Welcome to Cruickshanks

Cruickshanks was established in 1992 by John Cruickshank who is a Solicitor - Advocate and Privy Council Agent. The practice was joined by Dr Xiaojiu Zhu in 2002, a UK qualified solicitor and Mandarin speaker, and James Craven in 2016.

Cruickshanks provides legal services to UK and overseas businesses and individuals. We pride ourselves in providing high quality work with a personal touch.

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Legal Proceedings Issue 28

Dr Zhu was awarded the Member of the Order of the British Empire (MBE) in the Queens New Year’s Honour list for services to the Chinese Community in the United Kingdom and for services to Law. Dr Zhu has been chairman of the UK Society of Chinese Lawyers since 2002, and involved in Chinese education for nearly 20 years including being a Headmistress of the London Mandarin School. Both were and are unpaid voluntary positions. I feel very humble to have been recognised for what I have done over many years as I beleive the Chinese community will benefit from legal education to live and work better here Clients in the news Robert Gillespie of Primal Scream featured in a biopic in a recent weekend edition of The FT. Notable excerpts were his trial of getting a driving licence at a mature age and their latest release “Maximum Rock ’n Roll” and tour of Ireland and the UK. The band enjoys, among other countries a big following in Japan. Do you want to be forgotten? You may not want to but under the relatively recent legal requirements you have the right to be forgotten! This is known as GDPR (General Data Protection Regulation and the Data Protection Act 2018 (DPA). For a fuller explanation see on our website https://www.lawco.co.uk/Lawco/service- detail.htm/serviceId=15 Cruickshanks like most firms retain your file and personal information for a period of at least 6 years. You have the right to ask for this to be destroyed and or returned to you if you no longer wish us to hold this information. This is commonly known as the right to be forgotten! Be wary however because sometimes the information can be required by you at some future date for tax purposes or for reselling a property at some future date. INTERELATIONSHIP of Inheritance, joint ownership, spousal exemption, foreign ownership and wills When acquiring a property in a country other than your own, it is important to bear in mind the legal differences that may exist from your home country. For example under UK law marriage doesn’t automatically result in jointly-owned matrimonial or community property passing to the survivor unless property is specifically placed into joint ownership by the couple. In China any property acquired during the marriage shall be deemed common property, except as otherwise agreed. Chinese buyers should not assume properties they own in one name only in the UK will automatically go to their surviving spouse in the event of his death. Without a will in place the asset will be dealt with according to UK Inheritance law. A sole owner of a property in the event of his death without a will passes in accordance with section 46 of The Administration of Estates Act 1925 which may result in it passing to others which may not accord with your wishes. A foreign probate process can be expensive lengthy and stressful. This can be avoided by leaving a UK will providing for it to pass to the intended beneficiary. Simple is better to hold the property as joint tenants for a married couple as on death it passes automatically by survivorship to the surviving spouse as would any other jointly owned property such as bank accounts without the need for even a UK grant of probate or a will.Real estate can be jointly owned for a maximum of 4 persons and so property could be jointly owned with other family members to whom it will pass even without a will. The age at which you can own real property in the UK is 18.You can have more than one will to operate in different countries for the property located there as long as one does not accidentally revoke or negate the other.Foreign investors should also be aware that UK inheritance tax (IHT) law does apply to foreign property owners. This means that there are certain advantages for married couples owning jointly, or if for some reason this is not possible then at least having a UK will leaving all to their spouse. This gives a 100% exemption of the otherwise 40% IHT tax that would be imposed on the death of the first spouse on the estate value that exceeds the current personal exemption level of £325,000. If left in this way then the surviving spouse when she/he dies can claim two personal exemptions provided the deceased partner has not already used the exemption already thus a total of £650,000.As from April 2018 foreign owners must within 30 days of sale declare the sale to HMRC and pay any Capital Gain Tax (CGT profit from sale after deducting costs of purchase and improvements). Failure to do so results in fines and penalties whether or not any CGT is due.We would strongly recommend that you seek full detailed advice from us before structuring any purchase. RNRB Residential Nil Rate Band is an additional allowance or exemption to reduce the burden of IHT and for making it easier to pass on the family home to direct descendants without a tax charge. It must be closely inherited and a lineal descendant. It includes the spouse or civil partner of a lineal descendant but who at the time of death of the deceased had not re-married. Lineal descendants include children, stepchildren, foster children, grandchildren, great grandchildren and a child for whom the deceased was appointed Guardian. An adopted child can be a lineal descendent of both his natural parents and his adoptive parents. The property must be passed by will and it must not exceed a £2 million threshold. The full RNRB will only be relevant for an estate below a taper threshold, the benefits of it will be tapered away to zero by a £1 reduction for every £2 of net estate over the £2 million threshold. Thus, if the estate is worth more than £2.2 million in 2017/18 there will be no entitlement to RNRB and similarly if the estate with more than £2.25 million in 2018/19 and £2.3 million in 2019/20 and finally £2.35 million and 2020/21 there will be no entitlement to the RNRB.The RNRB starts at £100,000 and will be increased gradually to £175,000 in 2020/21. By April 2021 the compound effect of the NRB and the RNRB will result in a total exemption of £500,000 which could be doubled up to £1 million across the two estates of spouses or civil partners. Changes at Cruickshanks Xiaolong Zhao holds law degrees from both Warwick University and Nanchang University in China. Before joining Cruickshanks as a trainee solicitor in May 2018 Xiaolong worked in a number of international law firms in London, Beijing, and Guangzhou. Xiaolong is able to work across jurisdictions and is fluent in English and Mandarin. Xiaolong is interested in and has organised public speaking events and workshops “Generation Success”. (GS) is one such London organisation which has monthly events, with topics such as “Showcasing Asian Business Leaders”. Xiaolong is an active swimmer, hiker, pop and amateur opera singer! AND he has just become a new daddy. Xiaolong, Elaine and new arrival Charlotte! Cruickshanks once more participates in the annual RTIR at Cowes CHINESE STUDENTS’ ACCOUNTS FROZEN BY THE COURTS Hearings were held in various courts in the UK on 28 February 2019 when the Police, the NCA (National Crime Agency), and HMRC had a spate of applications for freezing orders pursuant to Criminal Finance Act 2017. It was reported by the Financial Times that the applications in court were to freeze 95 accounts containing an estimated £3.6m of suspicious funds, of mainly Chinese students studying at various universities here in the UK.The most common issue was the depositing of cash from various cash points around the UK which in the view of the authorities was a characteristic of money laundering. Students who allowed either innocently or deliberately their accounts to be used for cash expose themselves to allegations that the cash may be the proceeds of crime.The situations have largely arisen in the view of Dr Zhu as a result of the difficulty the students and their funding parents face for transferring funds to support them because of the currency exchange restrictions for converting RMB to sterling. The annual allowance imposed by the Chinese government on each Chinese tax payer to be remitted through legitimate channels is US$ 50,000 per annum. This is often insufficient to meet the annual living and tuition costs of the students. As a result, unofficial sources used to fund these accounts often without any thought being given to whether or not the funds offered in exchange for Chinese RMB were legitimate or not.In the cases in which Dr Zhu was instructed two accounts were released and the students’ names cleared. However, many students just ignored the investigation and allowed their accounts to be frozen and the money confiscated without realising that there could be consequences resulting in a police record that could affect their career in the UK and elsewhere, or, worse a criminal conviction.“The Chinese students and their parents do not realise the consequences and traps for the unwary.” said Dr Zhu “The Chinese Public does not have the same awareness of money laundering traps and pitfalls as do the British public and the offences are often a result of ignorance of UK law!” Do you need a Lawyer for Immigration? An immigration application is straightforward, with only a form to complete and submitting the documentary evidence listed in the Home Office’s guidance. Especially with the Government saying recently that legal advice is not necessary for making immigration applications. Interestingly last year around the same time Former Home Secretary Amber Rudd suggested the same to those affected by the Windrush scandal, causing an uproar leading to her resignation. How complex is immigration law? The fundamental legislative provisions of immigration law are contained in Acts of Parliament from 1971 to 2016. Each comprises free-standing provisions and repeated amendments. There is the secondary legislation, HC395, known better as the Immigration Rules. Although easily accessible through the internet, the rules have swelled more than 10 times since they were first introduced in 1994 and are not drafted in any numerical or alphabetical sequence! The Home Office has the power to amend and even create new secondary legislation as frequently as they see fit without consultation and scrutiny. Secondary legislation is therefore becoming more of a labyrinthine and understandably confuses. Not many people can understand them in order to comply. Still think you do not need an immigration specialist? I don’t want to pay a lawyer. Can I seek advice directly from the Home Office? The Home Office has outsourced their information providing service to an unnamed/unidentified contact centre which charges a fee per enquiry for out-country applicants (no fee for in-country) and carries a disclaimer on giving advice about the applicant’s personal circumstances. This means their reply will only consist of information already available on the Home Office’s website. The staff at the contact centre are not experts in immigration and are not responsible for incorrect advice. What are the consequences if my application is refused? Right to Remain, a UK-based human rights organisation stated, “Refusals of applications can result in family separation, human rights breaches, destitution, detention and removal from the UK (or refusal of entry in the first place).” With most tribunal appeal rights removed, there are far fewer legal channels for redress if an application is refused. Are you still feeling brave enough to march ahead with self-representing? It is always wiser to hire a good lawyer than to deal with the complexity of the requirements, suffer sleepless nights and paying a high cost of getting it wrong afterwards.You should contact our specialist immigration consultant Soon Yeap at soon@lawco.co.uk.

Legal Proceedings - Issue 26

Senior magistrate from Trinidad and Tobago after 20 year legal battle vindicated by the privy councilSenior Magistrate Felix Durity was suspended in August 1989 by the Judicial Legal Services Commission in Trinidad and Tobago. It had been reported that he had been guilty of misconduct. Many months elapsed before the Commission referred the matter to an investigating officer. Mr Durity took exception to the way the Commission dealt with the case and his first complaint was that the suspension was mis-conceived and the misconduct that was alleged against him related to decisions that he took in the performance of his judicial duties as a magistrate. The second complaint was that he was treated unfairly by the Commission because there was a delay of about 33 months before charges against him were investigated. The issue was whether or not the Appellant was entitled to constitutional relief for these complaints.Mr Durity went through many stages in his fight for justice and had twice come before the Privy Council in 2002 and 2003. He had remained under suspension for nearly 7 years from August 1989 to May 1996. In April 1997 he took early retirement.The suspension had its origin in a bail application that was made to the Appellant in his judicial capacity in February 1989. The advice to Her Majesty was given by Lord Hope of Craighead in favour of Mr Durity setting aside the decision of the Trinidad and Tobago Court of Appeal and restoring Orders made by a previous trial judge. The Attorney General of Trinidad and Tobago was ordered to pay the costs of Mr Durity.Mr Durity was delighted at the outcome but saddened at the blight on his career.Is the Englishman’s Home still his Castle?When the expression “an Englishman’s Home is his Castle” was first used, it was meant that it would be safe from creditors and represented all that was great about capitalism in the West. The concept has been eroded by tax in the form of Inheritance Tax, divorce, insolvency, and last but not least, by recession.From a wealth creation point of view, amongst all of the other alternatives it still remains one of the best investments. Recessions come and go, wives and husbands come and go, and Chancellors come and go, but the Englishman's home still remains a pivotal and key element to Western family life and wealth creation for its members that can effectively be passed on to future generations.My usual advice to clients when they start on the property ladder with their first purchase is to try and buy the most expensive property they can possibly afford with the maximum borrowing possible. The cost of acquisition these days, particularly in London with Stamp Duty Land Tax starting at 1% and 4% for over £500,000, is usually the most expensive part of the acquisition process by a long shot. (It is still one of the lowest rates in Europe and although it may be politically sensitive in the current economic climate, it is highly likely the Chancellor will seek to raise this). This Stamp Duty applies whether it is the principal residence you are purchasing or an investment buy-to-let. The great tax-effectiveness of the principal family home is that it is totally free of tax on re-sale, regardless of how much capital appreciation is made. This is in my view the safest and most cost effective way of acquiring wealth.If you have been fortunate enough to purchase in inner London in the last 20 years you will have seen the value of your property double almost every 10 years, and even in the current recessionary trend you will still have made an excellent investment. One should therefore seek to maximise this opportunity as much as possible by aiming to upgrade into a more expensive family home as often as you can possibly afford.With the current Inheritance Tax, total spousal exemption on the death of the first spouse and the ability of the surviving spouse on his death to utilise both nil rate bands (currently at £325,000), the last spouse’s estate can enjoy a total exemption of £650,000.Acquiring a portfolio of buy-to-lets has in the same breath, also never been as attractive with Capital Gains Tax rates now at an all-time low of 18%. This however is a potential likely target by the Chancellor in his current revenue-raising mood.

Legal Proceedings - Issue 27

Roll out the red carpet! Tier 1 Investor Visas.In the last few years, the UK Government has introduced the Tier 1 (Investor) visa which effectively rolls out the red carpet for foreign investors. This visa offers significant incentives for high net worth individuals looking to settle in the UK.Key principles:The Tier 1 (Investor) category is for high net worth individuals making a substantial financial investment in the UK.Under this route you will not need to show that you have any English language ability.You will not need to show any maintenance (funds) because if you have the required investment funds you will be able to support yourself in the UK without needing help from public funds. You will not be able to claim most state benefits.You will have to register with the police if this is required by paragraph 326 of the Immigration Rules, depending on your nationality.You will not be able to take employment as a Doctor or Dentist in training, except in defined circumstances. You will not be able to take employment as a professional sportsperson (including as a sports coach).Your dependants may be able to join you.You will be able to apply for settlement in the UK through this route.Requirements:In order to obtain this type of visa either:-You have money of your own, under your own control, held in a regulated financial institution and disposable in the UK amounting to no less than £1 million.OrYou have £2 million or more in personal assets and have money under your control, held in a regulated financial institution and disposable in the UK amounting to no less than £1 million, which has been loaned to you by an Authorised Financial Institution.Settlement:Generally for initial applications, you will be granted a length of 3 years. After 3 years, you can extend your UK visa for another 2 years. After 5 years, you may be eligible to apply for permanent residence in the UK. There is also an accelerated "fast track" route to permanent residence of 2 years if you invest £10 million or 3 years if you invest £5 million.Dependants:You are allowed to bring your children under 18 years of age and your husband or wife with you to the UK and they can apply for settlement as your dependants at the same time.Xiaolin Ma, Trainee Solicitor and Immigration SpecialistAgent sues client for commissionCruickshanks recently won a case on behalf of a selling client of a £3.25 million property.Our client was sued for two commissions in the Central London County Court.Agent 1 had shown the property to the ultimate purchaser before the seller had signed their Terms and Conditions. The ultimate purchaser then for reasons of their own decided that they could no longer trust Agent 1 and viewed the property again with Agent 2 a few days later. By this time our client had signed Agent 2's Terms and Conditions.During the course of disclosure and exchange of witness statements it was disclosed that Agent 1 had essentially "amended" their detailed computer generated journal to suggest that they had more timely dealings with the sellers than they actually had.After a 3 day trial at the Central London County Court, and disclosure of the "real" detailed journal, the Judge found Agent 1's evidence dishonest and fraudulent. He placed no reliance on any of the Agent 1's witnesses. Our client was awarded costs on an indemnity basis in excess of £40,000.Why is independence of a law firm important?This issue arises often where lenders advertise free legal fees. We have experienced many instances where existing clients have been told by their lender that they must use a solicitor on their lenders panel otherwise the legal services are not "free."This sounds harmless enough but often what is at stake is independent legal advice to you, the borrower that may or may not be available from a lenders panel solicitor.If a panel solicitor receives referrals from the lender and their fees are paid by the lender then this as a matter of common sense must compromise the independence of the panel solicitor. A solicitor is bound to act independently of the lender when advising you on the mortgage arrangement and whether or not the mortgage is in your best interests.Our experience of such panel firms are that they are often rubber stamping machines where you can seldom speak to a person and "the client" is lucky if they ever meet anyone from that firm! An often simple Conveyancing chain becomes protracted by the delays caused by the rigid time scheduled conveyer belt like processes of such firms especially if a legal issue arises. Often weeks can elapse before the query gets processed up the chain of command in the Conveyancing panel firm. This causes inevitable delay and stress in the Conveyancing process.Next time you see a lender advertising "free legals" ask yourself one question." If the mortgage offer is so good why will they not offer the same free legals for my independent solicitor of choice?"John CruickshankWhen is Redundancy not Redundancy?Redundancy is a potentially fair reason for dismissal and this article seeks to highlight the importance of defining redundancy for both employers and employees.Employers perspective.It is important for employers to recognise what constitutes redundancy in order to know how to proceed in relation to its staff, to appreciate its potential liability for redundancy pay and to minimise the risk of claims from individual employees for unfair dismissal.Broadly speaking, redundancy situations fall into three categories:Business closure - A business closes or relocates, this may be permanent or temporary,Workplace closure - A particular workplace closes or relocates such as one of the business' offices or factories,A reduction in the need for employees to carry out work of a particular kind – For example due to introduction of new technology or economic downturn.The tribunal will not normally look behind the employer's decision or require it to justify how or why a redundancy situation has arisen. However, an employer considering making redundancies in his workforce should ensure that it has acted reasonably in all the circumstances of the case. An employer will normally be required to:Warn and consult employees, or their representative(s), about the proposed redundancy,Adopt a fair basis for selecting employees for redundancy. An employer must identify an appropriate pool from which to select potentially redundant employees and must select against proper criteria,Consider suitable alternative employment. An employer must search for and, if it is available, offer suitable alternative employment within its business.Employees perspectiveIt is important for employees to recognise what amounts to a genuine redundancy situation. Some employers may wish to dismiss their employees for other reasons and attempt to disguise this as redundancies. A dismissal for redundancy will be automatically unfair where the employee is selected on grounds such as whistleblowing, asserting a statutory right or trade union activities.Employees should therefore be aware of their employment rights, both in the event of redundancy and generally in the workplace such as the right not to be discriminated against on the grounds of age, gender and race etc.Tian Yin Wu Trainee Solicitor