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By sfbsolicitors, Jan 16 2018 03:04PM

Lo scorso dicembre la Gran Bretagna e l’Unione Europea hanno raggiunto un primo accordo sui principi che regoleranno l’uscita della GB dall’Unione Europea, stabilendo alcune regole per la tutela dei diritti dei cittadini italiani, quali cittadini di Stati membri della EU, che vivono in UK.


La Gran Bretagna uscira’ dalla UE il 29 marzo 2019: questa data costituisce lo spartiacque nella disciplina dello status degli Italiani emigrati in Gran Bretagna.


Questo articolo sintetizza le regole ad oggi rese pubbliche dal Governo Britannico sui diritti di stabilimento e di circolazione in UK dei cittadini italiani arrivati in UK del 29 Marzo 2019 ed e’ fondato esclusivamente sui comunicati pubblicati dal Governo Britannico nel proprio sito www.gov.co.uk alla data del gennaio 2018: le informazioni qui contenute possono essere modificate ed integrate a mano a mano che e i negoziati tra GB e UE proseguiranno.


Ad oggi i cittadini di Stati membri della EU, compresi gli Italiani, non devono fare nulla: possono continuare a vivere in UK come fatto sinora per tutto il tempo che la GB rimarra’ nella Unione Europea.

Secondo il Joint Report from the negotiators of the EU and the Uk Government on progress during phase 1 Negotiations under art. 50 TEU on the UK Orderly withdrawal from the EU le persone che sono arrivate in UK prima del 29 marzo 2019 ma non hanno vissuto regolarmente e legittimamente in UK per 5 anni alla data del 29 marzo 2019 potranno chiedere un permesso temporaneo di residenza per restare in UK. Questo permesso consentira’ loro di vivere in UK sino al raggiungimento dei 5 anni: raggiunto questo limite potranno chiedere il riconoscimento del settled status, cioe’ il riconoscimento del diritto a continuare a vivere in Gran Bretagna indefinitivamente.


In altri termini, il Cittadino italiano arrivato in UK prima del 29 marzo 2019 potra’ continuare a vivere e lavorare in UK sino al 29 March 2021 senza chiedere nessun permesso e/o autorizzazione.


Nel caso in cui lo stesso cittadino intendesse continuare a vivere e lavorare in UK dopo il 29 Marzo 2021 dovra’ avviare le procedure per il riconoscimento del proprio settled status or per ottenere un temporary residence permit.


Vediamolo con un esempio:


• se il Cittadino Italiano e’ arrivato in UK prima del 29 marzo 2019 ed, al 21 Marzo 2021, ha vissuto in UK legittimamente per 5 anni potra’ chiedere il riconoscimento del settled status;

• se il Cittadino Italiano e’ arrivato in UK prima del 29 marzo 2019 e, al 21 Marzo 2021, non ha

vissuto in UK legittimamente per 5 anni potra’ chiedere il rilascio del temporary residence permit e poi, appena raggiunto il limite dei 5 anni grazie al temporary residence permit, potra’ chiedere il riconoscimento del settled status.


Il costo per la richiesta dovrebbe essere al massimo pari al costo che I cittadini britannici sostengono per la richiesta del proprio passaporto: il cittadino italiano richiedente dovra’ esibire un documento di identita’ valido e una dichiarazione che attesti se ci siano, a suo nome, carichi pendenti.


Le procedure per le richieste dei suddetti permessi, dovrebbero essere pubblicate on line verso la fine del 2108, per cui e’ consigliabile consultare periodicamente il sito del Governo Britannico.


Si noti che che regole completamente diverse saranno applicate ai cittadini di Stati membri della Unione Europea che arriveranno in UK dopo il 29 marzo 2019.



By sfbsolicitors, Jan 16 2018 02:59PM

On December 2017, the UK Government reached an agreement with the European Union, settling some relevant criteria regarding Brexit and the rights of EU Citizens living in the UK.


The purpose of this article is to clarify the rules, as agreed on December 2017, regarding the rights of the Italians Citizens which arrived in the UK by 29 March 2019 but - at this date - have not lived in the UK for 5 years.


This article is based on the rules as settled on the UK Government Website and does not provide any kind of advice; please note that this matter is not yet wholly regulated, so we are summarizing the principles not yet rules and procedures, which are not yet established.


As expressly stated by the UK Government, there is no need for EU Citizens living in the UK to do anything now: there will be no change to the status of EU citizens living in the UK while the UK remains in EU.


According to the Joint Report from the negotiators of the EU and the Uk Government on progress during phase 1 Negotiations under art. 50 TEU on the UK Orderly withdrawal from the EU people who arrived by 29 March 2019 but won’t have been living in the UK lawfully for 5 years when UK leaves the EU will be able to apply to stay until they have reached the 5-years threshold. They can also apply for settled status.


In other words, the Italian/EU Citizens who arrived by 29 March 2019 but won’t have been living in the UK lawfully for 5 years will be able to continue to live and work in the UK until 29 March 2021 without having to make an application.


If they want to live in the UK after 29 March 2021 they should apply for settled status or temporary residence permit to prove that they have got permission to continue living and working in the UK in future.


Let’s me explain with an example:


• if an Italian Citizen arrives in the UK before 29 March 2021 and meets the 5-year threshold by 29 March 2012 he should apply for a settled status;

• if he arrived in the UK before 29 March 2021 and does not meet the threshold by 29 March 2012 he should apply for the temporary residence permit.


The application fee will be no more than the cost charged to British citizens for a UK passport; the Italian/EU citizen will need (i) to provide an identity document and a recent photograph and (ii) declare any criminal convictions.


The procedures and the criteria for the application are not yet defined and will be set out in the withdrawal agreement between EU and UK.


According to UK Government, the online application form should go live in late 2018, so should be advisable checking the UK Government website for updates.


Italian/EU citizens employees in the UK and their business employers don’t need to do anything by now.

Please note that the rules are different for the Italian/EU Citizens who arrives in the UK after 29 March 2019.



By sfbsolicitors, Jan 11 2018 01:41PM

On 9 July 2017, you were driving your brother’s car, along the narrow street in front of your detached home. You were learning to drive, so you choose a very quiet and early Sunday morning for your training.

The law requires that, while training, you are provided with (i) a Provisional Driving license and (ii) a supervisor (as a driving instructor or as a family or friend with a UK/EU Driving License). So, you collect your Driving Licence and asked Mark, your US friend, and Florence, his French girlfriend to supervise you; you drove for 1-hour, meeting no one, and come back to your home, confident and relaxed.


Too relaxed, perhaps…


Consequently, while parking near your neighbour’s Jaguar, you hit its right side causing deep more paint scratches and a dented bumper. The very day you sent an email to your Insurance Company, summarizing the facts; you forgot to inform them that Florence was in the car. One month later it turned up that the Jaguar damages amounted to £20,000; your neighbour asked for compensation but you Insurance Company refused to provide indemnity.


According to the Insurance Company, you were driving your vehicle without a qualified supervising driver: Mark was provided with an International Driving Permit, which is not valid in the UK. You thought Mark could be your qualified passenger but he could not.


This means you were driving outside of the terms of your licence, so you were in breach of General Exception 1 of your policy which states “… You will not be covered for any liabilities you may have for any of the following: Any accident, injury, loss, theft or damage which happens while your car is ….driven by you if you do not hold a valid Driving Licence or are breaking the conditions of your Driving Licence”


Later you amended your statement and wrote to the Insurance Company that Florence, which owns an EU Driving License, was supervising you. Consequently, you asked the Insurance Company to revise its conclusions; so, the Company did but not as you expected.


The Insurance Company complained that you provided false information and accused you to have committed fraud, so not only denied indemnifying you but also terminated the Insurance Policy and asked you to pay £20,000 with no delay.


Could be argued that the Insurance Company has been too harsh and not totally fair in its refusal, as I will explain hereto.


The ABI (Association of British Insurers) Statement of General Insurance Practice requires firms not to repudiate a claim on the grounds: (i) of the customer's failure to disclose a material fact, if that fact was one that a customer could not reasonably be expected to disclose; or (ii) of misrepresentation, unless it is a deliberate or negligent misrepresentation of a material fact.


The same Statement also requires insurers: (i) to include clear questions on application forms about matters insurers have commonly found to be material; and (ii) not to ask questions requiring knowledge which the signatory could not reasonably be expected to possess. The insurer is entitled to forfeit these only if there is straightforward evidence of fraud.


In conclusion, in all case of innocent misrepresentation, in which you should ask a solicitor’s advice, you should have some argument against the Insurance Company which reject your indemnity request.



By sfbsolicitors, Jan 2 2018 11:49AM

With the new year now upon us many of our clients will be seeking guidance with regards to taking on new employees to cope with an anticipated increased workload in 2018.


We are frequently instructed by our clients to advise on and prepare formal contracts of employment for new starters and our team of employment law solicitors have the knowledge and expertise to ensure that you comply with your duties as an employer under the Employment Rights Act 1996.


It has been the law for some time now to provide your new employees with a statement of written particulars of employment. Such a document is crucially important as it will govern the majority of the working relationship between you and your employee. Not all contracts of employment are equal and there are important considerations to think about before writing a contract of employment such as:


1. The employee’s seniority in the organisation;


2. Whether a probation period is appropriate with a built-in period for review after a set number of months;


3. The confidential information that your new employee will have access to and how the information could potentially be miss-used if the information fell into the wrong hands;


4. Any applicable company pension scheme;


5. Whether you wish to restrict the activities of your employee after they have left your company e.g. with post termination restrictive covenants; and


6. Periods of garden leave (i.e. notice periods where the employee remains on the payroll but is not required to attend work)


As specialist employment law solicitors, we will be able to advise you as to the most appropriate terms for inclusion in the contract of employment. Taking on new members of staff is always an exciting time and it is worth taking advice if you are unsure as to how to draft a contract of employment. We have the experience to draft contracts of employment for directors, shareholders and managers regardless of their level in your organisation.


Should you require assistance please do get in touch by telephoning our office on 01858 414284.


Summerfield Browne have offices in London, Birmingham, Oxford, Cambridge and Leicester.



By sfbsolicitors, Dec 5 2017 04:27PM

It may no longer be the case that a landlord need not shop around for insurance. An important recent decision in the Upper Tribunal of Cos Services Limited v. Nicholson & Willans (2017) considered the approach to be taken in assessing the reasonableness of insurance premiums under s.19 of the 1985 Act. It is important for landlords to be able to establish that insurance premiums are reasonable. If you don’t, you could be opening yourself up to litigation from tenants.


The facts of the case:


The landlord was obliged under the terms of the various leases to keep the building in which the flats were situated insured in an insurance office of repute. The tenants were obliged to contribute to the insurance premiums via the service charge.


The landlord incurred the following costs in respect of insurance premiums:


2014/15 - £12,598.20

2015/16 - £12,670.02

2016/17 - £13,561.94


However, the tenants had obtained other quotations indicating that similar cover was available on the open market for 75% less than the sums paid by the landlord.


Decision:


The Upper Tribunal considered that reasonableness was a two stage test. Initially, the decision to incur the costs must be a rational one. . Secondly, the sum charged must in all the circumstances be a reasonable charge. Although the landlord does not have to select the cheapest cover, the Upper Tribunal stated in assessing reasonableness, it must consider:


• The terms of the lease and the liabilities to be insured

• The landlord’s explanation of the process used for selecting the policy and the steps taken to assess the current market

• Whether any comparable cheaper policy is genuinely comparable


On the facts of the case, the insurance premium was not reasonable given the disparity between the quotes and the lack of explanation by the landlord.


Implications of the decision:


It would appear that if a landlord is faced with a challenge to the reasonableness of the insurance premiums, it will have to provide evidence as to the steps taken to test the market. Whilst a landlord with a large portfolio can still negotiate a block policy, the landlord would need to establish that in doing so it has not resulted in substantially higher premium without any commensurate compensating advantages. So if challenged about the reasonableness of insurance premiums, the landlord may need their broker to evidence the appropriateness and competitiveness of the policy.



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