European Lawyers practising in the UK
European Lawyers practising in the UK
Updated 5 December 2019 (Date first published: 22 April 2016)
This guidance is not mandatory. However, if you do not follow it, you may be required to show how you have complied with our Standards and Regulations.
Who is this guidance for?
European lawyers practising in the UK
Purpose of this guidance
This guidance will help you if you are a European lawyer and you wish to practise in the UK, either temporarily or on a long-term basis.
It deals with the legislation which gives European lawyers the right under European Union law to practise in the UK, and sets out the regulations and rules which will apply to you if you decide to register with us as a registered European lawyer (REL), in accordance with the Establishment Directive.
This guidance will be useful if you are an owner or manager of a European law firm and you are planning to open an office in England and Wales and you wish to consider the various options before determining the appropriate structure for your practice.
In light of ongoing political developments concerning Brexit, you may also wish to review our guidance note on the Impact on exempt European lawyers of the Governments Statutory Instrument on the basis of a 'no deal' EU exit scenario.
Relevant rules and law
- The relevant legislation which affects the position of European lawyers who wish to practise in England and Wales is as follows:
- The Lawyers' Services Directive (77/249/EEC) - this sets out the rights of European lawyers to practise in the UK under their professional title on a temporary basis.
- The European Communities (Services of Lawyers) Order (S.I. 1978 no. 1910) - this implemented the Lawyers Services Directive in England and Wales.
- The Lawyers' Establishment Directive (98/5/EEC) - this sets out the rights of those European lawyers who meet the criteria, to practise in the UK on a permanent basis under their home state professional title (the Establishment Directive).
- The European Communities (Lawyer's Practice) Regulations 2000 - these implemented the Establishment Directive in England and Wales and Northern Ireland (the Establishment Regulations).
- The Legal Services Act 2007 - this regulates who may carry on reserved legal activities (ie the exercise of a right of audience, the conduct of litigation, reserved instrument activities, probate activities, notarial activities and the administration of oaths) as defined in Schedule 2 of the Act (the reserved legal activities).
- The SRA's Standards and Regulations - set out the regulatory provisions which apply to you if you register with us as an REL.
Part 1: European Lawyers Practising in England and Wales: the legal framework
1.1 Practising on a temporary basis
Temporary practice by European lawyers in England and Wales is straightforward.
If you are established in another member state and you are a practising member of one of the professions specified in the Directive, the Lawyers Services Directive allows you to provide legal services, which are otherwise reserved to UK lawyers, in the UK on an occasional basis.
To take advantage of the Directive before courts and tribunals in England and Wales, you must throughout the proceedings be instructed and act in conjunction with an advocate, barrister or solicitor who is entitled to provide that service.
We do not require you to notify us of your intention to practise here on a temporary basis, nor will you be regulated by us.
1.2 Practising on a permanent basis
The Establishment Directive gives European lawyers the right to practise law on a permanent basis in another member state (the 'host' state), under their home state professional title.
This is subject to registering with a 'competent authority' in the host state (see below). Once registered, you will be regulated by that competent authority and you must comply with the rules governing the local profession (Article 6).
The Directive will apply to you if:
- you are a national of an Establishment Directive state (ie the EU, the European Economic Area or Switzerland), and
- you are entitled to practise as a member of one of the legal professions listed in Article 1 of the Directive, and
- you will be practising in the UK under your home title on a permanent basis (see below), and you are not a member of one of the UK professions listed in Article 1 of the Directive.
For a list of the participating states and the relevant legal professions (including those of the UK), see Appendix 1.
If you meet the above conditions, you must register with a competent authority before you start practising in the UK, regardless of the way in which you intend to practise (ie whether you will be practising in-house or in private practice, whether you will be conducting reserved activities or non-reserved activities, and whether you will be practising the law of your home state, of England and Wales or any other law).
It is a criminal offence to wilfully pretend to be a registered European lawyer, or to adopt any title or description that implies that you are a registered European lawyer, if you are not (regulation 21 Establishment Regulations). It is also a criminal offence to carry reserved legal activities if you are not entitled to do so (s14 LSA).
Registration with a UK 'competent authority'
Although the UK is a single member state, it has three separate legal jurisdictions - England and Wales, Scotland and Northern Ireland.
In each jurisdiction, there are two branches of the profession - solicitors and barristers (or 'advocates' in Scotland).
The SRA and the Bar Standards Board are the competent authorities for the solicitor and barrister professions in England and Wales. The others are the Law Society of Scotland, the Faculty of Advocates (Scotland), the Law Society of Northern Ireland and the Bar Council of Northern Ireland.
You are only required to register with one competent authority in the UK. If you wish, you may register in more than one of the UK jurisdictions, but you cannot be registered with one of the bodies regulating solicitors and one of the bodies regulating barristers at the same time.
Choice of competent authority
You are free to decide which competent authority you wish to register with. The only exception is if you are a solicitor or barrister of the Republic of Ireland, in which case you must register with one of the law societies or one of the bars respectively.
Whichever competent authority you choose, you will acquire rights of practice similar to that legal profession (including the right to do the work reserved to the local profession in that jurisdiction, subject to certain restrictions in specified proceedings) and you will be subject to the rules, regulation and discipline of that competent authority.
In most cases, therefore, your choice is likely to depend on the jurisdiction in which you intend mainly to practise and the type of work you wish to undertake. For example, if you will be based in England and Wales, but choose to register with the Law Society of Scotland, you would only be able to undertake work which Scottish solicitors are permitted to do in England and Wales.
Practising on a permanent basis
You do not have to intend to remain in the UK indefinitely in order to be 'practising on a permanent basis'. You will come within the Establishment Directive if you mean to spend a substantial period of time here.
You can find further guidance on what 'practising on a permanent basis' means in Appendix 2. But remember - you may be committing criminal offences if you are not registered when you are required to be. If, therefore, you are not sure whether you will be 'established' here, it may be advisable to register.
You can contact Professional Ethics for help on this point.
1.3 Lawyers to whom the Establishment Directive does not apply
If the Establishment Directive does not apply to you because you do not meet the criteria - for example, because you are not an EU national, or you are dually qualified as a UK solicitor or barrister, or you are an avocat stagiaire - then subject to your home rules, you are free to set up your own practice in England and Wales and to practise under your home professional title in the UK on a permanent basis.
However, you will not have the same rights as a lawyer registered under the Establishment Directive. You will not, therefore, be able to carry on any of the reserved legal activities.
Part 2: Registration with the SRA
2.1 Applying for registration
To apply to become an REL with us, you must first register an account on mySRA. You will then be able to access the application form online.
In order to register, you will need to get a certificate of attestation from your home Bar(s) or law society. This must state:
- your date of admission,
- whether there is a probationary or training period after admission - for example, a stage that your name appears on the register of the body which is providing the certificate, and an indication that you are entitled to practise, and
- that there are no disciplinary orders or pending proceedings against you (or if there are, the certificate should provide details).
In order to comply with our rules, you must disclose any information in relation to your disciplinary record, character or suitability that is relevant to your application.
Renewal of your registration
You must renew your registration as an REL each year on 1 November. Read more information about the renewal process and the fee payable.
You must also pay an annual contribution to the Compensation Fund. However, Article 6.3 of the Establishment Directive allows you to apply for a full or partial exemption from this requirement if you can demonstrate that you are covered by a similar fund in your home state and that fund is equivalent, or partially equivalent, in respect of its terms and extent of cover.
Notifying us of any change to your practising address
You must inform us of any change to your practising address promptly. You can do this via mySRA.
To remain on the register as an REL, you must at all times remain registered under your professional title in your home state. If you fail to do so, your registration may be revoked (regulation 8.4(d) of the SRA Authorisation of Individuals Regulations).
This is likely to mean that you must remain on the register and continue to pay any fees required in your home state.
2.2 Practice rights and restrictions
Registration with us as an REL gives you the following rights, subject to compliance with our Standards and Regulations (see heading 3.1 below)
- to practise anywhere in the UK with practice rights similar to those of a solicitor of England and Wales,
- to administer oaths and declarations in England and Wales and to use the title 'Commissioner for Oaths',
- to provide reserved instrument activities, including reserved conveyancing services (subject to certain limits - see Restrictions on reserved legal activities below),
- to provide reserved probate services (subject to certain limits - see below)
- to provide litigation and advocacy services, together with the ability to acquire a higher courts qualification in order to exercise rights of audience in the higher courts (subject to the conditions referred to below),
- to do immigration work,
- to do publicly funded work in England and Wales, subject to securing a legal aid contract,
- to provide financial services in the UK as part of your legal practice in an SRA-regulated entity, to the extent permitted under the SRA Financial Services (Scope) Rules,
- to apply for admission as a solicitor, provided you meet the requirements under Article 10 of the Establishment Directive and Part V of the Establishment Regulations,
- to become a member of the Law Society (the representative body for solicitors) and to vote and stand for office in Law Society elections.
Restrictions on Practice: reserved legal activities
Although you are permitted to carry on the reserved legal activities referred to above, these are subject to the following restrictions:
Litigation - You are entitled to provide advocacy services before courts and tribunals in England and Wales (other than before the higher courts, unless you have a higher courts qualification), and to conduct litigation, but in each case you must be instructed together with a solicitor or barrister who is entitled to undertake that activity. The solicitor or barrister may be a member of your own firm.
Conveyancing - You are only entitled to prepare instruments and lodge documents relating to the transfer or charge of land in England and Wales if you are a member of a profession listed in Regulation 12 of the Establishment Regulations (see Appendix 2.)
Probate - You are only entitled to prepare papers on which to found or oppose a grant of probate or letters of administration if you are a member of one of the professions listed in Regulation 13 of the Establishment Regulations (see Appendix 2).
Part 3: SRA regulation
3.1 What Authorisation entitles you to do
Regulations 9 and 10 of the SRA Authorisation of Individuals Regulations set out what authorisation as an REL entitles you to do and the limitations on the ways in which you are permitted to practise certain types of work; reserved legal activities, immigration, claims management and financial services.
As an REL there are few limitations on the ways in which you may practise. The following are examples of the ways in which you may practice:
- as an in-house lawyer employed by a non-authorised individual, business or organisation,
- in an authorised body - ie a law firm which has been authorised by us as an authorised body. You may practise in an authorised body as:
- a sole practitioner,
- a manager (ie as a partner, if the firm is a partnership, as a member, if the firm is an LLP, or as a director if the firm is a company), or as an interest holder in the firm,
- an employee.
- in an authorised non-SRA firm - ie a law firm which is authorised by one of the other approved regulators, or
- as a non-authorised individual in a non authorised business or organisation provided that you do not carry on reserved legal activities unless you do so in accordance with regulation 10.2(b) of the SRA Authorisation of Individuals Regulations.
Part 4: Compliance with the SRA Standards and Regulations
Once you are registered with us as an REL, you must comply with our Standards and Regulations which apply to your practice as an REL and, if you have set up an authorised body, to the entity itself. It is important to familiarise yourself with our Standards and Regulations. Many of the Standards and Regulations will apply to you however you practise as an REL but in particular the Principles, Code of Conduct for Solicitors, RELs and RFLs, the Authorisation of Individuals Regulations and the Regulatory and Disciplinary Procedure Rules.
You must also continue to comply with your home state rules. If there is a conflict between those rules and our Standards and Regulations, our Standards and Regulations will take precedence (Article 6 of the Directive).
Other key conduct requirements
All authorised bodies must be covered by professional indemnity insurance in accordance with the SRA Indemnity Insurance Rules. Broadly speaking, the required cover is:
- at least £3 million for any one claim in respect of an LLP, a limited company or a partnership in which one or more of the partners is a limited company or LLP, and
- at least £2 million for other types of authorised body.
However, you can apply for full or partial exemption from the insurance requirements in certain circumstances.
A full exemption may be granted if you can show that under your home state rules, your firm has professional indemnity cover for the office in England and Wales, and that this cover is in all respects equivalent to the conditions and extent of cover required under our rules.
A partial exemption may be granted if you can show that there is cover under your home insurance, but the equivalence is only partial.
Notepaper, emails and website.
In addition to any statutory requirements, if you are intending to practise through an authorised body or as an individual in the circumstances set out in regulation 10.2(b) of the SRA Authorisation of Individuals Regulations you must comply with the SRA Transparency Rules. In addition, if you are in an authorised body you must comply with the Code of Conduct for Firms. In particular you must display the costs information, complaints information and regulatory information as required, including the SRA digital logo.
If you are setting up as an authorised body, you must meet the requirements of the SRA Authorisation of Firms Rules. In particular rule 9.4 states that you have at least one manager or employee or procure the services of an individual who is a lawyer and has practised as such for a minimum of three years, and supervises the work undertaken by the authorised body (or, if the body is a licensed body, the work undertaken by the body that is regulated by the SRA in accordance with the terms of the body's licence).
Part 5: Becoming a solicitor
Article 10 of the Establishment Directive gives you the right to apply for admission as a solicitor without having to sit an exam, provided you are registered with us at the time of your application.
- have been 'effectively and regularly' practising UK law (which includes Community law) in the UK for three years (Article 10.1), or
- have been 'effectively and regularly' practising as a lawyer in the UK for three years, but only practising UK law for part of that time (Article 10.3).
'Effectively and regularly' is defined in Article 10 and means without any interruption other than that resulting from the events of everyday life.
Alternatively, you may become a solicitor under regulation 3F.1 of the SRA Authorisation of Individuals Regulations. This may involve you taking assessments unless you are eligible for exemptions but there is no time limit on when you can apply. Failing to become a solicitor by this route does not prevent you from subsequently applying under Article 10.
Your registration as an REL will be cancelled upon your being admitted as a solicitor.
Not withstanding your admission as a solicitor, you may, if you wish, have a separate practice in the UK under your home professional title. However, you will be deemed to be practising as a solicitor (regulation 36(3) of the Establishment Regulations), even if you are practising solely under your home professional title. You must therefore have a current practising certificate and comply with our Standards and Regulations , as well as your home state rules.
Part 6: Frequently asked questions
Q1. I am an EU national and am dual qualified as both a French avocat and a US attorney. I wish to practise in the UK solely under my US qualification. Will I still have to register under the Establishment Directive?
No. You are only required to register if you are practising under your EU professional title. More
Provided you are not held out as a European lawyer, therefore, you do not need to register.
Registration in more than one UK jurisdiction, effect of becoming a solicitor
If you are already registered with us as an REL when you become a Scottish solicitor, you will remain an REL for as long as you maintain your registration with us (regulation 2(3) of the Establishment Regulations).
If you require further help in relation to any of the matters referred to in this guidance, please contact Professional Ethics.
|Member states under Article 1 of the Establishment Directive||Professional titles specified under Article 1 of the Establishment Directive||Permitted to provide reserved conveyancing services||Permitted to provide reserved probate services|
|Irish Republic||solicitor; barrister||Yes||Yes|
|Malta||avukat; prokuratur legali||No||No|
|Poland||adwokat; radca prawny||No||No|
|United Kingdom||solicitor; barrister/advocate||Yes||Yes|
Note: Although it is not referred to in Article 1, Gibraltar is treated as part of the UK for the purposes of the Establishment Directive. Consequently, if you are a Gibraltarian lawyer, you cannot register with any of the competent authorities in the UK. Your position will be the same as those who are not caught by the Establishment Directive (see paragraph 1.3 above)
'Practise on a permanent basis' in the UK does not mean that you must intend to remain in the UK permanently. For example, it would be an indication that you are "practising on a permanent basis" (or "established" in the UK), if:
- you are ordinarily resident in the UK, or
- you maintain a regular practice in the UK, or
- you maintain an office, branch or agency in the UK, through which you carry on your professional activities and at which you maintain a regular personal presence, or
- you are employed as a lawyer, and your ordinary place of employment is in the UK
You may be practising on a permanent basis, and are therefore required to register with a competent authority, irrespective of whether you are practising as a manager, a consultant or an employee in private practice, or as an in-house lawyer in the employment of a non-lawyer business or organisation.
Whether you are ordinarily resident in the UK may depend to some extent upon what you intend. Thus, if you came here with the intention of settling here permanently or for a substantial period of time, then you will have been 'ordinarily resident' here from the time of your arrival.
However, even if you have not stated an intention to settle permanently in the UK, your actions might demonstrate that you have that intention – for example, if your only residence is in the UK, or you have settled your family and send your children to school in the UK.
Maintaining a regular practice or personal presence
If you are a manager or owner of a law firm in the UK, but you personally are based outside the UK full-time, you will not be maintaining a regular practice in the UK unless you regularly attend the firm's UK office, branch or agency.
It can sometimes be difficult to decide when you move between states. Our view is that: a daily or weekly presence is likely to mean that you are maintaining a regular practice in the UK and a regular personal presence at the UK office
a fortnightly presence for the purpose of dealing with client matters, drafting documents, appearing in court, etc. might well be considered more than "occasional", and that you are therefore maintaining a regular practice in the UK and a regular personal presence at the UK office
a fortnightly presence for the purpose of attending managers' meetings and dealing only with matters of management of the firm might not amount either to regular practice in the UK or regular personal presence at the UK office
Ordinary place of employment and secondments
Whether the UK is your ordinary place of employment may to some extent be a subjective question. If you are normally based outside the UK, but you are seconded to an office in the UK for a defined period of time of less than twelve months - whether for training purposes, to further your personal development or to deal with a particular case or transaction – we will not usually regard you as practising here on a permanent basis.
However, if your secondment is for a defined period which is longer than one year, or it is for an indefinite or renewable period, you will be taken to be "practising on a permanent basis" in the UK and should register.
You may be committing criminal offences if you are not registered when required to do so. Moreover, failure to register would result in your being unable to recover any legal costs or fees (see Regulation 23 of the Establishment Regulations). In a borderline case, therefore, it may be safest to err on the side of caution and register.
If you require further assistance, please contact the Professional Ethics helpline.