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Making a successful application for a visa – why good legal advice is so important

We’ve just been involved in a case that really highlights the importance of good legal advice at the right stage of a visa application. The consequences of not getting it right could be serious and make it very difficult to overturn a negative decision. 

Sanjeev Sharma recently acted for an elderly Indian lady who wished to visit her son, his wife and her grandchildren in the UK. She had previously applied for a visit visa on a number of occasions and was refused. She had used legal representatives for some of the previous applications and submitted some applications on her own.

He explains:

“Being a widow and living on her own it is always difficult to convince an entry clearance officer that she has the required intention to return, as she has nothing that ties her to India, her only son is in the UK and he provides her with financial support also.

“After careful consideration of the evidence and preparation of the application the application was submitted with a strong covering letter setting out how our client met each aspect of the immigration rule.

“The importance of front loading such applications can not be overstated, as there is no right of appeal except on the grounds of family life. The only other option if refused is a judicial review. Therefore you need to ensure that everything you want to say and rely on is stated from the outset and reference to the evidence is made. If a judicial review is then pursued it is easier to argue that the entry clearance officer’s decision was unreasonable.”

In this case, despite its history of refusals our client was granted a five year multiple visit visa.  Both client and son were over the moon.

We can’t stress enough the importance of getting good quality legal advice before any application is made. The immigration rules are extremely complex and always changing.  We work hard to make sure we are completely up to date with all of the latest rules and regulations, and we have also been involved in several high profile cases challenging the way the rules are designed and implemented. 

For advice on any immigration issue please come to one of our free advice sessions, we hold at least two a week. They take place on Thursdays and Saturdays at our Birmingham offices, as well as two sessions a month in Telford and one in Leicester on the first Saturday of each month. You don’t need to have an appointment, simply drop-in while the sessions are running. 

If you can’t make one of the drop-in sessions you can get in touch with our specialist immigration team

Is my Islamic or religious marriage ceremony valid in the UK?

Up until last week the answer was no, an Islamic or religious marriage ceremony was not valid the UK. However a recent High Court case has thrown this question into doubt. The Marriage Act 1949 requires a marriage to take place in a register office, approved premises or a place of religious worship such as a Church, Mosque, Temple or Gurdwara that has been officially registered for marriages. It must be in the presence of the Registrar of Marriages or an authorised person, this can be a priest or imam registered by the approved place above.  

The couple would therefore either have a separate register office wedding (civil ceremony) in addition to their religious ceremony or if the venue where the religious marriage took place is an approved premises or a place of worship the registration takes place there. 

What happens if one person wants a divorce?

This has caused difficulties because many people believe their religious ceremony is all that is required for their marriage to be a legal and valid marriage in the UK despite it not taking place in an approved place or by an authorised person. For example many Islamic marriages (known as nikahs) take place at the person’s home or in a restaurant. The couple may not consider this to be a problem as they see themselves married in the eyes of their religion. 

However should they separate and seek a divorce then this is where issues can arise. Without the marriage being recognised as valid, neither party can have a divorce under English law. Not only this they cannot then access financial claims under the Matrimonial Causes Act 1979 (MCA) against the other spouse. Such financial claims can ensure a fair split of the couples’ assets and claims such as spousal maintenance  (payments each month from one spouse to the other) can be made under this Act. 

High Court decision on the status of a nikah

This is what happened in the High Court case of Nasreen Akhtar (wife) and Mohammed Shabaz Khan (husband). Their nikah took place in a restaurant conducted by an imam in accordance with Islamic law. The venue was not an approved premises and the imam was not an authorised person. They did not follow this religious ceremony up with a civil one at the register office. They went on to have children together and were known by all in their community as husband and wife. They later split up.  

The husband claimed they were never married as their marriage was not registered in the UK and therefore a non-valid marriage. The wife claimed their nikah should be classed as a marriage under UK law thus giving her access to making a financial claim under the more generous MCA. The judge, Mr Justice Williams ruled the marriage was valid under UK law. 

He said, ‘those that have remained married for a number of years, raised a family and have been treated  by all as husband and wife should not have the term non-marriage applied to them.’ The judge however stressed the facts of this case were particular to this couple. Nasreen Akhtar is now free to go on and make a financial claim against her husband which no doubt will see her being afforded a more generous award under the MCA 1979 than she would have received if she were treated as just a cohabitee. 

What does this mean for couples embarking on marriage?

So what does this mean for couples about to embark on a religious marriage? Do they need to bother with a separate civil marriage, or even have the ceremony in an approved place?  The answer is not clear. The law is now uncertain in this area until further legal guidance is given either by the courts or by Parliament. It would be wise to continue to register all marriages along side the religious marriage until such time as clarification is given. 

Not only does this case leave a question mark over the validity of religious marriages but it opens up a whole new debate for people that are vulnerable, married against their will not to mention bogus, sham marriages. At present the Registrar of Marriages or authorised person has been specially trained to ensure probing questions are asked of the couple and the reason for marriage. Surely this safeguard is at risk with this recent decision. 

For advice on the legal status of a marriage and the implications in a divorce case please contact our Head of Family Law, Jenny Sharma. First appointments are free and all advice is given in strict confidence. 

Disappointing news from the Home Office in asylum case

We’re very disappointed by the latest news from the Home Office in a case that we are currently working on.  Iram Shazadi and her son Muhammed Ali have had their application for asylum turned down and appeals have been unsuccessful.

Our Director, and the solicitor working on the case, Sanjeev Sharma explains:

“This case is another example of the Home Office creating a hostile environment for immigrants. This mother and son have had nothing but obstacles in their path since their escape from Pakistan. Despite their asylum claim not being accepted the medical condition of both of them speaks volumes and the risk to their health if returned to Pakistan. The Home Office need to start showing some compassion and humanity to genuine cases that are backed up with objective medical evidence like this one.”

Thanks to the media including the BBC for highlighting this case, we will continue to do what we can to keep them safe.

Our solicitors take on many cases on behalf of families who are facing difficulties claiming asylum and immigration issues.  The recent Windrush scandal has shown how hard it can be to make a case, even when you do have the right to live in this country.

If you know anyone who needs advice on asylum, visas or immigration, please ask them to get in touch.

Contact details for our immigration team are here.

Image of Sanjeev K Sharma - Director - Immigration & Human Rights Solicitor

Have you been affected by the Windrush Scandal?

There’s been lots in the news recently about the Windrush Scandal and the terrible impact of the Home Office treatment of people from the Commonwealth who are struggling to prove their right to be in the UK.

The scale is only now beginning to be understood, this article from the BBC confirms:

 

Of the 524,000 people living in the UK in June 2017 who arrived from a Commonwealth country before 1971, 57,000 of them are not UK nationals.  Of this group, 15,000 were from Jamaica, 13,000 from India and 29,000 from elsewhere

There is so much anxiety and uncertainty in the community following the coverage of the windrush cases and we are keen to help those who are worried about their status.

We hold at least two free immigration advice sessions each week, anyone is welcome to come along, and you don’t need an appointment.

All information discussed with us will be strictly confidential.

If you are unsure of your status please come along to one of our advice sessions or get in touch.  We’ve helped other people in similar situations. Through his work with the Refugee and Migrant Centre, Jim Wilson helped Paulette Wilson secure her official leave to remain status.

If you or someone you know has no status in the UK, you should check to see if your parents or grandparents came to the UK before 1971, as you or they may be British and not even know it.

For friendly, confidential advice, please get in touch with our highly experienced immigration team. Or come along to one of our free advice sessions.

Image of Jenny Sharma - Associate Solicitor & Head of Famaily Law

Do I still need to see a solicitor to get divorced?

You may have seen in the news that the process of getting divorced is being modernised enabling couples to make applications for divorce online rather than having to go to court.

Making applications for divorce easier and accessible to everyone is a good thing. However I would still advise a trip to the solicitor’s office for legal advice on your options before embarking on a do-it-yourself application.

The reason for this is that many clients assume they fulfil one of the categories for divorce when actually they don’t. An example is the requirement to be separated for 2 years or more and have the consent of the other party, known as the respondent spouse. They may well have been separated for 2 years but often they are unsure if their estranged spouse will agree to complete the acknowledgment form. They start the divorce and pay the hefty court fee of £550  only to discover along the line that spouse will not sign or acknowledge the papers. More often than not this leads to a dismissal of the original application (incurring a court fee) and a re-issue of another divorce application and a further court fee of £550 for another category such as unreasonable behaviour. Another misconception is 5 years separation. I often hear from clients the assumption that if they have remained separated for over 5 years the divorce is ‘automatic’ and does not require an application as such. Clearly this is wrong.

For this reason I hope the on line scheme will advise all applicants to seek legal advice first before making their divorce application. Such advice does not have to cost the client anything. Free advice clinics and free first appointments are crucial in such cases. There is no obligation to instruct, you see a qualified and experienced solicitor, the advice you receive is free and most important of all it could stop you making mistakes that can cost you a lot of money later on.

For advice and information or to book your free first appointment please contact our Head of Family Law Jenny Sharma. 

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How can I recover money owed to me? 

At some point in our lives we may encounter the word ‘debt’. You may be owed money from an individual or a business. So how can the J M Wilson team help you recover the money you are owed? 

We understand that recovering debt is stressful, especially when you have several other important things that require your attention. We can help defuse awkward situations without you being involved and preserve your relationships with good clients by pursuing the debt in a firm but professional manner. 

Before taking court action, we look to undertake steps to make the individual debtor (person owing the debt) aware that they owe you a debt and provide them with a deadline to repay that debt. Under the Late Payment of Commercial Debts (Interest) Act 1998 you are entitled to claim back the costs involved with recovering your debts. Under this Act, we are able to recover the costs of using our services at various stages of the collection process in relation to the debt. Furthermore, if your claim is successful, we can help you claim compensation and additional interest on the outstanding debt. You are entitled to claim £40.00 to £100.00 in compensation per invoice and interest at 8% above the Bank of England’s base rate, this is all in addition to the original debt amount and legal costs*. 

At J M Wilson Solicitors our priority is to try and settle the matter first without going to court thus keeping your legal fees to a minimum. Should the debtor refuse to comply with our requests for payment it may then be necessary to take the matter to court. 

Once a County Court Order or High Court Enforcement Order has been obtained against the debtor, there are various options available for you to enforce the debt. 

Some of these options are as follows:

  • Instructing court bailiffs to seize goods at the debtor’s property to be sold for payment of the debt;
  • An attachment of earnings order for the debtor to pay instalments from his or her earnings towards the money owed;
  • A charging order to secure the debt over any property that the debtor may own, and ultimately;
  • Insolvency proceedings to bring a bankruptcy petition against an individual or a winding up petition against a company. 

At J M Wilson Solicitors, we take a strong but professional approach to recovering debt owed to you, whether this is a large or small sum.   

If you feel you may be owed money of any amount, we are happy to talk to you to discuss your options and provide you with professional legal advice. Ask to speak to our specialist advisor, Lisa Shocker from our Civil and Commercial Litigation department on 0121 356 4556 or email your enquiry to enquiry@jmwilsonsolicitors.com.

 *This is subject to whether the debt qualifies as a commercial debt under the Late Payment of Commercial Debts (Interest) Act 1998.

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Do I have permission to live in the UK?

Do I have permission to live in the UK? It’s a question we’ve been asked many times over the last few days and months from people who’ve lived in the UK for many years but are now wondering what their legal status is.  We’ve had enquiries from many local people, born in Jamaica and other Commonwealth countries and arrived in the UK in the 1970s. They are now scared about their citizenship and rights to basic services in the UK.

The Guardian newspaper has done a fantastic job of highlighting the plight of people who have been cruelly affected by the Home Office’s insistence that people prove their right to be here despite having lived in UK for the vast majority of their lives.  In the worst cases the windrush generation have been threatened with deportation, held at detention centres, faced large bills for NHS services, and been made redundant.  Our very own James Wilson has been involved in the case of Paulette Wilson, who was held in Yarl’s Wood detention centre and came very close to being deported. Thankfully she now has received a biometric residence permit and is in the process of gaining British Citizenship and damages from the Home Office for the treatment she suffered.

 

For everyone else who is in a similar position, we are glad to see that, finally, pressure on the government, from a wide range of individuals and organisations including from David Lammy MP and David Harewood has led to an apology from the Home Secretary. The gov.uk website has been recently updated too.

 

For anyone who is worried about their immigration status and right to remain in the UK, work here, and access services, this is the latest advice from the Home Office.

 

It explains the legal position, acknowledges that the documents asked for can be difficult to source, but also states:

“We are clear that no one with the right to be here will be required to leave. There will be a solution available for your situation.”

 

The information also explains some of the options available to you and contains links to the forms needed, along with examples of the evidence needed.  We know that this isn’t easy to wade through if you are unfamiliar with the process. We’ve been giving out lots of advice and information to concerned residents recently and will continue to do so.  We hold a series of free immigration advice sessions each month, no appointment is needed, if you need our help simply turn up. If you can’t make any of these sessions then you can also contact us.

Commenting on the situation, Sanjeev Sharma said: “Unfortunately I am not shocked by the way the Home Office have treated these types of cases. The Home Office has never applied a common sense approach to cases. Instead they put the onus on the applicant to provide evidence, evidence that is often in the possession of the Home Office. This is why it is important that before any applications are made you obtain legal advice to ensure your application has the best chance of succeeding.”

 

For advice please contact our Immigration Department.