|UK’s immigration arrangement for EEA nationals in a no-deal situation
On 28 January, the Home Secretary announced the plans for no-deal post exit migration and movement arrangements, including ‘European Temporary Leave to Remain’. This will apply to people arriving in the UK after 29 March in a no-deal scenario, not to those already here at that date. For EEA nationals already in the UK at that point, please refer to guidance on the Settlement Scheme. For proposals for the Immigration System post-2021, please look here.A summary of the key facts:
- EEA citizens will be able to enter and leave the UK as they do now to visit, study and work (staying up to 3 months);
- the initial 3 months’ leave to enter for EEA citizens will be free of charge but applications for European Temporary Leave to Remain will be paid for. Fees will be set out at a later date;
- EEA citizens arriving in the UK who wish to stay longer than 3 months can apply for European Temporary Leave to Remain- they will be subject to identity, criminality and security checks before being granted permission to stay for three years;
- non-EEA family members who wish to accompany an EEA citizen under these arrangements will need to apply in advance for a family permit;
- Irish citizens will not need to apply for European Temporary Leave to Remain and will continue to have the right to enter and live in the UK under the Common Travel Area;
- European Temporary Leave to Remain does not give rights forthe EU Settlement Scheme mentioned above.
Guidance is available here and in the accompanying factsheet
Simplified import customs procedures for no-deal
HMRC have announced that businesses will be able to use simplified customs declarations and postpone payment of duties under a Transitional Simplified Procedures (TSP) scheme if there is a no-deal Brexit (but there will still be additional information needed for controlled goods). The measures will apply to most businesses importing from the EU at roll-on-roll-off-ports. The measures would come into place from 29 March and be reviewed after 3 to 6 months. Businesses will be given 12 months’ notice if they are to be withdrawn. These transitional simplified procedures reduce the amount of information you need to give up front in an import declaration when the goods are crossing the border and also by deferring the payment of duty.
There are four key actions for traders:
- Register for Economic Operator Registration and Identification (EORI) number if you haven’t done so already at www.gov.uk/hmrc/get-eori.
- Check the guidance to see if you qualify and check which ports TSP applies to: www.gov.uk/hmrc/eu-simple-importing
- If it will work for you, sign up for TSP online.
- If tariffs apply to the goods that you import and you want to use TSP you will need to apply to defer any duties payable (HMRC will provide further details on this very soon) and have a financial guarantee by 30 June 2019 for any duties deferred
If you’re exporting, register for the National Export System at https://www.gov.uk/guidance/export-declarations-and-the-national-export-system-export-procedures
Non-VAT registered businesses should also go to www.gov.uk/hmrc/trade-with-the-eu for changes that affect them.
Prepare to use the UK Mark
On 2 February the Government published the design for the UK marking that will need to be affixed to certain products sold in the UK in the event we leave the EU without a deal. This would replace the CE marking. The CE marking is placed on specific products to show that they are compliant with the relevant EU regulatory requirements. In most cases the CE marking can be applied to products tested by the manufacturer. For some products, there is a legal requirement for the product to be assessed by a third-party assessment body (usually a ‘Notified Body’) to confirm they meet relevant the requirements. In a ‘no deal’ scenario, the EU will stop recognising the competency of UK-based Notified Bodies to assess products for the EU market.
Maintaining Access to the UK Market: The Government intends to reclassify UK Notified Bodies as UK Approved Bodies. These bodies will be eligible to assess products against relevant UK requirements and issue the new UK marking to compliant products to be sold on the domestic market. In most cases, manufacturers would not need to use the UK marking immediately in the event of the UK exiting the EU without a deal. Instead, manufacturers will be able, for a period of time, to continue to use the CE marking when placing their products on the UK market if their product meets the relevant EU requirements. This would include products that have had any necessary third-party assessment carried out by an EU-recognised body. The Government would consult businesses before taking a decision on when this period would end. However, for products subject to conformity assessment by a UK Approved Body, manufacturers will be required to affix a ‘UK Mark’ to the product to demonstrate compliance with requirement. To check whether you will need to use the UKCA marking please read the guidance on trading goods regulated under the ‘New Approach’ if there’s no Brexit deal.
Maintaining Access to the EU Market: Products being exported to the EU that currently require the CE marking will continue to require the CE marking to demonstrate compliance with the relevant EU requirements. UK manufacturers placing products on the EU market that require the CE marking will need to get their products assessed and marked by an EU recognised conformity assessment body or could arrange for assessments to be transferred to an EU recognised body before the UK leaves the EU.
Guidance on the use of the UK marking can be found here.
Road freight update
The Government will continue to license UK hauliers to the same high safety, environmental and operating standards as at present, and will require foreign hauliers operating in this country to do the same. Legislation about to be put forward by the Department for Transport will provide for continued access to the UK market for hauliers from the 27 EU member states in a no deal scenario. Over 80% of haulage between the UK and continental Europe is undertaken by EU hauliers.
On its side, the European Commission has proposed legislation that would allow UK hauliers basic rights to conduct operations to, from and through the EU for a limited period of nine months after exit, if there is no deal. The Commission’s proposal will need to be agreed by the European Council and European Parliament, and is being considered by both institutions urgently. This proposal is predicated on the UK granting equivalent access for EU hauliers here and the legislation mentioned above provides for that access. Depending on the outcome of these discussions, we will review the UK’s offer to EU hauliers.
The Government does not expect and has never intended to rely solely onEuropean Conference of Ministers of Transport (ECMT) permits for UK hauliers after we leave the EU.
On 25 January, The UK signed an agreement with Switzerland on the international carriage of passengers and goods by road. The agreement will ensure UK hauliers and commercial bus drivers can continue to drive to, from and through, Switzerland after the UK leaves the EU, as they do now. Further information can be found here.
In the event that the UK leaves the EU on 29 March 2019 without a deal, UK businesses will need to ensure they continue to be compliant with data protection law. For UK businesses that operate internationally or exchange personal data with partners in other countries there may be changes that need to be made ahead of the UK leaving the EU to ensure minimal risk of disruption. For those that would be affected, early action is advised as changes may take some time to implement.
How personal data currently moves across the border
- Personal data is protected by the GDPR. This gives individuals rights over their data: to know who has it, to correct it, to delete it, to move it. Etc.
- The GDPR says that data can only be moved across borders if equivalent protections exist in the country where the data is going.
- At present personal data can cross borders as follows:
- Where it remains in the EU (because all EU countries must apply GDPR)
- Plus EEA states: Norway, Iceland, Lichtenstein, and other UK territories like Gibraltar.
- Countries where the EU Commission has determined there are adequate protections: Andorra, Argentina, Canada (commercial organisations), Faroe Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, Switzerland, Uruguay and the United States of America (limited to the Privacy Shield framework) as providing adequate protection.
- If none of the above apply, such as when we send personal data to India, or Australia, then the data can only be sent where there are “standard contractual clauses” (SCC) or “binding corporate rules” (BCR).
- SCC and BCR essentially extend the GDPR rights to data moved to a third country jurisdiction.
- To note: SCC only covers certain data transfer relationships and BCR only cover data transfer within a single company.
What do businesses need to do?
They need to understand their data flows. Do they have affected cross-border personal data flows? Have they put in place Standard Contractual Clauses or Binding Corporate Rules?
The government published advice for business in September 2018:
The ICO (information Commissioner’s Office) provides some useful information:
ICO advice – good starter document with some links to more info
ICO Leaving the EU Six Steps – A breakdown of steps to take to prepare for EU exit
ICO tool for working out if SCC will work for you
Business Readiness Tool
Prepare your business for EU Exit: https://euexitbusiness.campaign.gov.uk/
Businesses and UK citizens should ensure they are prepared for EU Exit and visit gov.uk/euexit for guidance.
HMRC Partnership Pack (v4)
HMRC published the latest version of the Partnership Pack on 6 February 2019, including the new content on theTransitional Simplified Procedures (TSP): the latest version of the Partnership Pack is availablehere.
Roundup of recently published guidance on Gov.uk
Construction Products Regulation if there is a No Deal
The CMA’s state aid role if there’s no Brexit deal
How to comply with REACH chemical regulations
Customs, VAT and Excise regulations: leaving the EU with no deal
Trading timber: imports and exports if there’s no Brexit deal