Month: October 2017


The post below was first published on our FSR blog

On 19 October the UK Government published the text of a proposed new Sanctions and Anti-Money Laundering Bill (the “Bill”), which seeks to create a post-Brexit domestic legislative framework for the imposition and enforcement of sanctions. The introduction of the Bill follows the publication on 2 August of the Government’s response to the consultation on the UK’s future legal framework for sanctions (see our previous blog post).

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The UK’s relationship with Euratom: What next?

The decision to leave Euratom could, if adequate replacement measures are not put in place in time, have significant negative impacts on a range of sectors, including civil nuclear industry, research and medicine.

Together with Global Counsel we have written a paper which provides an overview of the legal and political background on the UK’s decision to leave Euratom and the UK’s future relationship with it. The paper also identifies some of the potential options for mitigating the impact on the UK and the rest of the EU. Lastly, the paper identifies the six next steps the UK should undertake if it is to minimise disruption from ‘Brexatom’.

View this paper here.

UK government gives assurances to EU citizens in the UK

The post below was first published on our Employment blog

The rights of EU citizens currently in the UK were the subject of considerable focus last week, in light of concerns as to whether the Home Office will be able to handle applications from the estimated three million EU citizens currently here and the position if no Brexit deal is agreed.

Citizens’ rights are one of the three areas on which the EU requires sufficient progress to be made before negotiations can encompass Britain’s future relationship with the EU.  The UK is proposing to introduce a new ‘settled status’ in UK law for EU citizens who have been resident in the UK before a specified date (not yet defined but to be no earlier than 29 March 2017 and no later than the date of the UK’s withdrawal).  This status will only be available to those with five years’ residence, but other individuals resident in the UK before the specified date will be able to apply for a temporary residence permit to cover the period until they have accumulated five years.  EU citizens will be able to continue to reside in the UK for a transitional period of two years after the UK’s withdrawal from the EU, and during that period will have to apply for status to remain thereafter.  Further details can be found here.

At the Home Affairs Committee meeting on 17 October, Amber Rudd gave assurances that the Home Office would be prepared and able to handle the registration process.  The plan is for the process of registering for settled status to be largely completed entirely online, with online checks made with the HMRC and DWP with the applicant’s consent.  The process is to be much simpler than the current process for seeking permanent residence, and will be simpler still for those who already have permanent residence.  Ms Rudd stated that the new system should be up and running by the end of 2018 and individuals will be encouraged to apply from that point, so with the transitional period will have more than two years to do so.  The “default position” will be that applications to register for settled status are accepted, unless there are issues of fraud or criminality.

The Committee questioned Ms Rudd repeatedly as to what the position would be if no deal on Brexit is reached.  She stated that she ‘fully expected’ that EU citizens currently in the UK will be able to stay here, that she could not envisage circumstances when they would be asked to leave, even if no deal is reached.  However, she considered it would be a mistake to give a unilateral guarantee of this at this point, given that negotiations with the EU over issues such as family entitlements are still ongoing.  She stated that a White Paper for an Immigration Bill would be available by the end of 2017 and that she hoped there will be more evidence for EU citizens there and, once the new registration process for settled status is in place by the end of 2018, they “will see that confirmed”.   The new Immigration Bill is expected to have its first reading in January 2018.

The Home Affairs Committee is seeking written evidence on the capacity of the Home Office to meet the Brexit challenge by 6 November; views can be submitted here.

On 19 October the Prime Minster published an open letter to EU citizens in the UK here.  The letter states that “I couldn’t be clearer: EU citizens living lawfully in the UK today will be able to stay”.  However, she then goes on to note that there are still “a small number of important points” to finalise in the negotiations.  She states that the two sides are “within touching distance of agreement” and that she is confident that discussions can be concluded in the coming weeks.  The letter does not expressly address the position if there is no deal.  EU citizens hoping for a clear, unilateral guarantee of their rights to remain, whatever the circumstances, may not be reassured.

As to the process for registering for settled status, the letter reiterates that this will be a “streamlined digital process” which costs no more than the cost of a UK passport, with simple criteria.  The Prime Minister confirmed that applicants for settled status will not be required to account for every absence from the UK and will no longer be required to show that they had Comprehensive Sickness Insurance covering their time in the UK (as required for certain individuals under current EU rules). Those who already have permanent residence will have a simple process for swapping this to settled status.

Implications for South African businesses: Brexit and the Economic Partnership Agreement between the EU and the Southern African Development Community EPA States

Just over a year ago, the European Union (“EU”) signed an Economic Partnership Agreement (“EU-SADC EPA”) with the Southern African Development Community EPA States: Botswana, Lesotho, Mozambique, Namibia, South Africa and Swaziland (“SADC EPA States”).

Pending ratification by all twenty eight EU Members States, the EU-SADC EPA provisionally entered into force between the EU and the SADC EPA States (excluding Mozambique)i on 10 October 2016. The provisional application of the EU-SADC EPA means that only those provisions that concern areas for which the EU has exclusive competence (such as international trade) apply currently.

1. Key benefits for South African exporters under the EU-SADC EPA

2. Brexit will likely result in the United Kingdom no longer being a party to the EU-SADC EPA

3. Possible solution to maintain preferential market access to the UK

4. South African businesses should take action

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We submitted written evidence to the House of Lords on impact of Brexit on UK competition policy

Herbert Smith Freehills’ have submitted written evidence to the House of Lords Internal Market Sub-Committee in its inquiry into the impact of Brexit on UK competition policy.  In this submission, we focus on the questions posed in the call for evidence in relation to the application of State aid rules post-Brexit.

In summary, the key points are Continue reading

European Banking Authority (EBA) provides guidance to authorities and institutions on Brexit relocations


The EBA has published an opinion on Brexit-related issues, in order to ensure the consistent application of EU legislation to UK-based financial services firms who are seeking to establish in the EU27 or to enhance their presence to retain access to the EU Single Market post Brexit. The aim of the opinion is to provide certainty and transparency for the firms involved and to ensure a consistent supervisory approach by the relevant authorities to issues arising in the context of Brexit.

 Click here to read the EBA opinion.

Comments on the UK’s Customs and Trade Brexit Policy Papers Published in October 2017

On 10 October 2017, the UK Government published two papers setting out its proposals for the UK’s trade and customs policy post-Brexit: “Customs Bill: legislating for the UK’s future customs, VAT and excise regimes” and “Preparing for our future UK trade policy“.

The first paper explores the measures that the UK will need to introduce to regulate customs, VAT and excise duties under various Brexit scenarios while the second one discusses the UK’s future trade policy more generally.

Click here to read our detailed briefing with an overview and comments on these proposals.

What future for public procurement regulation in the UK post-Brexit?

The extent to which the UK Government will eventually be free to modify or even repeal the regulations on public procurement, post-Brexit, will depend largely on the outcome of the ongoing negotiations between the EU and the UK Government, as well as the policy choices of the UK Government post-Brexit. Several recent developments in the Brexit saga have given some clues as to the possible future treatment of public procurement in the UK, following Brexit. In particular, the EU Withdrawal Bill, combined with Theresa May’s recent speech in Florence, make it more likely that the UK procurement regulations will remain in force and largely unchanged for the foreseeable future.

Nonetheless, some key questions remain unanswered. In particular, what happens if the UK and EU fail to reach any agreement prior to Brexit, leading to a de facto “hard Brexit”?

Click here to read the full article

UK Department for International Trade and the UK Treasury release Brexit papers on future UK trade policy

The UK Government’s Department for International Trade has released a policy paper on ‘Preparing for our future UK trade policy’ in which it is seeking views on all aspects of its developing approach to the UK’s future trade policy.  Feedback should be sent to by 6 November.

The first part of the paper focuses on the trading world in which the UK operates and the role of trade in the economy. The second part of the paper outlines the basic principles that will shape the UK’s future trading framework and its developing approach to trade policy, with particular focus on these five points:

  1. Trade that is transparent and inclusive
  2. Supporting a rules-based global trading environment
  3. Boosting our trade relationships
  4. Supporting developing countries to reduce poverty
  5. Ensuring a level playing field – a UK approach to trade remedies and trade disputes

The UK Treasury also released a new paper titled ‘Customs Bill White Paper’. This paper addresses plans to legislate for the standalone customs, VAT and excise regimes for the UK post-Brexit.