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Digital Assets: Some Long-Awaited Clarification on the Thingness of Things
Most people in their daily lives do not pay attention to the law of personal property in England and Wales. However, for those of us who do, the parliamentary progress of the Property (Digital Assets etc) Bill has been a source of some excitement. The Bill is a welcome clarification of the law in this area, but at first glance its impact isn’t obvious. This blog therefore considers why the Bill was introduced, what it does, and what it does not do.
Short But Sweet
The Property (Digital Assets etc) Bill runs a total of two sections. The first section reads simply: “Objects of personal property rights
A thing (including a thing that is digital or electronic in nature) is not prevented from being the object of personal property rights merely because it is neither—
- a thing in possession, nor
- a thing in action.”
The second section limits the impact of the change to England and Wales, and Northern Ireland.
But Why?
For those not familiar with the details of English property law and recent debates around digital assets, this might at first glance seem like quite a puzzling provision. However, in the context of the current state of the law, it makes a lot of sense.
Essentially, the Bill sets out to override a famous statement by Fry LJ in the 1885 case of Colonial Bank v Whinney: “All personal things are either in possession or action.” This itself might require some translation. By ‘personal things’ Fry LJ was referring to the division in English property law between ‘real property’ (i.e. land and buildings) and ‘personal property’ (i.e. everything else). He was saying that personal property included ‘things in possession’ (i.e. tangible property, that you can physically possess) and ‘things in action’ (i.e. legal rights that you can enforce against another person, such as a debt), but nothing else.
In 1885 this was not really a problem, but unfortunately Fry LJ would never have the opportunity to discover cryptoassets, which didn’t really take off until Satoshi Nakamoto launched Bitcoin in 2009.
Cryptoassets are clearly not a form of tangible property. However, unlike previous forms of intangible assets that have been recognised as subject to property rights, it isn’t possible (at least in the simple case of an exchange token like Bitcoin) to identify any legal right enforceable against another person. It therefore isn’t really possible to say that cryptoassets typically are a thing in action.
This has presented a difficulty for those who seek to assert property rights in their cryptoassets, such as when their tokens have been stolen and they seek to recover those tokens. Situations like this have given rise to a number of claims in the last few years, and the courts of England and Wales have generally been open to the possibility that cryptoassets could be the object of property rights. However, Fry LJ and his famous quotation have continued to loom over the debate, and therefore when the Law Commission of England and Wales considered the topic, they recommended that the government eliminate any remaining confusion by passing legislation in the form of the current bill.
What It Means, and What It Doesn’t Mean
It’s important to notice that the legislation is drafted entirely in the negative. That is, it states that a failure to fit into the two existing categories is not a reason for something to not be the object of personal property rights. However, it deliberately does not state that any particular thing is in fact a type of personal property.
Clearly there will still need to be some limiting factors to determine the boundaries of personal property. After all, it isn’t possible to claim legal rights in a joke, or a fact, or a colour in the abstract. The law has recognised various criteria for property rights, but a significant one is that things must be ‘rivalrous’. That is, the use of a thing by one person necessarily prejudices the ability of another person to make equivalent use of it at the same time.
Therefore, you can own a diamond ring, because if you are wearing it then no-one else can also be wearing it at the same time. Similarly, rivalrousness is key to the design of systems like Bitcoin. You can own a given value of Bitcoin, because if you transfer it to another person’s address, no-one is now able to spend that specific value of Bitcoin other than somebody who controls the private key to that address. However, you cannot own pure information, because it is not rivalrous. If I tell you a joke, then you can pass it on to somebody else, without limiting my ability to tell it to others.
Therefore, just because the Bill will remove one reason why things could not be personal property, that does not mean that anything and everything will become personal property. This is a point that has been overlooked in some of the reactions to the Bill.
Confusion on this point can be forgiven. The name of the Bill refers to ‘digital assets’, a term which is perhaps unhelpfully broad and is used to describe anything from cryptoassets to the files on a computer. The Bill is however not intended to make all types of digital asset the object of property rights, as its explanatory notes make quite clear. Therefore, each variety of digital asset will need to be considered on its own merits to determine whether it is a form of property.
In the case of many cryptoassets, there is already a body of case law determining that they meet the necessary criteria and so can be the object of property rights. It therefore seems quite clear at this point that Bitcoin can be owned, and the Bill will remove any remaining doubt.
However, in the case of other digital assets, the position is much more uncertain. Digital files, for example, are not generally understood to be rivalrous. After all, if I email you a copy of a digital photo, then I still have the photo saved on my computer, and I can still look at it and copy it to other people. While there are some interesting conceptual arguments to the contrary, the conventional view remains that digital files cannot be the objects of property rights, and the Bill will not change that.
The Digital Estate
The question whether something can be the object of property rights has significance in various different contexts. One of these is in relation to the law of succession. Therefore, it is quite appropriate to make a Will leaving your cryptoassets to a chosen beneficiary. (That by itself is of course not sufficient, as you need to have a system in place for the chosen beneficiary to gain access to the necessary private keys- but that is a topic for another day.) However, you should not expect a gift in a Will of digital files to be legally enforceable. You can, and should, think about how you want your digital files to be handled after you are gone, but a Will is not a solution to this problem.
When it comes to digital assets, Quastels are the firm to turn to. Within the Private Wealth and Tax team, Ben Rosen TEP, Partner, and Jack Burroughs TEP, Senior Associate, are leading experts on the topic. Whether you need advice on the taxation of cryptoassets or help with your estate planning for cryptoassets or indeed for other types of digital asset, the team will be happy to help.
To discuss your circumstances and find out how we can help, please get in touch.
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2025 Global Talent Visa Update: Navigating the Latest Updates to the UK Global Talent Visa for Tech Professionals
The UK’s Global Talent Visa continues to be a critical pathway for exceptional tech professionals looking to contribute to the country’s thriving digital economy. As of 22 January 2025, significant updates have been introduced to refine the eligibility criteria and strengthen the assessment process. If you are considering an application, understanding these changes is vital to ensuring a strong submission.
Strengthened Requirements for Letters of Recommendation
Applicants must now ensure that referees are established leaders within the digital technology sector. Referees must have personal, in-depth knowledge of the applicant’s work for at least 12 months. Generic endorsements or letters lacking substantive detail may no longer be considered sufficient. Additionally, letters of recommendation must be supplemented with further supporting evidence to validate the applicant’s achievements and contributions.
Enhanced Mandatory Criteria: More Than Just Compensation
To meet the mandatory criteria, applicants must provide at least two distinct forms of evidence demonstrating their leadership or potential in digital technology. While salary and equity remain relevant, they are no longer sufficient as standalone evidence. Applicants must go beyond financial indicators and illustrate how their work has led to meaningful industry impact, whether through product development, technical innovation, or influential contributions to their field.
Furthermore, the timeframe for evidence remains crucial. Documents submitted should reflect achievements within the last five years. Any materials created solely for the purpose of the visa application may be disregarded.
Revised Optional Criteria: Emphasising Impact and Innovation
1. Innovation and Technical Contributions (OC1)
Applicants must now demonstrate substantial technical contributions or innovation. Those applying based on their start-up involvement must provide robust financial documentation. Business plans and projections alone will not suffice; instead, audited financial statements or formal financial accounts covering at least 12 months, signed by company directors, are required.
2. Extracurricular Industry Contributions (OC2)
The criteria for contributions outside of one’s primary occupations have been refined. Online-only activities such as virtual mentorships no longer qualify as sufficient evidence. Applicants should now demonstrate participation in in-person engagements, such as keynote speeches, industry panels, and mentoring sessions. Furthermore, newly recognised contributions include leading technology-focused policy initiatives and active involvement in tech-focused professional societies.
Importantly, all evidence must relate to unpaid work. Employer-sponsored conference participation will not be counted towards this criterion.
3. Commercial and Financial Impact (OC3)
The assessment of financial impact has shifted, with a new focus on revenue generation and tangible commercial success. Equity, shares, and bonuses are now considered under the mandatory criteria, while applicants seeking to meet OC3 must present concrete evidence of financial growth, such as revenue reports, audited profit and loss statements, or business scaling achievements.
What These Changes Mean for Applicants
The updated guidelines reinforce the UK’s commitment to attracting top-tier talent while ensuring that applicants genuinely contribute to the industry. Individuals considering this visa should carefully evaluate their supporting evidence and ensure it aligns with the latest standards.
At Quastels, we specialise in advising professionals and entrepreneurs on their UK immigration pathways. If you require expert guidance on your Global Talent Visa application, our team is here to help you navigate these evolving requirements.
For further information or to schedule a consultation, please contact us at Quastels LLP.
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Streamlined Process for Pre-Settled Status Holders: A Step Forward in the EUSS
The UK Home Office has recently introduced a significant update for individuals holding pre-settled status under the European Union Settlement Scheme (EUSS). As part of this update, pre-settled status holders who are approaching the expiry of their status will now be automatically considered for conversion to settled status, removing the need for a separate application. This new process aims to simplify the transition and help individuals continue living and working in the UK with greater ease.
If you’re a pre-settled status holder, you may have been expecting to apply for settled status once you reach the five-year mark. However, thanks to this new automated process, if you meet the criteria, the Home Office will carry out the necessary checks and, if eligible, automatically grant you settled status. Importantly, you don’t need to take any action for this to happen.
What Happens If Your Status Is Not Automatically Converted?
In cases where the automatic checks do not result in the granting of settled status, the Home Office will notify you. This could be due to a variety of reasons, such as missing information or a failure to meet the continuous residence requirement. In such cases, or if you don’t want to wait for the automated process, you can still apply for settled status independently as soon as you become eligible.
For those who are unsure about the status of their application or would like to avoid delays, consulting with an experienced immigration advisor can make all the difference. Our team specialises in handling complex cases and will ensure that your application is fully prepared and submitted correctly, increasing your chances of a successful outcome.
Challenges Of Proving Continuous Residence
Amongst other eligibility requirements one must meet for successful outcome of the settled status application, the key requirement is demonstrating continuous residence in the UK for at least five years. This can be difficult for some, particularly if there have been periods of absence due to factors beyond their control. For example, travel restrictions during the COVID-19 pandemic, school closures, medical emergencies, or family obligations may have impacted their ability to meet the residence requirement.
If you’ve encountered such challenges, it’s important to know that opportunities remain to apply for settled status. In these situations, providing sufficient documentation to demonstrate your time in the UK is crucial. While the automated process may not always account for exceptional circumstances, individuals can still make a case for meeting the continuous residence requirement through alternative evidence.
Navigating the EUSS Process With Our Expert Team
For pre-settled status holders, especially those facing difficulties in having their status automatically converted, the process can feel overwhelming. It’s important to stay informed about the criteria and what steps to take if your application is not automatically processed. Being aware of your rights and the available options can help ensure that your status is correctly updated, allowing you to continue living and working in the UK.
Our experienced team at Quastels will come up with the solution to ensure your continued right to reside in the UK. We understand the challenges you may face and are committed to supporting you through the process with professionalism and dedication. If you’re a pre-settled status holder and unsure about your next steps, please contact us.
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