Accessing the UK Register of Trusts using “Legitimate Interest”

How can asset recovery teams access the UK’s Register of Trusts (“ROT”) via the conduit of legitimate interest? What is a ‘legitimate interest’ and is access to the ROT an administrative process or a judicial one?

Issues in Question

• To apply some context to the research task, it may assist to chronologically outline the events influencing who and who may not access the ROT.
• Since 2016 all UK-incorporated Limited Companies (“LTD”) and Limited Liability Partnerships (“LLPs”), have been required to maintain a register of persons with significant control (“PSC”), held open for public inspection.
• The main facets of this legislation as it affects our question is contained within the ministerial statement of former MP Jo Swinson. She outlined the following undertaking of the UK’s department Business Innovation and Skills (“BIS”):

“BIS also accepts that people at serious risk of harm should be able to have their information protected from public disclosure on the PSC register. However, Swinson said she was ‘minded’ to limit the class of PSCs able to apply for protection to those who are at serious risk of violence or intimidation as a result of a company’s activities. It is not expected to cover purely economic risks. Applications for anonymity will be accepted from a PSC’s professional advisers, and they will also be able to apply in advance of their becoming a PSC so that protection will apply from day one.”

• In 2018, the European Parliament in Council adopted the 5^th AML directive (5AMLD). This directive tightened EU anti-money laundering (AML) rules by expanding them to virtual currency exchanges, custodian wallet providers, prepaid cards, and certain high-risk sectors, while increasing transparency of beneficial ownership and access to bank account information for authorities.
• In 2018, the UK’s Extractive Industries Transparency Initiative (EITI) rules were implemented and may be relevant to this research. These can be summarised thus:

“UK EITI reporting rules requiring relevant private, unlisted companies with reportable payments to disclose and verify beneficial owners and certain politically exposed persons, while exempting listed groups and conditioning disclosure on data-protection compliance.”

• Also from 6 April 2018, UK-resident and certain non-resident trusts faced stricter reporting and tax rules, including mandatory registration for those with UK tax liabilities. The Trust Protections and Protected Foreign Income changes targeted offshore trust capital gains, designed to prevent tax avoidance via “washed out” gains and restricting “recycling” of capital payments to UK residents, with new anti-avoidance rules extending to beneficiaries’ close family members. The direct quote states:

1. “From 6 April 2017, non-resident trusts settled by non-UK domiciled individuals, or by individuals who are treated as deemed domiciled in the UK because they have been resident in the UK for at least 15 of the previous 20 tax years before they became deemed domiciled, are subject to special rules. The rules also apply to the underlying companies of these trusts.

2. Under these rules, the settlor of such a trust will only be subject to a charge on the income arising to the person abroad if it is UK source income. The remainder of the income arising to the trust or its underlying entity will be protected foreign income and the settlor will be chargeable on benefits they receive from the trust or its underlying entities to the extent it is matched to the protected foreign income.

3. Such treatment will not apply to a non-resident trust and its underlying entities if, after the settlor becomes deemed domiciled in the UK, they provide additional property to the settlement. Or alternatively, a settlement of which they are the settlor or beneficiary provides such property. In such a situation overseas income will cease to be treated as protected foreign income and all of the income of the trust and its underlying entities will be subject to the transfer of asset abroad income charge.

4. Trust protections do not apply to (a) non-resident trusts created by an individual born in the UK with a UK domicile of origin; and (b) trusts created when the settlor is domiciled.”

UK Trust Registration Service (“TRS”)

• The UK HMRC Trust Registration Service (“TRS”) guidance explains when trustees must register a trust with HMRC, what information and deadlines apply, and is intended to improve tax compliance and anti-money-laundering transparency by identifying the people who control or benefit from trusts.
• These guidelines can be summarised thus:

1. Trustees must register a trust with HMRC if it is a UK express trust not excluded under Schedule 3A, a qualifying non-UK express trust, or a trust that becomes liable to UK taxes such as Income Tax, Capital Gains Tax or Inheritance Tax. 

2. HMRC requires core details including the trust’s name, creation date, whether it is express, details of UK land or UK business links, and information about the lead trustee, settlors, trustees, protectors and beneficiaries. 

3. Non-taxable trusts generally register within 90 days of creation; taxable trusts usually register within 90 days of becoming taxable, though some older trusts have different deadlines.

Legitimate Access

• Legitimate access to the UK trust register is limited to cases where a person can show a legitimate interest in the beneficial ownership of a trust, rather than a general right to inspect trust data.
• Under the legislation, HMRC must make certain trust information available only where the requester demonstrates such a legitimate interest. The governing test is whether the request relates to suspected money laundering or terrorist financing.
• The HMRC explanation specifically states:

“Under the legislation, HMRC must make certain trust information available only where the requester demonstrates such a legitimate interest. The governing test is whether the request relates to suspected money laundering or terrorist financing.”

• This statutory route is defined in regulation 45ZB of the Money Laundering Regulations 2017, under which the request is made to HMRC, and HMRC decides whether the statutory conditions are satisfied.
• Disclosure is also required for written requests concerning certain trusts that control a third-country entity.
• HMRC’s guidance says the requester must be investigating a specific case, explain why they suspect the trust is involved, and show that the information requested will help that investigation.
• The request must also identify a specific trust, since HMRC will not accept broad or speculative requests. Supporting evidence may include documents such as emails, invoices, or bank records.
• HMRC further states that the requester must provide an objective basis for their suspicions:

“Requesters are expected to provide a rational basis which objectively explains why they think a Relevant Registered Trust might be involved in money laundering or terrorist financing.”

• HMRC will likely expect a structured evidential narrative, including derivation and destination of funds, transactional irregularities, nominee or layering indicators, links between the trust and target assets, and the specific reason TRS data is needed to advance the investigation.
• Even then, disclosure is limited and some personal information may be withheld where legal exemptions or safety concerns apply. Safety concerns that may see the request refused, include fraud, kidnapping, blackmail, harassment, violence or intimidation, or where the person is under 18 or lacks capacity.
• If information is withheld, the requester must be told why and given at least 30 days to seek a review. Accessible information is limited to specified identifying details about individuals or entities linked to the trust.
• The Commissioners may charge a fee.

TRS Summary

• For asset recovery lawyers, the key difficulty is that “legitimate interest” is not framed as a general civil asset-tracing interest.
• Under the legislation and HMRC guidance, it is tied to a requestor being involved in an investigation into money laundering, terrorist financing, or proliferation financing, and seeking the information to further investigation of a specified suspected instance of that conduct.
• Frustratingly for us, as I read the various sources, a routine judgment-enforcement or beneficial-ownership inquiry, without that AML nexus, will not ordinarily satisfy the test. The published scheme does not present the TRS as a general disclosure mechanism for private litigants.
• Accordingly, the concept is not a broad discretionary notion of commercial, investigative, or forensic usefulness. Rather, in the UK TRS setting, it is a statutorily directed concept.
• The practical implication is that an asset recovery lawyer will usually need to anchor the request in a fact pattern that can properly be described as a suspected money-laundering, terrorist-financing, or proliferation-financing investigation, rather than ordinary civil enforcement alone.
• Therefore, access to the TRS appears to be primarily administrative rather than judicial, as the structure of the regime strongly indicates an administrative decision-making process, given that the decision is left to the commissioners, via an online application process using “the online form to submit your request.”
• HMRC states that after submission it will review the material and respond, generally within eight weeks, either by giving some or all of the information, withholding it, or stating that the request could not be dealt with.
• Should an application fail, HMRC’s review mechanism is internal and limited, the guidance states:

“Reviews are not available… where the legitimate interest test has not been met. However, the requester may wish to submit a further request with additional supporting evidence…”

• The language suggests that it is not a judicial process, but that of an executive application scheme with an internal review only for certain exemption decisions. Any court role would be limited as I read it, to reviewing whether HMRC acted unlawfully, irrationally, or unfairly.

Offshore Companies

• However, given the nature of many of our cases, where trusts are controlling offshore companies a second route exists, specifically where a registered trust holds a controlling interest in a non-UK/non-EEA entity. GOV.UK summarises that route as applying where the trust holds a controlling interest in an offshore company. The manual makes this clearer:

“HMRC’s obligation to release trust information for an offshore company Trust Data Request is not restricted to specific cases of money laundering or terrorist financing.”

• For this purpose, HMRC says controlling interest exists where the trust holds more than 50% of the shares or voting rights; or can otherwise control the entity.
• For asset recovery lawyer, this may be the more practical route where the evidential picture clearly links the trust to an offshore holding vehicle but does not yet support a fully articulated money-laundering case theory.
• The accessible information though remains limited. Under regulation 45ZB, for individuals it includes full name, month and year of birth, country of residence, nationality, and the nature and extent of beneficial interest; for legal entities, it includes corporate name, office, and role in relation to the trust.
• GOV.UK describes the practical output in similar terms, including the beneficial owner’s name, month and year of birth, country of residence, nationality, and role in the trust. 
• This is important for report drafting: TRS access is not equivalent to obtaining the trust instrument, letters of wishes, underlying correspondence, source-of-funds materials, or trustee deliberations. It is beneficial ownership data, not full documentary inspection. 
• Not all trusts on the TRS are available through the trust data request process. GOV.UK excludes, among other categories, certain non-express taxable trusts, certain Schedule 3A trusts registered only because of UK tax liability, and some non-UK trusts with no UK-resident trustees registered only due to UK land ownership.
• As stated above, there are also person-level protections. Information will not be shared where disclosure would expose the beneficial owner to disproportionate risk of fraud, kidnapping, blackmail, extortion, harassment, violence, or intimidation, or where the person is a minor or lacks capacity. Those protections appear in both the legislation and HMRC guidance.
• The European e-Justice Portal states that, following the CJEU judgment on public beneficial-ownership access, the interconnection system cannot currently provide public access, and that the legal and technical possibilities for public access based on legitimate interest are being assessed.
• That does not govern the UK regime directly, but it supports the broader proposition that trust and beneficial ownership access across Europe is now structured around targeted and justified access, rather than general transparency to any member of the public. 

Practical Suggestions for Lawyers

• Identify the correct gateway first. Decide whether the case fits the legitimate interest route or the offshore company route.
• Do not assume that ordinary civil enforcement objectives alone will satisfy the former. 
• Define the trust precisely. Gather the trust name, any UTR or URN, names and contact details of associated persons or entities, and any other identifier that allows HMRC to trace the trust with certainty.
• Prepare an evidential memorandum. For a legitimate-interest request, include a short chronology, the suspected predicate conduct, the reason the trust is relevant, and why TRS data will advance the investigation. Attach corroborative materials where available. 
• Frame the request narrowly. Make clear that the application concerns a specific trust and a specific suspected instance of misconduct. Avoid language suggesting a fishing expedition.
• Use the HMRC online form. Submit a separate request for each trust. HMRC states it will generally respond within eight weeks.
• Expect a limited disclosure set. Plan the wider investigation on the basis that TRS data will provide beneficial ownership information only, not full underlying trust documentation.
• If refused for lack of legitimate interest, strengthen and re-file. HMRC says review is not available where the legitimate-interest test is not met, but a further request with additional supporting evidence may be submitted.
• Reserve litigation for downstream remedies. If HMRC’s refusal is arguably unlawful, irrational, or procedurally unfair, the issue is likely to move into public-law challenge territory rather than into a statutory merits appeal. That is a structural inference from the regime and should be assessed case by case.

Conclusion

• The present UK position is that access to the Register of Trusts/TRS by an asset recovery lawyer is, in the first instance, an administrative HMRC process and not a judicial inspection application. 
• To succeed on the ordinary “legitimate interest” route, the lawyer must do more than show forensic usefulness or a general desire to trace assets. The request must be tied to a specified suspected instance of money laundering, terrorist financing, or, on the statutory wording, proliferation financing, and supported by material giving HMRC reasonable grounds to suspect the trust is being used for that purpose. 
• Where the trust controls a qualifying offshore entity, there is a separate route that is not restricted to specific money-laundering or terrorist-financing cases. For many asset recovery matters, that route may be strategically easier to deploy if the corporate-control facts can be established.
• The TRS is therefore potentially useful but not universally available as a civil tracing tool.