The question of who can appear on a UK Customs declaration is one that is not as simple as it might seem. So, who can act as an exporter, importer or declarant and where does that leave them in terms of liability for the declaration and for the Customs debt?
First, it’s useful to understand the legal definitions of each party.
The Exporter
- This is the person (organisation) who has the power to determine and has determined that the goods are to be taken out of that Customs territory.
- The exporter must be established in the UK.
- Where the exporter is not established in the UK, the exporter must appoint a representative, who is established in the UK, to act on their behalf as an Indirect Representative.
- If goods subject to an export licence are being exported (controlled goods), the person (organisation) who holds the export licence should be shown as the exporter on the Customs declaration.
The Importer
- The importer is defined as any owner of the goods or any other person possessing or beneficially interested in them at any time between their importation and their clearance by Customs or the person to whom goods must be delivered.
- The importer is responsible for ensuring that the goods being imported comply with all the UK Customs and legal requirements.
- Imports into Temporary Admission (TA) are the exception, where the foreign exporter can also be the UK importer. The importer must be established in Great Britain or Northern Ireland.
The Declarant
- This is the person (organisation) who is responsible for making the Customs declaration. This can be the exporter or importer making the Customs declaration on their own behalf, or it can be a third party (Customs Agent) contracted by the exporter or importer to make the Customs declaration on their behalf.
- Although various terms are used to describe a third-party declarant, such as a Customs broker, freight forwarder, or courier, HMRC tends to use the terms ‘Customs Agent’ or ‘Customs Representative’ when describing a third-party declarant.
- UK Customs regulations state that “a person may not act as a Customs agent unless the person is established in the United Kingdom”.
Next, it’s helpful to examine the different types of representation available to anyone wanting to make a customs declaration (assuming they’re established in the UK).
Self-Representation
The exporter (export declarations) or the importer (import declarations) is also the declarant. They are representing themselves. There is no Customs Agent involvement. This is often referred to as ‘self-filing’. The party making the Customs declaration is solely responsible for the declaration itself as well as the Customs debt.
Indirect Representation
Where an exporter or importer contracts a Customs Agent to make the Customs declaration on their behalf, and the Customs Agent has not been authorised to act as a Direct Representative, both parties are jointly liable for the declaration and the Customs debt. From a Customs perspective, this is the default position in the absence of evidence to suggest otherwise.
Most Customs Agents will want to avoid being held jointly liable for the declaration (and especially the Customs debt) and will ask the exporter or importer to authorise them to act as a Direct Representative. However, this is not possible for Customs Agents who are acting on behalf of a non-established exporter or importer. In such cases, the Customs Agent will always be acting as an Indirect Representative and will be liable for the declaration and the Customs debt.
Direct Representation
Where an exporter or importer contracts a Customs Agent to make the Customs declaration on their behalf, and they have provided the agent with a written authorisation permitting them to act as a Direct Representative, the Customs Agent is not liable for the Customs declaration or the Customs debt. The liability rests solely with the exporter or importer.
If the Customs Agent doesn’t hold such written authority, they are deemed to be an Indirect Representative by HMRC, even if they have stated on the Customs declaration that they are a Direct Representative.
If the Customs Agent makes a decision about a Customs declaration without having written instructions from the exporter or importer, then again, they will be deemed to be an Indirect Representative.
If the Customs Agent deviates from the written instructions from the exporter or importer, then once again, they will be deemed to be an Indirect Representative.
So, for example, something as simple as choosing the HS code (because the exporter or importer didn’t know it or supply it) will void any direct representation and make the Customs Agent jointly responsible for the Customs declaration and the Customs debt.
To maintain Direct Representation, a Customs Agent must follow the export or import instructions to the letter.
Due Diligence
It is worth reiterating….
To maintain Direct Representation, a Customs Agent must follow the export or import instructions to the letter.
If, under Direct Representation, a Customs Agent fails to obtain precise instructions from the exporter or importer, they can be held liable for the Customs declaration and debt.
HMRC has issued guidance on what it expects from Customs Agents on gov.uk here Due diligence when making customs declarations.
It’s also important to understand what HMRC means by Establishment;
- A limited company or partnership is established in the UK if it is incorporated or registered at Companies House.
- If you cannot provide evidence that you are established in the UK, you must appoint a representative to act on your behalf as an Indirect Representative.
- For Customs Agents, if your client (exporter or importer) is not UK-established, you can only represent them in an indirect capacity, which means you’ll be jointly liable.
Furthermore, to trade under the Northern Ireland Protocol and Windsor Framework, you must be established in Northern Ireland and hold an XI VAT number.
‘Established’ means having a physical business address in Northern Ireland with a “BT” series postcode, also known as a Permanent Business Establishment (PBE).
If you cannot provide evidence that you are established in Northern Ireland, you cannot trade under the Northern Ireland Protocol and Windsor Framework.