New Account Freezing Order legislation: Private Foreign Currency Exchange Service and its legal impl
你的银行账户被冻结了吗？你有收到冻结帐户的出庭通知书吗？你想知道发生什么事情和其潜在的法律后果吗？
On 28th February 2019, The UK’s National Crime Agency froze 95 Barclays’ bank accounts, mainly held by Chinese students studying in the United Kingdom. These accounts contain an estimate of £3.6 million that is suspected to be from proceeds of crime or intended to be used for criminal purposes. Accounts will be frozen for 9 months for the purpose of subsequent money laundering investigations conducted by the National Economic Crime Centre’s officer.
于2019年2月28日，英国国家打击犯罪调查局(NCA)冻结了95个Barclays银行账户，这些账户大多数都是由英国留学生持有，被冻结的资金总额高达360万英镑。因为调查局有理由怀疑这些留学生的银行账户的资金是用作洗黑钱，所以账户都会被法庭下令冻结9个月，以便国家经济犯罪调查中心(NECC)人员进行调查。
Why did the authorities freeze my account?
为什么我的帐户被冻结？
A lot of Chinese student received letters from enforcement authorities, such as the City of London Police and the HM Revenue & Customs, confirming there was an Account Freezing Order (AFO) application against their bank accounts and a hearing was scheduled. Subsequently, these bank accounts would be frozen for nine months. These bank account users have one similarity: they frequently used Private Foreign Currency Exchange Service to exchange for pounds.
很多中国留学生都收到地方当局(比如伦敦警察局和英国税务局)的来信，说要冻结他们的帐户9个月，还要出庭。这些中国留学生都有一个共同点，就是他们都有使用私人换汇换英镑的习惯。
As the People’s Republic of China’s authorities implement regulations to limit the exchange of foreign currency from Renminbi, Chinese students are tempted to use Private Foreign Currency Exchange Service to exchange pounds. Chinese students perceive these private currency exchange service more convenient to use and it offers a slightly better exchange rate as incentives than banks’ service. Why not?
由于中国实行外汇管制措施，每年每人只能以人民币兑换一定限额的英镑。所以留学生都会觉得，比起银行换汇，私人换汇更方便快捷，还有稍微的汇率优势，那何乐而不为呢？
Private Currency Exchange Service is well-known and frequently used by the Chinese communities in the UK. These currency exchange service companies operate by sourcing Chinese customers on communications platforms such as Wechat and Alipay. The currency exchange service providers register an account on such communication platform and appear as a Universities’ alumni or some status that sounds credible in the group chat to attract Chinese customers. Chinese customers who want to use the private exchange service will simply have to contact the person they ‘met’ on the communication platform and agree with their exchange rate, the transaction can subsequently be performed. The entire private currency exchange process will take less than one day to complete while traditional currency exchange through banks may take up to 5 working days.
私人换汇已很广泛地被留学生使用。私人换汇的供应商会在社交平台上开设账户，然后自称是校友或以其他身份出现在群组内，以吸引中国留学生使用他们的换汇服务。需要使用换汇服务的顾客只需要跟供应商联系和确认当天的英镑汇率，经双方同意后，交易便可以在一天内完成。比在银行换汇所需的五个工作天更方便快捷。
However, Chinese students may not know that in the United Kingdom, strict anti-money laundering regulations are enforced on banks and institutions that perform banking activities. Any large transactions and money transfers will be subject to tracing and declaration of those source of funds.
然而，你未必知道英国多年来对银行或其他从事金融行业的服务商的监管和法律管制都是非常严格的。任何大额交易或转款都需要资金来源的证明。
Private Foreign Currency Exchange is regulated in the United Kingdom. By violating regulations through using these Private Foreign Currency Exchange service, you might have to bear the legal consequences, often not known to you at the outset.
换汇在英国也是受法律管制的。即使在你不知情的情况下使用了这些私人换汇，你也有可能需要为此负上法律责任。
The New Legislation 新法条 - Criminal Finance Act 2017
Since 31 January 2018, new enforcement power was introduced into the Proceeds of Crime Act 2002 by Criminal Finance Act 2017, it allows authorities to apply to Magistrates’ Court to freeze the monies in “suspicious” bank accounts or building societies account until the source of the funds can be established. Funds were either alleged to be derived from, or intended for use in, unlawful activities.
自2018年1月31日起，英国立法(Criminal Finance Act 2017)授权地方当局在合理的怀疑下向裁判法院申请冻结 “有可疑的”银行账户，直至账户持有人清楚解释资金的来源合法，账户才会被解封。相反，如果账户持有人未能解释资金的来源，则存在洗黑钱的风险。
The frequent use of Private Foreign Currency Exchange services is considered one of the activities that will make Chinese Students’ bank account looks suspicious.
私人换汇是其中一个会让留学生的银行帐户变得“有可疑”的项目。
This is because in each transaction, the currency exchange service provider will separate the total amount of pounds into several tranches before sending. The service provider will deposit each tranche of the transaction by cash into the customer’s bank account from different bank branches all over the United Kingdom. By sending in tranches and in different branches, the service provider can avoid being suspicious when paying large amount of cash into a single account in a single branch.
因为私人换汇服务商会把每一次交易的金额拆分，然后再把金额以现金方式在英国不同地区的银行分行直接存入客户的账户。服务商这样做，是为了避免一次性存入大量现金时被该银行怀疑。
When the NECC notice that there are no links between the location where cash are deposited and where the bank account holder is based, they classify this as a money laundering technique called ‘smurfing’. This constitutes a reasonable ground to suspect the source of those funds are illegitimate. Therefore, the NECC officer will subsequently apply to the Magistrates’ Court to freeze the bank account of these Chinese students for further investigations.
当国家经济犯罪调查中心发现某些账户有大量现金从英国不同地区存入，而这些地区与账户持有人的所在地有出入，调查人员将有足够理由向裁判法院申请冻结相关账户，以便他们进行洗钱调查。
What are the legal consequences?
潜在的法律后果
While the NECC is conducting the money laundering investigations, the account holder must cooperate with the authorities and give evidence with explanations. If the account holder fails to give evidence, the account holder may have to bear the legal consequence and sentence for money laundering. Not only the frozen funds will be forfeited, the criminal record may also affect any current and subsequent student visas in the UK.
在国家经济犯罪调查中心进行调查时，账户持有人必需配合他们就资金来源提交证据并作出解释。如果账户持有人未能提出任何证据让地方当局释疑，除了被冻结的账户资金被没收外，账户持有人也有机会因 “洗黑钱”而负上法律责任。留下的犯罪记录也会影响你现有和未来的签证，也影响你的一生。
What should I do next?
你应该怎么做？
When you receive the notice of AFO applications sent by the authorities, we recommend that you seek legal advice at your earliest opportunity.
如果你收到银行账户被冻结的通知，我们建议你尽早寻求律师的帮助。
Chan Neill solicitors is a leading Law Firm in the City of London and we have mandarin and Cantonese speaking lawyers and legal advisors who may be able to guide you through this difficult period. Given the increase in the number of similar cases we have been dealing with recently, our Senior Partner Mr Michael Chan whom has 25 years of experience in commercial litigations, has taken a keen interest in leading the team in dealing with AFO matters and hope to ensure we can resolve the problem for the Chinese students here in the U.K. . If you have any queries of the AFO, please do not hesitate to contact: chinadesk@cnsolicitors.com.
陈刘律师事务所是伦敦有名的律所。我们有能操流利国语和广东话的律师为你提供有关冻结账户的专业法律意见。鉴于我们现时处理账户冻结的案件数量增加，我们的高级合伙人Michael Chan(在商业诉讼方面已有25年的经验)将带领我们的律师团队为你处理有关冻结账户的事宜并全力为中国留学生辩护。如果你有银行账户冻结方面的疑问，欢迎大家咨询：chinadesk@cnsolicitors.com
Summary of upcoming changes to the Immigration Rules
On 7 March 2019, the Home Office published a new Statement of Changes, setting out new requirements, which will be incorporated into the consolidated version of the Immigration Rules over the period from 29 March 2019 until 1 August 2019.
Changes as of 29 March 2019
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Minor changes have been introduced to the definitions of “Employment as a Doctor in Training” and a “Professional sportsperson”
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Definitions of “Start-up migrant” and “Innovator” have been included in the “Introduction” part of the Rules
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Immigration requirements for leave to enter and remain or indefinite leave to remain in the UK for family members of Appendix W “Workers” will be added to Part 8 of the Rules
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Definition of “Prospective Entrepreneur” in Appendix V of the Immigration Rules will be changed. A visitor, who can show support from one or more endorsing bodies for the Start-Up or Innovator visa, would be able to enter the UK to secure funding from any legitimate source
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Appendix W will be inserted into the consolidated version of the Immigration Rules setting out the Immigration Requirements for the Start-up and Innovator visa categories. The changes to this Appendix will take place on 1 August 2019
Tier 1 (Entrepreneur) visa category
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Tier 1 (Entrepreneur) visa category will be closed to new applicants as of 29 March 2019. Those, who have a Tier 1 (Entrepreneur) visa, or have had leave under this visa category in the 12 months immediately before the date of application, may still apply for extension and/or settlement in the UK under this visa route
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Applicants will be allowed to extend their visa under the Tier 1 (Entrepreneur) Scheme if last been granted leave as a Tier 1 (Entrepreneur), a Tier 1 (Graduate Entrepreneur) or a Start-up migrant (having previously held leave as a Tier 1 (Graduate Entrepreneur) Migrant)
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Those applicants, who have entry clearance, leave to enter or remain as a Tier 1 (Graduate Entrepreneur) or a Start-up migrant, or have had such leave in the 12 months immediately before the date of application, would be required to show that they have at least £50,000 available to them or their business or have invested the funds in their business due to their activity
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Money made available from venture capital firms would no longer be accepted for the purpose of initial applications made under the Tier 1 (Entrepreneur) visa route
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Changes are being made to Tier 1 (Investor) visa category to clarify that if the applicant has or has had leave as a Tier 1 (Investor) Migrant in the 12 months’ period immediately before the date of application, an entry clearance visa would be granted for a period of 2 years. In all other cases, an entry clearance visa application would be granted for a 3 years’ period
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Tier 1 (Investor) applicants, who were granted a visa under this route before 6 November 2014, would be able to rely on existing investments when submitting their extension applications before 6 April 2020 and when submitting their indefinite leave to remain applications before 6 April 2022
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Tier 1 (Investor) applicants, who submit their visa applications under this route after 29 March 2019 or the date of extension application is on or after 6 April 2023 or the date of settlement application is on or after 6 April 2025, would not be awarded points for investments in UK Government Bonds
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The banks would be required to carry out required due diligence checks and Know Your Customer enquiries in relation to each Tier 1 (Investor) applicant
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Under the Tier 1 (Investor) visa route, the 90 consecutive days’ requirement for money to be held under the applicant’s control is being extended to a 2 years’ period
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Under the Tier 1 (Investor) visa route qualifying investments can include pooled investments vehicles, if such vehicles receive funding from a UK or devoted government department or one of its agencies, and the applicant provides a letter from a financial institution regulated by the Financial Conduct Authority to confirm this
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Tier 1 (Investor) applicants, who submit their initial applications after 29 March 2019, and invest in active and trading UK registered companies, must ensure that such active and trading UK companies are registered with the Companies House, HMRC for corporation tax and PAYE, have accounts and a UK business bank account and have at least two UK-based employees who are not its directors
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Clarification is being made to confirm that “price of the investments” means the price the Tier 1 (Investor) applicant paid for the investments, not the face value
Changes as of 30 March 2019
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An entry clearance visa application granted under Appendix EU (Family Permit) may be revoked if an applicant is subject to an exclusion order, an exclusion decision or an Islands exclusion decision as defined in that Appendix
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In line with the changes to paragraph 34QA, under Appendix AR (EU) an application for an Administrative Review may be made from either inside or outside the UK
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General grounds for refusal set out in Part 9 of the Immigration Rules will not apply to applications made under Appendix EU or Appendix EU (Family Permit), except, if the United Kingdom leaves the European Union with a “no-deal” scenario, then, some of the paragraphs of Part 9 of the Rules would apply to migrants, who commit an offence after 29 March 2019
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Changes are being made to Appendix A “Attributes” to clarify how points for an allocation of a restricted COS certificate will be calculated
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The Immigration Requirements set out in paragraph EU2 of Appendix EU will come into force on 30 March 2019
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Appendix EU (Family Permit) will be inserted into the consolidated version of the Immigration Rules on 30 March 2019 (with two exceptions)
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Appropriate salary rates set out in Appendix J in the codes of practice of the Immigration Rules have been revised. New salary rates will come into force on 30 March 2019
Tier 1 (Exceptional Talent) visa category
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Switching from a “Start-up” migrant and an “Innovator” visa category to Tier 1 (Exceptional Talent) visa category will be allowed
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The relevant continuous period under the Tier 1 (Exceptional Talent or Promise) visa category could be combined with leave spent either as a Tier 1 Migrant (excluding as a Tier 1 (Graduate Entrepreneur) Migrant or Tier 1 (Post-Study Work) Migrant), as a Tier 2 Migrant (excluding as a Tier 2 (Intra-Company Transfer) Migrant) or as an Innovator
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Applicants will be allowed to switch from a Start-up and an Innovator visa category to Tier 2 (General)
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Migrants will be allowed to switch to the Tier 2 (General) visa category within the UK upon completion of their degree program or no more than 3 months before the expected completion date
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Tier 2 (General) and Tier 2 (Minister of Religion) migrants will be allowed to include leave spent in the UK as an Innovator towards the required qualifying period for indefinite leave to remain
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The minimum threshold for a gross annual salary, when applying for settlement under the Tier 2 (General) visa route, will be set at £38,800, if the date of application is on or after 6 April 2023, and at £40,100 if the date of application is on or after 6 April 2024
Changes as of 6 April 2019
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Time spent under the Tier 4 visa category whilst being below the age of 18, will not count towards the time limits;
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Transitional arrangements in respect of job creation for those Tier 1 (Entrepreneur) applicants, who entered this route before 6 April 2014, will be deleted.
Changes as of 6 July 2019
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Tier 1 (Graduate Entrepreneur) visa category will be closed and being replaced by a Start-up visa category
Should you have any questions regarding the upcoming changes please do not hesitate to contact us.
Please note that the information on this page is for general purposes only and is not intended to replace legal advice.
Chan Neill Solicitors participates in Free Wills Month (March) 2019- Doing our part in Helping Great
Charities involved in supporting Free Wills Month work for a variety of causes. They work tirelessly to protect and enrich the lives of millions of people.
Most UK charities depend on legacies for up to half their income – by taking part in a Free Wills Month campaign you could help one or more of these worthy causes.
If you are interested in leaving your legacy to one of the participating charities, and is aged 55 years and older, please contact us for further information and participating charities.
Appointments are limited and are allocated on a first come first served basis and may once all appointments are fully booked, the campaign will close, even before end of the month.
For further information, please refer to https://freewillsmonth.org.uk/