The 30 December 2023 marks the closure of the UK’s Temporary Permission Regime (TPR). If your business is in the TPR and not yet fully authorised by the UK financial regulators, you must act now to regularise your business’ UK regulatory status.
Read on to find out what the end of the TPR means for you, and remember, our financial services solicitors are on hand to assist all TPR firms to navigate the ending of the TPR regime. We can also keep operators of EEA-based funds in the Temporary Marketing Permission Regime (TMPR) up-to-date as the UK transitions to the new Financial Services and Markets Act (FSMA) overseas fund regime.
- What is the UK TPR?
- How did entry to the TPR operate?
- Which types of EEA firm were eligible for the TPR?
- Does the TPR cover EEA payment institutions and e-money firms?
- What is the effect of the TPR?
- What is the UK Financial Services Contract Regime (FSCR)?
- What do I need to do now if my firm is still in the TPR?
- What is the Temporary Permission Marketing Regime (TMPR)?
- Is there a different exit process for funds in the TMPR?
What is the UK TPR?
The TPR is a UK transitional arrangement designed to smooth the integration of European Economic Area (EEA) financial services firms operating in the UK before Brexit into the UK regulatory regime.
While the UK was a member of the European Union (EU), EEA financial services firms were able to ‘passport’ into the UK using regulatory permissions from their home EEA state. This allowed EEA firms to offer the types of financial service which they were authorised to provide in their home EEA state in the UK without the need to apply to the Financial Conduct Authority (FCA) or Prudential Regulation Authority (PRA) for separate UK authorisation.
On the UK’s exit from the EU (at the end of the Brexit transition period on 31 December 2020), the right of EEA firms to passport into the UK without full UK authorisation would end. To avoid any market disruption, the UK Government introduced the TPR.
The TPR provides a transitional basis on which EEA firms can:
- continue to conduct business while applying for full UK authorisation; or
- wind down existing business before leaving the UK market.
How did entry to the TPR operate?
EEA firms wishing to take advantage of the TPR had to notify the FCA or PRA that they wanted to join the TPR by the end of the Brexit transition period on 31st December 2020.
Firms which joined the TPR were then advised of ‘landing slots’ (or windows during which they had to submit their application for full UK authorisation to the FCA or PRA). All applications for UK authorisation by TPR firms were to be made by 31 December 2022.
Which types of EEA firm were eligible for the TPR?
The TPR applies to eligible EEA financial services businesses which previously passported into the UK. TPR firms include, for example, FCA solo-regulated firms such as investment and consumer credit businesses. The TPR was also open to banks and insurance companies which are dual-regulated by the PRA and FCA.
Does the TPR cover EEA payment institutions and e-money firms?
Yes. EEA passporting provisions also applied to payment institutions and firms dealing in electronic money. Therefore, the TPR also covers these types of firms.
What is the effect of the TPR?
Under the terms of the TPR, if your business was providing financial services in the UK before Brexit and entered the TPR, you can continue to operate in the UK after Brexit. This includes being able to write new business. Your business is limited to undertaking the activities for which you had permission under your EEA passport on 31 December 2020.
Unless a UK regulator takes action to remove your temporary permission, you can do these activities until you become authorised or until 30 December 2023, whichever is sooner. Reasons why you might lose your temporary permission include failing to provide requested information or to make an authorisation application during your landing slot.
What is the UK Financial Services Contract Regime (FSCR)?
The FSCR was introduced alongside the TPR. It applies to contracts written before 31 December 2020 by EEA firms who did not want to continue to write new financial services business in the UK after Brexit and were not intending to enter the TPR or apply to become UK authorised. The FSCR also extends to contracts written by EEA firms whilst in the TPR in circumstances where these firms do not subsequently become UK authorised. No newUKbusiness can be written by firms which enter the FSCR.
The FSCR enables firms to continue to service existing contracts without UK authorisation while arranging the winding-down of their business within the UK. This prevents UK customers being adversely affected if they hold a product bought from a passported EEA firm or a former TPR firm which is no longer UK authorised.
The FSCR provides two methods for winding down business:
- Supervised Run-Off (SRO) - for EEA firms operating in the UK by means of a UK branch or UK-based agent; or the
- Contractual Run-Off (CRO) - for those EEA firms operating in the UK without a UK branch or UK-based agent.
What do I need to do now if my firm is still in the TPR?
The TPR ends at the end of 30 December 2023. If you are in the TPR and have not obtained full UK authorisation by this date, your temporary permission will lapse and you must not write any new business in the UK. You must also cease doing other activities in the UK which can only be undertaken by regulated firms such as issuing financial promotions. If you undertake any UK regulated activities without permission or exemption, you may be committing a criminal offence and could be subject to enforcement action by the FCA.
The deadline for TPR firms to submit applications for UK full authorisation was 31 December 2022. The FCA and the PRA have now determined most of these applications. If your business is in the TPR and you have submitted an application which has not yet been determined, you should contact your case officer at the relevant regulator for advice on progress. If you expect to obtain UK authorisation by 30 December 2023, your business will be able to continue operating as a full UK regulated firm when the TPR ends.
If your firm does not have an ‘active’ application for UK authorisation or if your application has been unsuccessful, then before 30 December 2023, you should:
- apply to cancel your temporary permission (if you have closed your UK business), or
- notify the FCA (and the PRA where relevant) that your firm expects to enter the FSCR to run-off any remaining eligible UK business.
The process for applying for cancellation of a temporary permission may not be straightforward as the regulators will need to make sure that your business has everything in order before you leave UK regulation. Harper James’ experienced team can support you in looking at your options and making an application to cancel where appropriate.
What is the Temporary Permission Marketing Regime (TMPR)?
The TMPR operates in a similar way to the TPR but applies to EEA-based investment funds rather than to EEA financial services firms.
The TMPR enables certain EEA-based funds to continue to be marketed in the UK for a limited time in the same way they were before Brexit without having to seek UK fund recognition from the FCA.
Is there a different exit process for funds in the TMPR?
Yes. The process for transitioning funds out of the TMPR and issuing landing slots for applying for UK recognition is still under review. This is because decisions are still being made about which funds will be eligible to be marketed in the UK under the new FSMA overseas funds regime.
The overseas fund regime permits HM Treasury to issue regulations which recognise funds authorised in designated countries as capable of being marketed in the UK. To the extent that EEA countries are designated in this way, this may allow EEA-based funds currently in the TMPR to continue to be marketed in the UK without applying for UK recognition.
If your business is operating funds being marketed in the UK under the TMPR, you should ensure that the FCA has your current contact details so that they can notify you of any developments with landing slots. Alternatively, if you are no longer marketing a TMPR fund in the UK, you should apply to remove its TMPR registration.
Harper James’ funds regulation experts are closely following developments and can provide tailored advice on both the TMPR and the new overseas funds regime.
The TPR has provided a valuable mechanism for EEA firms which previously passported into the UK to transition to fully-fledged UK regulated firms. After 30 December 2023, only UK authorised firms can continue to undertake regulated activities in the UK outside the FSCR. Transition of EEA-based funds under the TMPR continues.
If you are a TPR firm or an operator of a TMPR fund you should understand the permissions you need to do business in the UK and ensure you put your firm on a sound regulatory footing. If you need assistance in taking your next steps under the TPR or TMPR, please do not hesitate to reach out using the form below.