Brexit Is Still With Us!

The United Kingdom left the European Union on 1 January 2021, after a Transition Period that started 31 January 2020. The predicted effects of Brexit on UK business have been overshadowed by the more immediate economic damage done by Covid-19 lockdowns, but as we appear to be getting the pandemic under control, the effect and impact of Brexit is once again becoming clearer and more relevant.

Here are a few ways in which Brexit may yet affect your business:

Intellectual Property
Trade Marks

Since the 1 January 2021, EU trade marks will no longer protect trade marks in the UK. Before Brexit, you could apply for an EU trade mark which would also cover and protect you in the UK and this meant that you did not necessarily need to have both an EU trade mark and a separate UK trade mark. From the 1 January 2021, the Intellectual Property Office (IPO) has created a comparable UK trade mark for all rights holders with an existing EU trade mark.

This means that if you have an EU trade mark, and do not have a UK trade mark, you will now have a comparable UK trade mark that protects you in the UK. The IPO will combine your EU trade mark code with a new UK trade mark code. If you have both an EU trade mark and a UK trade mark, the IPO will combine the two codes.

You will not need to pay for your equivalent or comparable UK trade mark and you will not receive a UK registration certificate, but you can check that the IPO has created the comparable trade mark at: https://www.gov.uk/search-for-trademark. More information about trade marks can be found on the government website.

Domain Names

Since 1 January 2021, you are not able to register or renew .eu domain names if your organisation, business or undertaking is established in the UK but not in the EU/European Economic Area (EEA) or you live outside of the EU/EEA and are not an EU/EEA citizen.

You can only register or hold .eu domain names if you are:

  • an EU/EEA citizen, independently of where you live
  • not an EU/EEA citizen but resident in the EU/EEA
  • an organisation, business or undertaking that is established in the EU/EEA

If you already have a .eu domain or are considering obtaining one, you should check the eligibility criteria set out in Article 4(2)(b) of Regulation (EC) No 733/2002, as amended by Regulation (EU) 2019/517, and seek legal advice if necessary.

You can find more information about domain names at https://www.gov.uk/guidance/registering-and-renewing-eu-domain-names-in-the-uk.

Employment
Employing EU Nationals

Since 1 January 2021, companies have been required to have a sponsor licence to hire EU nationals. This is an issue for many businesses. The hospitality sector in particular, which suffered during the pandemic despite extensive government support, is reportedly now struggling to recruit as businesses reopen. Trade group UK Hospitality squarely blames Brexit for these problems as more EU workers return to their home countries.

The UK introduced a points-based immigration system from 1 January 2021. Potential recruits from outside the UK, excluding Irish citizens, will need to apply for permission in advance. Under this points-based system, anyone coming to the UK for work must meet a specific set of requirements for which they will score points (a total of 70 points is required). Visas are then awarded to those who gain enough points and each job will have a Standard Occupational Classification (SOC) code to identify whether the job meets the required skill level.

Businesses who need to hire EU nationals (or employees from outside the UK in general) should understand the responsibilities and steps they should follow and consider reviewing recruitment processes to ensure compliance with the new rules.

You can find more information on this here:

UK Employees Working Abroad

Since 1 January 2021, any UK employee who goes to work in an EU country will need a work permit and, in most cases, a job offer from the chosen country to get a visa to move there. Criteria for obtaining a visa may differ between EU member states, so it is important that you talk with a UK-based embassy of the country you want to work in to see what the procedure may be.

You can find more information on this at https://www.gov.uk/working-abroad.

It is important to note that there are other factors to consider when a UK-based employee moves and works in any other country. These include pension, tax, NIC, employment rights, permanent establishment and data protection implications. These points must be understood and researched before allowing one of your UK employees to move and work in any other country.

EU National Employees in the UK

EU citizens and their family members (including children and non-EU citizens) need to apply to the EU Settlement Scheme to continue to live, work and study in the UK beyond 30 June 2021. EU citizens must be resident in the UK by 31 December 2020 to apply to the EU Settlement Scheme. The deadline for applications to the EU Settlement Scheme is 30 June 2021.

While there is no legal obligation for an employer to communicate the EU Settlement Scheme to employees, you can at least direct them to the information and resources on the government website

Note though that government guidance suggests up to 30 June 2021, an employer who insists on seeing evidence of settled or pre-settled status risks a complaint of race discrimination.

Right to Work Checks

How you check EU, EEA or Swiss citizens’ right to work in the UK has not changed, even though the UK has left the EU. They can still use their passport or National Identity Card until 30 June 2021. After 30 June 2021, the new immigration rules for recruiting people from outside the UK will apply. You will not need to make retrospective checks for existing employees. There is no requirement for employers to carry out retrospective right to work checks for existing EEA and Swiss national employees to confirm that they have settled or pre-settled status. In other words, if an employer has conducted a compliant right to work check for an EEA or Swiss national before 1 January 2021, there is no need to repeat this.

EEA and Swiss nationals entering the UK from 1 January 2021 will not be able to apply for settled or pre-settled status. Because free movement between the UK and the EEA ended on 31 December 2020, they will require a visa to be able to work in the UK under the new immigration system. Therefore, to confirm the right to work of EEA and Swiss nationals arriving in the UK on or after 1 January 2021, employers will need to see evidence of their visa alongside their passport or national identity card

You can find more information on this using the following links:

What Laws or Legislation Will Change as a Result of Brexit?

It is clear now that existing EU laws will continue to apply unless they are repealed by UK Parliament. The message seems to be to keep calm and carry on, at least until we are notified that particular laws or legislation will be changing as a result of Brexit. 

Brexit Calculator

There is a calculator on the government website that asks a series of questions and informs you if there is anything in particular your business should do as a consequence of Brexit. You can access this at https://www.gov.uk/transition.

Should you have any questions or queries in relation to this update, then please do not hesitate to reach out to us. The Motion Paradox team are here to help.