice or guidance.
• Moderation of a public internet service wholly or mainly for children.
• Driving a vehicle for the sole purpose of conveying children.

Inevitably, a majority of roles within a school therefore involve “regulated activity”. This has the effect that schools fall within the definition of a “Regulated Activity Provider” (RAP), being someone who is responsible for the management or control of regulated activity, which they make arrangements for others to engage in. The type of role affected by the SVGA 2006 may include teachers, supply teachers, classroom assistants, caretakers, cleaners, catering and transport staff, receptionists and administrative staff, crèche and nursery workers, registered childminders and youth workers.

The SVGA 2006 places specific obligations on RAPs to check whether an individual has been barred from working with children. An individual’s barred status is currently available (i) as part of an enhanced criminal record (DBS) check; or (ii) through the DBS online Update Service, if the individual has subscribed.

The employer must, in respect of prospective teachers or any other person working at the school and having regular contact with children, obtain an enhanced DBS check together with a request to check the children’s barred list before or as soon as practicable after their appointment. A DBS check not only gives information on whether the individual is barred, but it also sets out information on the individual’s previous criminal convictions.

What criminal convictions can be taken into account?

Prior to 2013, a standard or enhanced DBS certificate would contain all of an individual’s convictions and cautions, whether current or spent and whatever the nature of the offence.

On 29 May 2013, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198) and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200) came into force. The Rehabilitation of Offenders Act 1974 (ROA) sets out in legislation rehabilitation periods, and provides that individuals do not have to disclose spent convictions unless they are covered in the Rehabilitations of Offenders Act (Exceptions) Order 1975 (Order).

This Order sets out the circumstances in which an individual can be asked about spent convictions and when an employer can consider these. This includes “any employment as a teacher in a school or establishment for further education and any other employment which is carried out wholly or partly within the precincts of a school or establishment for further education, being employment which is of such a kind as to enable the holder to have access to persons under the age of 18 in attendance at the school or establishment for further education in the course of his normal duties.”

Therefore, teaching applicants would still be required to disclose spent convictions. They would not, however, be required to disclose protected convictions and protected cautions.  If the applicant’s offences fall within the protected convictions or protected cautions categories, the school is not legally entitled to ask about them or take them into account to dismiss an employee.

Until recently, only the following convictions fell within the remit of a protection conviction:

• A conviction received by a person aged under 18 at the time of the offence resulting in a non-custodial sentence (this would be removed from a DBS certificate after five and a half years).
• A conviction received as an adult resulting in a non-custodial sentence (this would be removed from a DBS certificate after 11 years).

Certain specified offences would never be eligible for filtering, including violent and sexual offences. If a person had committed more than one offence, then details of all of their convictions would always be disclosed.

The following cautions fell within the remit of a protected caution:

• A caution administered to a person aged under 18 at the time of the offence (this would not be disclosed after two years).
• A caution administered to an adult (this would be removed after six years).

A caution would not be removed if it related to an offence specified as never being eligible for filtering.

November 2020 developments

The above “filtering mechanism” (in relation to protected convictions and protected cautions) had been widely criticised for years, predominantly on the basis that the multiple conviction rule under which previous offences were disclosed caused “embarrassment and humiliation” in various cases. After a further challenge, the Supreme Court held in R (on the application of P) v Secretary of State for the Home Department [2019] UKSC 3 that the revised approach was inadequate and required further amendment.

On 9 July 2020, the Government announced several proposed changes to the criminal records disclosure regime and laid draft regulations removing, in most cases, the requirement for automatic disclosure and self-disclosure of youth cautions, reprimands and warnings, as well as removing the “multiple conviction” rule. These changes came into force on 28 November 2020.

The effect of this is that the definition of “protected caution” and “protected conviction” are amended and essentially widened. Under the new disclosure regime, a “protected caution” will include all those given where a person was under 18 at the time of the caution. The “multiple conviction rule” has also been removed. The effect of these changes is that youth cautions and multiple convictions no longer have to be disclosed when a person is asked about them, and will no longer be subject to mandatory disclosure in criminal records certificates. For the avoidance of doubt, the multiple convictions rule applies only to convictions that would fall within the scope of a “protected conviction”. The DBS certificate will no longer automatically include these types of protected convictions or cautions. If an employer takes into account a conviction or caution that would not have been disclosed, they are acting unlawfully under the Rehabilitation of Offenders Act 1974.

What does this mean for employers?

In the light of the revised scheme, the DBS has issued a Filtering Guide which advises employers who use standard job application forms to include the following information/questions:

• The amendments to the Exceptions Order 1975 (2013) provide that certain spent convictions and cautions are ‘protected’ and are not subject to disclosure to employers, and cannot be taken into account. Guidance and criteria on the filtering of these cautions and convictions can be found on the Disclosure and Barring Service website.
• Do you have any unspent conditional cautions or convictions under the Rehabilitation of Offenders Act 1974? (Y/N)?
• Do you have any adult cautions (simple or conditional) or spent convictions that are not protected as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020? (Y/N)?
• The amendments to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (2013 and 2020) provides that when applying for certain jobs and activities, certain convictions and cautions are considered ‘protected’. This means that they do not need to be disclosed to employers, and if they are disclosed, employers cannot take them into account. Guidance about whether a conviction or caution should be disclosed can be found on the Ministry of Justice website

Employers should also signpost candidates to Nacro or Unlock, which are charities that help individuals understand the amount of information on their criminal record history they need to disclose in job applications.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. 

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International divorce expert and Head of Michelmores’ Family team, Daniel Eames is featured in the Mail Online’s article ‘Digital divorces: How splitting up over Zoom or Skype instead of fighting in court could save money and reduce conflict.‘

The article is available in the This is Money section of the Daily Mail website. Daniel was interviewed about the impact of the pandemic on divorce proceedings in the UK, where restrictions have resulted in many couples needing to shift to a virtual format when it comes to finalising arrangements and going to court.

Daniel is a partner at Michelmores and is also chair of Resolution’s International Committee which advises the UK Government on aspects of family law.

You own some land which is not registered at the Land Registry. You keep the title deeds under your mattress, where they are safe. You haven’t inspected your land in years but decide one day to register it, and ask your solicitor to deal with the formalities. The solicitor tells you that part of your land has already been registered to someone else. How can this be when you have the title deeds?

Land can be acquired by a party who is not its legal owner by squatting on it for a defined period of time, thereby dispossessing the paper owner.

All the squatter needs to do is prove:

• Uninterrupted factual possession for the requisite period
• Intention to possess (to exclude the world at large)

If successfully established, Land Registry may give the squatter a possessory title to the possessed land.

Can you wave your paper title and demand your land to be returned to its rightful owner?

For unregistered land: the effect of sections 15 and 17 of the Limitation Act 1980 is that the title of the owner of the land will be extinguished 12 years after the squatter first begins to fulfil the above conditions. Once the limitation period has run its course in respect of unregistered land, the paper owner’s title is extinguished by operation of statute.

For registered land: ownership is derived from registration rather than possession. A squatter is entitled to apply for registration as proprietor of land after 10 years of adverse possession but the registered proprietor and certain others interested in the land will be notified of the squatter’s application, allowing the opportunity to object.

In summary, the registered land regime offers increased protection to registered landowners against squatters. Therefore you may wish to consider:

1. Making a voluntary application for first registration, if your land is unregistered
2. Making sure your address is kept up-to-date, if your land is registered, should Land Registry ever be required to send notification of a particular application
3. Formalising any third party occupation of your land, by way of a tenancy or licence for example

For more information please contact Gail Bedford on Gail.Bedford@michelmores.com or 01392 687683

Head of Michelmores’ family team and international family law expert Daniel Eames, and Private Wealth Associate Harriet Martin, outline the implications of Brexit for individuals divorcing their EU-citizen spouses.

Proceedings commenced before the end of the Brexit transition period

For any proceedings commenced before 11pm on 31 December 2020, EU law will still apply. This means that, in respect of the divorce itself, an EU regulation known as ‘Brussels IIa’ will apply, and in respect of maintenance provisions, the ‘EU Maintenance Regulation’ will apply. For these purposes ‘maintenance’ essentially means ‘needs-based’ provision and has a fairly wide remit as it can include lump sum payments and property transfers, as well as monthly payments.

Brussels IIa contains provisions to decide a) which countries’ courts have jurisdiction to decide the divorce and b) if more than one country’s courts have jurisdiction, which should take precedence. The latter is determined by a simple rule (‘lis pendens’ also known as ‘first past the post’) which says that the court of the country in which a divorce application is filed first will hear the divorce (this has led to so called ‘forum shopping’ or ‘divorce tourism’ where spouses race to file proceedings in the courts of the country with laws most beneficial to them). Brussels IIa also provides a mechanism for divorce orders made in one EU Member State to be recognised and enforced in another EU Member State.

Like Brussels IIa, the EU Maintenance Regulation includes a mechanism to determine which countries’ courts have jurisdiction to decide maintenance claims. It also includes the first past the post rule explained above and provisions to ensure that any maintenance order made in one EU Member State is recognisable and enforceable in another.

Proceedings commenced after the end of the Brexit transition period

For proceedings commenced after 11pm on 31 December 2020, neither Brussels IIa nor the EU Maintenance Regulation will apply. This means that, from 1 January 2021, the UK’s cooperation with the EU in respect of divorce and finances will be governed by various Hague Conventions (which arguably fall short of the EU regulations that once applied) as well as existing domestic laws that apply in cross-border cases involving non-EU countries.

There are various practical implications for couples (both opposite and same-sex) with EU connections who have decided to divorce now that Brexit is complete.

The first past the post rule will not apply and, instead, the courts of the country the couple has greater connections with will hear the divorce (known as ‘forum non conveniens’). This could lead to long and expensive disputes between parties to determine which country’s courts should decide the divorce/finances before they have even thought about the fundamental issues.

Secondly, there may be problems around the recognition and enforcement of an order made in one country in another country. Practically this could mean that a person whose divorce was granted in one country is unable to remarry in another if it does not recognise the divorce order. It could also mean that an order for maintenance in one country is unenforceable in another, resulting in ex-spouses receiving less than they are entitled to and being unable to redress this easily.

If you need advice on an international family law matter, please contact Daniel Eames, Head of Michelmores’ family team at daniel.eames@michelmores.com.

The decision of the European Court of Justice (“ECJ”) in the landmark case of Maximillian Schrems v Data Protection Commissioner (C-362/14) (the so-called Schrems II decision) declared the EU-US Privacy Shield arrangements between the EU and the USA to be invalid.

The ECJ found that the protections provided for in the Privacy Shield framework, which includes an independent ombudsman mechanism for the handling of complaints relating to the accessing of EU citizens’ personal data by US authorities, are not sufficient to address “the limitations on the protection of personal data arising from the domestic law of the United States on the access and use by US public authorities of such data transferred from the European Union to the United States“. The court had particular concerns about the powers of access that law enforcement and security agencies have in the US and the lack of meaningful legal redress for EU data subjects.

With Privacy Shield declared invalid, businesses would now have to urgently put in place contracts based on the Standard Contractual Clauses (“SCCs”) as ratified by the European Commission. However, the ECJ went further and said that the SCCs themselves may not be sufficient to protect the personal data of EU data subjects when processed in third countries. Businesses will now need to perform due diligence to establish whether the protections that SCCs are designed to provide will be respected in the jurisdictions to which the data is being transferred. This will require additional due diligence and, in particular, consideration of local laws in those jurisdictions.

The European Data Protection Board (“EDPB”) followed this and on 11 November 2020 published guidance to assist controllers and processors in complying with the ECJ’s decision such that businesses relying on SCCs must: (1) conduct a risk assessment of the transfer; and (2) if necessary, implement “supplementary measures” to protect the data in the recipient country.

The guidance includes six key steps:

Step 1: Know your transfers

Verify what types of personal data you are transferring out of the EU. Be particularly conscious of onward transmission by the recipient of that personal data.

Step 2: Identify your transfer tool(s)

This is likely to be the SCCs but could be one of the other safeguards such as Binding Corporate Rules.

Step 3: Assess whether the transfer mechanism is effective in practice

This is a critical step. Businesses will have to ask themselves whether the above arrangements afford a level of protection that is equivalent to that guaranteed in the EU. This will need to consider the rights of access that law enforcement and security agencies have to the personal data and whether they are necessary and proportionate. This is a complex question and the EDPB has published a test based on a set of four “European Essential Guarantees” which must be respected for this test to be met.

If businesses find that the arrangements do not provide sufficient safeguards, they must proceed to Step 4.

As regards the US, the decision in Schrems II makes this a foregone conclusion unless federal laws in the US change – businesses will need to proceed to step 4.

Step 4: Adopt supplementary measures

The EDPB separates these measures into three categories: technical, contractual, or organisational and lists examples of these measures.

The primary focus is on technical measures to prevent access by public authorities using encryption, pseudonymisation or fragmenting data between processors in separate countries. However, there will be circumstances where this is not possible, including where data moves about an international organisation or where data is held “in the clear” in a cloud service provider’s infrastructure. In such circumstances, organisations can only look to contractual and organisational measures and doubt is cast on the sufficiency of such measures on their own.

Step 5: Procedural steps if you identified any supplementary measures

There may be further procedural steps if the supplementary measures identified by an organisation contradict the SCCs. The EDPB may add more requirements to this step in due course.

Step 6: Re-evaluate at appropriate intervals

As organisations may have now gathered, this is a rapidly developing area of law. It should, therefore, go without saying that they should put in place processes for monitoring developments in recipient countries (and indeed in the EU).

For further advice on this topic, please contact Tom Torkar, Partner in Michelmores’ Commercial team.

Tier 1 visas and their successor visa routes are the only categories within which migrants do not need to be “sponsored” by a business holding a sponsor licence. Migrants can submit applications via these routes independently (without sponsorship) in order to allow them to enter and remain in the UK to work and conduct business. They are aimed at “high-value” migrants who have funds available to set up or invest in a business in the UK, graduates with an endorsed business plan and those deemed to have exceptional talent within their field of expertise.

Like many other visa routes, Tier 1 has been subject to a significant overhaul in recent years, with its sub-categories being renamed and revamped and closed to new applicants. A detailed explanation of each of the remaining Tier 1 sub-categories and their successor visa routes are set out below, however, if you would like any more information, please do not hesitate to contact a member of the Immigration team.

Tier 1 (Investor)

This category is for wealthy individuals seeking to make a significant financial investment in the UK. To qualify for this category, applicants will need to be able to show that they have:

• not less than £2 million under their control in a regulated financial institution and disposable in the UK;
• have had the money for two consecutive years or provide detailed documentation of its source; and
• have opened an account with a UK-regulated bank for the purposes of investing not less than £2 million.

The Funds

The money of the applicant must be held either by themselves, or jointly with their spouse or partner. However, such joint owner must provide a declaration that they give the applicant permission to freely use the funds.

The applicant must be able to provide evidence of the funds (for example, bank statements, portfolio reports, or share and bond documents) and, if held outside of the UK, the bank must provide a letter confirming that the funds can be transferred to the UK.

The Regulated Financial Institution

The funds must be held in a regulated financial institution. In practice, individuals will find that UK retail banks are not as enthusiastic in opening accounts with such high deposits from overseas nationals as they might first think. However, the regulated financial institution need not be a bank, and this requirement could instead be satisfied, for example, by a portfolio of investments managed by a wealth management organisation.

The Investment

Not all investments are permitted under the Immigration Rules, and selecting the right investment is absolutely key as failure to do so will jeopardise an individuals’ long term plans to settle or remain in the UK.

What will amount to a ‘qualifying investment’ changed, most recently, in March 2019. From this date, in order to amount to a ‘qualifying investment’, an investment must be share capital or loan capital in an active and trading UK registered company. Investment in UK Government bonds (also known as “Gilts”) is now no longer acceptable.

Qualifying investments made in the 12 months prior to the date of the submission of the individual’s application can be taken into account, provided the investment are confirmed  by a UK regulated financial institution. Otherwise, once the visa is granted, the applicant must invest the full amount of £2 million within 3 months from first entering the UK as a Tier 1 Investor migrant, and this must be maintained for the whole of the remaining leave. There are limited exceptions to this rule, but these will only apply when there are exceptionally compelling reasons for the delay.

Other Requirements?

Under this route, the individual will not need to show that they have any English language ability because, whilst they are allowed to work in the UK should they wish to do so, they should not need to work. Nor will the individual need to satisfy any maintenance requirement because, if they have the required investments, they will be able to support themselves in the UK without requiring assistance from public funds.

However, even if an individual meets all of the conditions of the Tier 1 Investor route, there may be other reasons for the Home Office refusing their application. For example, the individual must be able to evidence where the funds have come from and, if the Home Office have reasonable doubts as to the source of funds (or that they have been acquired through unlawful conduct) then the application is likely to be refused. Furthermore, the individual themselves will be scrutinised. As part of their application, an individual must submit criminal record check which the Home Office can rely on to refuse any application, and their immigration history will also be taken into account. The Home Office will consider whether the character, conduct or associations of any third party providing the funds are such that approval of the application would not be conducive to the public good. The Home Office, therefore, have considerable flexibility in determining whether to grant applications under this route.

The Successful Applicant

This visa will usually be granted for an initial period of 3 years and 4 months. In order to extend the visa, an investor will need to show that they made the qualifying investment within 3 months as stipulated above, and have maintained the investment. After having spent 5 years in the UK, the applicant will be able to apply to settle in the UK (there are also accelerated routes if the applicant invests £5 million or £10 million).

Start Up

This category went live in March 2019 and replaced the “Tier 1 (Graduate-Entrepreneur)” visa (which closed to new applicants in July 2019). It is aimed at early-stage, but high potential, entrepreneurs who are looking to start a business in the UK for the first time. The individual may have already begun setting up their business, but it should not yet have commenced trading.

Applicants will not need to invest any funds into their business to be eligible for this category, but they will need to have an “innovative, viable and scalable” business idea which is supported by an endorsing body.

Innovative: the applicant has a genuine, original business plan that meets new or existing market needs and/or creates a competitive advantage.

Viability: the applicant has, or is actively developing, the necessary skills, knowledge, experience and market awareness to successfully run the business.

Scalability: there is evidence of structured planning and of potential for job creation and growth into national markets.

The endorsing body will also need to be satisfied that the individual will spend the majority of their working time in the UK on developing the business venture.

Endorsing bodies are organisations who have been approved by the Home Office to endorse applicants for the Start Up visa – the Home Office has published a list of authorised endorsing bodies which can be found here, which includes organisations such as universities and incubators. Some endorsing bodies specialise in certain sectors and which body is appropriate to an individual’s application will depend upon the circumstances – applicants should take time to carefully choose the endorsing body which is appropriate for them and their application.

If your application to be endorsed is approved by the endorsing body, you will be issued with a Start-Up visa endorsement letter which must be submitted as part of your visa application.

Other Requirements?

To qualify, an applicant must also meet the following requirements:

1. Age

The applicant must be 18 or older at the time that their application is determined.

2. English language skills

The applicant must be able to either, (1) evidence that they are a citizen of a majority English speaking country; (2) pass an English language test; (3) hold a UK bachelor’s degree or equivalent that was taught in English; or (4) previously have received permission as a migrant in a qualifying category.

3. Maintenance

The applicant must be able to provide evidence of at least £ of personal funds, held for a minimum of 90 consecutive days. Alternatively, the endorsing body may confirm that they have awarded sufficient maintenance funds in the endorsement letter.

The Successful Applicant

If successful, visas are granted for two years. Throughout the two-year period, the individual will be required to stay in contact with their endorsing body (with checkpoints at 6 and 12 months), and the endorsing body will need to be satisfied not only that the individual is continuing to work on their business venture, but that they have also demonstrated reasonable progress in relation to either the original or a new business idea. Failure to do so could result in the curtailment of the individual’s visa.

This visa will not lead to settlement, as the hope is that an applicant will progress to the Innovator category (below).

Innovator

This category replaced the “Tier 1 Entrepreneur” visa in March 2019. It is for experienced business people seeking to establish a business in the UK and who have a minimum of £50,000 available to invest (or have invested) in their business.

As with the Start-Up route, all applicants must be endorsed by an endorsing body, who will need to certify that the business is innovative, viable and scalable. Whilst these requirements are similar to those in the Start-Up category, they are slightly more demanding and require the individual to demonstrate that the business has surpassed that of a Start-Up.

Innovative: the applicant has a genuine, original business plan that meets new or existing market needs and/or creates competitive advantage.

Viable: the applicant has the necessary skills, knowledge, experience and market awareness to successfully run the business.

Scalable: there is evidence of structured planning and of potential for job creation and growth into national and international markets.

Other Requirements?

Similarly to the Start-Up visa, it will not be enough for an individual to simply receive an endorsement and evidence their investment funds. An applicant must also be able to show that they are of the necessary age and have the requisite English language skills and maintenance. The requirements for each of these categories, are the same as the Start-Up visa (as set out above).

Switching from the Start-Up route

If, however, an applicant is switching from the Start-Up route to the Innovator route, some of the requirements above may be waived.

If the individual is applying to continue their same business venture as in their initial application, and they are able to demonstrate significant progress (as judged against their business plan from their previous endorsement), the requirements to (1) have £50,000 to invest, and (2) to be able to demonstrate that the business is innovative, viable and scalable, will be waived.

If an individual has been endorsed by an endorsing body for the purposes of their Start-Up visa, then they will ideally want to be endorsed by that same body for the purposes of their Innovator visa. It is therefore important to plan ahead and ensure that the endorsing body selected for the Start-Up visa is also authorised to endorse applicants for the Innovator visa.

The Successful Applicant

If successful in their application, individuals will be granted a visa for 3 years. As with the Start-Up visa, the individual will need to stay in contact with their endorsing body with checkpoints at 6, 12 and 24 months. The individual will need to satisfy the endorsing body that they are continuing to work on their business venture and have demonstrated reasonable progress in relation to their business idea.

After the 3 year visa has come to an end, the individual will be eligible to apply for settlement. However, in order to be successful in any settlement application, specific criteria will need to be met. As a minimum, the endorsing body will need to be satisfied that the individual has shown significant achievements (as judged against the business plan in their previous endorsement). The individual will also need to demonstrate that the business is registered with Companies House (and that they are listed as a director and/or member), that the business is active and sustainable, and that they have had an active key role in the day-to-day management and development of the business. The individual will then need to identify two additional criteria (from a larger pool) which they can satisfy. For example, this may be that the business has created the equivalent of at least 5 full-time jobs for settled workers, or that the business generated a minimum annual gross revenue of £500,000 in the last full year. Which criteria are appropriate will depend on each individual and their respective business, therefore, if you are looking to settle legal advice should be sought.

Note: Whilst the Entrepreneur visa route has now been closed for new applications, some people will be able to ‘switch’ into it from another visa for the next few years. If you require specific advice on ‘switching’ please do not hesitate to contact a member of the immigration team.

Global Talent

This route replaced and expanded upon the “Exceptional Talent” route on 20 February 2020. It is designed for highly-skilled individuals in the fields of science, humanities, engineering, medicine, digital technology or the arts (including film and television, fashion design and architecture) who will “enrich the United Kingdom’s knowledge, economy and cultural life”.

The route is divided into two types of applicants:

1. “Talent” applications, for those who are already leaders in their field; and
2. “Promise” applicants who show the potential to become leaders in their field.

Each of these categories have slightly different qualifying criteria and the applicant can specify under which category they are applying. However, it will ultimately be for the assessor, who is considering the application, to determine which category is appropriate to the individual.

Similarly to the Start-Up and Innovator routes, any applicant will require endorsement from an organisation recognised by the Home Office. These are The Royal Society, The Royal Academy of Engineering, The British Academy, Arts Council England, TechNation and UK Research and Innovation (UKRI)

The Home Office has issued detailed guidance as to the level of achievement which an individual must show and each recognised organisation has developed sector-specific criteria (upon which they will assess applicants) in the light of this. In each case, the individual will need a substantial body of work and support from experts in their field. For example, as part of their application, they will not only need to submit their application form, CV and personal statement, but will also likely require up to three reference letters and ten supporting documents. This route is particularly competitive and approximately only 50% of applicants will be successfully endorsed, applicants therefore need to be prepared to invest a considerable amount of time in their application to ensure that it is as strong as possible.

If successfully endorsed by a recognised organisation, the individual must then apply to the Home Office for their visa, and it will be for them to make the final decision as to whether to award a visa under this route.

Other Requirements?

Applicants under this route will not need to satisfy any other entry requirements, such as the English language test or the minimum salary threshold.

The Successful Applicant

The visa itself will enable an individual to live and work in the UK for up to 5 years and 4 months. It is considered to be the “golden ticket” of all visas as, once approved, an individual is given a highly flexible permission to live and work in the UK. For example, enabling them to be employed or self-employed, to change jobs without informing the Home Office, to travel abroad and return to the UK for research purposes etc.

In most cases, this visa also provides for fast-track settlement for the individual (and their dependants) after only 3 years, and is therefore a very quick route to settlement.

Visas under Tier 1 and successor visa routes are, perhaps unsurprisingly, particularly sought after and, as with most visas, are not inexpensive – it is therefore crucial to get your application right. If you would like any advice and/or support in submitting an application under Tier 1, please do not hesitate to contact a member of the Immigration team.

UK-based businesses are now having to deal with a raft of issues that come with the UK being a “third country” for the purposes of the EU General Data Protection Regulation 2016 (“the GDPR”).

Organisations looking to transact business in the EU will have to comply with the GDPR if their activities require them to process the personal data of EU data subjects.

One example of an obligation that applies to non-EU states is the requirement under Article 27 of the GDPR to have a European representative where a controller or processor offers goods or services to individuals in the EU or monitors the behaviour of individuals located in the EU.

When the UK is no longer deemed to be an EU-member state at 11pm on 31 December, controllers and processors in the UK are likely to either have to:

• rely on an establishment in the EU (i.e. a physical presence in the EU such as an office); or
• appoint a representative in an EU member state if they wish to continue offering their services anywhere in the EU.

Exceptions                                                                                                                                  

A controller or processor would not need to appoint a representative under the following circumstances:

• they are a public authority; or
• the processing of personal data they are undertaking is occasional and of low risk and does not involve large-scale processing of special category personal data or criminal offence data.

We recommend that legal advice is sought to determine whether there is a requirement to appoint a representative. Where there is such a requirement and the controller or processor fails to do so, the fine under the GDPR is up to the greater of €10million or 2% of the organisation’s total worldwide annual turnover.

Appointing a representative

If it is necessary to appoint a representative in the EU, this representative can only be based in an EU state where some of the individuals whose personal data is being processed are located. For example, if a UK company is processing the personal data of people located in France, Germany and Italy, then its representative can only be based in either France, Germany or Italy, and not in any other EU state.

The representative must be authorised in writing to act on behalf of the UK controller or processor in respect of:

• EU GDPR compliance.
• dealing with any supervisory authority regarding GDPR compliance.
• dealing with data subjects regarding GDPR compliance.

The controller or processor also needs to provide the data subjects with details of the representative. A simple solution is to include this information in a privacy policy. Details must also be easily accessible to supervisory authorities.

A “representative” can be an individual, a company or an organisation (e.g. a law firm). They must be able to represent the controller or processor in relation to their obligations under the GDPR. This requires an understanding of the obligations, as well as having the appropriate measures in place to ensure compliance.

Representative’s obligations

Representatives are required under the GDPR to maintain a record of processing activities. Article 30 of the GDPR sets out the requisite information and states that records must be in writing. These are to be made available to the supervisory authority on request.

It should be noted in particular that the concept of the representative was introduced precisely with the aim of ensuring enforcement of the GDPR against controllers or processors that fall outside the jurisdictional reach of enforcement bodies. To this end, it was the intention to enable enforcers to initiate enforcement action against a representative in the same way as against controllers or processors. Recital 80 and European Data Protection Board Guidance state that in the event of non-compliance by the controller or processor, the designated representative should be subject to enforcement proceedings, including fines. There is little or no explanatory guidance as to the degree to which representatives carry this responsibility.

Representatives will need to consider how they can protect themselves in the event they are subject to enforcement proceedings, whether by means of insurance or through the controller or processor providing an indemnity in the contract of appointment to cover any loss incurred due to their non-compliance.

For further advice on this topic, please contact Tom Torkar, Partner in Michelmores’ Commercial team.

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Optimus currently provides services for MSM’s conveyancing comparison tool which gives customers access to a range of professional quotes for buying, selling or remortgaging property. The new agreement sees Optimus extending this service line to the survey process of a house purchase. Optimus will now deliver and manage this brand new complementary service which is due to launch on the MSM website before the end of the year.

Of the agreement, Alan Young, managing director at Optimus, said:

“We are delighted that MoneySuperMarket has not only extended our existing agreement to manage its conveyancing quotation service for a further three years, but that we have been selected to support them in the expansion of its range of services for homebuyers and owners.

“We look forward to continuing our working partnership with the team into the future.” 

The Optimus’ team was supported by Associate Chloe Vernon-Shore. Chloe said:

“It was a pleasure to advise Optimus on the extension to its agreement with MSM. The expanded service is an exciting and logical next step in the partnership between Optimus and MSM and will be hugely beneficial for MSM’s customers.”

Optimus is part of the Landmark Information Group.

Much has been written recently about the possibility of the law being changed so that it ceases to be necessary to allege “fault” before a divorce can be granted. The law applies equally to same sex marriages as it does to those between opposite sexes.

The grounds for divorce – the present law

As a reminder, as the law is now, a divorce can only be granted if the court is satisfied that the marriage has “irretrievably broken down”.

Proof that a marriage has reached that state has to be on one of five specific grounds which are:

• adultery
• unreasonable behaviour
• desertion
• separation for more than two years, if both parties agree
• separation for more than five years even without agreement.

This piece only deals with claims for divorce on the first stated ground, adultery.

Definition of adultery

Adultery is defined by the law as

“Voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom is married to someone else”.

It follows from this definition that

• Sexual intercourse between two people of the opposite sex who are married to each other cannot be adultery even if they are separated
• Sexual intercourse between two people of the opposite sex who have been married but were subsequently divorced would be adultery if one of them has remarried and remains so (but the adultery would be relevant only to the second marriage)
• Sexual intimacy between one married person and another person of the same sex would not be adultery
• Sexual intercourse between two people of the opposite sex who are not married to each other or anyone else cannot be adultery
• Non-consensual sexual intercourse (usually rape) is not regarded as being adultery.

Implications for same sex couples

Given that adultery can only be grounds for divorce where there has been sexual intercourse between two people of the opposite sex, sexual intimacy between two people of the same sex is not “adultery” for the purposes of obtaining a divorce if one of those people is in a same sex marriage.

It is perhaps bizarre that if one of the two people in a same sex marriage has sexual intercourse with a person of the opposite sex who is not their spouse, then that would fall within the legal definition of adultery and would be grounds for divorce.

Is there an alternative under the present law?

If a marriage between a same sex couple breaks down as a direct consequence of sexual intimacy between one of the parties to that marriage and someone else of the same sex, then, although adultery is not a ground for divorce in those circumstances,  it is likely the aggrieved party could seek a divorce on one of the other grounds for divorce, namely unreasonable behaviour (see above).

Possible changes in the law

The present divorce law was established by the Matrimonial Causes Act 1973, nearly half a century ago. It is interesting to remember that, all those years ago,  sexual relations between two men had only recently been legalised (a sexual relationship between two women was never a criminal offence) and there was no talk of  the creation of same sex unions in the form of civil partnerships, let alone marriages. Much has changed in the meantime in the way people choose to live their lives and society has adopted a different and more accepting attitude to same sex relationships. Even so, when, in 2014, legal marriage between couples of the same sex was introduced, it was regarded as a step too far for parliament to introduce a law saying that sexual intimacy with another same sex partner outside the marriage would be treated in the same way as adultery in a heterosexual marriage.

There has been much talk of possible changes in the law and the introduction of what is sometimes called “no fault” divorce, a change which is supported by many interested organisations and senior members of the judiciary. It seems unrealistic, however, to expect that parliamentary time for such legislation will be found in the immediate future. Until it is changed by parliament, the law remains as stated above.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our Family team.

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Michelmores’ Corporate team has advised Landmark Analytics on the sale of the website Mouseprice to PropertyHeads Group. Landmark Analytics is part of the Landmark Information Group which is the leading provider of information to the property market and part of Daily Mail and General Trust plc.

Mouseprice is the leading source of UK property market information online used by estate agents, surveyors, property developers and property consultants. It provides comprehensive and up-to-date housing data with the aim of creating a more transparent and thus fairer property market.

The Michelmores team comprised of Henry Taylor. Commenting on the deal, Henry said:

“The Mouseprice website has a strong reputation amongst property professionals for the provision of up-to-date market information. We are very pleased to have advised Landmark Analytics on the strategic sale of Mouseprice and we look forward to seeing how PropertyHeads will shape the future of the website and its well-regarded offering.”

Mark Johnston, CFO of Landmark Information Group said:

“We are delighted to have closed this transaction with PropertyHeads Group enabling Mouseprice to move into the next phase of its development and growth. It was great to work with the Michelmores team. Michelmores were prompt, commercial and pragmatic in their approach which assisted us and PropertyHeads Group to close the transaction in a short timeframe.”