As the end of the Brexit transition period draws near, complexities associated with navigating cross-border regulatory regimes have been increasingly brought to the fore. The Law Society of Ireland’s announcement last week, confirming a ‘physical presence’ requirement for solicitors intending to practise in Ireland, has highlighted wider post-Brexit issues surrounding residency requirements and recognition of qualifications for regulated professionals on the British/Irish border.
Irish regulators have seemingly doubled down on residency requirements for both solicitors and trade mark agents, effectively disallowing such professionals to register and practise in Ireland should they be ordinarily resident in the UK. This article explores the various issues arising from these decisions, and considers the possible protections contained in the UK-EU Withdrawal Agreement and the Common Travel Area arrangement.
What Is At Stake?
Solicitors Qualified in England and Wales
Since the Brexit referendum results in 2016, there has been a continuous increase in the number of solicitors from England and Wales applying for admission to the Irish Roll. The Law Society of Ireland calculated that, as of November 2019, there had been a 168 per cent increase over the prior year in admission of solicitors from neighbouring jurisdictions. This amounted to no less than 4,000 solicitors being admitted, with those from England and Wales in the clear majority.
Until very recently, solicitors who were qualified in England and Wales could transfer to the Irish Roll under the Irish Solicitors Acts 1954-2015 and the Qualified Lawyers (European Communities) Regulations 1991 (S.I. No. 85 of 1991). In order to do so, solicitors were required to apply for a Certificate of Admission and provide supporting documentation, including proof that they were a national of an EU or EFTA Member State. Upon admission to the Irish Roll, they benefitted from EU practising rights and EU professional privilege, the latter being particularly pertinent to those with EU competition law practices.
However, following a 2020 review into the issuing of Irish practising certificates, the Law Society of Ireland has issued a Guidance document for Irish-qualified solicitors based in England and Wales. The Guidance confirms that solicitors based in England and Wales are not entitled to apply for practising certificates unless they can demonstrate a practice (or intention to practise) in Ireland, from a physical establishment in Ireland, and have in place the appropriate professional indemnity insurance. In outlining the rationale for the restrictions, the Guidance document states that “issuing practising certificates to solicitors outside the jurisdiction may create the erroneous impression that the Society permits practice pursuant to the Irish practising certificate outside Ireland. It is clear that no such practice is permitted and, by adopting this approach, the Society will be making clear that such practice is not permitted.”
Solicitors qualified and practising in both Northern Ireland and Ireland are subject to separate guidance. Such solicitors continue to be eligible to make an application for an Irish practising certificate, notwithstanding the fact that they do not practice from an establishment in Ireland, provided they meet the requisite professional indemnity insurance requirements.
With only six weeks until the end of the transition period, this news is clearly unwelcome to lawyers in England and Wales seeking to maintain their EU practising certificates with their associated privileges. It also has the effect of circumventing the various efforts of English law firms, many of which have attempted to pre-empt such a risk by registering their lawyers in Ireland post 2016. Ultimately, some clarification will be required for prospective applicants on fulfilling the ‘physical establishment’ element. For example, what constitutes a ‘physical establishment’ in Ireland? Does the requirement for an establishment indirectly introduce a residency requirement? What would amount to sufficient evidence proving an intention to practise in Ireland? No doubt English and Welsh practitioners will seek explanatory guidance on these matters as they digest this recent news.
Trade Mark Agents
Non-Irish trade mark agents wishing to practise in Ireland are also likely to encounter similar issues as their England and Wales solicitor counterparts, given the mandatory Irish residency requirements prior to registration with the Intellectual Property Office of Ireland (IPOI).
Under s.86 of the Irish Trade Marks Act 1996 (as amended), a trade mark agent may be registered with the IPOI if they:
(a) reside in the State [Ireland] or in an EEA state;
(b) have a place of business in the state [Ireland] or in an EEA state;
(c) possess the prescribed educational and professional qualifications; and
(d) comply with the prescribed conditions.
The IPOI itself acknowledges, however, that from 1 January 2021, there may be persons who will no longer meet the requirements of s.86(1)(a) and/or (1)(b). Such persons may accordingly ‘cease to be eligible to be registered’ unless they can demonstrate that they both reside in an EEA state, and have a place of business in an EEA state. Given continued membership of the EEA does not, at present, appear to be a part of the UK government’s withdrawal negotiation strategy, these residency requirements have especially significant implications for cross-border trade mark agents. In particular, individuals who are qualified, registered and work in Ireland, but ordinarily reside in Northern Ireland, could experience difficulties with their eligibility for continued IPOI registration.
A Potential Discrimination Claim under the EU-UK Withdrawal Agreement?
The Withdrawal Agreement, which came into force on 1 February 2020, sets out various protections for frontier, or cross-border workers – those who live on one side of the border and work on another. Article 9 defines ‘frontier workers’ as EU citizens or UK nationals who ‘pursue an economic activity in accordance with Article 45 or 49 TFEU [Treaty on the Functioning of the European Union] in one or more states in which they do not reside’. Frontier workers, when engaging in economic activity outside of their state of residence, have the right to freedom of movement (Article 45 TFEU) and the right to freedom of establishment for self-employed persons (Article 49 TFEU).
Moreover, under Article 12 of the Withdrawal Agreement, frontier workers are protected from discrimination on grounds of nationality, both in the host state (Article 9(b)), and in the state of work (Article 9(d)). They are also entitled to certain rights associated with freedom of movement under Article 24, including the right ‘not to be discriminated against on grounds of nationality as regards employment, remuneration and other conditions of work and employment’ (Article 24(1)(a)), as well as the right ‘to take up and pursue an activity in accordance with the rules applicable to the nationals of the host State or the State of work’ (Article 24(1)(b)). Such protections are reinforced, in the case of residents of Northern Ireland, by the Protocol on Ireland/Northern Ireland (‘the Protocol’), which guarantees that those residing in Northern Ireland will continue to enjoy rights as EU citizens post Brexit. This includes enjoying the right to live and work throughout the EU, and the right not to be discriminated against on the grounds of nationality, as required under the Good Friday Agreement (Article 2 of the Protocol).
Taken together, these protections may have some significance in considering whether a discrimination claim under Articles 12 and 24 is available. For instance, an Irish-qualified trade mark agent, who commutes to work in Ireland but resides across the border in Northern Ireland, may allege that the residence requirement under s.86(1)(a) of the Irish Trade Marks Act 1996 is indirectly discriminatory and hinders his right as a frontier worker to freedom of movement under the Withdrawal Agreement. In particular, he may allege that the residency requirement precludes his registration with the IPOI, effectively preventing him from undertaking his trade mark employment, and therefore constituting a breach of Article 24(1)(b) (namely the right to ‘take up and pursue an activity in accordance with the rules applicable to nationals of the State of work’).
A similar claim could potentially be available to England and Wales solicitors seeking admission to the Irish Roll. Such a claim would likely turn on the nature and scope of the requirement for a ‘physical presence’ or ‘physical establishment’ in Ireland. For example, an Irish-qualified solicitor residing in London, but who predominantly works from her firm’s Dublin office (and may accordingly be considered a ‘frontier worker’), is arguably covered by the same protections under Articles 12 and 24 of the Withdrawal Agreement. She might allege that the Law Society’s ‘physical presence’ prerequisite indirectly imposes a residential requirement on her, and that as a result, she is no longer able to seek admission to the Irish Roll. This ultimately breaches her Article 24(1)(b) right, as a non-Irish frontier worker, to ‘take up and pursue an activity’ (namely her continued legal practice in Ireland) in accordance with the rules applicable to nationals/residents of Ireland.
While the merits of such a discrimination claim will certainly require fuller consideration, the forum for any such claim is likely to be the Irish courts, where EU law would be determinative. Though the EU Court of Justice has found that residence requirements for frontier workers may be indirectly discriminatory, the issue appears to have been confined to the availability of residence-based benefits, such as state subsidies for employers (see for example Case C-379/11 Caves Krier Frères Sàrl v Directeur de l’Administration de l’emploi  ECR), or funding for higher educational studies (see for example Case C-542/09 Commission v Netherlands  ECR). Whether similar reasoning is applicable in the context of professional registration for legal professionals (and in particular whether registration amounts to a ‘benefit’ equally available to non-residents in the State of work) seems as yet to be an untested issue.
Other Possible Avenues – the Common Travel Area?
In addition, any discrimination claim should consider also the effect of the existing Common Travel Area arrangement. The Common Travel Area (‘CTA’) exists between the UK, Ireland and the Isle of Man and the Channel Islands, and arose to facilitate the principle of free movement for British and Irish citizens. It pre-dates the UK joining the EU. Article 3 of the Protocol confirms that the ‘rights and privileges’ associated with the CTA would continue post-Brexit, especially in relation to free movement within Ireland for EU citizens regardless of nationality (provided this does not conflict with Ireland’s on-going EU commitments). On 8 May 2019, the UK and Irish governments also signed a Memorandum of Understanding reaffirming the reciprocal rights and privileges in relation to the CTA.
The CTA includes a basic right to work. However, this right primarily relates to Irish nationals being exempt from UK immigration requirements (and vice versa) and does not make explicit provision for frontier workers. Accordingly, while existing frontier workers at the end of the transition period are likely protected by the Withdrawal Agreement (Articles 9(d) and 10(1)(d)), new frontier workers after 30 December 2020 may be subject to a mix of Irish, EU and UK law. Overall, while the CTA does provide some protection in terms of immigration requirements, the basis for a challenge is likely to derive from the Withdrawal Agreement and the rights guaranteed therein.
Following the transition period, the degree of access by solicitors qualified in England and Wales to the Irish (and by extension EU) legal services market will, to a large extent, depend on the outcome of future negotiations between regulators in the UK, Ireland and the EU. Trade mark agents may be left in a position where political and regulatory pressure is the most favourable option to ensure continuance of their practice rights. However, without further dialogue, the apparent trend of imposing residency restrictions for legal professions in Ireland could very well lead to redress being sought through judicial means.
— to www.lexology.com