Visa Delays Causing Major Trouble for Students

Many foreign students in the UK are worried due to delays in issuing student visas, as in this situation they are in the middle of nowhere – they can neither stay legally in the UK, nor return to their own country.

The National Union of Students (NUS) calls these delays “outrage”, due to the fact that many students have been waiting for 5 months to receive their visas. There is a petition, which claims that because of this delay the foreign students` “basic rights” are being violated. At this stage the petition is signed by hundreds of students and growing.

The students, who suffer most from the delays are those renewing their visas in order to stay in the UK and find a job, after completion of their studies. Before the changes in April, this was an automatic right, however it is no longer the case. This is one of the main points to cause delays, as the number of visa applications has increased significantly and more technical time was required to process all the visa applications.

If a foreign student wants to stay to live and work in the UK after graduating they need a visa, but this requires submission of their passports together with the other documents. This means that while the visas are being processed, the applicants are not able to leave the country and return to their homeland, while in the same time being in the UK illegally, as they do not possess a valid visa.

According to the UK Border Agency the visa delays are not such a trouble, as these people have come to the UK to study and not to work. For that reason in April the automatic right for foreign UK students to work has been removed. He also said that the rest of the applications will be dealt with by the end of the summer and applicants will be contacted once the decision is made. In the mean time, they will be able to withdraw their applications and have their documents returned can do so by contacting the immigration inquiry bureau

Daniel Stevens, international students’ officer for the NUS, said: “It is clear that delays to the processing of visa applications is becoming a serious problem. International students are facing the direct financial and emotional costs of an under-resourced UKBA.”

Car Owners to be Held Responsible for Littering

New bill proposes that the car owners could be fined if they or some of their passengers are caught throwing away litter through the car.

According to new plans, car owners could be held responsible for littering. Many people throw away litter form their car`s windows and this is quite common among drivers, however it costs the local councils a significant amount of money to clean up the roads after that.  The Campaign to Protect Rural England (CPRE) claims that during 2011, over £860 million were spent to clean up litter on smaller roads.

Currently, people who use their  car`s windows as a recycle bin can face fined fines of up to £80.00. Unfortunately, such kind of fines are difficult to enforce, as quite often the local councils struggle to prove, who is actually responsible for the litter.

However, if the new proposals come true , local councils will have the right to fine the registered owner of the car, without being necessary to prove who was responsible. The good news for all drivers with passengers, used to throw litter from the comfort of their  car seats, is that now the car owner will be able to nominate the responsible party to pay the fine.

The Private Member’s Bill is being tabled by Suffolk Conservative peer Lord Marlesford, who says that English roads were among the worst in Europe in terms of litter, and said that he wanted “action, not words” from Parliament.

If the new proposal is accepted the local authorities will have to report to the public how much they spent on cleaning up the roads and who was contracted to do it. In addition to that, they need to make sure that the public is satisfied by the result. He also added, “That will enable people to complain about dirty roads direct to local authorities or to contractors.”

Lord Marlesford’s proposal was accepted very positively by Samantha Harding from the CPRE. She add: “If people think they can toss litter from their cars, councils should have an effective way to fine them and that’s what this bill delivers.”

Caroline Spelman – Environment Secretary and AA also welcomed the bill. However a spokesman for AA mentioned that drivers’ rights would need to be protected. “Our only concern would be to make sure there are rights of appeal.”

 

Couple Claims the Land their House is Built on to be Toxic

A land previously used for processing toxic materials is now a residential property – a couple concerned about their health to sue the housing association.

Angela and Robert McManus – a young couple from Scotland are on their way to take legal actions against their housing association as the house they live in, has been built on a toxic land, used for processing toxic metals and chemicals such as trichloroethylene (TCE) and tetrachloroethylene (PCE).

As McManus are experiencing a wide range of health problems, they believe the land was not properly decontaminated after serving as a site of heavy industry. Apart from frequent headaches and vomiting, they fear the toxic land might pose a cancer threat for all the families living on these premises.

At this stage the McManuses are the only ones to sue the association, however if their case proves to be successful, many other residents on the site will be encouraged to follow their example.

The family has  lived in the area, since the houses were built and during the years spend in the Watling Street area of Motherwell, they suffered lots of illnesses and discomforts. They managed to put up with these conditions, however they are now greatly concerned about their 3-year-old daughter`s health. For that reason, they were forced to seek a new accommodation elsewhere, so that they are not exposed to chemicals which might endanger their lives.

Collins Solicitors are engaged with the McManuse`s case and they represent all 43 families living on these premises. Senior partner of the firm Des Collins said:  “The properties are unfit for human habitation – the neuro-toxic vapours are making the residents ill. Whilst it is important to ask why the site was not properly remediated before the houses were built the much more pressing issue is to find an immediate solution to the on-going health problems.”

North Lancashire Council is concerned about such claims, however in this case they reassure the community that according to the latest test the land is safe and proper for habitation. There is no evidence that the land might cause any significant health dangers, to the people living there.

 

New Domestic Violence Disclosure Scheme Named after Clare Wood

New “fight” against domestic violence through a domestic violence disclosure scheme  in Wiltchire and Gwent.

A trial version of a new domestic violence disclosure scheme, enabling partners to be checked for past abuse is run in Wiltshire and Gwent. It is named Clare`s Law, after Clare Woods- a woman killed by a man, she met on Facebook in 2009, whose family found out later that this man – George Appelton had a history of a violent past, including the kidnap of a previous girlfriend.

According to the new scheme, both men and women will be able to check their partner`s past for domestic violence issues. If any other member of the family or a close friend is concerned, they can also apply to check if a certain person has previously been involved in domestic violence. The scheme aims at protecting people and if the person checked is found to have a history of any domestic violence, the police might consider disclosing this information to the enquirer in order to ensure the partner`s safely.

The intentions are that this scheme is extended to Nottingham and Manchester later this year, however there is no indications on setting up a date when this will be run nationally.

Carmel Napier – Chief Constable of Gwent Police and a leader on the domestic abuse issues at the Association of Chief Police Officers’ said that one of the key responsibilities of the police is to protect people from harm. That`s why this domestic violence disclosure scheme strives to encourage people to be well informed and protect themselves as well as their children, when entering into a relationship with a new partner. Accordin to Mr. Napier, the scheme will make it easier for the police to act in favour of the people, who believe they might be endangered by domestic abuse, by disclosing information about the partner`s violent past.

A domestic violence charity Refuge is one of the main critics of this scheme. They say this will not be useful, as a great part of the domestic abusers are not known to the police due to the fact that many victims are scared to report them. They suggest that in spite of running the new scheme, the police might work on improving their actions when called out for domestic violence incidents.

 

 

New Ofcom illegal file-sharing law

Ofcom has set out a draft version of the regulations which will govern the legal fight against illegal file-sharing.
Under the new regime illegal downloaders will now be faced with a three strike rule if found guilty of breaching the Digital Economy Act (DEA).

The three strike policy is set to roll out in 2014 and will see ISPs sending letters out to customers who are found guilty of downloading pirated content like music and films. If a customer receives 3 letters in a 12 month period, their information (download history) can be released to the owners of the copyrighted material who will then have the option to pursue legal action over copyright infringement.
However, the copyright owner would first have to secure a court order in order to determine the identity of the file-sharer, as the download history provided would be anonymised.

If customers receive a letter and believe they have been wrongly accused, they must appeal within 20 working days and pay a fee of £20 which will be returned to them if they are vindicated.

Lodger Agreement: Taking in a Lodger

Taking in a lodger has never been more popular. With soaring bills more and more homeowners are finding it difficult to make ends meet thus taking in a lodger has become a very popular way to earn extra money.

Renting out your spare room can be an easy and quick way of earning extra cash and helping with costs. However, when letting out a room in your home it is paramount that you have a lodger agreement in place.

Who is a lodger? 

A lodger is anyone who pays to use a room in your house without having exclusive access to any other part of the property. Agreements with lodgers can take on many forms.

Whatever agreement you have reached with the lodger it is highly recommended to have a lodger agreement in place, The Legal Stop provides a FREE Lodger Agreement Template.

Can anyone take in a lodger?

Generally anyone can take in a lodger, whether you are renting your property from a landlord or you own your own house you can take in a lodger. However, your mortgage lender or the property landlord may prohibit the practice depending on your agreement with them.

If you own your property you should always check with your mortgage lender and home insurance provider whether you are allowed to rent a room. Likewise, if you rent your property from a landlord you should check with the property landlord to ensure that they are on board with your decision to take in a lodger.

Are there any legal requirements for taking in a lodger?

Although you don’t have to comply with all the legal repairing obligations applicable to rented properties, furniture should comply with the furniture regulations, and any gas appliances should be checked annually by a Corgi registered gas installer.

Do I need to make a tenancy agreement?

A lodger is not a tenant so taking in a lodger does not create an assured tenancy therefore, an Assured Shorthold Tenancy Agreement – Rent a House or Flat is not appropriate.

Theoretically it is not necessary to have a written agreement to rent out a room but it is highly recommended that you have a lodger agreement in place in order to regulate the relationship between yourself and the lodger and set out the rights and obligations of both parties. This will help to avoid any future problems.

The Legal Stop provides a FREE Lodger Agreement Template, this template is for use in those cases where the room is part of a house or flat which the owner occupies as his/her only or principal home.

Do the new tenancy deposit laws apply to taking in lodgers?

Current laws only apply for assured shorthold tenancies; therefore the law regarding tenancy deposit protection schemes does not apply to lodger agreements.

However, taking a deposit to protect against property damage and the lodger failing to pay rent is highly recommended. If you plan to take a deposit, it is vital that the terms are stipulated in a lodger agreement, our Lodger Agreement Template contains a clause dealing with deposit.

How do you evict a lodger?

Under UK law lodgers do not have the same rights as a tenant would have. This means that once you have given reasonable notice that a lodger must leave they have no right to stay in your home.

What amount to reasonable notice is decided by the parties before the lodger moves in, therefore having a well written lodger agreement is essential to avoid any dispute. Our Lodger Agreement Template contains a clause dealing with notice and early termination.

However, should a lodger refuse to leave after notice has been given then you will need a court order if you want to evict them.

Do I have to declare any payments?

The UK government has a ‘Rent a Room’ scheme which provides that the first £4,250 will be tax free for letting out furnished room in your home, but you have to disclose this income on your tax return.

If you share a house and both of you rent out a room, or rooms, then the maximum amount drops to £2,125.

Under the rules a lodger can rent anything from a single room to an entire floor in your family home. However, this will not apply if you separate areas into different flats. Nor does it apply for unfurnished rooms.

If you exceed the maximum amount or rent out an unfurnished room you must declare the payments as income to HM Revenue & Customs and pay tax in the normal way.

Prenuptial Agreements in the UK

A prenuptial agreement, also known as a “prenup”, is a contract between two people who are planning to enter into a marriage or civil partnership and it deals with the financial consequences in the event of their marriage ending.

Where the marriage or civil partnership has already taken place, a postnuptial agreement should be considered instead.

Why entering into a Prenuptial Agreement?

Entering into a prenuptial agreement, as unromantic as it might sound, can ultimately prove beneficial for both parties.

There are several reasons why more and more people enter into a prenuptial agreement, here are just few considerations, please note that this list is non-exhaustive:

  1. One partner is wealthier than the other – In the UK wealthy individuals risk losing 50% of their assets (sometimes more) if they divorce. Therefore, where one party is wealthier than the other they might want to enter into a prenuptial agreement in order to preserve their pre-existing wealth in the event of a divorce.
  1. One or both partners have been married before – If one or both parties have been divorced before they may wish to enter into a prenuptial agreement to preserve their current assets in the event of their marriage ending.
  1. Children and dependants - If a party has dependants or children from a previous marriage entering into a prenuptial agreement can ensure that their interests and well-being are not jeopardized on divorce. A prenuptial agreement can ensure that assets are distributed according to a party’s wishes and that neither the first family nor the new family are cut off.
  1. Inherited assets – One party may already have inherited family assets, or may have a reasonable anticipation of inheriting such assets during the marriage and by entering into a prenuptial agreement they want to preserve inherited family wealth. A prenuptial agreement allows for these inherited assets to be protected and kept out of any future financial settlement on divorce. Without a prenuptial agreement inherited family assets are most likely taken into account by the court in any future financial settlement on divorce.
  1. Overseas wealth – Just because assets are situated in another country does not mean that a UK court will not take them into account on divorce. If a party has property and assets outside the UK before marriage then on divorce the English courts are most likely to take into account worldwide assets and divide them on a 50-50 basis, regardless of how the overseas assets would be treated under the law of the country in which they are situated. A prenuptial agreement allows the parties to decide how their overseas assets will be dealt with.

Are Prenuptial Agreements enforceable in the UK?

Prenuptial agreements are legal and enforceable in the UK.

In the UK prenuptial agreements are enforceable provided they are properly entered into and there is no overriding reason that would prevent the court from adopting the provisions of the agreement.

The courts in the UK have complete and total discretion to decide how to divide the assets of the marriage; the aim of the courts is to achieve fairness in any financial divorce settlement. UK courts have complete discretion in applying the terms of a prenuptial agreement and will only enforce it to the extent they consider that it is equitable to adopt the agreement in the specific circumstances of any given case.

Therefore UK courts are likely to adopt the provisions of prenuptial agreements provided that they would not lead to an unjust result. In other words, the courts will take into account the provisions of a prenuptial agreement when deciding a divorce settlement but the courts will not enforce it if they consider that such prenuptial agreement may lead to a result that is unfair or unjust.

In deciding what is fair the starting point for any UK Court is Section 25 of the Matrimonial Causes Act 1973. Section 25 sets out the guidelines that the English courts must apply in deciding who gets what in any divorce proceedings, even if a prenuptial agreement has been entered into before the marriage. However, the courts are increasingly likely to enforce the provisions of prenuptial agreements provided that they do not conflict with the Section 25 criteria and would not unfairly prejudice the parties or any child of the marriage or otherwise create an inequitable or unfair outcome.

Prenuptial agreements are important in ensuring that personal assets, in the UK and worldwide, are dealt with equitably by the UK courts in the event of divorce; such agreements can in the right case have decisive weight in a divorce settlement.

The Legal Stop offers a FREE Prenuptial Agreement Template, however as everyone’s situation is different, prenuptial agreements need to be tailored to suit specific personal circumstances.

Furthermore, in order to ensure that a prenuptial agreement is taken into account by a court it must follow the requirements that the UK courts have laid down otherwise the courts will disregard or limit the application of the agreement. Therefore it is advisable to take independent legal advice in relation to this area of law.

DIRECTORS’ DUTIES UNDER THE COMPANIES ACT 2006

The duties of company directors have, until recently, been defined by case law. The Companies Act 2006 changed this, under the new 2006 Act directors’ duties have been for the first time codified and set out in statute.

WHO IS A DIRECTOR?

Under the 2006 Act any person occupying the position of director is considered to be a director of the company and is subject to the general duties, whether or not they are actually named ‘director’ and or have been validly appointed.

In addition, shadow directors are also subject to the general duties. A shadow director is a person who has not been appointed as a director of the company but in accordance with whose directors or instructions the directors of the company are accustomed to act.

Every director of a company owes each of the general duties to that company. Compliance with each of the general duties is the personal responsibility of each director.

GENERAL DUTIES

The general duties are:

  1. duty to act in accordance with the company’s constitution and only exercise powers for the purposes for which they are conferred
  2. duty to promote the success of the company for the benefit of its members as a whole
  3. duty to exercise independent judgment
  4. duty to exercise reasonable care, skill and diligence
  5. duty to avoid conflicts of interest
  6. duty not to accept benefits from third parties
  7. duty to declare an interest in a proposed transaction or arrangement with the company

Duty to act in accordance with the constitution and properly exercise powers (s 171 CA 2006)

Each director must ensure that they:

  • only exercise their powers for the purposes for which they are conferred, and
  • act in accordance with the company’s constitution.

For these purposes, a company’s constitution includes (but is not limited to):

  • the company’s articles of association, and
  • any resolution or agreements affecting the company’s constitution.

It means that directors should be aware of the content of the company’s constitution, they must act in accordance with the company’s articles of association and must pursue the objectives listed in the Memorandum of Association.

Duty to promote the success of the company for the benefit of its members as a whole (s 172 CA 2006)

To be able to comply with this duty directors need to consider a number of statutory factors, including the long-term consequence of decisions, the company’s reputation and the interests of other stakeholders, such as employees and the community. This list is not exhaustive; it is important that the directors give due consideration to every relevant factor in discharging this general duty.

Duty to exercise independent judgement (s 173 CA 2006)

It means that directors must not blindly follow the advice or instructions of a third party. Advice can be sought as long as the director uses his judgement to decide how to proceed.

Duty to exercise reasonable care, skill and diligence (s 174 CA 2006)

A director has a duty to exercise the same reasonable care, skill and diligence that would be exercised by a reasonably diligent person with:

  • the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director in relation to the company, and
  • the general knowledge, skill and experience that the director has.

The first part of this test is objective and sets a minimum standard for a director based on their particular role and responsibilities. The second part of the test is subjective and takes into account the particular director’s actual experience, knowledge, skills and specialism.

Duty to avoid conflicts of interest (s 175 CA 2006)

A director must avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or may possibly conflict, with the interests of the company. The prohibition relates to the situation rather than the actual conflict and the duty does not apply to a conflict of interest arising in relation to a transaction or arrangement with the company.

Thus, the scope of this duty is very wide but the CA 2006 also sets out provisions giving directors the power to authorise situational conflicts of interest.

Please note that authorisation cannot be given retrospectively and it applies to the conflict situation only and not other breaches of duty. For example, the fact that a conflict situation is authorised will not absolve a director from a breach of his duty to act with reasonable care, skill and diligence, which the directors cannot authorise.

Duty not to accept benefits from third parties (s 176 CA 2006)

A director is under a duty not to accept a benefit from a third party that is conferred because:

  • he is a director, or
  • he has done (or not done) anything as a director.

This duty does not catch benefits accepted by a director from the company, an associated body corporate or a person acting on behalf of the company or an associated body corporate.

Duty to declare an interest in a proposed transaction or arrangement with the company (s 177 CA 2006)

A director who is in any way, directly or indirectly, interested in a proposed transaction or arrangement with the company has a duty to declare the nature and extent of that interest to the other directors before the company enters into the transaction or arrangement, except where:

  • the director is not aware of his interest or the transaction or arrangement in question
  • the interest cannot reasonably be regarded as being likely to give rise to a conflict of interest
  • the other directors are already aware of the interest; or
  • it concerns the terms of his service contract that are to be considered by a meeting of the directors or a committee of the directors.

The declaration of interest must be made as soon as reasonably practicable after the director becomes aware of the interest.

Directors have to declare indirect interests as well as direct interests and it is not necessary that the director is a party to the relevant transaction or arrangement.

What constitutes an ‘indirect’ interest is not defined in the CA 2006, so the directors should consider which interests, if any, might be relevant, which may include the interests of persons connected with them.

CONSEQUENCES OF BREACH     

The consequences of a breach of duty can be severe, and may amongst other things, include:

  • damages or compensation where the company has suffered loss
  • restoration of the company’s property
  • an account of profits made by the director
  • rescission of a contract, and
  • injunction to stop the director from carrying out or continuing with the breach.

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