Brexit FAQ

The UK farming industry is reliant on migrant labour in many areas of food production and in abattoirs and processing plants. The reference to 'taking control of borders' has already caused a degree of anxiety on those workers already in the UK, whether from EU countries or outside the EU. News reports of EU migrants being subjected to hostile treatment have not helped and stories have circulated of migrants returning to their countries or not being prepared to come to the UK for this year’s seasonal work. The fall in the value of the pound against the euro has made earnings in the UK less attractive.

The Common Agricultural Policy has for the last 45 years provided a backdrop to the payment of farm and production subsidies. The three main objectives for the CAP are: viable food production; sustainable management of natural resources and climate action, and balanced territorial development. These have, in recent years, been changed and reviewed to take the form partly of direct payments to farmers and partly funding for rural development available to farmers and the wider rural community.

As well as dismantling and replacing subsidies, the areas of law that the Government may target when EU obligations are removed are habitat regulation, animal welfare, licensing of pesticides, herbicides, water and air quality, and tariffs on food and allied imports. Some of these will be sensitive to the industry as well as to public pressure groups such as whether to move forward faster with GM crops production and other applications.

European and other national regulations will still be applied to the welfare and food safety standards applicable in those countries to food and produce exported from the UK.

By the time Brexit happens all the negotiations between the interested bodies, including industry groups and wider countryside organisations on the one hand and DEFRA and the devolved Administrations, will have to have been settled by March 2019 so that the Agricultural industry will have certainty as to the future of support payments funded from the Treasury.

The funding solutions will be different for the devolved regions, as they are at present so, unlike many areas of industry, the agricultural industry will be playing a four-handed Brexit game simultaneously.

Look, listen and take heed.

Read the farming press and engage with the farming and landowning organisations. It will be vital when deciding on long term investments to be able to judge how profitability might be affected by changes to workforce, support payments, and export tariffs.

Our Agricultural and Rural Property team of lawyers are monitoring discussions and developments closely and would be pleased to join discussion groups and to advise you.

The Government has, unsurprisingly, not given anything away in terms of what immigration rules will apply to nationals of EU member states beyond Brexit. However, things will inevitably change and it is difficult to see a scenario in which the rights of EU nationals to live, work and study in the UK remain the same.

It is unlikely, but not impossible, that the Government will seek to remove the rights of EU nationals who have already obtained the right to permanent residence in the UK. Less clear are the guarantees for those who have not exercised their Treaty rights in the UK for a continuous period of five years.

Given this uncertainty, the best option is always to apply to the Home Office to confirm whatever rights you think you might have, at the earliest opportunity. If you haven’t yet been in the UK for the continuous five year period required to obtain permanent residence, apply for a residence card instead. If you think you have passed the five year threshold to apply for permanent residence, apply as soon as possible in case changes are introduced in the way that the UK recognises the rights of EU nationals.

You can apply online (in most cases) or via a paper form. A European passport return service has recently been launched, meaning applicants can now apply online, then submit their documents at a participating local authority and have their identity documents checked without needing to send them off to the Home Office. This is particularly useful for those who travel regularly.

If you apply for permanent residence on the basis that you are or have been self-sufficient or a student, then you will need to provide evidence that you and your family members have held comprehensive health insurance during the period in question.

Assuming that they have been with you for the requisite five year period, you can include them on your application.

This is an interesting jurisprudential question arising from the 1992 Maastricht Treaty as well as interpretation of the 1969 Vienna Convention on the Law of Treaties and there has been a suggestion made in that British citizens could remain or register as citizens of Europe with a petition launched for this to be considered by the European Commission. The most likely scenario, however, is that there will be specific negotiation as to the rights of British citizens resident in Europe and EU citizens resident in the UK (which may hinge upon reciprocity) and as to the shape of any future free trade agreement (in which any continued rights of free movement are likely to be a central issue).

If you are married to a British national you could apply for a British passport immediately, provided that you meet the residence, language and Life in the UK requirements. If you are not married to a British national, you would need to have proved exercise of Treaty rights of residence for at least six years before becoming eligible for naturalisation.

The need to demonstrate that the UK is open for business means that the Government will encourage infrastructure improvements so that businesses will want to both locate in the UK and trade with the UK. The need for all forms of infrastructure should therefore increase.

In terms of the legal process for getting consent, nothing will change immediately, but there is likely to be a gradual series of changes as obligations that are considered unnecessarily burdensome are weakened or dispensed with.

Some of the areas of law that the government may target once EU obligations are removed are habitat regulation, air quality, state aid and procurement rules. Some of these will be very politically sensitive and ‘too hot to handle’, so despite their preferences the Government may decide they are best left alone, air quality being a good example of this.

Unless a deal says otherwise, the UK will be bound by EU law until the end of the transition period on 31 December 2020 and no changes to legislation will take place until after that date, although proposed changes may be consulted upon beforehand. If there is no deal, then directly applicable EU law such as Regulations (rather than Directives) and court precedents may disappear. Another question is what will happen to infraction proceedings once the UK has left, and the knock-on implication of how closely the UK will adhere to EU regulation in the months leading up to its departure.

Depending on the type of intellectual property you own, some rights will not be affected. Whereas for EU ‘unitary’ rights which are only enforceable in EU member states, once out of the EU, such rights will no longer apply to Britain.

IP registrations are territorial rights, which means they are only enforceable in the territories where they are registered. Therefore, unless your IP rights are registered in the EU, they will not be protected or enforceable in the EU.

If your trade mark or design is registered in the UK, the registration will not be affected by Brexit. If, however, your registration is in the EU (which is a ‘unitary’ and territorial right), post-Brexit such registration will not cover the UK, but will continue to have effect in the other remaining EU member states.

Your rights to trade in the EU are not dependent on your IP registrations. However, after Britain leaves the EU, you will not be able to take legal action against any infringement in the UK on the basis of your EU registration, even if you are a UK-based business.

If your trade mark or design is registered in the EU, then you will continue to be able to take legal action against infringements or unauthorised use of your trade mark or design in the EU. But if you only have a UK registration for your trade mark or design, then you do not have any right to stop infringements or unauthorised use in the EU.

It depends on whether they have registered their trade mark or design in the UK. EU-based companies that only own EU registrations will not be protected in the UK.

If you own EU registrations for your trade mark or design, it is advisable to also now apply for a separate registration in the UK to avoid any gaps in your IP protection. If you already own UK registrations but intend to start, or continue, trading in the EU, it would be advisable to separately file for registration in the EU.