Ethics guidance

Government’s Technical Notice on the impact of a ‘no deal’ EU exit scenario on EU lawyers practising in the UK

Issued on 12 October 2018 (updated 28 December 2018)

Status

This Guidance does not form part of the SRA Handbook. It is intended to explain some of the implications of a ‘no-deal’ EU exit, particularly for Registered European Lawyers and firms they work in, should this happen.

Who is this guidance for?

Registered European lawyers (RELs), law firms and other interested parties.

Purpose of this guidance

In response to the Technical Notice and draft Statutory Instrument (SI) published by the government, this guidance sets out the potential impact on RELs and law firms of a ‘no deal’ EU exit and future options. This guidance is not intended to provide definitive answers on the impact of EU exit on legal services, as this will depend on the outcome of the negotiations between the UK government and the EU.

General

On 12 October 2018 the Government published a Technical Notice (setting out its approach regarding the impact of a ‘no deal’ EU exit scenario on EEA lawyers practising in the UK, provision of services and mutual recognition of professional qualifications. On 21 November the Government laid a draft SI to deal with this scenario.

The Government has stressed that the publication of the Notice does not mean that a 'no deal' scenario is the most likely. They are taking steps to prepare for all potential outcomes, including preparing for a no deal scenario.

We will continue to work cooperatively with the Government and interested parties to make sure that whatever the outcome of the negotiations, any changes are implemented as effectively and smoothly as possible both for the profession and the people who use the services of RELs.

This note is published in response to the Technical Notice and SI and does not cover European lawyers’ rights to remain in the UK, or English and Welsh solicitors’ rights to practise in the EU, after EU exit.

Legislative impact of a no deal EU exit

The Technical Notice states that a no deal EU exit will lead, on exit day, to the removal of EU law and domestic legislation which creates a separate regime for the free movement and provision of services of lawyers in the EU, compared to that of other foreign lawyers.

This legislation governs the rights for EEA lawyers to provide legal services on a temporary and permanent basis (including restricted or ‘reserved’ legal services), to own and manage legal businesses and to be admitted as solicitors of England and Wales. The draft SI will revoke the legislation that grant these rights and sets out the transitional arrangements that will apply in a ‘no deal’ exit scenario.

The removal of these provisions will be necessary in a 'no deal' scenario to make sure the UK conforms to the World Trade Organisation (WTO) rules, which do not allow for preferential treatment of one nation over another. This will require changes to the existing regulatory regime because it gives more extensive rights to EEA lawyers than to other foreign lawyers.

Some of the rights currently available to EEA lawyers are already available to wider non-EU foreign lawyers under the Registered foreign lawyers (RFLs) regime, which will continue to exist post-EU exit. (See below and the table in Q4 for more detail on this).

What will this mean?

The Technical Notice tells us that there will be implications for RELs, law firms that employ RELs and anyone providing legal services across the UK/EU border in a 'no-deal' EU exit scenario.

The draft SI will introduce transitional arrangements to the effect that:

  • those who have registered with us as RELs on exit day will be able to continue to practice as RELs until the end of December 2020.
  • there will be no new registrations of EEA lawyers as RELs from exit day, but those who have made an application to us for REL status before exit day, can have a decision on that application after exit day and, if granted, continue to practice as a REL until the end of December 2020.
  • RELs will, subject to meeting the eligibility criteria, be able to seek admittance into the solicitor's profession under the 3-year 'integration route' during the transition period.

As one of the designated regulators of EEA lawyers (as RELs), if there is no deal, we will be responsible for ensuring the orderly removal of the REL regime and other EU legal services rules that affect the way we regulate, in accordance with the arrangements above.

Impact on existing RELs

Currently European lawyers who intend to permanently practise under their home state professional title in England and Wales must register with us or another competent authority as an REL. This registration gives RELs certain rights and creates certain obligations. For example, RELs have equivalent practice rights (with limited exceptions) to those of an admitted solicitor of England and Wales.

A 'no-deal' EU exit means that we will not accept any applications to become an REL post-exit day. EEA lawyers who wish to practice in the UK but have not applied to become RELs by that day can see below for more detail on the options available to foreign lawyers.

What are the future options for EEA lawyers?

If you are registered as an REL on exit day you will be able to continue your practice as before until the end of December 2020.

If after that time you wish to manage or own a law firm which is not an Alternative Business Structure (ABS) in England and Wales, or offer reserved legal services within England or Wales, you will potentially have three choices:

  • Apply for admission as a solicitor under the 3-year 'integration route' before the end of December 2020 (this is only available to RELs).
  • Qualify as a solicitor under the Qualified Lawyers Transfer Scheme (QLTS).
  • Register as a Registered Foreign Lawyer (RFL) (although an RFL has much more restricted practising rights)..

However, outside of this, you may provide unreserved legal services or be involved in businesses providing legal services in England and Wales under your home title without registering with a regulator.1 If you are in any doubt about what you are able to do, please contact our Ethics helpline for advice.

Integration Route

RELs who have accumulated three years continuous practice in English and Welsh law (including Community law) can (subject to eligibility criteria) apply for admission as a solicitor within England and Wales under the 'integration route'.

There are no examination requirements. Applications usually take three months to process with a £500 application fee. We will do what we can to make sure the application process is as efficient as possible. We encourage any RELs who meet the admission criteria and who wish to be admitted as solicitors to apply to us as soon as possible. Read more information on how to apply and eligibility criteria.

Qualification under QLTS

The Qualified Lawyers Transfer Scheme (QLTS) helps foreign lawyers become qualified as solicitors of England and Wales, if they are already a qualified lawyer in one of our recognised jurisdictions. See our list of recognised jurisdictions and what may constitute a qualified lawyer for these purposes.

Foreign lawyers can apply for an exemption from the first part of the QLTS if they have passed the Legal Practice Course (LPC).

Under the current framework, EEA lawyers can additionally apply for exemptions from further parts of the QLTS requirements. In the event of a no deal EU exit, however we will need to ensure that we will not give EEA lawyers preferential treatment in terms of these exemptions.

In autumn 2021 the QLTS will be replaced through the introduction of the new Solicitors Qualifying Examination (SQE). When this comes in, all qualified foreign lawyers will potentially be able to apply for exemptions from all, or part, of the SQE requirements where their home qualifications are equivalent in content and standard to those we require of English and Welsh Solicitors.

We are looking at our current policy on QLTS exemptions, to see whether it is appropriate to introduce a similar SQE-style approach to exemptions for the QLTS and will provide an update in due course.

Registered foreign lawyers (RFLs)

Any EEA lawyer who has not registered as an REL or qualified as a solicitor but wants to be involved in the management or ownership of a law firm (which is not an ABS) in England and Wales or work in partnership with solicitors will have to register as a Registered Foreign Lawyer (RFL).

Being an RFL also gives limited additional practice rights.2

However, in general terms for an EEA lawyer who is not an REL to be able to do reserved work other than under supervision, they will have to qualify as a solicitor of England and Wales (or other regulated profession).

Further, an REL can presently practise here as a recognised sole practitioner. Following removal of the REL regime they will no longer be able to practise in this way. They either must qualify as a solicitor or arrange to close down their practice.

Fly-in/ Fly-out rights

EEA lawyers currently have specific rights to provide reserved legal services (with some restrictions) on a "fly in/fly out basis".3 This allows lawyers who are authorised members of a profession in another EU Member State to provide services across borders within the EU on a temporary basis, under their home-country professional title. In the event of a no-deal EU exit, these specific limited rights, to provide reserved legal services, will cease on exit day, that is on 29 March 2019. The removal of the fly in/fly out rights should not affect EEA lawyers’ ability to come here and provide non-reserved legal services on a temporary basis.

Firms are advised to consider their arrangements and take the necessary steps to make sure that they comply with the new regime so that, for example clients are not left without adequate representation on exit day.

Questions and answers

Open all

If you have already completed three consecutive years practice in English and Welsh law (including community law) and can evidence this to us, you can apply for admission as a solicitor under the ‘integration route’. Please note that you need to meet all the eligibility criteria to be admitted as a solicitor.

There are no examination requirements. Applications usually take up to three months to process with a £500 application fee. We encourage any RELs who meet the admission criteria and who wish to be admitted as solicitors to apply to us as soon as possible. Read more information on how to apply and eligibility criteria.

You may alternatively at any time choose to sit the QLTS or register as a Registered Foreign Lawyer (see above).

Alternatively, if you do not wish to be a manager or owner of a law firm (which is not an ABS), or offer reserved legal services, you may still work under your home title without registering with a regulator.4 If you are in any doubt about what you are able to do, please contact our Professional Ethics helpline for advice.

When you reach your three years of consecutive practice, whether that is before or after 29 March 2019, you can apply for admission as a solicitor under the integration route provided you meet the conditions for admission.

We will consider all applications to integrate into the solicitor's profession that have been made before the end of December 2020.

If you do not wish to do this/ do not meet the integration route criteria, you may alternatively at any time choose to sit the QLTS or register as a Registered Foreign Lawyer (see above).

Alternatively, if you do not wish to be a manager or owner of a law firm (which is not an ABS), or offer reserved legal services, you may work under your home title without registering with a regulator after 29 March 2019. If you are in any doubt about what you are able to do, please contact our Ethics helpline for advice.

You will be able to apply for admission as a solicitor as long as you have reached three years of practice and meet the eligibility criteria before the end of December 2020.

You can consider taking the QLTS route (see above). You can take the QLTS at any time. Once the SQE is introduced, you can take the SQE. Read more information about the QLTS. Information about the SQE.

Alternatively, if you do not wish to be a manager or owner of a law firm (which is not an ABS), or offer reserved legal services, you may work under your home title without registering with a regulator after 29 March 2019. If you are in any doubt about what you are able to do, please contact our Ethics helpline for advice.

If you are in any doubt about what you are able to do, please contact our Ethics helpline for advice

However, after exit day, an REL who is removed from the register for any reason will not be able to re-register as an REL. Registering as an RFL will be an option available to you. However, there are differences in the types of work an REL and RFL can undertake.

As an REL, you can provide legal services independently and without supervision in more areas than RFLs can. Also, as an REL you currently have the option to become a solicitor in the ways we have outlined above. An RFL must take the QLTS if they wish to become a solicitor. This table reflects the current position, but we will be considering whether it would be appropriate to make any changes to the RFL regime.

Registered foreign lawyers (RFL) Registered European Lawyer (REL)
Who can become one?

Any foreign lawyer (other than an EU qualified lawyer) who wants to practise in partnership with solicitors in England and Wales, or who wants to become a manager or owner of a law firm (which is not an ABS) in England and Wales, must register with the SRA as a Registered Foreign Lawyer (RFL).

Until exit day, an EU qualified lawyer cannot become an RFL if they are practising in England and Wales on a permanent basis because they must register as an REL. After exit day, they will then have the option to register as RFLs, even when practising in England and Wales on a permanent basis.

An EEA qualified Lawyer wishing to practise in England and Wales on a permanent basis with the same rights as those afforded to solicitors must register with us as an REL.

What services can they offer?

An RFL can practise the law of their home state, advise on English and Welsh law (limited to unreserved legal services) and provide unreserved legal services.

They can carry out or supervise any unreserved work – English legal work, foreign legal work (including business or financial advice or making business or financial arrangements) – that the firm is entitled to do.

They have rights to carry out limited reserved work independently and may carry out other reserved work at the discretion and under the supervision of a person who is qualified to supervise that work. 5

They can carry out or supervise foreign legal work which is reserved to lawyers of the RFL's home jurisdiction, provided they can do this within the rules of their own profession.

They have the same practice rights as authorised solicitors, including the reserved activities we authorise, with minimal restrictions. These cover the work that RELs can do in relation to the areas of probate and property transactions and representation of clients in legal proceedings.
What type of firms can they work in?

They can work in all types of firms but cannot be a sole practitioner.

They can work in all types of firms that a solicitor can, including setting up practice as a sole practitioner.

How can they become solicitors? Through taking the QLTS.

They can integrate into the solicitors’ profession after three years continuous practice in the UK (as per Establishment directive).

They can take the QLTS (and some exemptions are available)

How are they regulated by the SRA?

They are subject to the same rules of conduct as solicitors once registered with us.

They are subject to the same rules of conduct as solicitors once registered with us.

If by the end of that period you have been an REL for more than three consecutive years, you can apply (before the end of the period) for admission as a solicitor under the integration route (provided you meet the conditions for admission) and carry on as a sole practitioner.

If you do not wish to wait, until you have accumulated three years practice, or are unable to do so by the end of the transition period, you can apply under the QLTS (see above).

If you are not admitted as a solicitor after the end of December 2020,you will not be able to continue as a sole practitioner.

We are working through all the implications of the Technical Notice and SI and how we regulate EEA lawyers. We will work with the Ministry of Justice to implement the approach that is finally decided upon as efficiently and effectively as possible – and to keep our stakeholders informed of our thinking and approach. We will post relevant updates and news as the position develops

Reserved legal activities are defined in section 12 and schedule 2 of the Legal Services Act 2007. Exemptions are set out in schedule 3 to the Act. After exit day, paragraph 7 of that schedule, which applies to EU lawyers providing services on a fly in fly out basis, will be deleted in the event of ‘no deal’.

The LSB have issued guidance on reserved legal activities

Further help

If you require any further assistance, please contact the Professional Ethics helpline.

  1. For the detail see Rule 3 of the SRA Practice Framework Rules 2011
  2. See rule 8.4 of the SRA Practice Framework Rules 2011
  3. The Lawyers Services Directive (77/249/EC)
  4. For the detail see Rule 3 of the SRA Practice Framework Rules 2011
  5. See rule 8.4 of the SRA Practice Framework Rules 2011
Print page to PDF