AUTH App 4.11 Link between activities and the United Kingdom

Section 19 of the Act (The general prohibition) provides that the requirement to be authorised under the Act only applies in relation to regulated activities which are carried on 'in the United Kingdom'. In many cases, it will be quite straightforward to identify where an activity is carried on. But when there is a cross-border element, for example because a borrower is outside the United Kingdom or because some other element of the activity happens outside the United Kingdom, the question may arise as to where the activity is carried on. This section describes the legislation that is relevant to this question and gives the FSA's views on various scenarios.

Even if a person concludes that he is not carrying on a regulated activity in the United Kingdom, he will need to ensure that he does not contravene other provisions of the Act that apply to unauthorised persons. These include the controls on financial promotion (section 21 (Financial promotion) of the Act) (see AUTH App 1 (Financial promotion and related activities)), and on giving the impression that a person is authorised (section 24 (False claims to be authorised or exempt)).

A contract is only a regulated mortgage contract if the land is in the United Kingdom (see AUTH App 4.4.5 G (Land in the United Kingdom)).

Section 418 of the Act deals with the carrying on of regulated activities in the United Kingdom. It extends the meaning that 'carry on a regulated activity in the United Kingdom' would ordinarily have by setting out additional cases. The Act states that in these cases a person who is carrying on a regulated activity but would not otherwise be regarded as carrying on the activity in the United Kingdom is, for the purposes of the Act, to be regarded as carrying on the activity in the United Kingdom.

For the purposes of regulated mortgage activities, sections 418(2), (4), (5), (5A) and (6) are relevant, as follows:

1. (1)

   Section 418(2) refers to a case where a UK-based person carries on a regulated activity in another EEA State in the exercise of rights under a Single Market Directive. The only Single Market Directive which is relevant to mortgages is the Banking Consolidation Directive.1

2. (2)

   Section 418(4) refers to the case where a UK-based person carries on a regulated activity and the day-to-day management of the activity is the responsibility of an establishment in the United Kingdom.

3. (3)

   Section 418(5) refers to the case where a regulated activity is carried on by a person who is not based in the United Kingdom but is carried on from an establishment maintained by him in the United Kingdom.

4. (4)

   Section 418(5A) refers to the case where an electronic commerce activity is carried on with or for a person in an EEA State from an establishment in the United Kingdom. See further AUTH App 4.11.21 G (E-Commerce Directive); and

5. (5)

   Section 418(6) makes it clear that for the purposes of sections 418(2) to (5A), it is irrelevant where the person with whom the activity is carried on is situated.

The exclusions in article 72(5A) to (5F) of the Regulated Activities Order (Overseas persons) provide that an overseas person does not carry on the regulated activities of:

1. (1)

   arranging (bringing about) or making arrangements with view to a regulated mortgage contract;

2. (2)

   entering into a regulated mortgage contract; or

3. (3)

   administering a regulated mortgage contract;

if the borrower (and each of them, if more than one) is an individual and is normally resident overseas. In the case of arranging a variation of, or administration of, an existing regulated mortgage contract, each borrower must be an individual who was normally resident overseas when he entered into the contract. In the FSA's view, normal residence for the purposes of this exclusion envisages physical presence with a degree of continuity, making allowance for occasional temporary absences (e.g. holiday). An overseas person under article 3 of the Regulated Activities Order (Interpretation) is a person who carries on certain regulated activities albeit not from a permanent place of business maintained by him in the United Kingdom.

An overseas person might advise a person in the United Kingdom on an endowment assurance at the same time as advising on a regulated mortgage contract. If so, whilst the overseas person exclusion in article 72(5) will apply in relation to the advice on the endowment assurance, there will be no 'overseas persons exclusion' for the advice on the regulated mortgage contract.

The FSA's view of the effect of the Act and Regulated Activities Order in various territorial scenarios is set out in the remainder of this section. In those scenarios:

1. (1)

   the term "service provider" is used to describe a person carrying on any of the regulated mortgage activities;

2. (2)

   the term "borrower" refers to a borrower who is an individual and not a trustee; the position of a borrower acting as a trustee is not considered; and

3. (3)

   it is assumed that the activity is not an electronic commerce activity (as to which, see AUTH App 4.11.21 G (E-Commerce Directive)).

AUTH App 4.11.9 G contains a simplified tabular summary of those views, which should be used only in conjunction with the more detailed analysis.

Where a person is carrying on any of the regulated mortgage activities from an establishment maintained by him in the United Kingdom, that person will be 'carrying on a regulated activity in the United Kingdom'. The location and residence of the borrower is irrelevant. That is the practical effect of sections 418(4), (5) and (6) of the Act.

There may also be situations where a lender, who does not maintain an establishment in the United Kingdom, provides services in the United Kingdom. For instance, a lender might attend a property exhibition in the United Kingdom at which he sets up a loan with a borrower. A lender might also attend the offices of its UK-based lawyers, or appoint them as its agent, to enter into a contract with a borrower. In these cases, the overseas lender would only be carrying on a regulated activity in the United Kingdom if he subsequently enters into a regulated mortgage contract with a UK resident. This is because arrangements made with borrowers at the exhibition would be subject to the exclusion in article 28 of the Regulated Activities Order (Arranging transactions to which the arranger is a party) (see AUTH App 4.5.7 G). As regards entering into a regulated mortgage contract with a borrower resident overseas, this would be subject to the overseas persons exclusion.

If a service provider is overseas, the question of whether that person is carrying on a regulated activity in the United Kingdom will depend upon:

1. (1)

   the type of regulated activity being carried on;

2. (2)

   section 418 of the Act;

3. (3)

   the residence and location of the borrower;

4. (4)

   the application of the overseas persons exclusion in article 72(5A) to (5F) of the Regulated Activities Order; and

5. (5)

   whether the service provider is carrying on an electronic commerce activity.

The factors in (1), (3) and (4) are considered in relation to each regulated activity in AUTH App 4.11.13 G to AUTH App 4.11.20 G. The factor in (5) is considered in AUTH App 4.11.21 G.

When a person is arranging (bringing about) regulated mortgage contracts or making arrangements with a view to regulated mortgage contracts from overseas, the question of whether he will be carrying on regulated activities in the United Kingdom will depend on the relevant circumstances. In the FSA's view factors to consider include:

1. (1)

   the territorial limitation in the definition of regulated mortgage contract so that regulation only applies if the land is in the United Kingdom;

2. (2)

   the overseas persons exclusion in article 72(5A) to (5C); and

3. (3)

   where the arrangements are in fact made.

In the FSA's view:

1. (1)

   if the borrower is normally resident in the United Kingdom, the clear territorial limitation in the definition of regulated mortgage contract carries most weight in determining where regulation should apply; it is likely that the arranger will be carrying on regulated activities in the United Kingdom;

2. (2)

   if the borrower is normally resident overseas, the arrangements are excluded by the overseas persons exclusion.

In the case of arranging (bringing about) regulated mortgage contracts, the normal residence of the borrower at the time the arrangements are made is the determining factor, except in the case of arranging (bringing about) a variation of a contract, in which case it is the normal residence of the borrower at the time that the regulated mortgage contract was entered into. In the case of making arrangements with a view to regulated mortgage contracts, the normal residence of the borrower at the time he participates in the arrangements is the determining factor.

In the FSA's view, advising on regulated mortgage contracts is carried on where the borrower receives the advice. Accordingly:

1. (1)

   if the borrower is located in the United Kingdom, a person advising that borrower on regulated mortgage contracts is carrying on a regulated activity in the United Kingdom; but

2. (2)

   if the service provider and borrower are both located overseas, the regulated activity is not carried on in the United Kingdom.

The effect of article 72(5D) of the Regulated Activities Order is that an overseas person does not carry on the regulated activity of entering into a regulated mortgage contract if the borrower is resident overseas at the time the contract is entered into.

In the FSA's view, in circumstances other than those excluded by article 72(5D) of the Regulated Activities Order, an overseas lender is likely to carry on the regulated activity of entering into regulated mortgage contracts in the United Kingdom. This is because of:

1. (1)

   the territorial limitation in the definition of regulated mortgage contract so that regulation applies only if the land is in the United Kingdom;

2. (2)

   the general principle and practice that contracts relating to land are usually governed by the law of the place where the land is situated;

3. (3)

   practical issues of conveyancing; a lender is likely to use the services of a solicitor or licensed conveyancer operating from the United Kingdom, who enters into the regulated mortgage contract as agent for the lender in the United Kingdom; and

4. (4)

   the existence of the overseas persons exclusion in article 72(5D).

The effect of article 72(5E) and (5F) of the Regulated Activities Order is that an overseas person who administers a regulated mortgage contract, where the borrower was resident overseas at the time that the contract was entered into, does not carry on the regulated activity of administering a regulated mortgage contract.

In the FSA's view, in circumstances other than those excluded by article 72(5E) of the Regulated Activities Order, an overseas administrator is likely to carry on the regulated activity of administering a regulated mortgage contract in the United Kingdom. This is because:

1. (1)

   the territorial limitation in the definition of regulated mortgage contract means that regulation applies only if the land is in the United Kingdom;

2. (2)

   when administrators notify borrowers resident in the United Kingdom of matters pursuant to a regulated mortgage contract, such notification is likely to be carried on in the United Kingdom;

3. (3)

   the steps involved in collecting or recovering payments will generally include giving notice to the borrower at his UK address;

4. (4)

   legal action to recover sums due under regulated mortgage contracts will in many cases require proceedings before courts in the United Kingdom, either to enforce regulated mortgage contracts subject to the jurisdiction of these courts or to register and enforce judgements obtained elsewhere, in the case of contracts subject to non-UK jurisdictions; and

5. (5)

   of the existence of the exclusion in article 72(5E) (Overseas persons).

In most cases, there will be no preliminary agreement to enter into a regulated mortgage contract in advance of entering into the contract itself. Moreover, the exclusions relevant to a regulated activity are taken into account to determine whether a person is agreeing to carry on that regulated activity. So, for example, agreeing to arrange regulated mortgage contracts in cases where borrower and service provider are overseas, would not be regulated activities because the activities themselves are outside the scope of regulation. Otherwise, in the FSA's view, the issue of where agreeing to carry on a regulated activity takes place will depend on such factors as a contractual analysis of where the agreement is entered into, including where appropriate the general position at common law (see, for example, AUTH App 4.11.17 G).

The E-Commerce Directive removes restrictions on the cross-border provision of services by electronic means, introducing a country of origin approach to regulation. This requires EEA States to impose their requirements on the outward provision of such services and to lift them from inward providers. The E-Commerce Directive contains only a few exceptions, termed derogations, from this principle. The E-Commerce Directive defines an e-commerce service (termed an information society service) as any service, normally provided for remuneration, at a distance, by electronic means, and at the individual request of the recipient of the service. So, for example, it includes services provided over the internet, by solicited e-mail, and interactive digital television. Further guidance is contained in the FSA's E-Commerce Directive sourcebook (ECO).

The FSA will be responsible for implementing the Distance Marketing Directive for those firms and activities it regulates. The FSA and the Treasury agree that the Distance Marketing Directive is intended to operate on a country of origin basis, except where a firm is marketing into the UK from an establishment in an EEA State which has not implemented the Directive.