Brexit: Answering questions from the screen sectors

Brexit will change the way UK businesses interact with the EU, including those working in the screen sectors. The BFI is working closely with government, industry and European partners to help secure the best possible outcome for the screen industries, enabling us to sustain our close working relationship with the EU.

This page provides concise answers to some of the key questions the screen industries have on Brexit and sets out what the sector should expect in both ‘deal’ and ‘no deal’ scenarios. If you have additional queries or concerns, please email brexitadvice@bfi.org.uk.

Last updated: 18 March 2019

What does Brexit mean for the Creative Europe programme?

This question can be split into two: what Brexit means for the UK’s participation in the current Creative Europe programme, which runs until 2020, and what it means for its participation in the longer term.

The EU and UK have provisionally agreed that if a deal is reached, the UK can participate in the current Creative Europe programme until it ends in December 2020. UK projects will be able to apply for funding right up until this point, with successful applications receiving funding as normal, even where their funded activity is set to take place after December 2020.

In a no deal scenario, the European Commission has suggested that UK beneficiaries with funding agreements in place by the day of the UK’s exit from the EU may continue to receive payments as normal in 2019 if the UK agrees to honour financial commitments made in the 2019 budget. Even if this does not come to pass and payment to UK beneficiaries ceases after Brexit, the Chancellor has guaranteed that HM Treasury will replace funding for those organisations/projects who had been selected for funding by the EU by exit date. It is as yet unclear what will happen to applications that have been submitted but not selected by the exit date.

In both potential no deal scenarios, the UK will no longer be eligible to submit new applications for funding after exit date. The BFI is working with DCMS and other stakeholders to make sure proper financial support is available for the screen sector in either eventuality.

In the longer term, a new Creative Europe programme is due to take place 2021-2027. The declaration on the future of the UK-EU relationship published in November set out plans to negotiate the UK’s continued participation in cultural programmes post-2020 in the event of a deal. The Prime Minister has also said the Government intends to secure continued access to EU cultural programmes post-Brexit. If a withdrawal agreement is reached the UK and EU will then begin to negotiate on whether such participation is possible.

The BFI is working with DCMS and other stakeholders to make sure proper financial support is available for the screen sector in every eventuality.

What will happen to freedom of movement?

Government has been clear that freedom of movement will end after the UK leaves the EU. If the UK and EU reach a withdrawal agreement, freedom of movement will continue until the end of the transitional phase. UK and EEA nationals will be able to travel as normal between the UK and the EU up until this point. A new immigration system will then come into effect from January 2021.

In a no deal scenario, EEA workers arriving after the exit date will be subject to a stopgap process until the new immigration system is introduced in January 2021. EEA workers arriving in the UK after Brexit will be able to stay and work in the UK for up to three months as normal, with no need to apply for a visa or any other special arrangement. Workers wishing to stay and work for more than three months will need to apply for Temporary Leave to Remain, which will check their identity and criminal record. Government has announced that this process will be conducted online and that applicants may be charged a fee for this, but has yet to set out when the system will go live. Those with Temporary Leave to Remain will not have to pay the skills charge currently in place for non-EEA nationals, however it is as yet unclear whether they will have to pay the health surcharge.

If those workers granted Temporary Leave to Remain wish to stay in the UK for longer than three years, they will be required to apply for permission through the new immigration system, after its introduction in January 2021.

What is the plan for a new immigration system?

The Government published an ‘Immigration White Paper’ in December 2018, setting out its plans for a reformed immigration system. This system will treat EEA citizens as ‘non-visa nationals’. This means they will be subject to the same rules as citizens from countries including the US, Canada and Japan.

Under this plan, all travellers to the EEA will have to undergo simple security checks before travelling in future. The EU also plans to introduce a similar system for those travelling to the EEA, which will include UK nationals. Both these systems will be simple, quick and low-cost, functioning in a similar manner to the US’ ESTA system.

The Government intends to introduce this system from January 2021 in both deal and no deal scenarios.

How will this new immigration system work for those coming to the UK on a permanent basis from January 2021?

Non-visa nationals looking to take up permanent employment in the UK (such as vfx workers) will need to obtain a tier 2 visa. This requires sponsorship from an employer, who must pay a ‘skills charge’ to make the recruitment. Workers must meet a minimum salary requirement in order to be eligible for a tier 2 visa. The Government plans to consult on the appropriate level for this requirement in the coming year. Workers will also be required to have a qualification at A-level (or equivalent) or higher. The White Paper set out plans to remove the annual limit on tier 2 places.

The rules for those coming to fill roles where the UK has skills shortages will be relaxed. The Government has commissioned a review of its ‘shortage occupation list’, which sets out these roles. It has pledged to do so on an annual basis in order to track skills shortages in the UK.

How will this new immigration system work for those travelling to the UK on a short-term basis from January 2021?

The new immigration system will preserve the current rules for employing non-visa nationals for short term work, for example, joining a UK production. This allows them to work for up to three months without a visa, requiring only a ‘certificate of sponsorship” from their employer, which is cheaper and easier to obtain. For periods longer than 3 months, workers will require a tier 5 visa. The system for obtaining this will remain as it does currently.

A new visa route for short-term works will also be introduced for a limited period of time from January 2021. These visas will allow short-term workers of any skill level to visit the UK for up to 12 months, followed by a 12-month ‘cooling off’ period. This system will not require sponsorship by an employer, but will cost a fee. This is intended as a transitional measure as the UK ends freedom of movement and is due to be reviewed in 2025. While further detail on this system is forthcoming, it may provide a simpler alternative to the tier 5 system in the intermittent period.

Non-visa nationals travelling to the UK for reasons other than employment, such as shooting on location or attending a film festival, will be able to visit for a period of up to six months without the need for a visa. However, rules for short-term movement for EEA workers will be subject to the UK’s negotiations with the EU on their future relationship.

How about UK citizens travelling to the EEA in the event of no deal?

The EU has outlined plans to treat UK citizens as non-visa nationals even in the event of a no deal, allowing them to travel to the Schengen area without a visa for short periods of time. This is subject to the agreement of the European Parliament and a reciprocal offer from the UK.

What will happen to EU citizens living in the UK?

The UK and EU have reached an agreement on rights for those EU citizens already in the UK, as well as those arriving before the end of the transitional phase. These citizens will be able to apply for ‘settled status’ after five years in the UK, allowing them to stay here permanently. Anyone that has not been in the UK for long enough by the end of the transitional phase can apply for temporary permission to stay until they have reached the five years required. Application processes will open later this year.

The UK has stated its intention to honour these commitments even in the event of a no deal. However, as there would be no transitional phase, this guarantee would only apply to those EU citizens who are resident in the UK by the exit date.

The UK cannot unilaterally guarantee the rights of UK nationals currently living in the EU. It is making strong representations to the EU to provide similar guarantees for UK nationals in the event of a no deal.

Will Brexit affect UK and European tax incentives?

The UK’s Creative Sector Tax Reliefs will not be affected by Brexit — this includes those available for film, high-end TV, animation, childrens’ TV and videogames. In the BFI’s recent Screen Business report, the Chancellor restated that the “government is committed to supporting [the UK’s] highly-skilled and innovative creative industries through creative sector tax reliefs”. Content will still qualify for the Tax Relief if it passes the UK’s relevant cultural test. Creative sector cultural tests will also continue to recognise EEA content and personnel regardless of whether the UK secures a deal with the EU.

Some minor changes will be required if the UK is to continue to qualify for incentives in some EU Member States after it has left the EU. UK Government, in conjunction with BFI, is working to ensure that wherever possible Member States undertake the work needed to ensure UK content and personnel can still qualify.

These changes will have to be made in both a ‘deal’ and ‘no deal’ scenario. If there is a deal, UK personnel will have EEA status – and thus will be able to qualify for cultural tests – until the end of the transition period. However, in the longer term, amendments will be required for UK content and personnel to qualify after the transition period has ended. In the event of no deal, UK personnel will have EEA status until the exit date.

Are any changes expected to State Aid rules?

There are no major changes expected to the UK’s State Aid regime under either deal or no deal. This regime helps regulate how Government provides help to private industry, ensuring a level playing field for businesses operating across the UK and influencing their level of competitiveness relative to international counterparts too.

Will the UK still be able to co-produce with EU partners?

All co-production agreements including the bi-lateral co-production treaties and the European Convention on Cinematographic Co-Production signed by the UK will remain in place after Brexit. The European Convention on Cinematographic Co-Production is governed by the Council of Europe, not the European Union, and the UK will continue to be a party to the Convention. In addition, on 7 February 2019 the UK Government officially signed the revised Convention which confers added flexibility to UK producers and their international partners whose countries are signatories. This demonstrates the UK’s determination in working with Europe and other international territories. Following the signing, this will undergo the full legislative process to be ratified and brought into force.

The UK’s bi-lateral treaties with Australia, Brazil, Canada, China, France, India, Israel, Jamaica, Morocco, New Zealand, Occupied Palestinian Territories and South Africa form part of UK legislation and therefore are not affected by Brexit.

However, in the case of a no deal scenario, temporary movement of goods between the UK and EU will be subject to rules broadly similar to those in place for temporary movement of goods with other non-EU countries. While precise rules vary depending on the nature of the goods to be moved, examples of processes to be followed may include the use of ATA carnets or customs declarations. It is also important to note Brexit will impact rules around movement of people, which may have an effect on co-productions. More on this above.

Will a new trade agreement with the EU cover the screen sectors?

The political declaration accompanying the provisional withdrawal agreement agreed between the European Commission and the UK Government sets out the framework for the future relationship between the EU and the UK, and sets out intentions for negotiation on numerous areas of importance for the screen sectors  — including participation in EU programmes like Creative Europe, intellectual property, and movement of people.

If audiovisual services are excluded  — as they have been in previous EU trade agreements  — this will primarily affect broadcasters based in the UK which are broadcasting to EU Member States, since there will be no possibility of retaining the country of origin principle as provided for by the EU’s Audiovisual Services Media Directive. In this scenario, UK-based broadcasters may need a new licence. The Government has provided technical advice to broadcasters and video on demand providers, in the event of no deal, which can be found here.

Will UK films and TV programmes still count as “European works”?

In all Brexit scenarios, works originating from the UK will still be considered European works for the quotas set out in the European Union Audiovisual Media Services Directive (AVMSD). This has been confirmed by both the UK Government and the European Commission. This is because the AVMSD rules concerning the definition of European works state that a work can qualify if the work originates in a European third State party to the European Convention on Transfrontier Television (ECTT) of the Council of Europe. The UK is party to the ECTT and will continue to be party once it leaves the EU. A note with further information can be found here.

In the event of no deal the quota provisions of the European Convention on Transfrontier Television will continue to apply in the UK.

Will Brexit affect laws on intellectual property?

The UK and other EU Member States are party to the main international treaties on copyright and related rights. These rules help underpin copyright legislation in all Member States of the EU and do not depend on the UK’s membership of the EU.

There is also a body of EU law on copyright and related rights that goes beyond the provisions of the international treaties, including several cross-border copyright mechanisms. These mechanisms are unique to the EU and provide reciprocal protections and benefits between EU member states.

If the way is cleared for a future trade agreement between the UK and the EU then the place of intellectual property legislation, including copyright, will be a subject of negotiation in that agreement.

In the event of a no deal, the UK’s continued membership of the main international treaties on copyright will ensure that the scope of protection for copyright works in the UK and for UK works abroad will remain largely unchanged. Those elements of EU copyright law already incorporated into UK law and which do not depend on reciprocity will continue to apply. However, the UK will be treated by the EU and EEA as a third country and the reciprocal elements of EU law on copyright will cease to apply to the UK.

For the screen sector, these mechanisms include:

  • Portability of online content service: The Portability Regulation will cease to apply to UK nationals when they travel to the EU. This means online content service providers will not be required or able to offer cross-border access to UK consumers under the EU Regulation. UK consumers may see restrictions to their online content services when they temporarily visit the EU.
  • Country-of-origin principle for copyright clearance in satellite broadcasting: UK-based satellite broadcasters that currently rely on the country-of-origin copyright clearance rule when broadcasting into the EEA may need to clear copyright in each member state to which they broadcast.  Broadcasters may want to consider whether they need to seek additional copyright permissions.
  • Orphan works copyright exception: UK-based Cultural Heritage Institutions that make works available online in the EEA under the exception may be infringing copyright. Institutions that currently use the exception may want to consider whether they need to remove works from their websites or limit access to content on a geographical location basis in the EEA.

How would leaving the Customs Union affect the AV sector?

Leaving the Customs Union could result in taxes on any goods traded across the UK/EU border, increasing the cost of trade to businesses. 

What about the temporary movement of goods, such as filming equipment?

If a deal is reached, movement of goods will continue as normal throughout the transitional phase. Beyond this, the terms of movement will be subject to negotiation with the EU. The political declaration on the future relationship between the UK and the EU recognised the importance of temporary movement of objects and equipment for ongoing cultural cooperation. It set out plans to develop the smoothest possible arrangement for the movement of goods between the two, while recognising the importance of checks after the UK leaves the single market. An EU trade agreement with Japan, as well as a draft agreement with Chile, make special provision for the temporary movement of cinematographic equipment.

In a no deal scenario, temporary movement of goods between the UK and EU will be subject to rules broadly similar to those in place for temporary movement of goods with other non-EU countries. While precise rules vary depending on the nature of the goods to be moved, examples of processes to be followed may include the use of ATA carnets or customs declarations.

What is the Culture and Education Accord?

Whilst the UK is leaving the EU, we are not leaving Europe, and — recognising the UK and EU’s common heritage  — the UK still wishes to play an active and essential part in European culture. As set out in the political declaration accompanying the provisional withdrawal agreement agreed between the European Commission and the UK Government, both parties are keen to discuss an agreement on culture and education as part of the future partnership. The UK has a long history of collaborating with European partners through multilateral and bilateral initiatives across education, civil society, sport and creative and cultural industries, and a positive future relationship that reflects our shared values and history, and that will support the growth of culture, arts, sports and creative industries in the UK and the EU is to both parties’ mutual benefit.

An Accord could look at a number of key areas of mutual benefit, including:

  • potential continued participation in EU cultural and educational programmes where mutually beneficial;
  • temporary movement of cultural and sporting goods to support tours, events and production, in accordance with our wider proposals on goods;
  • protection of cultural property by supporting the return of cultural objects where these have been unlawfully removed; and
  • a statement of continued cooperation with EU cultural and educational events, groups and fora where we have shared objectives and values.

The Accord could also point to the importance of mobility for cultural professionals in order to facilitate ongoing cooperation.

Should the UK be considering rejoining Eurimages?

The BFI committed to look at rejoining Eurimages as part of its BFI2022 strategy. This review was also a key recommendation of the BFI Independent Film Commission. The BFI has since met the Eurimages team to discuss the programme further.

Eurimages has recently undertaken an external evaluation to inform a review of the goals, programme implementation, governance and decision making processes of the organisation. The outcome of the review is expected to be delivered later in 2019. With the programme subject to potential change, the BFI believes the UK should wait until this review is completed before investigating membership further.

Additionally, industry has made it clear that participation in Creative Europe remains its priority in ongoing Brexit negotiations. With discussions around the terms of the UK’s exit from the European Union ongoing, the BFI is focusing its efforts to promote the interests of the screen sectors on continued membership of the Creative Europe programme at this moment in time.

Will the UK continue to be represented as part of the European Film Agency Directors (EFADs) forum?

Definitely. The BFI is one of the founder members of EFADs which brings together the Directors of European Film Agencies in 31 countries in Europe (EU, Iceland, Norway and Switzerland). EFAD members are responsible for national funding for the audiovisual sector and for advising their Government on all aspects of audiovisual policy. In total, EFADs members and their governments fund around three billion Euros every year through subsidies and tax reliefs to help foster the creation, production, promotion, distribution, and exhibition of European audiovisual works including film. As such, EFADs has an extremely strong voice in shaping European audiovisual policy including on the Copyright Directive, the Audiovisual Media Services Directive and Creative Europe.

Will the UK continue to be able to access the wealth of facts and statistics produced by the European Audio-Visual Observatory?

Absolutely. Like the European Convention of Cinematographic Co-production, the European Audio-Visual Observatory is governed by the Council of Europe, not the European Union, and the UK will remain a member of the Council of Europe.

What does Brexit mean for data transfers?

If the UK leaves the EU in March 2019 with no agreement in place regarding future arrangements for data protection, the legal framework governing transfers of personal data from organisations (or subsidiaries) established in the EU to organisations established in the UK would change. Companies that transfer personal data between the UK and the EU should read the Government’s advice here.

This Q&A contains general information. Any legal information is not advice and should not be treated as such. Any legal information in this Q&A is provided without any representations or warranties, express or implied, in particular we do not warrant that any information is true, accurate, complete, current or non-misleading. No lawyer client relationship shall be created through the use of this Q&A. You must not rely on any information contained in this Q&A. If you have any questions about any legal or finance matter contained in this Q&A, you should consult your own lawyer or finance professional. Nothing in this disclaimer excludes or limits liability for death or personal injury, for fraud or fraudulent misrepresentation or in any way not permitted under applicable law.

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