Guernsey Company Law Series: Migration or Continuation – moving companies to and from Guernsey

• Companies can be redomiciled into and out of Guernsey using a statutory process known as migration

• Upon migration, the company retains all property, rights and liabilities

• This guide sets out the requirements from a Guernsey perspective to effect a migration

Migrations in to Guernsey

A company that is registered in an overseas jurisdiction may, if the laws of that overseas jurisdiction permit it to do so, migrate out of that jurisdiction and into Guernsey. The effect of this is as follows:

• the property and rights of the company immediately prior to the migration continue to be the property and rights of the company;

• the company continues to be subject to all criminal and civil liabilities, contracts, debt and other obligations; and

• all legal proceedings which are pending by or against the company may still be continued by or against it once it has migrated into Guernsey.

Provided the overseas jurisdiction’s laws allow a company to migrate out, the company may submit an application to the Guernsey Registrar for permission to become a company incorporated under the Law. The application will include, amongst other things, a set of Guernsey law compliant memorandum and articles of incorporation that will be adopted upon migration, a statement of share capital, a declaration of compliance confirming that the requirements of the Law have been complied with, a legal opinion under the laws of the overseas jurisdiction, and evidence that, on the date of registration in Guernsey, the company will cease to be incorporated in the overseas jurisdiction, together with a fee payable to the Guernsey Registrar.

Migration out of Guernsey

A company incorporated in Guernsey may also migrate out of Guernsey and continue into an overseas jurisdiction.

Resolutions must be passed by both the members and the directors of the Guernsey company to approve the migration, and the directors must also make a statement of solvency confirming that the Company will pass the statutory solvency test immediately before removal of the Company from the Register of Companies in Guernsey. The application to the Guernsey Registrar will also include, amongst other things, confirmation from each of the Revenue Service and HM Procureur that they have no objections to the migration, evidence that notice of the proposed migration to any creditors has been given, written confirmation from the overseas registry that the Company will be registered in the overseas jurisdiction at the point of migration out of Guernsey, and a legal opinion under the laws of the overseas jurisdiction. Fees are payable to the Guernsey Registrar, HM Procureur and the Revenue Service as part of the application.

Following the expiry of a 28 day notice period and the Guernsey Registry's review of the application, and the Guernsey Registrar has received evidence of the registration of the Company in the overseas jurisdiction, the Guernsey Registrar will remove the company from the Register of Companies in Guernsey.

General

Please note that an application for a migration into Guernsey or a migration out of Guernsey cannot be made to the Guernsey Registry in respect of a company which:

• is being wound up, or is in liquidation or has been declared insolvent;

• has had a receiver or administrator appointed, whether by a court or not, in relation to any property of the company;

• has entered into a compromise or arrangement with a creditor (not being a compromise or arrangement approved by the Guernsey Financial Services Commission) and that compromise or arrangement is in force; or

• has an application pending before a court for the winding up or liquidation of that body corporate, or to have it declared insolvent, for the approval of a compromise arrangement or for the appointment of a receiver or administrator; or

• is empowered by its memorandum or articles or other equivalent constitutive documents to issue bearer shares.

In addition, the migration of a supervised company out of Guernsey, or the migration of an overseas company which intends to become a supervised company in Guernsey or which is the equivalent of a supervised company in the overseas jurisdiction, will in each case require the consent of the Guernsey Financial Services Commission.

Please see a more comprehensive memorandum on Guernsey company migrations here and do not hesitate to get in contact with a member of our corporate team if you require any assistance or advice with regard to company migrations, either out of or into Guernsey.

The information contained in this guide is necessarily brief and general in nature and does not constitute legal or taxation advice. Appropriate legal or other professional advice should be sought for any specific matter.