Brexit
For insight into what Brexit may mean for your business, please review the articles below or visit our dedicated Brexit LinkedIn page for all of our latest updates and you can also follow our Brexit tweets at #WMBrexit.

Have you considered the commercial impact of potential[...]
Have you considered the commercial impact of potential border disruption on your supply chain? What […]
Have you considered the commercial impact of potential border disruption on your supply chain?
What does Brexit say
New customs declarations and safety checks introduced at borders.
What do we say
If you haven’t already, check your contracts to ascertain who is responsible for delays and have conversations with your logistics provider to understand if there is any flexibility in respect of re-routing to avoid delays and adjusting volumes and/or delivery dates.

What do Brexit and the UK-EU trade deal[...]
The UK and EU have secured a post-Brexit trade deal following the two sides coming […]
The UK and EU have secured a post-Brexit trade deal following the two sides coming to an agreement at the eleventh hour on Christmas Eve. The European Union (Future Relationship) Act 2020 which brings the trade agreement, known formally as the Trade and Cooperation Agreement (“TCA”), into UK law, received Royal Assent on 30 December 2020.
The overarching effect of the TCA is that the UK and EU can continue to trade without extra taxes and quotas being introduced. However, that’s not to say that it will be business as usual; rather there will be some fundamental differences in the way things operate between the two parties from 1st January 2021 onwards, not least in relation to the recruitment and movement of staff.
Regardless of whether a trade agreement had been reached, the enacting into law of the Immigration Act in November 2020 which ended free movement of people from 1 January 2021 meant that a complete shake-up of the way businesses can recruit new staff from the EEA and Switzerland (EEA), and move existing staff between the UK and the EEA, was inevitable. Businesses in both the UK and EEA will now need to rapidly adjust to these changes if they are to remain compliant with their domestic immigration requirements, while preserving their chances of securing the best talent and moving their staff between jurisdictions to meet operational demands. It should be noted that nationals of Ireland will continue to enjoy the right to live and work in the UK without immigration restrictions.
With so many different changes and fact patterns, the situation is inevitably complicated. We seek to summarise the main categories and issues here. We also pose some questions that businesses need to address to consider if they need to be taking steps and/or changing the way that they do things.
Recruitment of EEA Nationals from 1st January 2021
Many UK businesses have become heavily reliant on recruiting from the EEA, especially in sectors such as construction, hospitality, retail and manufacturing where significant proportions of the workforce are EEA nationals. They have become accustomed to being able to carry out such recruitment without any additional procedures or costs that are ordinarily associated with the recruitment of UK nationals due to the principle of freedom of movement, which gave EEA nationals the right to live and work in the UK freely, and vice-versa.
That has now changed, and from January 1st EEA nationals who were not already present in the UK as at 11pm on 31 December 2020 will need to be sponsored by a UK employer that holds a Home Office issued sponsor licence, or demonstrate an alternative legal basis on which they have the right to work, before being permitted to take up employment. Those EEA nationals who were already in the UK on 31 December 2020 have until 30 June 2021 to make an application under the EU Settlement Scheme in order to preserve their rights to remain living and working in the UK on a longer-term basis, and remain exempt from immigration requirements.
That means that the pool from which UK businesses can now recruit without having to follow immigration processes has significantly reduced. Whereas previously only non-EEA nationals required sponsorship, that has now been extended to any non-UK nationals (with the exception of Irish nationals as mentioned above) who don’t have an alternative legal basis to live and work in the UK.
Any UK business which has previously recruited from the EEA or may need to do so in the future to meet its recruitment needs therefore needs to consider making an application for a sponsor licence as soon as possible in order to ensure future international recruitment runs smoothly. Delays in this regard could cause serious operational issues or cause candidates to accept employment from another UK employer who is in a position to complete the hiring process swiftly because they already have the sponsor licence in place.
Businesses will also need to factor in the substantial costs of recruiting from the EEA, which are now on a par with non-EEA recruitment.
Cross-Border Movement of Staff between the UK and EEA
As well as thinking about the recruitment of new staff, businesses are going to have to factor in additional immigration requirements when staff move between the UK and EEA, and the ease with which they have done so previously may well be a thing of the past.
Part 2 of the TCA deals with visas for short-term visits. It notes that both the UK and EU shall provide for visa-free travel for short-term visits in respect of their nationals in accordance with their domestic law, and will notify each other (if possible giving three months’ notice) of any intention to impose visa requirements for short-term visits against nationals of the other party (this applies without prejudice to separate free movement arrangements between the UK and the Republic of Ireland).
Staff travelling from the EEA to the UK
Visitor rules
The UK’s visitor rules allow for visits for certain specified business activities for up to 6 months. These permitted activities include attending meetings, conferences, seminars and interviews, negotiating and signing deals and contracts, carrying out site visits and inspections and being briefed on the requirements of a UK based customer, provided any work for the customer is done outside the UK.
There are specific provisions for intra-corporate activities which allow an employee of an overseas company to advise and consult, troubleshoot, provide training, share skills and knowledge on a specific internal project with UK employees of the same corporate group, provided no work is carried out directly with clients. In addition, an employee of a foreign manufacturer may install or service equipment purchased from the manufacturer by a UK company, provided that a contract of purchase or lease is in place between the parties.
The UK has confirmed that EEA nationals will be considered to be “non-visa” nationals from 1 January 2021, which means that there will be no requirement on them to apply for a visit visa before travelling to the UK and the application can instead be made on arrival. However, whereas EEA nationals could previously enter the UK for any business or work purpose without question, they may now be required to satisfy border officials that their visit is for a permitted reason. While it remains to be seen how the Home Office will manage this in practice given that most EEA nationals will continue to use eGates to gain entry to the UK, under the visitor rules individuals can be required to show border officials that they are entering to undertake permitted activities.
Business visitors from the EEA may therefore now be well advised to carry with them certain supporting documents when they seek entry clearance at the UK border, such as a letter from their employer which confirms the details of their overseas employment and the purpose of their visit, and other evidence that they meet the requirements of this route. They should also be prepared to answer questions consistently with the information provided in the supporting evidence, in particular in relation to the activities they intend to carry out during their visit. Border officials could refuse entry under the visitor rules if they are not satisfied that the activities fall within the permitted list.
Staff being moved from an EEA (or non-EEA) group company to work in the UK outside the parameters of the short-term visit visas will require sponsorship under the points based system, either under the Skilled Worker route or the Intra-Company transfer route depending on the circumstances.
Frontier workers
Another category of staff that UK businesses will need to identify are EEA nationals who live in the EEA but come to the UK for work occasionally, e.g. a French national who makes a weekly trip into a London office. Whilst such arrangements were unrestricted from an immigration perspective pre-Brexit, from 1 July 2021 EEA nationals who fall within the frontier worker category and meet the eligibility requirements will need to hold a frontier worker permit in order to enter the UK under this type of arrangement (unless they are eligible for and make a successful application under the EU Settlement Scheme). The application process for frontier worker permits has been open since December 2020, and businesses should audit their workforces to identify individuals who may require one to continue existing work arrangements.
Staff travelling from the UK to the EEA
The EU-UK Withdrawal Agreement (the agreement that preceded the TCA) permits UK nationals to spend a maximum of 90 out of 180 days in the Schengen area (26 European countries without border controls between them, including Austria, Belgium, France and Germany) without a visa requirement, including for permitted business purposes such as attending business meetings. The specific rules for what activities are permitted in each country vary and should be checked. This introduces a new restriction on the amount of travel that is permitted, and the types of activities that are permitted, without immigration controls, which previously didn’t exist. It is important to note that the 90 day limit is cumulative throughout all Schengen area countries, so business travellers who frequently travel to multiple European countries could quickly reach this maximum.
Further, other activities, such as transferring employment to a different branch of the business in the EU country, or carrying out activities which amount to constructive work, will now likely require a visa or work permit, and the rules will differ depending on the country in question. More details are likely to emerge from the EU countries on their requirements in the coming months.
From late 2022, UK nationals will require a visa waiver in the form of an online European Travel Information and Authorisation System application prior to travel to the Schengen area.
Covid-related travel restrictions
Of course, employers requiring staff to travel for business purposes must also keep on top of the constantly evolving requirements and travel restrictions imposed across the globe due to the pandemic. Travel restrictions imposed in England (the rules vary across the UK) as a result of the third national lockdown which started on 5 January 2021 mean that international travel is only permitted where the individual has a legally permitted reason to leave their home. Whilst work is a legally permitted reason, this is caveated by the overall requirement in Government guidance that work should be undertaken from home unless it is “unreasonable” to do so. Employers should think very carefully therefore before requiring staff to travel for work to ensure they are not encouraging a breach of the lockdown rules. Where work cannot be done remotely (or business trips delayed until after the lockdown), employers should also bear in mind the different requirements countries have introduced regarding incoming travel; including restrictions on acceptable reasons for travel, quarantine periods and requirements for negative Covid tests, and ensure their staff are fully aware of the up-to-date requirements of their destinations.
Concluding message
The key message to remember is that previous visa-free, restriction-free travel between the UK and EEA is now be subject to immigration rules and regulations and will require careful planning and thought.
Five questions that all UK businesses should urgently be asking themselves are:
- Are they likely to need to recruit from outside the UK (and Ireland) in the near future, if so do they need a sponsor licence?
- If they already have a sponsor licence, are they aware of how the sponsorship criteria has changed by the introduction of the new points based immigration system from 1 January 2021?
- Are they likely to require workers to come to their UK establishment as business visitors from the EEA or beyond, if so do they know how to support the individuals to successfully gain entry to the UK?
- Do they employ EEA nationals in the UK whose place of residence is in the EEA and may need a frontier worker permit?
- Do they intend to send UK staff to EEA group companies in the near future, and if so will the purpose of their visits fall within the short-term visitor rules or will other immigration permissions be required?
The Walker Morris Business Immigration team is here to assist with any queries on these issues, please contact a member of the team using the details below.

Private: Supporting you through Brexit
The increasing likelihood of a no-deal Brexit occurring at the end of the Transition Period […]
The increasing likelihood of a no-deal Brexit occurring at the end of the Transition Period on 1 January 2021 raises a wide range of issues for any business trading internationally.
There are a range of steps businesses can take now to identify and minimise risks in the no-deal scenario. It is also possible that – whatever the level of preparedness and pre-planning within the business – some issues will appear and need to be rapidly dealt with if and when a no-deal exit takes place.
Walker Morris’ experienced specialists are standing by now to assist with the planning work which can be undertaken in advance to prepare for no-deal, and will be on call to provide reactive advice to deal with emergent issues should they arise if no-deal trading becomes a reality in January.

Supreme Court clarifies key principles and reinforces arbitration-friendly[...]
Commercial dispute resolution specialists Gwendoline Davies, Lynsey Oakdene and Nick McQueen consider two recent Supreme […]
Commercial dispute resolution specialists Gwendoline Davies, Lynsey Oakdene and Nick McQueen consider two recent Supreme Court judgments of significance to the international arbitration community. The first clarifies the approach to determining the governing law of an arbitration agreement and to granting anti-suit injunctions; the second clarifies the law on arbitrator bias and the duties of impartiality and disclosure.
WM Comment
Arbitration can be an attractive alternative to court litigation as a formal method of resolving commercial disputes and is the method of choice for resolving cross-border disputes. It is also unaffected by Brexit.
These Supreme Court judgments provide much-needed certainty and consistency of approach in complex areas of the law. They reinforce the arbitration-friendly approach of the English courts which play an important supervisory role in support of the arbitration process. As Halliburton’s counsel pointed out in Halliburton v Chubb [1], the main reasons why parties in international arbitration choose to arbitrate in England are the reputation of London and that the English legal system guarantees neutrality and impartiality [2]. It is therefore important that English law upholds rules which support the integrity of international arbitration.
It is important to give careful thought to dispute resolution clauses from the outset. All too often, contracting parties are keen to push forward with their commercial arrangements and they fail to plan effectively for how disputes will be managed if things go wrong. If the parties choose arbitration, careful drafting of the contract and arbitration agreement (including specifying the governing law and the seat (place) of arbitration) can lead to significant time and costs savings and make disputes easier to resolve in the long run.
How can we help?
Walker Morris has a large team of specialists experienced in all aspects of commercial dispute resolution across all sectors, including national and international arbitration, litigation, mediation, expert determination and other forms of alternative dispute resolution. Two of our partners are Fellows of the Chartered Institute of Arbitrators.
If you trade internationally and/or are considering arbitration, and need any assistance or advice on drafting, dispute resolution options or strategy, please contact Gwendoline, Lynsey, Nick or any member of the commercial dispute resolution team.
Determining the governing law
An ‘arbitration agreement’ is typically a clause in the parties’ contract where they agree to resolve any disputes through arbitration. It is effectively a separate agreement from the underlying contract and the two will not necessarily be governed by the same law.
In Enka v Chubb [3] the Supreme Court set out the following principles for determining the governing law of an arbitration agreement:
- The law applicable to the arbitration agreement will be (a) the law chosen by the parties to govern it or (b) in the absence of such a choice, the system of law with which the arbitration agreement is most closely connected.
- Where the law applicable to the arbitration agreement is not specified, a choice of governing law for the contract will generally apply to an arbitration agreement which forms part of the contract.
- The choice of a different country as the seat of the arbitration is not sufficient by itself to negate an inference that a choice of law to govern the contract was intended to apply to the arbitration agreement.
- There are additional factors which may, however, negate such an inference and may in some cases imply that the arbitration agreement was intended to be governed by the law of the seat.
- Where there is no express choice of law to govern the contract, a clause providing for arbitration in a particular place will not by itself justify an inference that the contract (or the arbitration agreement) is intended to be governed by the law of that place.
- In the absence of any choice of law to govern the arbitration agreement, the arbitration agreement is governed by the law with which it is most closely connected. Where the parties have chosen a seat of arbitration, this will generally be the law of the seat, even if this differs from the law applicable to the parties’ substantive contractual obligations.
- The fact that the contract requires the parties to attempt to resolve a dispute through good faith negotiation, mediation or any other procedure before referring it to arbitration will not generally provide a reason to displace the law of the seat of arbitration as the law applicable to the arbitration agreement by default in the absence of a choice of law to govern it.
Anti-suit injunctions
In Enka v Chubb the Court of Appeal had granted an anti-suit injunction restraining Chubb from continuing Russian court proceedings in alleged breach of the arbitration agreement. The Supreme Court agreed with the Court of Appeal that the principles governing the grant of an anti-suit injunction in support of an arbitration agreement with an English seat do not differ according to whether that agreement is governed by English law or foreign law. The court’s concern will be to uphold the parties’ bargain, absent strong reason to the contrary, and the court’s readiness to do so is itself an important reason for choosing an English seat of arbitration.
Arbitrator bias and the duties of impartiality and disclosure
The Arbitration Act 1996 empowers the court to remove an arbitrator on the ground that circumstances exist that give rise to justifiable doubts as to his or her impartiality. In Halliburton v Chubb the Supreme Court considered two main issues: whether and to what extent an arbitrator may accept appointments in several arbitrations concerning the same or overlapping subject matter with only one common party without giving rise to an appearance of bias; and whether and to what extent they may do so without disclosure.
The Supreme Court set out the following principles which are of wide application:
- Arbitrators have a statutory duty to act fairly and impartially. It applies equally to all arbitrators, however they are appointed. A party-appointed arbitrator is expected to meet precisely the same high standards of fairness and impartiality as the person chairing the tribunal.
- When considering an allegation of apparent bias, the English courts will apply the objective test of whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. This objective test has regard to the realities of international arbitration (for example, the fact that arbitration is a private process, the right of appeal is limited, and arbitrators have a financial interest in obtaining further appointments) and customs and practices in the relevant field of arbitration (the Supreme Court recognised throughout the judgment that there are distinctive customs and practices in different types of arbitration).
- Unless the parties to the arbitration otherwise agree, arbitrators have a legal duty to disclose facts and circumstances which would or might reasonably give rise to the appearance of bias. This duty of disclosure is a component of the statutory duty to act fairly and impartially. It underpins the integrity of English-seated arbitrations and promotes transparency.
- Failure to disclose is a factor for the fair-minded and informed observer to take into account in assessing whether there is a real possibility of bias.
- The duty of disclosure does not override the arbitrator’s duty of privacy and confidentiality. Whether and to what extent an arbitrator may disclose the existence of a related arbitration without obtaining the express consent of the parties to that arbitration depends on whether the information to be disclosed is within the arbitrator’s obligation of privacy and confidentiality and, if it is, whether the consent of the relevant party or parties can be inferred from their contract having regard to the customs and practices of arbitration in their field.
- In assessing whether an arbitrator has failed in a duty to disclose, the fair-minded and informed observer must have regard to the facts and circumstances as at, and from, the date when the duty arose. In contrast, the observer assesses whether there is a real possibility that an arbitrator is biased by reference to facts and circumstances known at the date of the hearing to remove the arbitrator.
- The party applying to remove the arbitrator does not have to show that substantial injustice has been or will be caused to it.
- Where an arbitrator accepts appointments in several arbitrations concerning the same or overlapping subject matter with only one common party, this may, depending on the relevant custom and practice, give rise to an appearance of bias. Whether they have to disclose their acceptance of such appointments also depends on custom and practice.
[1] Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48
[2] See the 2018 International Arbitration Survey: The Evolution of International Arbitration conducted by the School of International Arbitration at Queen Mary University of London
[3] Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38

Brexit and product safety – what businesses need[...]
The government recently published a series of guides on specific product safety and metrology regulations […]
The government recently published a series of guides on specific product safety and metrology regulations for businesses placing manufactured goods on the Great Britain (GB) market from 1 January 2021. Regulatory & Compliance specialist Claire Burrows takes a look at the key points, what Brexit means for the UK’s product safety regime and the steps businesses can take to ensure compliance.
What’s changing?
The UK will no longer follow the EU product safety regime [1]. As a result:
- The status, liability and regulatory responsibilities of the various economic operators – manufacturers, producers, importers, distributors – in a supply chain involving the UK will be affected.
- Under consumer legislation, importers will be held liable as producers for personal injury or property damage arising from unsafe products that they supply.
- There will be a new conformity assessment system and a new UKCA product marking, replacing the current EU CE marking. The government’s guidance on using the UKCA marking can be viewed here.
- There will be a new framework for UK-based approved bodies to assess products against domestic rules.
- A UK-wide database will replace the Rapid Alert System currently used by EU member state authorities to share information about defective products.
Product safety and liability reforms are underway in the EU, in particular given the risks associated with new technologies. It is unclear to what extent the UK will mirror future EU regime changes and how access to the respective markets may be affected. Walker Morris will continue to monitor and report on developments. The government’s guidance for placing manufactured goods on the EU market can be found here.
Recent guidance
The government recently published a series of guides on specific product safety and metrology regulations for businesses placing manufactured goods on the GB market from 1 January 2021. They include regulations in relation to electrical/electronic equipment and products, machinery, gas appliances, pressure equipment, personal protective equipment, equipment and systems intended for use in potentially explosive atmospheres, and toys [2]. With some minor variations and notable exceptions (for example, the regulations on cosmetics and on weights and measures for packaged goods), the following key points arise:
- UK businesses which used to act as a ‘distributor’ before the end of the transition period legally become an ‘importer’ if they place products from a country in the European Economic Area (EEA) on the GB market, which means additional compliance requirements apply.
- From 1 January 2021, any mandatory third-party conformity assessment for the EU market will need to be carried out by an EU recognised conformity assessment body. UK conformity assessment bodies will no longer be able to carry out mandatory conformity assessment for products being placed on the EU market unless this is agreed in negotiations.
- From 1 January 2021, products that are conformity assessed by a UK approved body should be UCKA marked, not CE marked.
- The rules on physically affixing the new UKCA marking mirror those that apply to CE marking – however, until 31 December 2022, the UKCA marking may be affixed to a label or on a document accompanying the product.
- Until 31 December 2021, products conforming to EU rules, including the CE marking, may be placed on the GB market.
- After 1 January 2021, authorised representatives for the GB market cannot be based outside the UK.
- Authorised representatives and responsible persons based in GB will no longer be recognised by the EU from 1 January 2021. For the sale of products to Northern Ireland and the EEA, authorised representatives must be based there.
- The consequences of non-compliance include potentially unlimited fines and/or a criminal conviction.
- If you have already placed an individual fully manufactured product on the EEA or UK market (in Northern Ireland or GB) before 1 January 2021, you do not need to do anything new.
One of the recently published guides covers the amended General Product Safety Regulations 2005 (2005 Regulations). Where a product is subject to other specific regulations, as set out above, the 2005 Regulations will not apply. However, the 2005 Regulations will apply where they go further than the specific regulations in terms of the specific aspects of safety covered and the extent of the obligations on manufacturers and distributors. Note that, from 1 January 2021, ‘producers’ will include GB-based manufacturers and UK-based importers of products regulated under the 2005 Regulations.
Steps to ensure compliance
Businesses should:
- Familiarise themselves with the relevant guidance
- Consider their role in the supply chain and whether liability and regulatory responsibilities will change
- Review contractual arrangements and internal policies and procedures and update them accordingly
- Appoint authorised representatives if required
- Review product liability insurance cover
- Seek appropriate advice.
Should you have any queries, or require any assistance in relation to any of the points covered in this briefing, please do not hesitate to contact Claire or any member of the Regulatory & Compliance team.
[1] As a result of the Northern Ireland Protocol, different rules apply regarding the placing of manufactured goods on the Northern Ireland market (see the government’s separate guidance here).
[2] Medical products and food are covered by separate legislation not discussed here.

Webinar recording: Brexit – One month to go[...]
Our Business Immigration team recently held a webinar discussing the long-awaited guidance published by the […]
Our Business Immigration team recently held a webinar discussing the long-awaited guidance published by the Government covering changes to the immigration system and what steps you should be taking now.
Watch the webinar here:
The webinar covered:
- If your business doesn’t already have a sponsor licence, does it need to apply for one now in order to continue recruiting from outside the UK?
- If your business has a sponsor licence, what will change? We will look at the new “Worker” and “Temporary Worker” routes that will replace the existing Tiers 2 and 5, and consider how the requirements of the new routes differ.
- Does your business need to take any action now to ensure its current sponsor licence is fit for purpose?
- How will the changes impact on the transfer of staff between international group companies?
- How will existing EU staff be impacted, and will your recruitment processes for EU nationals need to be updated?
- What practical steps should you be taking now to ensure your business is ready?
- What are the risks of getting things wrong?

Brexit: new immigration rules for football players –[...]
The UK’s new immigration system will fundamentally impact the way in which football clubs can […]
The UK’s new immigration system will fundamentally impact the way in which football clubs can engage players from Europe and beyond. From 31 December 2020, free movement for European Economic Area and Swiss nationals will end and clubs will need to engage with the new regime. This, coupled with The Football Association’s new endorsement criteria, means that the January 2021 transfer window will be more difficult to navigate for signings from outside the UK and Republic of Ireland.
How does the immigration system work?
- The club purchasing the player (or receiving them on loan) is required to hold a sports specific sponsor licence.
- Before a player is able to apply for a visa, the club must obtain an endorsement from The FA.
- The club must then assign a certificate of sponsorship to the player. Sponsorship will be for one of two types of visa: “T2 Sportsperson” (which will allow the player to be sponsored for up to six years, with eligibility for settlement after five) or “T5 temporary sporting worker” (with a maximum stay of 12 months).
- Football clubs that lie outside the top four divisions of men’s football or the top two divisions of women’s football cannot obtain a sports sponsor licence. These clubs will no longer be able to recruit EEA nationals unless the player obtains a visa outside of the sponsored worker system and that visa permits them to play football.
- From 1 January 2021, The FA’s criteria for awarding an endorsement – which will, at that point, be extended to apply to all EEA footballers arriving from abroad – will change.
How does The FA endorsement work?
- Players who have made a certain percentage of international appearances for the best-ranking national teams over a certain period of time will receive an automatic endorsement, as is the case under the outgoing scheme.
- However, a secondary, points-based scheme will come into play where a player is not awarded an ‘automatic’ endorsement. In summary, points are based on criteria such as: the quality of the league of the selling club; minutes played by the player; and the domestic league and continental cup progression of the club they played for at the end of last season.
- Youth players (under the age of 21) have the opportunity to be assessed on youth-team specific criteria if they fail to meet their respective points pass marks.
- An application will cost £500 plus VAT. Clubs can appeal to an Exceptions Panel in the January 2021 window only, paying a fee of £5,000 plus VAT, in respect of players who fall a certain number of points below the threshold due to exceptional circumstances.
- This new scheme is only intended to be in place for the January 2021 transfer window. A full review of the endorsement process will be undertaken ahead of the summer transfer window.
Full details of the requirements can be found here.
The impact
Clubs may lose out on engaging many talented footballers who have not yet reached international level or the top flight of their professions.
Premier League and Women’s Super League clubs, and to an increasing degree Championship clubs, recruiting from abroad often target players from the top divisions in Europe. Players from these leagues who gained regular minutes for their previous club will generally score enough points to be eligible under the new system.
However, many current Championship players would not meet the new criteria and, whilst the majority of League One and League Two and Women’s Championship players are UK or Irish nationals, prospective recruits from abroad will be unlikely to obtain an endorsement.
For example, Huddersfield Town’s Christopher Schindler, a German national, has been a mainstay in their defence since he joined from 2. Bundesliga side TSV 1860 Munich and helped them to reach the Premier League. However, if visa restrictions were in place at the time of his transfer, he would not have met the new points-based threshold.
Practical steps to take
With clubs no longer able to benefit from free movement of European nationals for the January 2021 transfer window and beyond, it is vitally important that clubs are prepared:
- Apply for a sponsor licence if you have not already got one, or obtain a renewal if the current licence is due to expire. Consider the number of certificates of sponsorship you have or are applying for and whether these will be sufficient for your recruitment needs.
- If you have a licence, consider whether it is fit for purpose:
- Are the people who are responsible for administering the licence up to speed with the new rules?
- Does the licence cover the correct categories? Clubs should ensure that it covers both categories (T2 sportsperson and T5 temporary sporting) in order to provide maximum flexibility, as there is no English language requirement for the temporary route.
- In the event that you will wish to employ non-playing staff who are not UK or Irish nationals, who do not have settled status, you will also require the ability to sponsor staff under the separate skilled worker category.
- Forward-plan:
- The FA has indicated that applications for endorsements should be made by no later than 12pm on transfer deadline day. Whilst a club could feasibly sign a player without an endorsement, it would then run the risk of the application being unsuccessful, leaving the player unable to obtain a visa and therefore unable to play for the club.
- To avoid wasting time negotiating with clubs in respect of players who ultimately will not receive endorsements, obtain the relevant information for prospective targets and analyse it against the criteria as soon as possible, to determine whether The FA would be likely to issue an endorsement.
- In light of the above, ensure that your recruitment staff are aware of the above changes.
For further information, please contact our sports immigration lawyers below.

What are the general company law requirements after[...]
What is changing? The UK’s departure from the EU has created the need for various […]
What is changing?
The UK’s departure from the EU has created the need for various aspects of the Companies Act 2006 and Regulations made under that Act which relate to filing requirements and certain company processes, to be updated to reflect the UK’s position outside of the EU.
Who is affected?
The changes will impact only a small number of companies. The changes to filing requirements will only impact UK companies who employ the services of an EEA corporate officer (director or secretary) and EEA registered companies which have registered a UK establishment.
What do companies with an EAA corporate officer need to do?
UK companies which currently have a corporate officer which is a (non-UK) EEA registered limited company will have to provide additional information to Companies House.
What are the changes for EEA companies with a UK establishment?
EEA companies which have registered a UK establishment will need to provide additional information to Companies House and publish additional information on customer-facing material (such as websites, letterheads and order forms).
What is the additional information required by Companies House?
The following information is required:
- Information on the law under which the company is incorporated;
- The address of its principal place of business or registered office;
- The company’s purpose (its ‘objects’);
- The amount of share capital issued; and
- The company’s accounting period and period of disclosure (for companies that are required to disclose accounts under their parent law).
What is the additional information required on public facing material?
The following information is required:
- The location of its head office;
- The legal form of the company;
- Its limited liability status;
- If applicable, notice that the company is being wound up, or is subject to insolvency or any other analogous proceedings; and
- For companies that choose to refer to their share capital, they must do this by reference to paid up capital.
When will these changes come into force?
Companies affected will have three months from exit day to provide Companies House with the additional information required by filling in and sending Companies House the relevant form.

International data transfers and new model clauses: with[...]
As organisations grapple with the reality of an impending “no deal” Brexit against the backdrop […]
As organisations grapple with the reality of an impending “no deal” Brexit against the backdrop of a continuing global pandemic, the scope of compliance obligations is far from diminishing. For many, this expansive burden is already testing internal resourcing as well as increasing the reliance on external specialist support, and coming at a time of unparalleled workforce complication and economic uncertainty. As if this environment wasn’t already challenging enough, organisations are now likely to encounter additional complexity with regard to international data transfers under data protection laws, regardless of whether those transfers are executed in an intragroup capacity or involve external parties.
This added layer of complication may come as a surprise to some. Having seen the dismantling of the Privacy Shield in the Court of Justice of the European Union’s decision in the Schrems II litigation, more clarity around the extent of the issues was given last week when the European Data Protection Board (EDPB) issued draft guidance and the European Commission (EC) issued a series of draft standard contractual clauses designed to replace the existing model. Although something of a moving target, in this update we consider where the current state of play leaves us in relation to transferring data and what action can be taken now to safeguard against non-compliance with the GDPR.
The old status quo
In the midst of the Brexit fog there was one shining light: the UK Government has stated that it will award an adequacy determination to the EU, meaning that exports of UK origin data to the bloc could continue uninterrupted. Similarly, the UK Government has indicated that it will adopt existing EU adequacy decisions so that any ongoing transfers to jurisdictions having the benefit of those decisions, can continue unimpeded. Good news – no need for extra contracts!
For other jurisdictions, exporting organisations have been navigating the regulatory framework to ensure that those transfers are compliant. Beyond the limited ad hoc derogations available under the GDPR, this has effectively resulted in a rather limited choice. For those organisations wishing to transfer data internationally in an exclusively intragroup capacity, reliance on Binding Corporate Rules (BCRs) is a possibility. However, given the cost and inherent complexity of achieving regulatory approval and implementation of such rules, the reality is that historically, in relative terms, very few organisations have followed this route. In addition, given their limited application to intragroup data transfers, this has not been a solution for transfers to external recipients.
Consequently, many firms were relying on the Privacy Shield framework for transfers of data to self-certified US-based data importers where possible, but otherwise had no choice except to rely on EC approved Standard Contractual Clauses (SCCs) in order to adduce adequate safeguards in line with the regulations. These clauses have no doubt in many cases been imperfect: being rigid in nature they have allowed for very little amendment by the contracting parties and have not catered for the types of data sharing relationships commonly relied upon by organisations. In particular, gaps in the regulatory framework meant that, in terms of contractual safeguards, there was really no accepted solution for transfers executed by data processors. These gaps, despite having been seemingly recognised and accepted by regulators, have nevertheless remained unabated for a period of some years.
The effect of Schrems II
Those familiar with the facts of Schrems II will be aware that the focus of the case centred on the use of the US Privacy Shield framework as a means of providing an adequate level of protection, specifically in the context of transfers of EU origin personal data to the US. However, with the abolition of that framework as a result of the judgment in Schrems II, this has placed added pressure on the use of contractual measures to ensure the level of protection afforded in the destination jurisdiction.
As well as finding that the Privacy Framework is not an adequate transfer mechanism, the Court also cast doubt on the use of SCCs in certain scenarios, indicating that the problem was not the transfer mechanism but the level of protection afforded in the jurisdiction to which the data is transferred. Furthermore, the court stated that it is incumbent on the data exporter to assess the level of protection offered in the destination jurisdiction to ensure that it is “essentially equivalent” to that guaranteed in the EU. The court opined that such an assessment must take into account relevant aspects of the destination jurisdiction’s legal system, including the extent of permissible access to data by public authorities under those laws. To the extent that such an assessment reveals irredeemable characteristics in the destination legal system, exporters should terminate the transfer agreement.
As a result, the decision in Schrems II has triggered a wider discussion regarding the use of SCCs and has seemingly forced the hand of legislators/advisers in the EU who are now scrambling to revise the regulatory framework/guidance, apparently with the intention of achieving this before the end of this year.
Regulatory guidance on contractual safeguards
There was surely still some hope in the minds of busy contract/outsourcing lawyers that the potential impact of Schrems II might be mitigated by some softer guidance from the regulators, after all many organisations need to transfer data to third countries (including the US) as part of their day to day businesses. But, on 10 November 2020 that bubble was burst when the EDPB released two sets of draft recommendations: one on the European Essential Guarantees for surveillance measures and another on measures that could be used to supplement data transfer tools. These recommendations are under consultation and are yet to be approved in final form, but do offer an insight into what regulators might expect of data exporters/importers in the future. Among these expectations are significantly more onerous requirements on the contracting parties, including the action points listed below. Also of interest is the EDPB’s stated view that the rationale in the Schrems II case applies equally to all contractual mechanisms, including BCRs and any ad hoc clauses approved by a relevant supervisory authority. Although, they have said that BCRs will be subject to further specific guidance.
Just a few days later on 13 November 2020, the Information Commissioner’s Office (ICO) released its own statement on the EDPB proposals. However, while many of us would have hoped for some clarity on what the ICO’s position will be, even if that amounted only to an acknowledgment that the EDPB guidance will be adopted or substantially replicated, unfortunately that was not forthcoming. In fact, the extent of the ICO’s suggestions was that “organisations should take stock of the international transfers they make, and update their practices as guidance and advice become available”. It is not yet clear what that advice or guidance might be or indeed when it might be made available, arguably leaving UK firms at a disadvantage to their European counterparts.
Then, hot on the heels of the EDPB guidance, the EC indicated that it intends to introduce new forms of SCCs to reflect the increased complexity of the technological landscape. This new form of SCCs includes modules designed to address the regulatory gaps that have plagued parties on both sides of the data transfer relationship and could be adopted by the UK in regulations applicable to post-Brexit data transfers. They will essentially cover four scenarios: controller to processor, controller to controller, processor to processor and processor to controller. The EC has indicated that, if the new SCCs are implemented, then organisations will have 12 months to move from current forms of SCCs to the new modules. So, subject to any other contractual variations in the interim, the old sets of SCCs will automatically cease to be valid at the end of that 12 month period. Many of the additional commitments that are discussed in the EDPB guidance are included in the new SCC modules.
The prospect of properly functioning SCCs will no doubt be music to the ears of data lawyers all over, but what isn’t clear is how the new recommendations will affect the transatlantic data corridor. Of course, if the primary basis of the finding in Schrems II is EU concern over the effects of US intelligence gathering activities, then how can that be overcome by any form of SCCs? The litigation has concentrated on two surveillance programs in particular, both administered at the federal level, with the Court also identifying the lack of entitlement of non-US citizens to constitutional protections (in particular under the 4th Amendment), resulting in the lack of any available redress against the US government. How these aspects of US federal law will be overcome is yet to be seen, but with the immensity of data traffic and financial value connected to the transatlantic corridor being what it is, one can only assume a pragmatic solution will emerge.
Steps organisations can take now
- As a throwback to the early GDPR preparation days – map your data transfers/flows! Understand where your data is flowing so that you are ready and prepared to take the necessary actions coming out of new guidance and new SCCs, if and when they are implemented.
- Conduct a risk assessment of the nature of the transfers, the recipient and any other actors involved in the arrangements, as well as the protections offered by the legal systems of any relevant third countries. A key issue will be whether the third country has laws that allow public authorities to have access to personal data (for example in connection with crime and national security). If these powers do not go beyond what would be considered necessary and proportionate in a democratic society, then transfers to that country under the SCCs or BCRs should be fine, provided you comply with all the associated requirements.
- For existing data transfer agreements, if the decision to adopt new SCCs is implemented you will need to establish a plan and timetable for executing appropriate contractual amendments prior to expiry of the grace period, as well as any supplementary measures that can be taken in the interim.
- For new data transfer agreements that are to be entered into before the end of the grace period, consider additional contractual protections that can be incorporated as well as any organisational or technical and solutions for improving the protection of data. The move towards permitting greater amendment of SCCs will be interesting – the guidance suggests warranties can be included in the SCCs from a data importer about the laws and regulations in the relevant country, and whether there is anything in those laws which would prevent the data importer complying with GDPR obligations. These additional warranties are likely to become more important in the overall international data compliance framework.
- Re-evaluate international data sharing relationships on a continuing basis, taking into account any adverse changes of law in the destination jurisdiction or to the nature of the parties involved in data flows.
- Assess each situation carefully, but in the short term it may be necessary to build into your data protection clauses the fact that there is uncertainty and that during the agreement the parties may need to update and replace the transfer mechanisms in place.
- Look to use technical and organisational tools that are already available under the GDPR. Implementing measures like data minimisation, pseudonymisation and encryption are all likely to be components of a combined data protection regime.
As things develop we will keep you updated, and watch out for our webinar on International Data Transfers early in 2021, more details here.

New EU address requirement for food and drink[...]
What are the changes? The UK Government has recently released guidance confirming a number of […]
What are the changes?
The UK Government has recently released guidance confirming a number of requirements for Food Business Operators (FBOs) who wish to export packaged food and beverages to Europe after the end of the BREXIT transition period. FBOs are advised to read this guidance in detail if required.
This note focuses on the specific requirement for FBOs to have either an EU or Northern Ireland (NI) establishment address on their packaging labels following the end of the transition period. At present, having an address within Great Britain (GB) on products sold into the EU is sufficient to comply with the regulatory requirements. However, after 1 January 2021 you must ensure that all packaging is labelled either with an address within the EU or NI (as EU food law will continue to apply to and in NI under the Irish Protocol).
If you are a UK based SME without operations in Europe, there may be significant work required in identifying an appropriate address before sending your product labels to print. It is important therefore that you start preparations for this change sooner rather than later.
What is the purpose of the regulations?
Generally, food labelling regulations seek to ensure a high level of protection of consumer health. The reason that the regulations require you to have an EU or NI address on produce imported into Europe is to ensure that consumers are able to easily identify the manufacturer and contact them should the need so arise. In turn, the incentive for manufacturers is that a well labelled product significantly decreases liability.
What does this mean for UK SMEs without operations in Europe?
Anyone who wishes to export food or beverages from the UK into the EU from 1 January 2021 needs to have either an EU or NI address on their products’ labels. This can be your EU or NI address or, where you don’t have operations in Europe or NI, the address of an EU or NI importer.
It is worth noting however, that any food or beverage which has already been placed on the EU market prior to the end of the transition period can continue to be sold without requiring updated labels. “Placed on the market” includes products being held in the EU for the purpose of sale. Furthermore, it is permissible to print labels carrying both your UK address and the relevant EU address (be that your operator in Europe, or an appointed importer). This would allow the same labels to be used for produce sold in the UK and produce exported to Europe, and is likely to afford a cost saving.
If Europe is a significant market for your business, you may wish to consider opening an operating facility in the EU or NI, either to carry out operations as a producer, or simply to operate as a holding facility for your product distribution within the EU. Of course, this may take some time and there are likely to be significant cost implications in doing so. It may be, therefore, that you wish to wait until after the post-Brexit uncertainty has settled before considering this option.
Where you continue to operate solely in GB, you can appoint a third party to act as the importer. Importers need to be established as an EU or NI entity or have a physical presence in the EU or NI and are responsible for ensuring the imported products comply with local laws and regulations.
In some situations it may be possible for your EU customer (the EU party receiving the goods) to act as the importer. However, whether this is an option will very much depend on your relationship with your customer as there would be numerous obligations they would take on if they are to act as the importer.
In some circumstances, it may be difficult to ensure that all stock without an EU/NI address label is placed on the EU market prior to 1 January 2021. Where it is impractical to have such produce re-labelled, it may be permissible to over-sticker the UK address with the new EU/NI address, provided of course that this is easily visible and complies with the other regulatory requirements such as font size and clear legibility. It is worth noting that the regulations state that the mandatory information “shall be printed on the package or on the label” and should be “where appropriate, indelible”. If you are to use stickers therefore they must be placed in a conspicuous location and must not be easy to peel off from the package. We would recommend therefore that this is only undertaken as a temporary measure whilst a more permanent labelling solution is found to ensure the preservation of the information for the end consumer.
What does the importer have to do?
When importing from non-EU countries, importers are responsible for ensuring the mandatory food information is present on your labelling and that it is both accurate and in accordance with the applicable EU regulations, along with any national requirements where appropriate. It is therefore the importer’s responsibility to check that products fulfil all EU safety, health and environmental protection requirements before placing them on the market. This includes ensuring food information and labelling requirements are correct. The importer has to verify that:
- the manufacturer outside the EU has taken the necessary steps to allow the product to be placed on the EU market
- the necessary documentation such as the EU Declaration of Conformity and the technical documentation is available upon request
- contact with the manufacturer is possible at any time.
Whoever takes on the role of your EU representative, you will need to assess whether they are likely to require further documentation/information for them to be able to confirm compliance with EU food laws, such as safety, composition and nutritional information. You will also need to ensure that there are clear lines of communication between you and your representative, particularly in the event of feedback from your EU consumers.
How do I find an importer?
There is no definitive list of importers at present however, there are a number of companies in Europe/Northern Ireland already set up to operate as importers and most are able to provide this service for any type of product being imported. Your current importer may be willing to offer the use of their address on your product labels, or they may be able to recommend a third party you could use. Where this isn’t the case, it may be worth utilising UK contacts to see whether they can recommend an appropriate service provider. It is important that you identify a reputable importer as soon as practicable to ensure you have the necessary arrangements in place prior to the end of the transition period.
Conclusion
What is clear is that there is still a significant amount of work required in order to ensure that products can continue to be sold in the EU at the start of 2021. Whilst Brexit negotiations remain ongoing and it is hoped that a free trade agreement can be reached before the end of the year, the reality is that companies need to start preparing for these changes now. Whilst negotiations continue, it is likely to remain the case that all products sold into the EU from the UK are going to have to comply with these EU regulations. We therefore recommend that you act now to ensure your products are in compliance by 1 January 2021.
The Walker Morris Regulatory Team has a depth of experience in advising businesses on compliance with food labelling requirements. If you are concerned about your compliance with food labelling requirements and need to better understand your position, we would be happy to hear from you.
Learn more about our Technology, automation and people webinar.

What does Brexit mean for you and your[...]
With all that is currently going on, we could all be forgiven for pushing the […]
With all that is currently going on, we could all be forgiven for pushing the UK’s exit from the EU to the back of our minds. However, the WM IP Team have been busy behind the scenes planning for the future. The transition period expired at the end of December, so what does this mean for you and your trade marks? The following are all queries that members of our team have been asked recently:
How does the UK’s departure affect my EU Trade Mark Registration?
In order to maintain the current level of protection, owners of an existing EU Trade Mark Registration will automatically be granted a cloned UK.For any existing clients, we will be letting you have a full schedule of your trade marks to notify you of your new UK registrations.
Owners of a pending EU Trade Mark will need to reapply for the corresponding mark in the UK. There will be a period of 9 months from 1 January 2021 in which to do so in order to maintain the earlier filing date of the EU Application. If you require any further advice regarding obtaining a UK application, please do get in touch with Sarah Williams in the Intellectual Property Team.
My EU Trade Mark is due for renewal once the UK has left the EU – is the affected?
If an EU Trade Mark Registration is due for renewal on or after 1 January 2021, owners of registrations will need to pay renewal fees to the EU office and the UK office to maintain their current level of protection.
As usual, for any of our existing clients, we will manage this whole process on your behalf to ensure that the marks are renewed simultaneously and on time. This will ensure that there is no disruption to the level of protection afforded by the marks.
If you are currently not a client of ours, we are happy to have a chat through your renewal options with you, please get in touch.
After Brexit can I still use a UK registration / earlier right in the UK to oppose an EU Trade Mark?
No. Therefore, if you are the owner of a UK trade mark and have a business that may wish to expand into the other territories of the EU, it is worthwhile filing an EU application. Once this is on file (and provided it is an earlier right)you would then be able to use this trade mark application/registration as the basis of opposition against other later filed EU marks / a mark in an individual EU country that conflicts with your earlier right.
In order to comply with the use requirements at the EU Trade Marks Office, you will have to use the mark throughout the EU within 5 years of its registration date to prevent the mark becoming vulnerable to cancellation on the grounds of non-use.
I have an opposition ongoing against a UK Trade Mark on the basis of an EU trade mark, will the proceedings continue?
Yes, the proceedings will continue on all opposition and cancellation actions before the UK office based on an EU trade mark, on the basis of the law as it stood before 1 January 2021.
However, any pending oppositions/cancellation actions before the EU trade marks office based solely on a UK Trade Mark / prior use rights in the UK will now be concluded and the contested mark will proceed to registration. It is now necessary to oppose the corresponding UK Application once it has been filed / apply to invalidate the cloned UK Registration on the same basis as the EU matter.
However, if there are any pending oppositions/cancellation actions before the EU trade marks office based solely on a UK Trade Mark / prior use rights in the UK, the proceedings will be concluded and the contested mark will proceed to registration. It would then be necessary to oppose / apply to invalidate the corresponding UK Application once it has been filed / apply to invalidate the cloned UK Registration on the same basis.
Is there anything I need to do now?
It is now necessary for any EU Trade Marks with a UK based representative to appoint a representative based within the EU for correspondence purposes. For any existing clients, the management of your portfolios is unaffected and we have taken these steps on your behalf. If you are not currently a client and would like advice in this regard, please do give us a call or drop us an email.
The team at Walker Morris would be more than happy to provide tailored advice to your particular portfolios. Please do get in touch with a member of the team if we can help with any Brexit related or queries relating to your IP in general.

WM Video: Keeping Trade Moving Revisited
Last October our in-house lawyer training day sought to address the question of how can […]
Last October our in-house lawyer training day sought to address the question of how can we keep trade moving? We looked at issues such as: the speed of change, Brexit, collaboration and the changing customer.
However, a lot has happened in the last 12 months! Whilst many issues are still relevant, we have re-run the interviews with our panel from the day to talk about what are the current biggest risks to business and international trade.
In this first interview Stuart Wallace, Chief Operating Office at Forth Ports Ltd talks to Sally Mewies, Head of Tech & Digital at Walker Morris.
“Get close to your supply chain partners. Understand what needs to be done around your documentation, paperwork, procedures to ensure your goods keep moving. Get yourself up to speed with the current guidance from the government and really question and think about how your supply chain is undertaken. Do you have to rely on how it’s always been done?” Stuart Wallace, Chief Operating Officer at Forth Ports.
Learn more on our supply chain disputes health check services here.

Geographical Indications in the UK post Brexit
The end of the transition period is fast approaching and producers should be aware of […]
The end of the transition period is fast approaching and producers should be aware of the new rules that will come into force from 1 January 2021 surrounding the protection of GIs within the UK. Alan Harper, Director in the Intellectual Property Team at Walker Morris provides a helpful overview of the current position.
What is a Geographical Indication?
The description of a geographical indication (GI) as provided by the World Intellectual Property Organization (WIPO) is that it is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to being produced in that origin. Traditionally this protection is applied for in the food, drink and agricultural sectors – well-known examples include, Scotch Whisky and Cornish Pasties. It means, for example, Whisky could not be sold using the word ‘Scotch’ unless it originated from Scotland and was produced in a certain way.
What does a Geographical Indication do?
GI’s protect products against misuse or imitation of the registered name and guarantee the true geographical origin of the products to customers. A GI may be used by producers in a certain geographical area and they are afforded collective rights over the product, as long as certain requirements are met. At present, the names of products meeting the GI criteria are protected under the EU schemes, these schemes include:
- Protected designations of origin (PDO) for agricultural products and foodstuffs, and wines;
- Protected geographical indications (PGI) for agricultural products and foodstuffs and wines; and
- Geographical indications (GI) for spirit drinks and aromatised wines.
The UK is set to establish its own GI schemes following from the end of the transition period on 31 December 2020. The UK scheme will adhere to obligations imposed by the World Trade Organisation (WTO) and ultimately be managed by the Department for Environment, Food and Rural Affairs (Defra), including the processing of new applications and maintaining the register of protected product names. The new UK scheme is set to use the following designations:
- Protected Designation of Origin (PDO);
- Protected Geographical Indication (PGI); and
- Traditionally Speciality Guaranteed (TSG).
Despite the UK’s departure from the EU, all existing UK products registered under EU GI schemes will remain protected in the UK under the UK GI schemes. It is anticipated that the EU will reach agreement for all currently registered UK GIs to remain protected under the EU GI scheme. Should agreement not be reached to this effect, UK producers can submit new applications as ‘third-country’ producers to gain this protection within the EU. This application process will be aided by the UK Government by the provision of evidence that a GI is already protected in the UK.
Ireland is slightly different from the rest of the UK and has cross border GIs which relate to goods that can be produced anywhere on the island of Ireland and include:
- Irish Whiskey
- Irish Cream
- Irish Poteen
Following Brexit the above GIs will continue to be fully protected in the UK and the EU.
What about GIs in the Future?
GIs have been in the spotlight recently as they are a key element of the recently announced free trade deal between the UK and Japan. Under the outline terms of the deal, there will be new protection in Japan for more iconic UK goods – increasing the number of GIs from just seven under the terms of the EU-Japan deal to potentially over 70 under the new agreement. As an example of those goods which are covered, the outline covers Yorkshire Wensleydale, Scottish salmon, beef and lamb and Welsh lamb, Conwy mussels and Anglesey sea salt. The DIT believes that this would lead to improved recognition of key UK brands in the Japanese market resulting in them being more attractive and desirable to customers in Japan.
Practical Suggestions:
- The end of the transition period is fast approaching and producers should be aware of the new rules that will come into force from 1 January 2021 surrounding the protection of GIs within the UK. From 1 January 2021, GB producers seeking to apply for protection of a new product name in Great Britain must apply to the UK scheme. Once secured, producers can then apply to the EU scheme to obtain protection within the whole of the island of Ireland and the EU. Application guidance is set to be published by Defra following the end of the transition period.
- Producers in Northern Ireland should be aware that Northern Ireland will not have its own national GI scheme as they will be protected in the EU and Northern Ireland under the EU GI schemes. They will also be able to apply for protection under the UK schemes, but they need not have already secured protection under the EU schemes to do so.
- Producers and retailers of food and agricultural GI products currently for sale in Great Britain should also consider the changes that will come into force after the end of the transition period relating to the use of UK GI logos. New logos will be required to be used from 1 January 2021 for such products registered after the transition period. Producers and retailers of such existing GI products will have until 1 January 2024 to make changes to incorporate the new UK GI logos on all packaging and marketing materials. There will be three UK GI logos in operation which will mark the UK designations, as set out above, the logos are available for download from the UK Government website.
- It will be mandatory for producers and retailers of food and agricultural GI products in Northern Ireland to continue use of the EU logos when the product is being sold in Europe and Northern Ireland and is registered under the EU GI schemes. It is however optional as to whether the new UK GI logos are used if the product is registered under the UK GI schemes.
- After the transition period, GI products protected in the EU can continue to use the EU logo in the UK and the logos will remain wholly optional for producers of wine and spirit GIs.
- Further guidance from Defra regarding the end of the transition period and the upcoming changes to GIs can be found here. Additional and updated guidance may be issued in the coming months depending on the precise terms upon which the UK departs from the EU, stakeholders are therefore advised to keep monitoring the Government guidance for any updates.
- The recently agreed UK- Japan trade deal offers reduced barriers to entry to the Japanese market by UK brands through a tariff free quota and increased geographical indications, GB producers could benefit from the increased access and it would be prudent for such producers to take note of the full scope of the agreement once it is published.

Brexit: People – How can employers attract and[...]
The overall pool of candidates who are free from immigration restrictions will be smaller from […]
The overall pool of candidates who are free from immigration restrictions will be smaller from January 2021, when free movement for European nationals ends. In addition, with an ever increasing focus on technology and automation, UK businesses are likely to need highly skilled individuals with STEM backgrounds, who may be in short supply.
Given the inevitable increase in competition for the best people, now is the time to think about recruitment practices and incentivising existing staff. Here are four things we are seeing businesses concentrate on in their HR strategy planning:
- A focus on long-term flexible working – not only in the sense of working from home (which looks set to be the default for many roles, for some time), but also in working hours and practices, to fit around other commitments. Many employers have been implementing new flexible working policies, to give more choice to employees about when, where and how they work. In doing this, thought should be given to how performance will be monitored and service levels maintained. We are also increasingly seeing employers permitting employees to “work from anywhere”. Such practices could attract international candidates who intend to stay overseas and carry out the role remotely – but be aware that there will be implications in terms of tax, immigration status and employment rights to consider.
- Re-thinking business values and culture – there’s no doubt that we are seeing a greater push for businesses to be purposeful in their ethical and social commitments, which we considered in our article on stakeholder engagement. Initiatives relating to the environment, sustainability and ethical working practices are now a must for many individuals when searching for an employer, so it’s important to know what your business’ message is. It’s also essential to have genuine equality and diversity practices in place, with many businesses now opting to publish diversity data and taking steps to address under-representation, such as signing up to the Race at Work Charter. Businesses that have a clear vision, which employees believe in and can contribute to, are likely to stand out to candidates.
- Consider applying for a sponsor licence – If you want to also look outside of the UK workforce to recruit skilled individuals, now is the time to apply for a sponsor licence. The government is actively encouraging businesses to do so in preparation for the end of free movement for European nationals from 1 January 2021. There are already over 31,500 UK registered sponsor licence holders, but it’s likely that many more businesses will be making applications in the coming months. For employers who already have a licence, there are still significant changes to the immigration rules from next year, for you to get to grips with. While the aim of the new rules is to streamline some aspects of the points based system, it should be noted that there are still prescriptive requirements about who is eligible for sponsorship, stringent duties on sponsors and significant costs involved.
- Investing in people, through training and apprenticeships – the provision of training courses should serve to encourage better performance and productivity, but it also signals a long term commitment to developing your people. This could lead to more internal promotions, giving employees the opportunity to progress in their careers and boosting staff retention rates. In addition, offering apprenticeships to encourage junior entrants, particularly in roles which focus on the development of technology, can assist with filling skills gaps. Now is the time to get a plan for apprenticeships in place, particularly as the government has increased incentive payments for apprentices hired between 1 August 2020 and 31 January 2021.
Once you have a talented workforce, how do you ensure your business is protected in the event that people move on? In the next Brexit: People publication we will consider how you can protect your business’ interests and confidential information, including how and when restrictions on competition might be used.

Data – how does Brexit affect data coming[...]
If the UK leaves the EU without a deal then it’s likely that we’ll become […]
If the UK leaves the EU without a deal then it’s likely that we’ll become a “third country” under EU data protection laws. This means that, despite having implemented the GDPR, the UK will no longer be deemed to offer adequate protection of European personal data.
If you import personal data from the EEA then you should ensure that you have Standard Contractual Clauses in place with the exporter before the end of the transition period. If you won’t be keeping an establishment in the EU, then you may also need to appoint a local representative.
For insight into what Brexit may mean for your business, visit our dedicated Brexit page here or Brexit LinkedIn page for all of our latest updates and you can also follow our Brexit tweets at #WMBrexit.

UK secures first major trade deal post-Brexit with[...]
On Friday 11 September the UK and Japan agreed a free trade deal, which is […]
On Friday 11 September the UK and Japan agreed a free trade deal, which is the first major trade deal secured by the UK as an independent nation. The deal took just over three months to conclude and the full text will be available in October.
The UK Government has published a press release here. Charlotte Wright highlights the key points to note.
The newly-agreed deal between the UK and Japan is bespoke to the UK economy, and will be welcome news to UK businesses exporting to Japan, including companies operating within the manufacturing, financial services, technology and food and drink industries.
The Government has reported that UK businesses will be able to benefit from tariff-free trade on 99% of exports to Japan, and is being (perhaps overly) optimistic that the agreement could result in an economic boost of £1.5 billion to the UK economy.
Although Japan currently makes up around 2 per cent of British trade, the deal will undoubtedly see an increase in trade over the coming years. We have summarised some of the key highlights of the deal below:
- Digital and data provisions – the UK has committed to uphold the principles of net neutrality, as well as introducing a ban on data localisation, which will prevent British businesses from having the extra cost of setting up servers in Japan. It has been reported that this could be useful for UK fintech firms in particular operating in Japan.
- Improved market access for UK financial services – the deal creates a streamlined application process for UK firms seeking a licence to operate in Japan along with an annual dialogue between Her Majesty’s Treasury, UK financial regulators and the Japanese FSA that will explore ways to further reduce regulatory friction. Financial services are the UK’s biggest export to Japan, accounting for 28% of all UK exports.
- Tariff free access for more UK goods – the introduction of new and more liberal Rules of Origin will allow producers of coats, knitwear and biscuits to source imports from around the world for their exports to Japan.
- Geographical indications (GIs) – new protection for certain iconic UK goods, increasing GIs from just seven under the terms of the EU-Japan deal to potentially over 70 under the new trade agreement.
- New copyright protections – new protections for UK creative industries which go beyond the EU on provisions that tackle online infringement of IP rights, such as film and music piracy.
- Immigration – more flexibility for Japanese and British companies to move talent into each country, covering a range of UK skilled workers to enter Japan, from computer services to construction. This includes commitments that go beyond the EU-Japan deal, for investors, spouses and dependants, and a wider range of intra-company transfers. Requirements for visas will be clear and transparent, and with an aim that they be processed in 90 days. A worker transferring from their UK HQ to the Tokyo office will be able to take their spouse and dependants and stay for up to five years.
- Supporting UK car and rail manufacturing – supporting major investors in the UK like Nissan and Hitachi through reduced tariffs on parts coming from Japan, streamlined regulatory procedures and greater legal certainty for their operations.
- More generous market access for malt producers – Japan has guaranteed market access for UK malt exports under an existing quota which is more generous and easier to access than the EU quota. The UK is the second biggest exporter of malt to Japan, with UK producers exporting £37m there each year.
- Strong tariff reductions for UK pork and beef exports – tariff reductions on pork, beef, salmon and a range of other agricultural exports. Low tariffs will continue for key food and drink products covered by quotas, such as Stilton cheese, tea extracts and bread mixes. This forms a pathway to further market access under the comprehensive and progressive agreement for trans-pacific partnerships (CPTPP), which has been committed to by Japan as part of the agreement.
For further information on how this impacts your business please contact one of our team below.

Business Immigration Hub
Business Immigration has never been so relevant to so many businesses in the UK. The […]
Business Immigration has never been so relevant to so many businesses in the UK. The end of free movement for EEA nationals with the expiry of the Brexit transition period on 31 December 2020, and the extension of the points based immigration system to both EEA and non-EEA nationals from January 2021, mean that employers who have previously never needed to engage with immigration requirements may well find they have to do so in the future. Businesses now require a sponsor licence to recruit individuals from anywhere outside the UK (other than Ireland), which represents a major shift from the previous position under which recruitment from within the EEA was not subject to immigration controls.
A new points based immigration system has now been introduced, which applies to all non-UK migrant workers, including those from the EEA (other than Ireland). The extension of the points based system to EEA nationals represents a significant constraint on previously unfettered movement of workers between the UK and EEA. However, for businesses in other parts of the world, the new system may actually make it considerably easier to move staff to the UK due to a relaxation of some of the eligibility requirements for UK work visas.
UK businesses seeking to recruit non-UK staff will need to familiarise themselves with the new rules and rapidly adjust to the changes if they are to remain compliant with domestic immigration requirements, while preserving their chances of securing the best talent and seamlessly moving their staff between jurisdictions to meet operational demands.
In order to assist employers prepare for the changes to the Business Immigration regime that came into effect from January 2021, our specialist Business Immigration Team prepared a series of short videos below. Some of these have now been superseded by the introduction of the new regime.
- Immigration, Brexit & the forthcoming changes to the UK’s immigration system
- An overview of the current system
- The impact of Brexit on the current system
- The EU Settlement Scheme
- Considerations for British staff working in the EU
- Summary of the current points based system
- How to apply for a Sponsor Licence
- Managing Your Sponsor Licence
- Sponsoring a migrant worker – overview of Tier 2 General and ICT visas
- Process of sponsorship – overview of practical points
- The UK’s points based system from January 2021
- Other routes into the UK
- Conducting right to work checks
- Preparing for the post-Brexit era
- How can we help?
The videos can be viewed in sequence, or you can choose those that are most relevant to the issues your business is facing. Either way, our Business Immigration Team is here to help with any follow-up queries you may have.

Government Guidance on New Immigration System – What[...]
Following on from our recent webinar on Preparing for Brexit, the Government has now published […]
Following on from our recent webinar on Preparing for Brexit, the Government has now published some much awaited details on the operation of the new Points-Based Immigration System from 1 January 2021 in its first in-depth guidance document on the subject. The guidance, entitled The UK’s Points-Based Immigration System: Further Details, includes an overview of the requirements and conditions for each of the main economic migration routes (as well as those for students and visitors), an explanation and case examples of how points can be earnt/traded for the skilled work route, and a list of all occupations which will qualify for sponsorship under the new system.
The Government maintains that the new system will be more streamlined, accompanied by simplified rules and guidance, as well as being fairer as it applies equally to migrants from every part of the world.
What’s new?
The Immigration and Social Security Co-ordination (EU Withdrawal) Bill which will form the legal basis of the new system has yet to become law, but the aim of the guidance is to prepare employers and applicants alike for the upcoming changes. The guidance confirms that free movement for EU nationals will end at 11pm on 31 December 2020 and changes will come into force. In particular:
- EU migrants arriving in the UK from 1 January 2021 will be subject to the new immigration system.
- The existing Tier 2 (General) route will be replaced by a new Skilled Worker route. Tier 2 (Intra-Company Transfer) will remain in place (with some adjustments).
- Existing sponsors will automatically be granted a new Skilled Worker licence or Intra-Company Transfer licence and will not need to make a further application. The expiry date will match that of the current licence, and sponsors will receive an appropriate allocation of Certificates of Sponsorship (presumably dependent upon their existing allocation, although this remains to be seen). Existing Tier 2 (General) migrants who need to make a new application following the closure of that route will do so under the Skilled Worker route.
- A key difference between the Tier 2 (General) and the Skilled Worker routes, and one that will be welcomed by many sectors, is the lowering of the skills level from degree level (RQF 6) to A-level equivalent (RQF 3), bringing a number of previously excluded roles within the scope of sponsorship. This includes:
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- In the construction industry, builders, carpenters, welders, plumbers and electricians;
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- In the retail and leisure sectors, sales supervisors, sales administrators, warehouse and logistics managers, leisure, sports and travel managers;
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- In the food and drink industry, chefs, butchers, bakers and bar/restaurant managers;
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- In the health and social care sector, senior care assistants and nursing assistants; and
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- A wide range of technicians in various fields such as laboratory technicians, IT technicians, pharmaceutical, medical and dental technicians, photographers and sound engineers.
- The salary threshold for Skilled Workers will be lowered from £30,000 to £25,600 per annum, with new entrants able to enter on a lower salary than their more experienced counterparts, provided it does not dip below the lower floor of £20,480 per annum.
- While there are still certain mandatory criteria for Skilled Workers which will earn an applicant a fixed number of points (namely a job offer with a licenced sponsor, the job meeting the minimum skills threshold and the migrant demonstrating the requisite English language skills), the new system introduces tradeable points for certain attributes such as salary, relevant PhD qualifications and shortage occupation roles.
- The annual cap under the current Tier 2 (General) route will be suspended and employers will no longer have to carry out the Resident Labour Market Test, which, coupled with lower salary and skill thresholds, will potentially make it easier to recruit migrant workers to skilled roles.
- In country-switching will become easier for Skilled Workers, with most migrants (save for those on short-term or visitor visas) able to apply to switch from one immigration route to another without having to leave the UK, provided they meet the criteria of the category they are switching into.
- A specific category of visas for health and social care workers will be introduced as part of the Skilled Worker route.
- Tier 2 (Intra-Company Transfer) will still only be available for roles at RQF Level 6 or above, however the “cooling-off” period rules will be relaxed to allow more flexibility for shorter-term assignments. From 2021, an overseas intra-company transferee must not have held an ICT visa for more than five years in any six-year period, except where they qualify to be granted up to nine years on the basis of their salary.
Familiar features
New features and streamlining aside, the overall system of sponsorship will remain in place and the guidance confirms that some aspects will be largely unchanged save that they will apply to both EU and non-EU citizens from 1 January 2021. For example:
- Application fees will continue to apply under the new system in the same way that they do now.
- The Immigration Skills Charge will continue to be levied on UK employers of Skilled Workers and intra-company transferees on the same basis.
- The Immigration Health Surcharge will still be payable by the majority of overseas migrants coming to the UK for more than 6 months (subject to the anticipated introduction of an exemption for frontline NHS staff).
- Although the Resident Labour Market Test will be abolished, employers will still be expected to recruit for genuine vacancies which meet the prescribed skill and salary thresholds.
- Dependants (spouses, partners, children) will still be able to accompany skilled workers and postgraduate students to the UK.
- Skilled Workers will be required to prove that they can speak English to the required level by way of an English language test, an academic degree taught in English or being a national of a majority English-speaking country.
The visitor and student routes are also expected to remain much as they are with some minor tweaks to improve the process where necessary. The Youth Mobility Scheme, which provides a temporary route for young people from participating countries to work and travel in the UK for up to two years, will also remain in place, with the Government confirming its intention to extend the scheme to other countries (which may well include EU countries).
Travel within the Common Travel Area (United Kingdom, Ireland, the Isle of Man and the Channel Islands) will continue with no changes. Irish citizens will retain their special status and be free to live and work in the UK as they are now, and no additional immigration controls will be introduced at the Eire/Northern Ireland border.
Watch this space
As you might expect, the implementation of the points based system will be phased and this guidance document is likely to be the first of many implementing the Home Office’s wider plans up to 2025. So what else can we can expect as part of the UK’s fully realised Points-Based Immigration System?
- Further guidance on any updates to the maintenance requirements for migrant workers under the new system is anticipated in the autumn of 2020. The requirements for the main work and study visa categories themselves will be written into the Immigration Rules. These will also be published later in 2020, along with more detailed guidance for applicants.
- The Home Office retains the ability to widen the number of attributes for which tradeable points may be obtained, and they may seek to do so in response to the country’s economic needs and pressures.
- Changes are expected to border control procedures for EU nationals, although what these will be will largely depend upon the course and outcome of negotiations on the future EU-UK relationship.
- The Government intends to introduce a universal ‘permission to travel’ requirement which will require everyone wishing to travel to the UK (except British and Irish citizens) to seek permission in advance of travel. Electronic Travel Authorisations (ETAs) will also be introduced for visitors and passengers transiting through the UK who do not currently need a visa for short stays or who do not already have an immigration status prior to travelling. This aims to allow security checks to be conducted and decisions taken as to whether individuals should be allowed to travel to the UK at an earlier stage.
- An unsponsored graduate route will be launched in summer 2021, giving international students the opportunity to stay in the UK to work or look for work after they graduate. Undergraduate and master’s degree students may be granted a non-extendable period of two years’ stay under the route, whilst PhD students will be able to stay a maximum of three years (although switching to another route will be possible).
- An unsponsored route for highly skilled workers is expected to be introduced under the points based system in 2022. This will allow for a small number of only the most highly skilled workers to enter the UK without a job offer in place.
What do you need to do now?
If your business already has a sponsor licence under Tier 2 (General) or Tier 2 (Intra-Company Transfer), no new application is required, although you should familiarise yourself with the changes to the rules which may in some cases mean sponsorship is now possible for roles which were previously excluded. You should also check whether you have a sufficient certificate of sponsorship allocation to deal with the potential increased demand from January 2021. Now is also a good time to make sure the existing licence is up-to-date, is held by the correct sponsoring entity, contains correct key personnel details etc, and that all Home Office notification requirements have been met.
If your business doesn’t currently have a sponsor licence but thinks it may need to recruit from the EU or beyond from January 2021, the Government is actively encouraging licence applications to be made now. As we get closer to the end of the year, more organisations are likely to be submitting applications which is likely to result in increased processing times, and potential delays to recruitment plans.
Should you require assistance with a sponsor licence application or further guidance on any of the issues addressed above, please get in touch with the Walker Morris Business Immigration Team using the contact details below, or visit our Business Immigration Hub for more information.

EU–US Privacy Shield invalidated by the Court of[...]
Click here to watch a video nugget on this topic. The Court of Justice of […]
Click here to watch a video nugget on this topic.
The Court of Justice of the European Union (CJEU) has hit the final nail in the coffin of the beleaguered EU-US Privacy Shield. Walker Morris data protection and privacy experts explain the judgment and what this means for transfers to the USA, as well as the potential implications for post-Brexit Britain.
What’s happened?
The GDPR requires that transfers of personal data to so-called third countries (that is, countries not in the European Economic Area (EEA)) can only occur where the receiving organisation is subject to comparable data protection obligations to the GDPR.
The Privacy Shield framework is a set of voluntary obligations and principles relating to the protection of personal data, overseen by the US Department of Commerce, that US organisations could elect to be bound by. Organisations that underwent Privacy Shield certification were bound by its requirements and were deemed to provide an adequate level of protection for personal data.
Accordingly, EEA organisations could freely transfer personal data to organisations in the USA that were ‘Privacy Shield certified’ and such certifications formed the basis for significant volumes of personal data transfers.
In 2016, the European Commission deemed the Privacy Shield framework met the standards required under EU law, although that did not prevent Privacy Shield being the subject of much discussion by privacy law commentators and activists, in a similar way to its predecessor, the Safe Harbor Principles. Complaints generally related to the wide powers afforded to public authorities in the USA to obtain access to personal data held by private organisations – particularly in terms of government surveillance – which contrasts with fundamental principles of EU data protection law. Critics argued that the Privacy Shield failed to take sufficient steps to prevent this occurring to data transferred to organisations in the USA.
On 16 July 2020, when considering a complaint brought against Facebook Ireland by Austrian national Maximillian Schrems about this issue, the CJEU decided that the Privacy Shield did not afford adequate protection for personal data transferred to organisations that had self-certified. Following the judgment – known as Schrems II – personal data can no longer be compliantly transferred from within the EEA to organisations in the USA on the basis of Privacy Shield certifications.
Can we still transfer personal data to the USA?
While Privacy Shield has been invalidated in accordance with the Schrems II decision, other “appropriate safeguards” remain in place to allow personal data to be transferred to the USA.
One of the key appropriate safeguards is the standard data protection clauses adopted by the European Commission, which are often referred to as the Model Clauses, or Standard Contractual Clauses (SCCs). The SCCs take the form of a prescribed contractual agreement that can be entered into between the two parties involved in a transfer of data where the exporting data controller is in the EEA and the data importer (which can be a controller or a processor) is outside the EEA.
As part of the complaint brought by Mr Schrems, the CJEU considered the validity of the SCCs as a means of transferring data to the USA. The Court concluded “that the validity of [the SCCs] is not called into question by the mere fact that [they] do not, given that they are contractual in nature, bind the authorities of the third country to which data may be transferred.”
The CJEU did not therefore invalidate use of the SCCs, although it did assert that the context in which SCCs are used must be considered by the data exporter. Supervisory authorities (such as the Information Commissioner’s Office (ICO) in the UK) have the power to prohibit data transfers on the basis of SCCs in cases where such transfers are likely to have adverse effects on the protections afforded to relevant data subjects.
While the CJEU only considered controller-to-processor SCCs in Schrems II, the decision is considered to be equally valid for controller-to-controller SCCs.
What should we do now?
The ICO is reviewing its guidance following the Schrems II judgment. Until it publishes updated guidance, the ICO advises that organisations currently using Privacy Shield as the basis for personal data transfer from the EEA to the USA should continue to do so. However, organisations not currently using Privacy Shield should not start to do so.
EEA organisations that transfer data to the USA should review data sharing arrangements and identify where these are based on Privacy Shield certifications.
Once these have been identified, the agreements should be reviewed. Some agreements may include provisions that govern what should happen should the Privacy Shield framework be removed. Where the agreement is silent on this topic, the following options could be considered:
- Consider whether the transfer needs to take place. The recent decision could act as a prompt to review processing activities. Under the GDPR principles of purpose limitation, data minimisation and storage limitation, consider whether the transfers are necessary for the organisation or whether the relevant processing activities should cease.
- Process the personal data exclusively in the EEA. For organisations with multiple servers, technological reorganisations could enable all data subject to the GDPR to be stored on servers within the EEA. Where multiple processors are engaged, agreements can amended (or entered into) to ensure that only processors with operations based in the EEA are used to process personal data that is subject to the GDPR.
- Anonymise personal before it is transferred. This will not be appropriate in circumstances where identification of the relevant data subjects is key to the reason for processing. But where data can be anonymised before it is transferred, it will no longer be subject to the GDPR (although be careful when anonymising data to ensure it is truly anonymised and not simply pseudo-anonymised or ‘pseudonymised’).
- Incorporate SCCs into the transfer agreement. Where the continued transfer is necessary for business purposes, SCCs could be entered into between the relevant parties or the existing agreement could be amended to incorporate these clauses. The use of SCCs in relation to transfers to the USA is still valid, although it has been called into question by the CJEU judgment and deferred to supervisory authorities to police. Analysis of the risk associated with such transfers should therefore be carefully considered and SCCs should not be seen as a catch-all approach. In any event, the European Commission has never approved SCCs for processor-to-processor transfers.
- Adopt binding corporate rules. Binding corporate rules are a potential solution in some circumstances, although their use is limited in practice as they apply only to intra-group transfers and the application process for adopting them is lengthy. Another method – possibly SCCs – would likely be needed as an interim measure while the necessary administration was undertaken.
What does the future hold?
European Commission Vice President Vera Jourová confirmed in a statement following the judgment that the Commission will continue work to modernise the SCCs and engage with counterparties in the USA to ensure continued options for safe transatlantic data flows. However, the EU and the USA have fundamental differences when it comes to the conflict between individuals’ rights to privacy and the ability of the security services to obtain and intercept personal data, and these may difficult to align.
US Secretary of Commerce Wilbur Ross also issued a statement, commenting that the Department of Commerce will study the decision to fully understand its practical impacts but that it hopes to be able to limit the negative consequences. He said the Department of Commerce will continue to administer the Privacy Shield programme notwithstanding the recent decision. US organisations that are certified with the Privacy Shield must therefore continue to operate in accordance with its principles.
Comments made in the judgment, and the EU’s general aversion to surveillance, could also pose issues for the UK in relation to Brexit. As part of the Brexit negotiations, the UK is seeking an adequacy decision from the EU – a statement that UK law upholds the same standard for data protection as the EU – to allow uninterrupted data transfers between organisations in the EU and those in the UK once the UK becomes a third country.
However, the UK is also seeking to negotiate a data trade arrangement with the US. If this happens, the EU will be sure to question how personal data can be safely transferred from the EEA to the UK if it may then be freely transferred to the USA. The European Commission believing the UK may simply be used as an outpost between the EEA and the USA for data transfers could inhibit the UK’s ability to obtain an adequacy decision.
The UK Government has also historically had a more relaxed approach to surveillance by public authorities than the EU, which places more emphasis on the rights of individuals. The UK’s Regulation of Investigatory Powers Act 2000, Investigatory Powers Act 2016 and its membership of the Five Eyes programme will be scrutinised by the EU in any adequacy decision process, particularly in light of the Schrems II decision.
It is hoped that the European Data Protection Board will publish clear guidance on this issue in short order as companies seek to understand the wider ramifications. Walker Morris will continue to monitor the evolving situation and provide updates as they develop.
For more details on the specific reasons behind the invalidation of the Privacy Shield or for help and advice on what to do now, please contact any of our specialists who can advise and guide you through the necessary process.

WM video nuggets: Preparing for Brexit: Business Immigration
We recently held a live webinar “Preparing for Brexit: Business Immigration” covering the forthcoming changes […]
We recently held a live webinar “Preparing for Brexit: Business Immigration” covering the forthcoming changes to the UK immigration system and how organisations should prepare.
Below are a range of bitesize videos taken from the Q&A section of the webinar covering some very important questions.
- Will the removal of the resident labour market test and expansion of the SOC code be relevant to all?
- What’s the process for a sponsor application for a group of companies, by head office or PAYE No.?
- If an employee has expired ID, but was hired when it was still valid, after 2021 can we require new valid ID following proof of settlement document being received?
- The timescales for processing and making applications etc, are obviously quite long. Are there any fast track options available?
- Is there any chance at all that the new system is going to be delayed by the pandemic?
- Is it possible for sponsored employees to be furloughed and have their wages reduced under the Job Retention Scheme?
- Will the Immigration Health Surcharge still apply under the new system?
Click here to watch our full webinar recording.
Will the removal of the resident labour market test and expansion of the SOC code be relevant to all?
What’s the process for a sponsor application for a group of companies, by head office or PAYE No.?
If an employee has expired ID, but was hired when it was still valid, after 2021 can we require new valid ID following proof of settlement document being received?
The timescales for processing and making applications etc, are obviously quite long. Are there any fast track options available?
Is there any chance at all that the new system is going to be delayed by the pandemic?
Is it possible for sponsored employees to be furloughed and have their wages reduced under the Job Retention Scheme?
Will the Immigration Health Surcharge still apply under the new system?

Dealing with Migrant Workers in the COVID-19 Pandemic
Visit our Business Immigration hub to watch a series of short videos on current topics. […]
Visit our Business Immigration hub to watch a series of short videos on current topics.
Employers up and down the country have been grappling with the COVID-19 pandemic and the impact that the resulting Government imposed lock-down has had on their workforce for a number of weeks now. Furloughing, laying-off and requiring staff to work from home have already become widespread, and many employers have now been upskilled in the correct employment law processes to follow before implementing such changes. As the economic downturn caused by the current crisis continues to tighten its grip across the UK, many employers are now being forced to consider more permanent workforce reduction measures to reflect the potential continuation of decreased business demand, including redundancies.
However, where employees are sponsored migrant workers working in the UK under Tier 2 or Tier 5 visas, there is an additional layer of legal compliance in the form of immigration considerations which employers may be less aware of. In this article, we consider the specific immigration considerations which need to be borne in mind when dealing with sponsored migrant workers in the current COVID-19 crisis, including:
- the obligations associated with them;
- the rules around furloughing and laying off;
- considerations around salary reductions;
- working from home;
- considerations when undergoing a redundancy process; and
- visa extensions;
We will also consider temporary changes to right to work checks which have been introduced during the COVID-19 crisis, and the new points based immigration system.
Sponsored Migrants
Where an employer sponsors a migrant worker to work in the UK, that sponsorship carries with it onerous monitoring and record keeping obligations in relation to the migrant worker, as well as obligations to notify the Home Office in the event of certain circumstances changing. Under normal circumstances, any failure to comply with these obligations can carry significant consequences, including the possible revocation of the sponsor licence pursuant to which migrant workers are sponsored.
For the migrant worker, their right to live and work in the UK is generally contingent upon their continued employment on the terms under which they were first sponsored. Therefore any changes to the migrant worker’s role during the current COVID-19 pandemic have the potential to impact on the continued sponsorship of the individual.
Furloughing and Lay-Offs
Employers with an existing contractual right to lay-off have been making use of these provisions as a means of managing costs during these difficult times, and those without such a right have been seeking the agreement of their workforce to temporary lay-offs both under the Government’s Coronavirus Job Retention Scheme (“CJRS”) and otherwise. Under the CJRS, employees can agree in writing to be “furloughed” (i.e. not required to work but remain employed) in return for 80% of their salary, up to a maximum of £2,500 per month, which the Government will repay to their employer. The employer has the option to top-up the salary to full pay, but is not required to do so, and any top up will not be recoverable under the CJRS.
The Government’s guidance on the CJRS makes it clear that individuals who are working in the UK under visas are eligible to be furloughed and employers are entitled to have their salary reimbursed under the scheme (subject to compliance with the terms of the scheme). However, employers should be cognisant of the fact that the CJRS only applies to employees who are covered under the employer’s PAYE system. Therefore the salary of any migrant workers working under a Tier 2 (Intra-Company Transfer) visa whose salaries are paid overseas will not be recoverable by the employer under the CJRS. Further, any decision to furlough individuals on the grounds of their immigration status is likely to be discriminatory.
Salary Reductions
Under normal circumstances, any changes to the salary of sponsored migrants which takes the salary level below £30,000 for a Tier 2 (General) visa or £41,500 for a Tier 2 (Intra-Company Transfer) visa, or the threshold in the relevant SOC Code applicable to the role, whichever is higher, would jeopardise the continued sponsorship of the individual. However, the Home Office has issued guidance which states that sponsors can temporarily reduce the pay of sponsored workers to 80% of their salary or £2,500 per month, whichever is lower, if the reduction is due to the COVID-19 outbreak. The reduction must be part of a company-wide policy to avoid redundancies and must be temporary. The employer should make a written record of the reason for the reduction in case evidence subsequently needs to be presented to the Home Office, and the sponsored worker’s pay must return to its previous level when the company-wide arrangements end.
Although the Home Office’s concession on salary reductions appears to be intended to cover sponsored workers who are furloughed under the CJRS, the guidance does not refer to furloughing specifically, therefore it could also cover sponsored workers who are still working and who agree to reduce their working hours and salary by up to 20%, or those who agree to a pay cut without reducing their hours, in response to business needs.
Further, although the Home Office has not issued specific guidance on whether any salary reduction applicable to a migrant worker who was granted leave under the Tier 2 (General) route as a “high earner” (i.e. with an annual salary of £159,600 or more) which takes them below the “high earner” threshold will require a new application for leave as would be the case under normal circumstances, it is expected that similar concessions will be made.
Where employers are laying-off workers without pay (in order to avoid redundancies), the general position is that an employer must stop sponsoring a migrant who is absent from work without pay for 4 weeks or more in total in any calendar year (unless the leave is for one of a specified number of reasons). The Home Office has, however, issued specific guidance which confirms that sponsors are not required to withdraw sponsorship where migrants are absent without pay for 4 weeks or more if the absence is related to the COVID-19 crisis. Further, absences related to COVID-19 do not need to be reported to the Home Office in the normal manner. In each case, the employer should keep a written record confirming that the time away from work has arisen as a result of COVID-19.
Changes to salary or working hours should still be notified to the Home Office via the on-line sponsor management system within 10 working days of the change, as per normal notification requirements.
Working from Home
Although under normal circumstances a change to the migrant worker’s place of work would be a reportable change of circumstances, the Home Office has issued guidance to confirm that employers do not need to report a change to a migrant worker’s workplace to their home address for the purposes of complying with Government guidance on social distancing. Clearly if a migrant worker continues to work from home after the COVID-19 crisis is over (for example as part of an employer’s increased use of agile working), then a report would be required. Further, employers may need to take extra steps to monitor attendance at work for migrant workers who are working from home in the event that a reportable situation does arise (e.g. an absence from work which is not related to COVID-19).
Redundancy
When conducting redundancy exercises, employers should be aware that there may be specific considerations and limitations around their treatment of migrant workers. For example, if the fact that an individual is a migrant worker influences any decision to make them redundant, this could give rise to an unfair dismissal and race/nationality discrimination claim. When making offers of alternative employment as part of the redundancy process, the alternative role would need to be within the same SOC Code as the role for which the migrant was initially sponsored, and at the requisite salary level, otherwise the individual will require a new visa and the employer may be required to undertake a new resident labour market test before offering the role, if applicable. However, even where an employer is confident that an alternative role requiring a new visa would not meet the requirements of fresh sponsorship, they would be well advised to tread very carefully before deciding not to offer the role to the migrant to mitigate against the risk of an unfair dismissal or discrimination claim, and bespoke legal advice should be taken before any decisions are made.
Sponsors of migrant workers will no doubt be aware that if they terminate the employment of a migrant worker earlier than the end date shown on the certificate of sponsorship, they are under a duty to report this to the Home Office within 10 working days via the on-line sponsor management system. This includes where a migrant worker is made redundant as a result of a down-turn in work caused by the COVID-19 outbreak.
For the individual, the redundancy would result in their leave to remain in the UK being curtailed to 60 days. If they have not found alternative employment with another sponsor (or found another lawful basis for remaining in the UK) by the end of this period, they will be required to leave the UK.
Visa Extensions
Where a sponsored worker’s visa is due to expire, an employer will normally work with the migrant to secure an extension of the visa, or look to terminate their employment if their services are no longer required. However, in light of the current COVD-19 crisis, the Home Office has granted visa holders whose visa expires between 24 January 2020 and 31 May 2020 (and who were not otherwise intending to apply to extend their leave) an extension to their visa until 31 May 2020 if they cannot leave the UK because of travel restrictions or self-isolation requirements. Although there have not been any formal announcements at the time of writing, it is likely that this concession will be extended beyond 31 May if the current situation continues. In order to benefit from this extension, affected individuals are required to contact the COVID-19 Immigration Team and complete a COVID-19 UK Visas & Immigration form to provide certain information, including their name, date of birth, visa reference number and the reason why they intend to remain in the UK.
However, those migrant workers who do require a continued presence in the UK when their current visa expires will still need to make a visa extension application (or other application to remain lawfully in the UK beyond the date of their current visa), and should make this application on-line before their current visa expires in the normal manner. Those whose visa expires between 24 January and 31 May who are looking to switch into a different long-term visa category and who would otherwise need to make the application from outside the UK are currently permitted to make in-county applications. However, it is not currently possible to progress applications to the next stage, which requires an appointment to submit biometric information and upload supporting documents, as all UK Visa and Citizenship Application Centres are temporarily closed due to the COVID-19 outbreak. In addition, the Government’s proposals to introduce a 14 day quarantine period for those coming into the UK will impact on the ability of migrant workers arriving from overseas to start work (although there is currently no date for when this proposal will come into effect). Those wishing to use priority or super priority services for a faster decision on their application should be aware that these services are also temporarily suspended. If their visa is due to expire imminently, they should submit their application and seek to add a priority or super priority service at a later date once the services are back up and running.
The Home Office has also introduced free automatic one year visa extensions for frontline health and social care workers working for the NHS and in the independent sector. The provisions cover workers and their family members whose visas expire between 31 March 2020 and 30 September 2020. In addition, the Home Office has confirmed that the family members of frontline workers who die from COVID-19 will be offered immediate indefinite leave to remain.
Right to Work Checks
Another challenge employers are currently facing is in relation to carrying out right to work checks for new recruits or those requiring follow-up checks while their workforce works from home, given that the normal process involves obtaining physical identity documents and verifying these during a meeting with individuals in person. Without such checks being carried out in a legally compliant manner, employers have no statutory excuse in the event that they are found to be employing illegal workers. The Home Office has confirmed that from 30 March 2020, right to work checks can temporarily be carried out over video calls (e.g. Zoom, Skype or Facetime) with the individual submitting scanned copies or photos of their original documents. The written record of such a check should state that it is an adjusted check due to COVID-19. If an individual has a biometric residence permit, biometric residence card or status under the EU Settlement Scheme, then the employer can use the Home Office’s online right to work checking service provided that the individual has given permission for their details to be viewed. For individuals who are unable to provide the required documents, the Home Office’s employer checking service is still operational and a “positive verification notice” will provide a statutory excuse against liability for a civil penalty or criminal sanctions for employing a worker illegally for 6 months.
The Home Office have confirmed that once the temporary COVID-19 measures end, employers will have eight weeks to carry out retrospective right to work checks in the usual way on employees who commenced employment or required a follow-up check while these measures were in place. The Home Office will give notice in due course of when the measures will end. On the copy of any documents reviewed as part of the retrospective check, the employer should note: “The individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19”. Copies of both checks should then be held on file.
New Points Based System
In addition to factoring in the above when dealing with migrant workers during the current crisis, employers should not forget the Government’s proposed introduction of a new points based immigration system from 1 January 2021 which will apply to EU and non-EU nationals alike. At the time of writing, there have been no indications that the proposals to extend the requirement for sponsorship to EU nationals (who currently have the right to work without being sponsored) from 1 January 2021 will be postponed as a result of the global pandemic. The Immigration Bill which sets out the legal framework for these changes passed its second reading in the House of Commons on 18 May 2020, and looks set to be on course to become law. Therefore employers who do not currently have a sponsor licence because they have only needed to recruit from within the UK and EU in the past are being urged to make applications for a licence as soon as possible, to ensure they are in a position to sponsor individuals from the EU from 1 January if required. Further, the requirement for EU nationals to register under the EU settlement scheme in order to gain longer-term rights to remain living and working in the UK remain in place.
We will shortly be issuing more detailed guidance on the new points based system and the impending changes to the recruitment of nationals from the EU from 1 January 2021.
Next Steps
At Walker Morris, we have a dedicated Business Immigration team which can assist with any of the issues raised above. Please do not hesitate to get in touch with your usual contact or one of the individuals below for further advice.

Webinar Recording: Employee engagement and future HR trends[...]
Andrew Rayment and Charlotte Smith (both Employment) presented a live Q&A webinar discussion on ‘Employee […]
Andrew Rayment and Charlotte Smith (both Employment) presented a live Q&A webinar discussion on ‘Employee engagement and future HR trends’. Walker Morris employment lawyers were joined by Lisa Rowlinson-Brown, People Director at Symington’s, Steve Joyce, HR Director at Airedale International Air Conditioning and Catherine de la Poer, Leadership Developer at Halcyon Coaching.
The webinar included discussions around topics such as:
- Agile and flexible working
- The use of technology and its impact on the workforce
- Mental health and well-being
- Employee engagement and representation
- Equality and diversity
- Incentivising and retaining employees
You can also find a one page downloadable summary of the webinar here.

Changes to Competition Law and State Aid Rules[...]
The implications of coronavirus (Covid-19) and measures taken to contain the spread of the virus […]
The implications of coronavirus (Covid-19) and measures taken to contain the spread of the virus are having a significant adverse impact on many businesses and the economy at large. It is becoming increasingly difficult for companies involved in the manufacture and supply of essential goods and services to meet current demand and as such it has become apparent that businesses must work together to adapt to the current situation and ensure security of supply.
The UK’s Competition and Markets Authority (CMA) and, at European level, the European Commission (Commission) continue to enforce competition law to deter companies from engaging in anti-competitive practices. However, recognising the serious impact of Covid-19 and the pressing need for businesses to collaborate in certain areas, competition laws have been relaxed to some degree. This article details some of the key developments.
Distinction between unlawful cartels and lawful “necessary and temporary” co-operation
Agreements between competing businesses that prevent, restrict or distort competition using practices such as price-fixing, market sharing, limiting production or rigging bids (also known as cartels) are prohibited under competition law. Businesses breaching such laws can face heavy fines. Under UK competition law it is also a criminal offence for competitors to engage in such cartels.
These rules continue to apply in the Covid-19 crisis, however, given the exceptional circumstances that we are facing, governments and the competition authorities have acknowledged that a relaxation of competition laws is necessary to enable enhanced collaboration between businesses to facilitate the supply of essential goods and services, particularly to vulnerable customers. The UK Government recently announced plans to pass legislation which will allow cooperation between supermarkets to ensure the continued supply of groceries in stores (covering matters such as the sharing of staff, distribution depots and transport and sharing of data such as stock levels). The UK Government has also decided to waive competition enforcement and allow cooperation to secure essential ferry transport between the mainland and the Isle of Wight. The ferry operators will be able to discuss and agree routes and coordinate staff resourcing and they can also cooperate to allow the transportation of essential food, freight and medical supplies.
The CMA published a guidance document titled “CMA approach to business cooperation in response to Covid-19”. This guidance explains that the CMA will not be taking action against competing businesses which are cooperating or coordinating their efforts provided that “any such coordination is undertaken solely to address concerns arising from the current crisis and does not go further or last longer than what is necessary“. This relaxed approach is not limited to collaboration in the grocery sector but also extends to other sectors manufacturing or supplying essential goods and services.
The guidance clarifies that enforcement action will not be taken against competitors choosing to collaborate, provided that such actions are temporary and:
- appropriate and necessary in order to avoid a shortage, or ensure security, of supply;
- clearly in the public interest;
- contribute to the benefit or wellbeing of consumers;
- deal with critical issues that arise as a result of the COVID-19 pandemic; and
- last no longer than is necessary to deal with these critical issues.
However, the CMA has warned that it will not tolerate businesses exploiting the crisis as a ‘cover’ for non-essential collusion, such as the exchange of commercially sensitive information or denying rivals access to supplies or services.
Action against Excessive Pricing
Dominant businesses are those with a position of such economic strength in a market that they can act independently of customers and competitors. For a dominant business, it is unlawful under competition law to charge an excessive price for goods or services, i.e. a price bearing no reasonable relation to the cost of supply. The CMA has established a Covid-19 taskforce to identify businesses seeking to exploit customers through excessive pricing and has warned against such practices in key sectors such as pharmaceuticals and food and drink. Already the CMA has contacted traders and platforms regarding potentially excessive pricing of hand sanitiser.
State Aid and the Temporary Framework
The UK remains subject to EU State aid regulations until the end of the transition period (currently 31st December 2020). State aid is financial assistance provided by governments or local authorities to companies that has the potential to distort market conditions by providing an unfair advantage. Under the existing regime, unless it falls within an exemption (see below), financial aid granted by the UK Government or other public bodies must be notified to the Commission and approved before it can be administered. The potential issue here is that the UK Government has launched an unprecedented level of economic support and will continue to do so to combat the economic effects of the Covid-19 crisis. Measures which have already been announced include: support to cover up to 80% of the salary costs of furloughed employees; support for small and medium-sized enterprises (SMEs); deferring income tax and VAT payments; loans for SMEs and larger businesses and support to cover statutory sick pay payments for SMEs.
The vast majority of aid which will be issued in the coming months will not require notification because such aid is covered by a relevant exemption, either because it is “de minimis” (i.e. below €200,000 over a three year period) or falls within the Block Exemption Regulation (an exemption which applies to a wide variety of aid including regional aid, aid to SMEs, aid for research and development and aid for certain types of infrastructure). Furthermore, measures which apply to the economy as a whole (e.g. do not confer any advantage on selective businesses) will not constitute State aid. Current State aid rules also allow Member States to grant compensation to businesses for damage which has been directly caused by exceptional circumstances and this would include the COVID-19 pandemic. This could be used to support badly hit sectors including transport, tourism and retail.
In addition, the Commission has adopted a temporary State aid framework (the Temporary Framework) to increase member States’ abilities to support their economies in light of the Covid-19 pandemic – the Commission took the same flexible and responsive approach in 2008 during the global financial crisis. The Temporary Framework will remain in place until the end of 2020, when the Commission will take a view on whether this needs to be extended.
The Temporary Framework specifically allows authorities to provide five types of aid to qualifying companies:
- Direct grants, selective tax advantages and advance payments – Member States may set up schemes to grant up to €800,000 to companies to address urgent liquidity needs (the business must not have been in difficulties on 31 December 2019).
- State guarantees for loans taken by companies from banks – Member States will be able to provide State guarantees to ensure banks keep providing loans to the customers who need them (maximum six year term and the business must not have been in difficulties on 31 December 2019).
- Subsidised public loans to companies – Member States will be able to grant loans with favourable interest rates to companies. Such loans may be used to cover immediate working capital and meet investment needs (maximum six year loan term and the business must not have been in difficulties on 31 December 2019).
- Safeguards for banks that channel State aid to the real economy – Some Member States plan to build on banks’ existing lending capacities, and use them as a channel for support to businesses – in particular to SMEs. The Temporary Framework provides that such aid is considered to be direct aid to the banks’ customers rather than to the banks themselves.
- Short-term export credit insurance – The Temporary Framework introduces additional flexibility on how to demonstrate that certain countries are not-marketable risks, which may enable short-term export credit insurance to be provided by the State where needed.
Where measures do amount to State aid and are not exempted, the Commission has taken a flexible approach so that Covid-19 related aid is typically being approved very quickly (generally within 24 – 48 hours). The Commission has already approved under the Temporary Framework an umbrella measure to allow GBP 50bn (EUR 57bn) aid to support SMEs and large corporates affected by the Covid-19 outbreak in the UK.
It is possible we may see some further developments to the competition and state aid regimes in the next few months but these initial measures take pragmatic steps to ensure that competition law does not hamper the provision of essential goods and services to consumers or a financial lifeline for businesses.

Countdown to Brexit Series
Welcome to our dedicated webpage for our weekly Countdown to Brexit Series. …………………………………………………………………………………………………………. Week 1 […]
Welcome to our dedicated webpage for our weekly Countdown to Brexit Series.
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Week 2 – New Market Surveillance Rules for Suppliers into the EU
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Week 4 – The effect of Brexit on the food and drink sector
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Week 8 – Dispelling the dispute resolution myths of a no-deal Brexit
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Week 9 – Keeping trade moving – Can I modify a contract orally?
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Week 10 – Keeping trade moving: Electronic signatures and e-mail footers
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Data Protection – February 2019
‘No deal’ Brexit guidance; latest from the ICO, including recent enforcement action; news from Europe; […]
‘No deal’ Brexit guidance; latest from the ICO, including recent enforcement action; news from Europe; and more.
Latest ‘no deal’ Brexit guidance
- On 6 February 2019, the government issued guidance on using personal data post-Brexit.
- The Information Commissioner’s Office (ICO) published guidance for law enforcement authorities on preparing for data protection compliance in the event of a no deal Brexit.
- Amendments were made to the relevant draft Brexit legislation to reflect arrangements made for personal data to continue to be transferred from the UK to US organisations participating in the Privacy Shield Framework, where the participating organisation’s privacy policy includes personal data transferred from the UK in its Privacy Shield commitments. UK companies will need to ensure that their US counterparts have made the necessary changes. Further details can be found in the ‘international data transfers’ section of the ICO’s no deal Brexit guidance and in the Privacy Shield and the UK FAQs section of the official Privacy Shield website.
- The European Data Protection Board (EDPB) published information notes on data transfers under the General Data Protection Regulation (GDPR) in the event of a no deal Brexit and on Binding Corporate Rules (BCRs) for companies which have the ICO as their BCR Lead Supervisory Authority. Using BCRs is one of the ways in which personal data can be transferred to the UK from the European Economic Area.
More news from Europe…
- Towards the end of January 2019, the Committee of the Council of Europe’s data protection treaty “Convention 108” published Guidelines on artificial intelligence and data protection. They contain: general guidance; guidance for developers, manufacturers and service providers; and guidance for legislators and policy makers. The UK was among the 21 states that signed up to a modernised version of Convention 108 – the only legally binding international agreement on data protection – on 10 October 2018.
- On 6 February 2019, the European Commission presented a set of recommendations for the creation of a secure system that will enable citizens to access their electronic health files across EU Member States. See the press release for more details and a link through to a fact sheet.
- The EDPB is consulting until 2 April 2019 on guidelines on codes of conduct and monitoring bodies under GDPR. See the relevant section of the ICO’s Guide to the GDPR for useful summary information on this topic.
- The EDPB is also consulting until 29 March 2019 on Annex 2 to its guidelines on certification under GDPR (adopted on 23 January 2019). Annex 2 identifies topics that a data protection supervisory authority (such as the ICO) and the EDPB will consider and apply for the purpose of approval of certification criteria of a certification mechanism. See the relevant section of the ICO’s Guide to the GDPR for useful summary information on this topic. The ICO says that it has no plans to accredit certification bodies or carry out certification at this time.
…and back in the UK
- The Phone-paid Services Authority, the UK regulator for content, goods and services charged to a phone bill, is consulting until 3 April 2019 on guidance on the retention of data.
- On 13 February 2019, the Institute of Fundraising published a free guide for charities and fundraisers providing information on telephone fundraising. It includes guidance on data protection compliance, with helpful flowcharts and links to the relevant resources.
Latest from the ICO, including recent enforcement action
- EU referendum campaign Leave.EU and Eldon Insurance were fined a total of £120,000 after they committed serious breaches of electronic marketing laws. The Information Commissioner said: “It is deeply concerning that sensitive personal data gathered for political purposes was later used for insurance purposes; and vice versa. It should never have happened. We have been told both organisations have made improvements and learned from these events. But the ICO will now audit the organisations to determine how they are using customers’ personal information”.
- A housing developer was fined after it ignored a data subject access request and failed to comply with an enforcement notice issued by the ICO.
- A former senior local government officer, whose partner was applying for an administrative job at the council where he worked, was fined after he emailed the personal information of nine rival shortlisted candidates to his work address and to his partner’s Hotmail account.
- The ICO reports that investigations into nuisance marketing have resulted in 16 company directors being banned from running a company for more than 100 years in total.
- A recent ICO blog post explains to small businesses why they need to pay the data protection fee.
- The ICO has made a short film setting out how organisations can benefit from its regulatory sandbox. See the blog post for details.
- Finally, in another recent blog post, the ICO’s Executive Director for Technology Policy and Innovation talks about how technology has completely transformed the way advertising is bought, sold and delivered. He says that, in respect of adtech, the ICO is currently concentrating on programmatic advertising and real-time bidding. The three key areas of interest are: transparency and personal data; lawful basis for processing personal data; and security. A fact-finding forum will take place on 6 March 2019.

Health and Safety – February 2019
‘No deal’ Brexit guidance; new UK product safety mark; sentencing and ‘linked organisations’; and more. […]
‘No deal’ Brexit guidance; new UK product safety mark; sentencing and ‘linked organisations’; and more.
‘No deal’ Brexit guidance and new UK product safety mark
- On 2 February 2019, the government published the design for the new UK product safety marking (‘UKCA’) that will apply to certain products sold in the UK if the UK leaves the EU without a deal. See the press release which links through to guidance on how to use the new marking, and the current European CE marking, in the event of a no deal scenario.
- On 5 February 2019, the government issued updated guidance on food and drink labelling in the event of a no deal Brexit. See the press release.
- On 15 February 2019, the government published further guidance bringing together sector-specific information across the different areas of goods regulation with the aim of helping businesses to understand the impacts of Brexit for their products and supply chains.
The sentencing guideline and ‘linked organisations’ – fine reduced on appeal
A company has successfully appealed a health and safety fine of £370,000 for failures relating to the identity and safe removal of asbestos at a school. The decision is of particular interest because it considers the correct application of the sentencing guideline where there is a ‘linked organisation’ such as a parent company [1].
In this case, NPS London was a joint venture company, 80% owned by its parent company (the NPS Parent) and 20% owned by the London Borough of Waltham Forest. The NPS Parent was ultimately controlled by Norfolk County Council (the Council).
At step one of the sentencing guideline, the sentencing judge assessed the culpability of NPS London as high and the risk of harm created as falling within harm category 2. This was not challenged on appeal. At step two, when the court is required to focus on the organisation’s annual turnover or equivalent to reach the starting point for a fine, the judge did not treat the table for ‘small’ organisations as the relevant one (NPS London had a turnover of £5-6 million which would have placed it in that table), but instead considered that the relevant table was the one applicable to ‘large’ organisations. He reached that conclusion on the basis of the passage in the guideline which states that, exceptionally, it may be demonstrated to the court that the resources of a linked organisation are available and can properly be taken into account. The annual turnover of the NPS Parent was around £125 million. For a ‘small’ organisation, the starting point for a fine for an offence in the relevant category is £100,000. It is £1.1 million for a ‘large’ organisation.
The Court of Appeal disagreed. It found that the judge had been wrong to read the guideline as entitling him to treat NPS London as, or as if it were, a large organisation for the purpose of sentencing. It is the offending organisation’s turnover, not that of any linked organisation, which, at step two of the guideline, is to be used to identify the relevant table. This reflects the basic principle of company law that a corporation is to be treated as a separate legal person with separate assets from its shareholders. The mere fact that the offender is a wholly owned subsidiary of a larger corporation, or that a parent company or other ‘linked’ organisation is in practice likely to make funds available to enable the offender to pay a fine, is not a reason to depart from established principles of company law or to treat the turnover of the linked organisation as if it were the offending organisation’s turnover at step two of the guideline.
The Court of Appeal went on to say that, by contrast, whether the resources of a linked organisation are available to the offender is a factor which may more readily be taken into account at step three of the guideline when examining the financial circumstances of the offender in the round and assessing “the economic realities of the organisation”. This reading and application was consistent with the Court of Appeal’s decision in R v Tata Steel UK Ltd [2].
The most recent accounts for NPS London showed that it was loss-making and insolvent on a balance sheet basis. However, under the heading “going concern”, the directors’ report stated that any finance required was provided by the NPS Parent and that another company (which was the ultimate parent, controlled by the Council), had confirmed that it would continue to provide any financial support required for a period of at least 12 months. On that basis, the directors believed that it remained appropriate to prepare the financial statements on a going concern basis.
The fact that NPS London was an enterprise with low profitability and no resources of its own from which to pay a fine was not a reason to reduce the amount of the fine, because it was proper to regard the NPS Parent as a linked organisation which could be counted on to provide the required funds. Taking account of relevant mitigating factors and giving full credit for NPS London’s guilty plea reduced the fine to £50,000.
In a separate decision [3], the sub-contractor engaged to carry out demolition work at the school also had its fine reduced by the Court of Appeal, from £400,000 to £190,000. The Court found that there was no justification for assessing the likelihood of harm in the case as medium. The best estimate of the sub-contractor’s expert, whose evidence went unchallenged at trial, was that exposure to the asbestos would result in about 90 deaths out of 100,000 people. The sentencing judge had been wrong not to give any reason for disregarding or disagreeing with the expert evidence of risk and the only reasonable conclusion on the available evidence was that the likelihood of harm arising from the offence was low. The Court said that “the likelihood or otherwise that exposure to asbestos at a particular level for a particular period of time will ultimately cause a fatal disease is not something which is rationally capable of being assessed simply on the basis of supposition, impression or imagination. It is a scientific question which should be answered, if possible, with the assistance of scientific evidence”.
Other sentencing news
- Two construction firms were fined a total of £860,000 (and one of them was ordered to pay costs of over £40,000) after a worker died when the temporary platform he was walking on collapsed and he fell from a height of approximately 14 metres. There was a failure to manage the risks associated with temporary works and work at height and the death was “entirely preventable”.
- A furniture manufacturing company, had it not been in administration, would have been fined £800,000 for failing to prevent exposure to asbestos at its factory. See the HSE press release. The clear breach of the law by the company required the HSE to prosecute, even though the company was in administration. The fine was reduced to £1.
- Two companies were fined a total of £700,000 after a worker was fatally crushed at a paper mill when he was struck by a shovel loader. The HSE investigation found that there was no safe system of work to segregate pedestrians and vehicles and drivers had limited visibility. The HSE inspector said: “This death would have been prevented had an effective system for managing workplace transport been in place. This is a reminder to all employers to properly assess and apply effective control measures to minimise the risks from moving vehicles in their workplaces”.
- The principal contractor on a major construction project was fined £600,000 after a worker died when he was struck by a wheeled excavator slewing round after being refuelled. The company had failed to ensure that the safe system of work for refuelling of all plant and equipment was fully implemented at the site. The HSE inspector said: “This was a tragic and wholly avoidable incident, caused by the failure of the civil engineering company to implement safe systems of work, and to ensure that health and safety documentation was communicated and control measures followed”.
- Another principal contractor was fined £600,000 after an agency labourer was run over and killed by a dumper truck being driven by an employee. The HSE investigation found that the company had failed to organise the site in such a way to ensure that pedestrians were not carrying out work on or near traffic routes whilst vehicles were in operation.
- A steel cladding company was fined £600,000 (and ordered to pay costs of over £23,000) after a worker suffered life-changing crush injuries to his hand while using an electrically-powered folding machine. The HSE investigation found that the company had failed to ensure workers only used the machine when the guards were in place, to prevent them from reaching dangerous parts whilst it was in operation.
For a recent quote by one of the team in the Food Manufacture publication in relation to health and safety click here.
HSE issues welding fume safety alert
The HSE issued a safety alert following new scientific evidence from the International Agency for Research on Cancer that exposure to mild steel welding fume can cause lung cancer and possibly kidney cancer in humans. It says that, with immediate effect, there is a strengthening of HSE’s enforcement expectation for all welding fume, including mild steel welding, because general ventilation does not achieve the necessary control. The alert sets out the action required.
Legal ‘duty of care’ for social media companies to protect young people’s health
In its recently published report entitled ‘Impact of social media and screen-use on young people’s health’, the House of Commons Science and Technology Committee concludes that social media companies must be subject to a formal legal duty of care to help protect young people’s health and wellbeing when accessing their sites. See the press release with a link through to the report, conclusions and recommendations.
News from Europe
- European Parliament and Council negotiators have reached provisional agreement on new rules which will entitle consumers buying online or over the counter in a local store to equal remedies if they purchase faulty products. Goods with digital elements, such as smart fridges and connected watches, will also be covered by the new rules. See the press release for more details.
- On 15 February 2019, the Council of the EU announced that the EU is introducing new rules which will ensure that products placed on the single market are safe and compliant with EU legislation protecting public interests, such as health and safety in general, health and safety at the workplace, consumers, the environment and public security. See the press release.
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[1] R v NPS London Ltd, [2019] EWCA Crim 228
[2] [2017] EWCA Crim 704 – see the May/June 2017 edition of the Regulatory round-up.
[3] R v Squibb Group Ltd, [2019] EWCA Crim 227
Contains public sector information published by the Health and Safety Executive and licensed under the Open Government Licence.