Preparing for a No Deal Brexit: your essential guide
Published in partnership with the Advertising AssociationFrom data compliance to staffing issues, this crucial AA-endorsed guide is designed to specifically help advertising businesses prepare to leave the EU
Like it or not, Brexit is going to impact your business and there is a high chance that the UK will leave without a deal on 31 October.
Responsible business planning requires careful consideration of this fact. Whether you are thinking about the transfer of data, taking equipment out of the UK, or hiring and retaining staff, you have a limited window in which to wrap your head around the day-to-day implications of leaving the EU.
The Government is asking all UK industries to put in place plans for Brexit. Consequently, the Advertising Association and its members are helping businesses in the UK ad sector through the process by prioritising the most appropriate parts of the Government's guidance.
This guide is especially useful for smaller businesses that do not have access to a legal team, and has been split into four key areas:
- EU Settlement Scheme
- EU, EEA and Swiss citizens staying longer than 3 months
- Data transfer between EU and international territories
- Temporary Exports (i.e. taking equipment abroad to film, or use at a trade show)
Click on the links provided at the end of each section for more details on the AA's website. It is also useful to regularly check GOV.UK for updates.
Although this guide looks at four key areas, different businesses will have different needs - so it is wise to look on the AA website for further guidance covering other areas.
Mediatel News will also run a follow-up Q&A on Brexit planning with Konrad Shek, strategic policy advisor at the AA, in the coming weeks. You can submit questions to the editor in advance
>>>EU Settlement Scheme
The EU Settlement Scheme has been fully open to the public since 30 March 2019. EU, other EEA and Swiss citizens can apply by 30 June 2021 if the UK leaves the EU with a deal, or by 31 December 2020 if the UK leaves without a deal.
However, given the uncertainty over whether Freedom of Movement will end if the UK leaves the EU without a deal, it is recommended you engage with your EU/EEA colleagues and encourage them to apply for the EU Settlement Scheme sooner, rather than later.
What is the EU Settlement Scheme?
The EU Settlement Scheme is a free Scheme which enables EEA and Swiss citizens resident in the UK, along with their family members, to obtain the status they will require in order to live and work in the UK after 30 June 2021 (or after 31 December 2020 if there is a no-deal exit).
Applicants only need to complete three key steps – prove their identity, show that they live in the UK, and declare any criminal convictions.
It is designed to be as simple and straightforward as possible.
Why do EEA citizens need to apply?
The UK is leaving the EU which means that free movement will come to an end. This means that EEA citizens resident in the UK, and their family members, need to obtain a status in order to evidence their right to work, housing and benefits in the UK after 30 June 2021 (or after 31 December 2020 if there is a no-deal exit).
An EEA citizen with permanent residence status who wishes to continue living in the UK after then will either need to apply to the Scheme or, if they prefer and are eligible, apply for British citizenship. This is because permanent residence is a status acquired under EU law whereas the Scheme secures their status under UK law.
There are several ways to complete this process, including the Identity Document Check App, currently only available on Android devices with an Apple version available later this year; or by post, telephone or in person.
There are over 80 locations where applicants can have their passport scanned and verified across the UK. Assisted digital support is available at over 300 locations, supplemented by a network of over 65 tutors who provide in home support, and there is also a dedicated telephone advice and support service for the Scheme.
Support is available to all EEA citizens online here.
Will the EU Settlement Scheme continue to operate now there has been an extension to Article 50 and what about in a no-deal scenario?
The Scheme opened fully on 30 March 2019 despite the extension to Article 50. The deadline for applying in a deal will be 30 June 2021 or 31 December 2020 if there is a no deal.
Use the EU Settlement Scheme contact form to get help online.
>>>EU, EEA and Swiss citizens staying in the UK longer than 3 months
As things stand, the risk that the UK will leave the EU on 31 October 2019 without a deal remains high. In this situation, the UK government has committed to ending freedom of movement as soon as possible. There may be a transition period between the end of freedom of movement and the introduction of the new skills-based immigration system, which is expected to be launched on 1 January 2021.
After the UK has left the EU, EU, EEA and Swiss citizens will continue to be able to enter the UK unchanged (without a visa), for stays up to 3 months, even in the event of a no-deal Brexit
For EU, EEA and Swiss citizens arriving in the UK, after it has left the EU without a deal, and wanting to stay to live, work and study in the UK for more than 3 months, they will need to apply for “European Temporary Leave to Remain” during the transition period.
If successful they will be granted a further 36 months. It will not be extendable, grant them indefinite leave to remain, or make them eligible for the EU Settlement Scheme.
EU, EEA and Swiss citizens that were already resident in the UK, prior to the UK leaving the EU, may be eligible for the EU Settlement Scheme.
Irish citizens will not need to apply for the European Temporary Leave to Remain, as they will continue to have the right to enter and live in the UK under Common Travel Area arrangements.
More detailed guidance for EU, EEA and Swiss citizens coming to the UK to visit, study, work or join family if the UK leaves the EU without a deal can be found here.
It is also worth regularly checking GOV.UK website for updates.
If your company receives personal data from other countries, in particular the EEA, it is important that you have contingencies in place so that you can continue receiving personal data lawfully. While this note is intended to provide guidance, it does not replace legal advice.
The UK’s data protection regime is currently governed by the EU’s General Data Protection Regulations (GDPR) and the UK’s Data Protection Act 2018 (DPA 2018). If your organisation receives personal data from the EEA you will still need to abide by both GDPR and DPA2018 even after Brexit.
GDPR is a common set of regulations that all EEA Member States abide by and it sets a minimum level of protection for the personal data belonging to EEA citizens. As the UK is currently a member of the EU, there are no restrictions on the flow of personal data and other EEA Member States.
Article 45 of the GDPR states that the European Commission needs to assess the relevant country’s laws to determine whether they are essentially equivalent or “adequate” to that of EU ones. There are currently 13 countries that have adequacy or partial adequacy status. Adequacy talks are ongoing with South Korea.
The UK has announced that it will allow the flow of personal data to the EEA regardless of a deal being in place and will recognise existing European Commission data adequacy decisions.
However, the EU has not yet made a similar commitment towards the UK. This is because on leaving the EU, the UK will become a “third country”. And while the UK remains an EU member, the European Commission will not conduct this assessment.
Unfortunately, this means if we leave the EU without a deal we will not have a data adequacy decision in place to facilitate the free flow of personal data from the EEA.
Standard Contractual Clauses
In the absence of an adequacy decision, GDPR states that personal data can be transferred to a third country or an international organisation if there are appropriate safeguards. There are a number of recognised safeguards, but most appropriate to businesses are the implementation of Standard Contractual Clauses (SCCs).
SCCs are a standard set of contractual terms and conditions for the transfer of personal data which both the data exporter and the data importer enter into.
They include contractual obligations which help to protect personal data when it leaves the EEA and ensure compliance with GDPR. SCCs only relate to the transfer of personal data, so they can be incorporated into a wider contract that covers other business terms.
One of the key benefits of using these SCCs is that they are approved by the European Commission.
The Information Commissioner’s Office (ICO) has developed a tool for small and medium-sized businesses and organisations to help them decide if SCCs are appropriate and to select the right one.
You can incorporate SCCs into a wider contract but you cannot amend the SCCs themselves, or they will no longer be authorised by the European Commission or relevant Data Protection Authority.
If you are using the SCCs as stand-alone contracts then you should not modify the clauses as the contract will no longer be authorised by the European Commission or relevant Data Protection Authority.
Binding Corporate Rules
If you are a multinational operating in the UK and in one or more EEA country, then Binding Corporate Rules are required to transfer personal data between the different parts of the Group located in the UK and the EEA.
US Privacy Shield
If you send data to a US Privacy Shield organisation, the Privacy Shield participant will need to update their public commitment to specifically reference the UK, in addition to the EU. There is further information on the US government’s Privacy Shield website.
In addition, the ICO has published guidance for organisations about international data transfers.
Data Protection Lead Authority
If the ICO is your lead Data Protection Authority, you may need to review your operations to assess whether you can still have a lead authority and benefit from the one-stop-shop following Brexit.
Appointing a Data Representative
If you are a data controller or processor that is subject to GDPR but not established in the EEA – as will be the case when the UK leaves the EU – you have an obligation to designate a data representative based in the EEA. This representative will be the go-to person to deal with individuals and DPAs in the EEA.
The UK plans to oblige non-UK controllers who are subject to the UK data protection framework to appoint representatives in the UK if they are processing UK data on a large scale.
Regularly check the GOV.UK website for updates. The ICO has a page dedicated to Brexit that covers the implications for data protection and data transfers in more detail and its SCC tool provides template contracts.
If you need more information about your obligations and what you need to do to comply, it is recommend you seek legal advice.
Temporarily moving high value equipment for filming on site or taking promotional material for a trade show from the UK to another country is considered a temporary export.
At the moment there is no restriction on the temporary export of goods within the EU, unless it belongs to a controlled or sensitive category group. But after the UK leaves the EU, this may no longer be the case.
This advice applies to anyone needing to temporarily export goods from the UK for business reasons above a certain value such as:
- Commercial samples to show at trade fairs or sales meetings
- Publicity materials
- Recorded film and audio
- Professional equipment you need for work like laptops, cameras or sound equipment
- Goods for educational, scientific or cultural purposes
- Personal effects and sporting goods
Most countries around the world have a limit on the value of goods you can bring in for free. Hence, applying for an ATA Carnet may be the best route for you to temporarily export your goods. Without an ATA Carnet, it would be necessary to go through each country’s customs procedures and may require lodging a temporary import bond.
ATA Carnets are useable in 78 countries and allows movement of the goods shown on the Carnet as many times as required within a 12-month period to any destination applied for. Note that goods being sent to Taiwan require a Taiwan Carnet.
Each country has its own rules about what goods you can bring in with an ATA Carnet so please check with the issuer in the country you’re exporting to.
You can apply for an ATA Carnet either online or by post. If you’re using a freight forwarder, they will usually fill this in for you.
ATA Carnets are issued by Chambers of Commerce or similar issuing associations that are approved by the customs authorities in the country where they operate.
In the UK ATA Carnets for goods to be temporarily exported from the UK can be bought from the London Chamber of Commerce and Industry and its various offices.
Regularly check the GOV.UK website for updates. If you need more information about your obligations and what you need to do to comply, it is recommended you seek legal advice.
This guide was paid for by the Advertising Association, using funding from the Government’s Brexit Business Readiness Fund