Legalize / United Kingdom / Statutory-Instrument

The Register of Overseas Entities (Delivery, Protection and Trust Services) Regulations 2022

Type Statutory-Instrument

Publication 2022-07-25

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

Reform history JSON API PDF

Made: 25th July 2022

Coming into force in accordance with regulation 1(1)

In accordance with sections 25(6) and 67(4) of, and paragraph 7(2) of Schedule 2 to, the Economic Crime (Transparency and Enforcement) Act 2022 and sections 1069(3) and 1290 of the Companies Act 2006, a draft of these Regulations has been laid before Parliament and approved by a resolution of each House of Parliament.

PART 1 — Introductory

Citation, commencement and extent

1

(1) These Regulations may be cited as the Register of Overseas Entities (Delivery, Protection and Trust Services) Regulations 2022 and come into force on the day section 3 of the ECTEA comes into force.

(2) These Regulations extend to England and Wales, Scotland and Northern Ireland.

Interpretation

2

(1) In these Regulations—

“applicant” means:the relevant individual;the relevant overseas entity;a person who is authorised to act on behalf of a relevant individual, where that relevant individual is under eighteen years of age or lacks capacity; orwhere a relevant individual is the beneficiary of a trust and is under eighteen years of age or lacks capacity, a registrable beneficial owner who is a trustee of that trust.

“the ECTEA” means the Economic Crime (Transparency and Enforcement) Act 2022;

“former name” means a name by which an individual was formerly known for business purposes;

“managing officer”, in respect of an overseas entity, has the meaning given in section 44(1) of the ECTEA;

“name” means a person’s first name (or other forename) and surname, except in the case of—a peer; oran individual usually known by a title,the title may be stated instead of that person’s first name (or other forename) and surname or in addition to either or both of them;

“overseas entity” has the meaning given in section 2 of the ECTEA;

“overseas entity ID” means an overseas entity ID allocated in accordance with section 5 of the ECTEA;

“protected information”, in relation to a relevant individual, means—the name, any former name, date of birth and nationality of the relevant individual;the usual residential address of the relevant individual;a service address of the applicant;the e-mail address of the applicant, if any;the fact that the relevant individual is, or used to be, a relevant individual in respect of the overseas entity; for an application made under regulation 7(1) on the ground in regulation 7(3)(b), the relevant individual’s usual residential address only;

“registrable beneficial owner”, in relation to an overseas entity, has the meaning given in Schedule 2 to the ECTEA;

“the registrar” means the registrar of companies for England and Wales;

“relevant individual” means any individual whose protected information is or may be made available for public inspection or disclosed by the registrar under the ECTEA or regulations under the ECTEA;

“relevant overseas entity” means the overseas entity whose registration under section 4 of the ECTEA caused the individual whose protected information is subject to an application under regulation 7 to become a relevant individual.

(2) For the purposes of these Regulations, a relevant individual lacks capacity if they meet the definition of people who lack capacity in section 2 of the Mental Capacity Act 2005.

PART 2 — Electronic delivery of documents

Duty to deliver documents by electronic means

3

Subject to regulation 4 (exception to the duty to deliver documents by electronic means), the following documents must be delivered to the registrar by electronic means[^f00003]—

(a) an application for registration made under section 4 of the ECTEA (application for registration);

(b) the statements, information and any other thing required to be delivered to the registrar and referred to in section 7 of the ECTEA (updating duty);

(d) the replacement or additional documents referred to in section 27(2)(b) of the ECTEA (resolving inconsistencies in the register); and

(e) an application to rectify the register made under any regulations made under section 29 of the ECTEA (application to rectify register).

Exception to the duty to deliver documents by electronic means

4

(1) The duty to deliver a document by electronic means in regulation 3 does not apply where the document relates to an application which has been made under regulation 7 and that application—

(a) has not yet been determined by the registrar and has not been withdrawn under regulation 9;

(b) has been determined by the registrar in favour of the applicant (but see paragraph (3));

(c) was unsuccessful and a period of 42 days beginning with the date of the notice sent under regulation 7(7) has not passed;

(d) was unsuccessful and an appeal to the court in respect of that application under regulation 10 has not been determined by the court; or

(e) was unsuccessful but the applicant has successfully appealed the determination and the final determination is that the application is successful (but see paragraph (3)).

(2) For the purposes of paragraph (1), a document relates to such an application where the document is to be delivered by or in respect of the same overseas entity in relation of which P is or used to be a registerable beneficial owner or a managing officer, where P is the relevant individual in respect of whom the application under regulation 7 has been made.

(3) Paragraph (1)(b) and (e) do not apply where the determination has ceased to have effect under regulation 12 (duration of a determination under regulation 7).

PART 3 — Protection of information

Circumstances where the registrar must make information relating to a relevant individual unavailable for public inspection

5

(1) The registrar must make protected information relating to a relevant individual (whether that information is on the register or otherwise) unavailable for public inspection if—

(a) in relation to that information, an application has been made under regulation 7 which—

(i) has not yet been determined by the registrar and has not been withdrawn under regulation 9;

(ii) has been determined by the registrar in favour of the applicant (but see paragraph (4));

(iii) was unsuccessful and a period of 42 days beginning with the date of the notice sent under regulation 7(7) has not passed;

(iv) was unsuccessful and an appeal to the court in respect of that application under regulation 10 has not been determined by the court; or

(v) was unsuccessful but the applicant has successfully appealed the determination and the final determination is that the application is successful (but see paragraph (4); and

(b) that information is contained in a document delivered to the registrar in which such information is required to be stated and, in the case of a document having more than one part, the protected information is contained in a part of the document in which such information is required to be stated.

(2) The registrar is not obliged to check documents, other than those described in paragraph (1)(b), to ensure the absence of protected information in relation to which an application under regulation 7 has been made.

(3) If the protected information in relation to which an application under regulation 7 is made is available for public inspection at the time that the application is made, the registrar must comply with paragraph (1) as soon as reasonably practicable.

(4) Paragraphs (ii) and (v) of paragraph (1)(a) do not apply where the determination has ceased to have effect under regulation 12 (duration of a determination under regulation 7).

(5) For the purposes of this regulation, an application under regulation 7 is made when it has been registered by the registrar.

Circumstances where the registrar must not disclose protected information

6

(1) Subject to paragraph (3), the registrar must not disclose protected information if in relation to that information an application has been made under regulation 7 which—

(a) has not yet been determined by the registrar and has not been withdrawn under regulation 9;

(b) has been determined by the registrar in favour of the applicant (but see paragraph (2));

(c) was unsuccessful and a period of 42 days beginning with the date of the notice sent under regulation 7(7) has not passed;

(d) was unsuccessful and an appeal to the court in respect of that application under regulation 10 has not been determined by the court; or

(e) was unsuccessful but the applicant has successfully appealed the determination and the final determination is that the application is successful (but see paragraph (2)).

(2) Sub-paragraphs (b) and (e) of paragraph (1) do not apply where the determination has ceased to have effect under regulation 12 (duration of a determination under regulation 7).

(3) Where the prohibition in paragraph (1) applies, the registrar may disclose that protected information—

(a) for communicating with the person to whom the application under regulation 7 relates and, if different, the applicant; and

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) For the purposes of this regulation, an application under regulation 7 is made when it has been registered by the registrar.

Application to protect information relating to a relevant individual

7

(1) An applicant may make an application to the registrar requiring the registrar to—

(a) make protected information relating to a relevant individual unavailable for public inspection; and

(b) refrain from disclosing protected information relating to that relevant individual.

(2) An overseas entity may only make an application under paragraph (1) where the relevant individual has given consent for the overseas entity to make the application on their behalf.

(3) The grounds on which an application may be made are—

(a) that the applicant reasonably believes that if protected information is available for public inspection or disclosed by the registrar, the relevant individual or a person living with the relevant individual would be at serious risk of being subjected to violence or intimidation; ...

(b) that the relevant individual’s usual residential address is on the register ; or

(4) The application must contain—

(a) a statement of the grounds on which the application is made;

(b) the name, any former name, date of birth and nationality of the relevant individual , and if different, the applicant;

(d) a service address of the applicant, which may be stated as the entity’s registered or principal office where the applicant is or used to be a managing officer;

(e) the e-mail address of the applicant, if any;

(f) the name, registered number, overseas entity ID if any and address of the overseas entity in respect of which the relevant individual is or used to be a registerable beneficial owner or managing officer;

(g) where the relevant individual is or used to be a registerable beneficial owner, a statement as to—

(i) the date on which the individual became a registrable beneficial owner in respect of the overseas entity;

(ii) which of the conditions in paragraph 6 of Schedule 2 to the ECTEA is met in relation to the registrable beneficial owner and a statement as to why the condition is met;

(iii) whether the relevant individual meets that condition by virtue of being a trustee;

(iv) whether the relevant individual is a designated person within the meaning of section 9(2) of the Sanctions and Anti-Money Laundering Act 2018[^f00004], where that information is publicly available;

(h) where the relevant individual is or used to be a managing officer—

(i) the business occupation of the relevant individual;

(ii) a description of the officer’s roles and responsibilities in respect of the overseas entity;

(i) where the application is made by a relevant overseas entity on behalf of a relevant individual who is at least eighteen years of age and who does not lack capacity, confirmation that the relevant individual consents to the making of the application;

(j) where the applicant is a person who is authorised to act on behalf of a relevant individual who is under eighteen years of age or who lacks capacity, evidence of that authorisation.

(5) The application must be accompanied by evidence which supports the applicant’s statement of the grounds on which the application is made.

(6) Where an applicant who is not the relevant overseas entity makes an application under paragraph (1) to the registrar, that applicant must inform the relevant overseas entity of that fact as soon as reasonably practicable.

(7) The registrar must determine the application and, within 7 days beginning with the date that the determination is made, send notice of the determination to the applicant and, where they are not the applicant, the relevant individual or overseas entity (as the case may be).

(8) Where the application is unsuccessful, the notice under paragraph (7) must inform the relevant individual , and, if different, the applicant, and the relevant overseas entity of the right to apply for permission to appeal against the determination within 28 days beginning with the date of the notice.

Matters relating to an application made under regulation 7

8

(1) For the purpose of determining an application made under regulation 7 the registrar may—

(a) direct that additional information or evidence should be delivered to the registrar;

(b) refer any question relating to an assessment of the nature or extent of any risk of violence or intimidation to any person the registrar considers may be able to assist in making that assessment; and

(c) accept any answer to a question referred under paragraph (1)(b) as providing sufficient evidence of the nature or extent of any risk.

(2) The registrar must not make available for public inspection—

(a) any application made under regulation 7;

(b) any documents provided in support of that application;

(d) any notice provided under regulation 10 (notice of an appeal);

(e) any notice provided under regulation 12 (notice that determination no longer wanted);

(f) any representations delivered under regulation 13 (representations as to why determination should not be revoked); or

(g) any notice provided under regulation 13(1)(a)(ii) and (4) (notices of revocation).

(3) A person who makes an application under regulation 7 must inform the registrar in writing without delay upon becoming aware of any change to any information or evidence provided to the registrar in connection with the application.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) For the purposes of this regulation, an application under regulation 7 is made when it has been registered by the registrar.

Withdrawal of an application made under regulation 7

9

(1) The registrar is not required to determine an application which has not yet been determined under regulation 7(7) where—

(a) the applicant, or

(b) where not the applicant, a relevant individual in respect of whom the application has been made,

notifies the registrar in writing that they no longer wish the registrar to determine the application.

(2) An overseas entity may only notify the registrar under paragraph (1) where the relevant individual has given consent for the overseas entity to make the notification on their behalf.

(3) Where a relevant individual in respect of whom an application under regulation 7 has been made sends a notification to the registrar under paragraph (1), that relevant individual must notify the overseas entity in respect of which that relevant individual is or used to be a registrable beneficial owner or a managing officer as soon as reasonably practicable.

(4) Where the registrar receives a notification under paragraph (1), the registrar must send a confirmation of receipt of that notification to the person who notified the registrar and must include in that confirmation a statement that—

(a) the application will not be determined; and

(b) information relating to the relevant individual will be available for public inspection and can be disclosed by the registrar.

Appealing against an unsuccessful application made under regulation 7

10

(1) Subject to paragraph (3)—

(a) an applicant who has received notice under regulation 7(7) that the application has been unsuccessful, or

(b) where such an applicant was an overseas entity, the relevant individual to which the application related,

may appeal to the High Court or, in Scotland, the Court of Session on the grounds mentioned in paragraph (2).

(2) The grounds referred to in paragraph (1) are that the determination—

(a) is unlawful;

(b) is irrational or unreasonable; or

(3) No appeal may be brought unless the permission of the court has been obtained.

(4) No application for such permission may be made after 28 days beginning with the date of the notice under regulation 7(7) unless the court is satisfied that there was good reason for the failure of the applicant to seek permission before the end of that period.

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