England and Wales as an open jurisdiction to European and foreign lawyers after Brexit

Practising rights for EU and foreign lawyers in England and Wales

The UK left the EU single market and customs union on 31 December 2020, meaning EU laws, regulations and directives no longer apply in the country. These include:

• the Lawyers' Services Directive 1997
• the Lawyers' Establishment Directive 1998
• the Recognition of Professional Qualifications Directive 2005

Despite this, EU lawyers in England and Wales have kept their key practising rights.

EU lawyers can practise under their home-country professional title. They can provide legal services in their home-country law, European Union law and public international law.

These rights are protected under international law through the EU-UK Trade and Cooperation Agreement (TCA).

Foreign lawyers can provide legal services in English, Welsh, Scottish and Northern Irish law (including drafting contracts), with the exception of ‘reserved legal activities’.

Restrictions also apply to the provision of:

• claims management
• financial services
• immigration

Only authorised advisers can provide these services.

The Financial Conduct Authority (FCA) regulates advisers for the provision of claims management and financial services work.

The Office of the Immigration Services Commissioner (OISC) regulates immigration advisers.

EU lawyers can practise:

• arbitration
• conciliation
• mediation, and
• other forms of alternative dispute resolution

They can employ, be employed by and partner with English and Welsh solicitors, and practise in a partnership of foreign lawyers.

They can also be employed as in-house lawyers. For example, in the legal department of a commercial company.

Their communications with clients are protected by legal professional privilege (confidentiality).

They have a clear, transparent and proportionate path to requalification as solicitors through the Solicitors Qualifying Examination (SQE).

Reserved activities in England and Wales

In England and Wales, the reserved legal activities are:

• the conduct of litigation
• the exercise of a right of audience
• reserved instrument activities
• probate activities
• notarial activities
• the administration of oaths

In addition:

• under the Immigration and Asylum Act 1999, non-English lawyers need to be partners or employees of English solicitors in order to provide immigration advice and services
• under the Financial Services Act 2012, non-English lawyers who partner with solicitors can carry out certain categories of investment business without authorisation from the FCA

The activities reserved for the legal professions in Scotland and Northern Ireland are equivalent to those listed above, although the terminology is not always exactly the same.

In certain circumstances, EU and foreign lawyers are also entitled to carry out certain reserved activities in England and Wales. They may:

• carry out, under certain conditions:
  • the reserved legal activities of rights of audience
  • reserved instrument activities
  • advocacy before an immigration tribunal
  • preparation of documents in immigration tribunal proceedings
• be temporarily admitted as barristers of England and Wales. The Bar Council of England and Wales operates a regime of temporary call to the bar. This means a visiting foreign lawyer can be temporarily admitted to perform advocacy in a case or series of cases
• appear in court as expert witnesses. Courts and judges in England and Wales can give rights of audience on an ad hoc basis to individuals that they consider important in a case

For EU, European Economic Area (EEA) and Swiss citizens wishing to establish in the UK on a permanent basis, the above may be subject to them obtaining a visa under the new UK immigration system.

EU, EEA and Swiss citizens who were resident in the UK on or before 31 December 2020 and who applied to the EU Settlement Scheme by 30 June 2021 do not need to apply for a visa under the points-based immigration system.

Registered foreign lawyer status

EU and foreign lawyers may register with the Solicitors Regulation Authority (SRA) as registered foreign lawyers (RFLs).

Registration is mandatory if they are or want to become managers, owners or partners of an authorised law firm in England and Wales. It's otherwise optional.

RFLs have all the practising rights listed above, plus the following additional rights. They may carry out:

• the reserved legal activities of rights of audience and reserved instrument activities, provided they work under the supervision of a solicitor or another person who is qualified to supervise that work and that the firm they work for is authorised to carry out such work
• advocacy before an immigration tribunal, and conduct and prepare documents in immigration tribunal proceedings, provided that the firm they work for is authorised to carry out such work

Red the SRA guidance on RFLs and how to register.

The EU-UK Trade and Cooperation Agreement

The EU-UK TCA was announced on 24 December 2020 and came into force on 1 January 2021.

It contains a commitment by each party (the UK and each EU member state) to “allow a lawyer of the other party to supply in its territory designated legal services under that lawyer's home jurisdiction professional title” (article 194).

“Designated legal services” are defined as “legal services in relation to home jurisdiction law and public international law, excluding Union law”, where “legal services ” include “legal advisory services and legal arbitration, conciliation and mediation services” (article 193).

These provisions are subject to specific conditions and restrictions (non-conforming measures), most often at the level of an EU member state, which are contained in the annexes to the TCA.

The provisions under the TCA are a baseline. Each party (the UK and each EU member state) has retained the ability to have a regulatory framework that is more liberal and more open to lawyers of the other party than the general commitments described above.

Where this is the case, the TCA does not require any modification of the regulatory framework.

For this reason, EU and foreign lawyers in England and Wales have and will continue to have all the practising rights listed above.

England and Wales as a global legal centre

England and Wales is, and will remain, a global legal centre open to practitioners from all jurisdictions; the UK's exit from the EU has not changed this.

There are over 200 foreign law firms established in London. Around a quarter of these are from EU or European Free Trade Area (EFTA) jurisdictions.

We recognise the contribution of EU and foreign lawyers to England and Wales' status as a world leader in legal services provision.

We will continue to highlight this to government, the domestic profession and the wider population.