Offshore Business Update: Guernsey

The courts are operating as usual.  New processes that had been adopted during the first lockdown and which were deemed to be more efficient have in the most part been continued. The intervening Covid‐19 pandemic showed beyond doubt the value in digital filing and managed to keep the Royal Court running throughout the first lockdown.  Moving forward, the Courts have decided that it would be beneficial to keep the digital filing of papers for the Friday Court in place and to extend it to other Courts in due course.

The Guernsey Companies Registry (Registry) filings, regulatory filings to the Guernsey Financial Services Commission (GFSC) and Court filings were not affected by lockdown and continue to be filed digitally in accordance with normal practice rules using their respective online portals.

The Courts relaxed some of their rules relating to the filing of hard copy documents during the first lockdown and as mentioned above such practices have continued.  The GFSC also issued a statement offering to extend certain filing deadlines and simplifying some filing procedures and requirements. Many of these extensions are also still in place.

The GFSC has issued guidance on how to use electronic verification to verify the identity of a natural person through a video call on a smart phone, webcam or similar device, which remains in place.  Irrespective of the guidance, a firm must apply a risk based approach when dealing with situations like this and must be satisfied as to the validity and veracity of the identification data used to verify the identity of an individual. The guidance offers six practical steps which must be adhered to, in order to enable firms to comply with the handbook.

These rules include the need to have simultaneous visual and verbal contact over a device which provides a sufficient good quality connection to enable the firm to clearly see the face of the individual and also to be able to see their identity data within the identity document (i.e. the photo and details on the identity details page in a passport) when it is shown to the screen and firms must be able to review this page on the call. The individual being identified must have their original identity document with them during the call (not a copy). The firm must be able to undertake checks on the authenticity of the document during the call by reviewing the security features in the original identification document. This can also be automated if the software being used for the video call itself has the capability to carry out authentication checks or by using separate software solutions such as those that check the algorithms used to generate passport numbers. The firm must also keep accurate records relating to the customer due diligence and be able to explain when and how the document was verified and by whom. Electronic copies of the document including screen shots from the call also need to be retained as part of the records.

The GFSC also issued two FAQs on the provision of “wet” signatures on applications. Where a printer but no scanner is available, the paperwork should be printed, the signature box signed and the individual take a picture of the document and email the image to the GFSC.  Where no printer is available, the individual should copy out the signature box statement on a blank piece of paper, sign and date the statement, then photograph it and email it to the GFSC together with a PDF copy of the unsigned final version of the document.

All officers working from home should be registered with the GFSC’s online portals to enable them to make online submissions and returns. The GFSC recently issued some guidance for regulated firms to take into consideration where such licensees are continuing some form of working from home model on a permanent basis.

The guidance may found here: Guidance.

The Registry has been closed to visitors since the first lockdown and its staff is continuing to work remotely. We would however ordinarily conduct a company search online and as such all searches can be done online and documents can be requested and paid for remotely in the usual way. Indeed the Registry has advised that its telephone lines are unmanned and that its post is being held at the post office so if you wish to contact the Registry for any reason, please use the following email address at this time:  [email protected].

These can currently still be ordered online in the usual way.

LITIGATION SEARCHES

The Greffe has resumed normal business hours and litigation searches can be undertaken in the usual way.

All social distancing restrictions ceased on Monday 22 March 2021.  Non-essential travel has also recommenced however, anyone entering the island is still subject to self-isolation requirements so attendance in person is still limited for persons who are currently outside of the jurisdiction. This may change in July for people coming from the UK, The Republic of Ireland, Jersey or the Isle of Man (Common Travel Area).

LEGALISATIONS

The Greffe has resumed full pre-lockdown activities. The legalisation service will take 24 hours or can be achieved within 15 minutes via a premium service at an additional cost in normal business hours.

Guernsey has (at the time of writing this article) one active cases of coronavirus on the island, this was identified through the passive follow up procedures.

Guidance for Stage 3 of the exit from lockdown may be found here.

There has been a return to a normal level of activity within the Bailiwick, with social, recreation and business activity able to take place.

There is no legal requirement for social distancing or face coverings however these precautions are recommended for vulnerable individuals.

Travel is permissible within the Bailiwick without any restrictions. Non-essential travel is allowed to and from the Bailiwick, subject to certain testing and self-isolation protocols.

There are now four classifications of countries which depend upon the prevalence of Covid-19 in such countries. The testing requirements for each category are also different. The States have introduced enhanced passive follow-up procedures. For more information on this please see here.

On Friday 16 April 2021, the CCA announced a phased reopening of the Bailiwick borders. As part of this phased reopening, all arrivals into the Bailiwick are currently classified as ‘Category 4’ or ‘Category 3’.

• Category 1 includes countries in which we have formed Air Bridges with, equivalent to Group C.
• Category 2 countries and regions will be implemented in the near future, with a prevalence rate of less than 30 per 100,000 for 7 consecutive days.
• Category 3 includes countries and regions which have a prevalence rate between 30 to 100 per 100,000 for 7 consecutive days, which is equivalent to Group B.
• Category 4 includes countries and regions which have a prevalence rate of more than 100 per 100,000 for 7 consecutive days.

The full definitions and testing requirements of Categories 1-4 can be found here.

Public Health Services Guernsey use 14 day total cases prevalence rates (in line with ECDC guidelines) rather than Public Health England which uses 7 day total cases prevalence rates.

Travellers will be required to self-declare the countries or regions that have travelled to (or through) for the 14 days prior to their travel, information has been provided online to help passengers determine regions using a detailed map of UK towns.

From 14 May 2021, Guernsey is introducing Category 2 countries and regions as part of the Bailiwick’s travel rules. Category 2 destinations will include destinations with a prevalence of below 30 cases of Covid-19 per 100,000 as listed on the gov.gg website, which also satisfy other Public Health criteria.

Category 2 travellers will be tested twice, on arrival and on day 7, but they will only need to self-isolate until their first result comes back negative (this may take up to 48 hours). They can then leave their self-isolation and observe ‘passive follow-up’ rules until 14 days after their arrival, but they must be tested again on day 7. If travelling as a family or group, everyone in the party MUST receive a negative test result before anyone leaves self-isolation. Category 2 visitors who depart from Guernsey before completing 7 days will be asked to take a test on departure at the airport or harbour (instead of a test on day 7). An indicative map will be maintained to show what countries and regions are likely to meet the criteria for Category 2. This will be available here.

It has been confirmed by the government that transit through Southampton Airport, Portsmouth and Poole ports will not change your self-isolation requirements provided all other self-isolation requirements have been met. So if you coming from a Category 2 area but travelling through one of these travel ports, provided all other self-isolation requirements have been met, you will only have to self-isolate until the first negative test result, with passive follow up thereafter. It will be interesting to see how this is monitored in practice.

From the 14 May 2021, a GBP25 charge will be applied for each test required as part of your arrival in the Bailiwick. This includes your test on arrival, and your test on either day 7 or day 14 (depending on which Category you have travelled from).

Fees will not be charged for persons;

• under-the age of 12
• travelling for medical reasons
• accompanying someone who is travelling for medical reasons
• travelling for compassionate reasons

Further safety measures have been introduced by Condor Ferries, including the need for a negative Covid-19 test within 72 hours of travel.

In addition to these new requirements, the States have recommended that people travelling out of the jurisdiction should sign up to any official track and trace app used in the countries of travel. This may be a consideration for local businesses to include in their own internal policies.

Travel advice for the Bailiwick is as follows:

• Face masks are now required on all commercial aircraft landing in the Bailiwick;
• Where you are required to self-isolate for 14 – 21 days, you must not leave your accommodation and you must not leave the Island.

For more information on these current restrictions please see this link.

The Civil Contingencies Authority (CCA) have recently set out the changes it expects to introduce to travel rules from 1 July.  Please note that the CCA will continue to monitor global developments that may impact both the rules and timing of their introduction (such as variants of concern).

The CCA announced that to travel around the common travel area (UK, Jersey, IOM, Ireland) – you must have had both Covid vaccines and have let 14 days pass from the second one. If you are not fully vaccinated with 14 days post vaccination, you will have to self-isolate in accordance with the countries and regions classifications.

The borders will not be fully opened as previously envisaged on 1 July and this is due to the worldwide increase in the delta variant.

The CCA had initially indicated it would not require any testing or self-isolating for under-18s travelling with fully vaccinated adults, but after further careful consideration of the advice from Public Health and STAC has changed this aspect of the policy.

Now from 1 July, when arriving from the Common Travel Area the following rules will apply:

Children 11 years and under travelling with fully vaccinated adults:

• No testing or isolation requirements

Children and young people aged 12 to 17 travelling with fully vaccinated adults:

• Self-taken swab on Day of Arrival
• Isolation until the result of the Day of Arrival test
• Day 7 test through scheduling
• Passive follow-up between result of Day of Arrival test and result of Day 7 test

For children who are travelling with adults who are not fully vaccinated (or where at least one of the adults in the travelling group is not fully vaccinated), the rules for the child are the same as they are currently, and will depend entirely on which category country or region they have travelled from.

Similarly, for children who are travelling from outside the Common Travel Area, the current categorisation of regions and countries and the associated testing and self-isolation requirements will continue to apply (in the same way that they apply for all travellers).

Unaccompanied minors travelling to the Bailiwick are very few, but they or their parents/guardians should contact Public Health to discuss the specific circumstances of their journey.

All children who travel into the Bailiwick and wish to enter an educational setting within 14 days of their arrival will need a to have a swab taken, and a negative Covid-19 test on this swab, 48 or less before they enter that educational setting. This will also be a requirement for any staff returning to education settings in the 14 days after arriving in the Bailiwick

For more information on the latest travel restrictions please see here or here.

Following discussions with the EU Code of Conduct Group, the Guernsey Revenue Service have now published temporary guidance on the impact of Covid-19 on the Economic Substance Regulations (ESR). The Guernsey Revenue Service has recognised that public health measures restricting travel have caused concern for companies trying to ensure they meet the ESR and have confirmed that they will take a pragmatic approach when assessing whether companies have met the ESR.

Key points noted in the guidance are as follows:

1. It is expected that Covid-19 will only impact companies’ ability to comply with the directed and managed part of the ESR.
2. Companies should maintain records in respect of their own internal policies around travel and associated restrictions.
3. Where Covid-19 measures have contributed in a failure to meet the ESR, a Revenue Service inspector will undertake a review on a case-by-case basis.
4. Where a failure to meet the ESR has resulted in exchange of information with the UK or EU Member States, the company will be required to include information on the impact of Covid-19.

The temporary guidance shows that the Guernsey Revenue Service do not believe that the pandemic and travel restrictions should impact a company’s ability to meet the core income generating abilities (CIGA) part of the ESR.

The temporary framework will remain in place as the pandemic evolves and whilst travel restrictions continue but will be withdrawn once circumstances permit.

To see the Guernsey Revenue Service guidance click here.

A note “Board Meetings and Economic Substance Requirements Guidance” was circulated by Guernsey International Business Association (GIBA) in relation to what local companies need to do to operate in light of the restrictions on travel, reductions in numbers of face to face meetings and the possibility of persons needing to self-isolate and yet still comply with their obligations under the economic substance rules. GIBA consulted with the GSCCA and the Guernsey Revenue Service to create this guidance (GIBA Guidance) but as such that guidance was not official.

The GIBA Guidance stated that companies should maintain and retain relevant records that show what their policy was in respect of the restrictions on travel for company officers and the period of time for which that policy was in place.  This will ensure that such companies can demonstrate where Covid- 19 restriction measures prohibited the company from holding an adequate number of board meetings in the island or required meetings to be temporarily be held virtually, such as via conference call, video conferencing, Skype or something similar.  It should be noted that the normal protocols for such meetings should be observed as far as possible, and revert back to normal as soon as the threat from the outbreak recedes.

The GIBA Guidance also noted that businesses should give consideration to the ability to appoint alternative directors on island who can attend meetings and thereby address any short – term practical difficulties arising from Covid-19.

The Guernsey Revenue Service has stressed that documentation is key so, for example, the minutes of each board meeting where directors cannot attend in person due to travel restrictions should state the exact reasons, and copies of business travel policies should be kept with the minutes.  The Guernsey Revenue Service fully expects that the EU Code Group will raise queries about what happened during the pandemic, and so document retention is key.

The Revenue Service has recently sent out a briefing advising people who have chosen to temporarily work for their UK employer from Guernsey during the pandemic that basing themselves in the Island may have implications for their personal tax situation.  It may be found here.

The Policy & Resources Committee has agreed to reinstate the payroll co-funding scheme to support businesses not able to work or trade during the second lockdown, and the hardship fund for individuals facing financial difficulties as a result of the lockdown.

The States of Guernsey launched a loan guarantee scheme to provide additional financial support to local businesses facing disruption as a result of the Covid-19 outbreak.

The scheme has also been agreed in coordination with the Governments of Jersey and the Isle of Man.  The scheme is operating through clearing banks who lend to local businesses in Guernsey.

The States of Guernsey are now actively reviewing the financial support offering in place for the self-employed and sole traders to ensure that the economic measures cover all parts of the local economy.

The Policy & Resources Committee has reviewed and agreed the business support measures it will provide going forward. For further details please see here.

Businesses eligible for support from the Visitor Attraction Support Scheme are being asked to register their interest ahead of the launch of the Scheme early next month.

The full details of the new Visitor Attraction Support Scheme, which was announced last month, are available here.

To be eligible for support from this scheme, businesses need to:

• Operate from bricks and mortar premises which host and attract visitors;
• Derive their primary income from the visitor economy;
• Have a business model that cannot be feasibly re-purposed to adapt to the current trading situation due to COVID restrictions; and
• Have material overheads with little income to cover these. Businesses within the tourism industry that do not meet all the above criteria but are faced with significant overheads which the business is unable to sustain, can be considered for support on a case by case basis.