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Would an extended family member of an EEA national (eg unmarried partner) be able to benefit from the unlawful residence provisions stemming from Metock, eg can an extended family member make an EEA family permit application in a country in which they are not lawfully present?
Q&As
The Citizens’ Directive Directive 2004/38/EC (the Citizens’ Directive) deals with the rights of EEA citizens and their family members to move and reside freely within EEA Member States. Under Citizens’ Directive, Directive 2004/38/EC, art 3(1), the Citizens’ Directive, Directive 2004/38/EC applies to all EEA citizens and their family members who accompany or join them. ‘Family member’ being so defined: ‘(a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those
Would an issue of shares by a company incorporated under the Companies Act 2006 be void if the investor was breaking a foreign law by subscribing for the shares?
Q&As
It has been assumed that the company issuing the shares is a private limited company with one class of shares. The validity of an allotment and issue which has taken place with the agreement of the investor and in accordance with the applicable statutory provisions of the Companies Act 2006 (CA 2006) (ie with requisite authority and in accordance with any pre-emption rights) and any requirements of the company’s articles
Would an occupier acquire security of tenure under the Landlord and Tenant Act 1954 where occupying with exclusive possession under a licence granted for a period of six months, less two days (albeit where it envisages the renewal for two further periods of six months 'by agreement')? Does it make a difference if the occupier is a successor to a business of a previous tenant who occupied under a contracted out lease, and some staff were transferred to the new occupier?
Q&As
An occupier cannot have security of tenure if the occupation is by way of a licence because the Landlord and Tenant Act 1954 (LTA 1954) only applies to tenancies. Although exclusive possession is one of the hallmarks of a tenancy (and it is not possible for there to be a tenancy without exclusive possession), it is possible for a licence to be granted with de facto exclusive
Would an office relocation trigger the collective redundancy consultation obligations? If so, when and why?
Q&As
Under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992), the statutory duty to inform and consult arises where 20 or more employees are proposed to be 'dismissed as redundant'. For these purposes, ‘dismissal as redundant’ means dismissal for any reason or reasons not related to the individual concerned (TULR(C)A 1992, s 195(1)). For information on:
Would an option to renew within a genuine licence to occupy arrangement mean there is a risk it could be construed as a lease?
Q&As
For the purposes of this Q&A, it has been assumed that scenario relates to commercial premises. The nature of the option to renew has not been specified. The issue of lease or licence was recently considered in London College of Business Ltd v Tareem Ltd, a case where the written agreement was ostensibly a licence yet a tenancy was still established. In Street v Mountford, the House of Lords held that the hallmark of a tenancy, as opposed to a licence,
Would an oral B2C contract for the supply of goods and services be considered to be concluded on payment of the deposit, on payment of the final balance or on the commencement of work?
Q&As
Consumer Rights Act 2015, s 100 (CRA 2015) provides that the Act will only apply to goods or services as of 1 October 2015. For more information, see Practice Note: Consumer Rights Act 2015—summary. The question is: at what point, if at all, do oral negotiations and subsequent work become a legally enforceable contract? Formation of contract For a contract to be effective, four key elements must be present: • offer • acceptance • consideration, and • the intention to create legal relations Acceptance
Would an oral agreement made between predecessors in title in relation to the height of a hedge be binding on their successors?
Q&As
A contract is only binding between those individuals who are privy to that contract, and even then only if: • there is an intention that the terms agreed are legally binding • that the terms are sufficiently certain to be capable of forming a contract, and • there is some consideration for the contract When it comes to contracts that are made
Would an ordinary limited liability partnership member (LLP) (ie not a designated LLP member), working in the UK be able to fill the key personnel positions and would they be considered to be a ‘paid member of staff’ as per the sponsor guidance?
Q&As
The Workers and temporary workers sponsor guidance, Part 1 describes from Section L4 the requirements of ‘Key Personnel’—that is an Authorising Officer, Key Contact, Level 1 user and Level 2 user (emphasis added): ‘L4.3. Each of your Key Personnel must: —be based in the UK for the period they fill the role you have appointed them to—there is an exception to this requirement on the UK Expansion Worker route where the Authorising Officer may be based overseas from the time you apply for your licence until they enter the UK with a valid entry clearance for the purpose of work on the UK expansion of your business —not have any unspent criminal convictions as set out in Annex L4 of this guidance —be a paid member of your staff or engaged by you as an “office
Would an organisation which is not customer facing and is a family-owned business (with no employees, but only directors) be regarded as a business that processes personal data that needs to register with the ICO and pay the annual data protection fee?
Q&As
Background The ICO's guidance on the UK GDPR explains: 'On 25 May 2018, the Data Protection (Charges and Information) Regulations 2018 (the 2018 Regulations) came into force, changing the way we fund our data protection work. Under the 2018 Regulations, organisations that determine the purpose for which personal data is processed (controllers) must pay a data protection fee unless they are exempt. The new data protection fee replaces the requirement to ‘notify’ (or register), which was in the Data Protection Act 1998.' Data protection fee The Data Protection (Charges and Information) Regulations 2018 (DP(CI) Regs 2018), SI 2018/480 set out the key details of this obligation. DP(CI) Regs 2018, SI 2018/480, reg 2(1) states: 'A data controller must comply with the requirements of this regulation unless all of the processing of personal data they undertake is exempt
Would an otherwise successful adverse possession claim over unregistered land be subject to rights of way over that land in favour of neighbouring registered landowners, whether used or unused?
Q&As
See the commentary fromExtent of title acquired: Halsbury's Laws of England (available on Lexis®Library) which provides, in
Would an uncashed cheque solely in respect of personal injury be considered a ‘thing in action’ in bankruptcy? If so, would the trustee in bankruptcy therefore be obliged to ensure that the money was paid to the bankrupt?
Q&As
There are two parts to this Q&A: (i) does a cheque constitute a ‘thing in action’; and (ii) if that cheque is drawn solely in respect of damages for some personal injury suffered by the bankrupt, are the funds required to be paid to the bankrupt? A cheque is a bill of exchange payable on demand. When a cheque is delivered, it constitutes a ‘thing in action’ which the payee can enforce against the payor (R v Preddy). As such, where a dispute arises in relation to a contract for the sale of goods or services and where payment is made by cheque, two separate contracts arise: (i) the contract for the provision of goods or services; and (ii) the unconditional promise to pay on the cheque. The payee may, therefore, elect either to sue on the cheque
Would an unmarried partner of a British Citizen be able to apply for Naturalisation immediately after obtaining settlement and what rules would apply to unmarried partners of British Citizens, wishing to apply for Naturalisation?
Q&As
The Practice Note: Applying to naturalise as a British citizen: eligibility states as follows: ‘The current legal framework governing the criteria under which an application for naturalisation can be made is set out in the British Nationality Act 1981 (BNA 1981). BNA 1981, s 6 and Sch 1 set out a series of requirements, some of which are compulsory and others of which are subject to an exercise of discretion on the part of the Secretary of State for the Home Department (SSHD) to disregard. [...] There are two main routes with different sets of requirements depending on whether or not the applicant is the spouse or civil partner of a British citizen. BNA 1981 sets out that a five-year route will apply if the applicant does not have a British citizen spouse or civil partner. Since this route