Brexit Q&A

We will continue to update this page during the next phase of Free Trade Agreement negotiations. 

If you’re an EU, EEA or Swiss citizen, you and your family will need to apply to the EU Settlement Scheme to continue living in the UK after 30 June 2021. If your application is successful, you’ll get either settled or pre-settled status (depending on the length of time you have lived in the UK). The deadline for applying is 30 June 2021.

The government has also published a toolkit to equip employers with the necessary information to be able to advise their employees who are EU citizens.
While the UK is still a member of the EU, you can requalify as a Scottish solicitor either after having completed three years’ continuous practice in Scotland (subject to demonstrating sufficient knowledge of Scots law), or by taking an aptitude test.  If the UK leaves the EU with a withdrawal agreement in place, you will be able to stay and practise here under the terms of the Establishment Directive during the transitional period. If the UK leaves without a deal, the Scottish Parliament has passed regulations to give EU lawyers in Scotland until the end of December to make the necessary changes to their practice to comply with the new regulatory framework, such as changing practice or transferring qualifications.

Once the Lawyers Directives no longer apply, this does not mean that you will no longer be able to practise under your home title in Scotland (provided you meet the settled status requirements), only that you will no longer be able to do so within the terms of the Establishment Directive, which will have an impact on the type of work you are able to carry out.
If you would like to discuss further, please contact Katie Hay.

This will vary from jurisdiction to jurisdiction and if you have registered with your host bar you will need to seek clarification on your position from the bar. On practice rights, we have published an article in the Journal, which is directed our members who are based in other EU member states. If you have any questions over and above this, please contact Katie Hay.

With regard to your immigration status, again this will vary from country to country. The UK government has published guidance on this, which they are updating regularly when each EU state makes its position known.

During the negotiation period, while we are still members of the EU, yes. If we leave with an agreement in place that largely resembles the current draft, Article 91 of that draft agreement provides that if a UK-qualified lawyer has represented or assisted a party in proceedings before the Court of Justice of the European Union or in relation to requests for preliminary rulings made before the end of the transition period, that lawyer may continue to represent or assist that party in those proceedings or in relation to those requests. This right shall apply to all stages of proceedings, including appeal proceedings before the Court of Justice and proceedings before the General Court after a case has been referred back to it.  A UK-qualified lawyer may also represent or assist the United Kingdom in proceedings covered by Article 90 of the agreement in which the United Kingdom has decided to intervene or participate.

Thereafter, if you want to have continued rights of audience, you may wish to look into requalifying in another EU jurisdiction. A number of Scottish solicitors have chosen to requalify in Ireland in order to maintain their EU status. It is not clear whether UK lawyers who have done this will be recognised before the CJEU post-Brexit, although it is worth pointing out that Article 19 of the CJEU Statutes provides that “only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court”.  It does not appear to require the lawyer to be a national of that (or any EU/EEA) State.
We published an article in the Journal on the impact of Brexit on practice rights of Scottish solicitors working in the EU.  If you have any questions over and above this, please contact Katie Hay.
Additional resources

To assist UK legal practitioners providing legal services on a temporary and/or permanent basis in one or more EU Member States, the joint UK Law Societies’ Brussels Office has produced a paper that describes the current state of play regarding lawyers’ practice rights, and clarifies understanding of their acquired rights as set out in the Withdrawal Agreement. To the greatest extent possible, they also recommend actions and steps to be taken by practitioners to make sure they comply with the regulatory framework in place and are ready for the changes to come. However, the paper does not deal with the rights arising for lawyers after the implementation period ends on 31 December 2020, as this is still to be negotiated.

Although a Withdrawal Agreement was finally concluded in advance of exit day and a no-deal Brexit avoided, there is no guarantee that many of the areas in relation to which no-deal guidance was published will be negotiated successfully, or at all by the end of the implementation period. As a result it is recommended that members familiarise themselves with those areas of relevance to their areas of practice (handling civil, commercial and family cases, intellectual property matters, oil and gas, and farming and fishing to name a few), as well as on professional services and mutual recognition of qualifications, which includes specific reference to the legal profession and practice rights.

You can access all of the notices here. The services notice can be accessed here.

For business owners, Scottish Enterprise has created a Brexit self-assessment tool to identify what you can do now to prepare for changes taking place following the Brexit transition period. You can access it alongside various other sources of advice and information at www.prepareforbrexit.scot.

We have also written Journal articles about the impact of Brexit on practice rights for Scottish solicitors working in the EU and for Scottish solicitors working in the UK, which may be of further assistance. An updated article was issued in September 2019.

Our Brexit policy work

Our latest briefings, responses and position papers on Brexit-related legislation and parliamentary inquiries