The exit of the United Kingdom from the European Union (“Brexit“) will have an impact on international mobility for work purposes and personal data transfer to the United Kingdom.
The United Kingdom allows EU citizens already present in the UK for at least five years on 31 December 2020, to request confirmation of their right of residence (for work, study, etc.) beyond that date. The request can be made online by 30 June 2021 by filling the EU Settlement Scheme made available on the British Government website, obtaining the settled status.
If the permanence period is less than five years, it will be possible to apply to remain in the United Kingdom to complete it by obtaining the pre-settled status through the above form. Unlike the settled status, pre-settled status is lost when a person is absent from the country for two or more years.
This procedure will guarantee the same rights that an EU citizen residing in the UK had before Brexit. They will be able to stay in the UK indefinitely, work, use the health service, study, and have access to public funds such as social benefits and pensions.
For new entrants from 1 January 2021, however, it will be necessary to apply for a visa under the new points-based immigration system.
Italy has a procedure for confirming the rights acquired by British citizens present in the country on 31 December 2020. They can request the “residence document in electronic format” at the local Questura (police station). The same procedures as for non-EU citizens will be applied to those who will enter the country after 1 January 2021.
For the transfer of personal data to the United Kingdom, the Italian Data Protection Authority (the “Guarantor”) clarifies that it is necessary to refer to the “Trade and Cooperation Agreement” (“Agreement”) signed on 30 December 2020 by the European Union and the United Kingdom (“Trade And Cooperation Agreement Between The European Union And The European Atomic Energy Community, Of The One Part, And The United Kingdom Of Great Britain And Northern Ireland, Of The Other Part”).
Under the Agreement, the Regulation (EU) 2016/679 on the protection of personal data (“GDPR”) will continue to apply in the United Kingdom for a maximum of six months, i.e. until 30 June 2021. According to the Guarantor, “during this period, any communication of personal data to the UK may take place under the same rules that applied on 31 December 2020 and will not be considered a transfer of data to a third-party country.”
During this transitional period, the United Kingdom and the European Union have undertaken to adopt mutual adequacy decisions under this Agreement. In the absence of such decisions, the provisions of Chapter V of the GDPR governing the transfer of data from the EU to third-party countries will apply. These provisions require the existence of adequate safeguards, such as binding corporate rules, standard contractual clauses, and codes of conduct (see Art. 46 of GDPR). This is subject to exceptions, such as data subject consent or a transfer necessary for contract purposes or important reasons of public interest (Art. 49 of GDPR).
From 1 January 2021, Data Controllers and Processors based in the UK and who are subject to GDPR because they process data for offering goods and services or monitoring the behaviour of data subjects within the EU (see Art. 3, paragraph 2, GDPR), shall designate a Representative in the European Economic Area under Article 27 of GDPR.
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