Ivory: apply for an exemption certificate to deal in pre-1918 outstandingly high artistic, cultural or historical value items

If you think your item qualifies for exemption as a pre-1918 item of outstandingly high artistic, cultural or historical value, you can apply for an exemption certificate.

From spring 2022, you will not be able to deal in items containing or made of elephant ivory under the Ivory Act 2018 unless they are registered under a standard exemption or certified as a pre-1918 item of outstandingly high artistic, cultural or historical value.

To meet the pre-1918 outstandingly high artistic, cultural or historical value exemption, you need to demonstrate that your item was made or existed before 1918 and has outstanding artistic, cultural or historical value.

This exemption is designed to be narrow and apply only to those items that are significant to wider society. It does not consider any personal, sentimental or financial value that may be attached to an item.

Assess whether your item meets the pre-1918 outstandingly high artistic, cultural or historical exemption

To find out if an item was made or existed before 1918, you need to assess its age.

To help you decide if an item may be of outstanding high artistic, cultural or historical value, you should consider 2 factors:

• whether the item is rare
• the extent to which the item is an important example of its type

You only need to demonstrate one of these factors to meet this condition, but if you have evidence to support both factors then you should submit this information as part of your application.

Whether your item is rare will likely depend on:

• the estimated number of similar items that exist, including how many are in the UK
• how unique the item is, which may include distinctive or unusual features or historical adaptations

Whether your item is an important example of its type may depend on:

• artistic or aesthetic quality – it is of particularly high quality or by a named artist, school or studio
• craftsmanship – it is particularly well-crafted or shows a specific, notable form of craftsmanship
• condition of the item – it is in pristine or much better condition than similar items of its type
• its significance – it is an integral part of a noteworthy collection, for example, an artistic collection put together by a well-known individual
• noteworthy provenance – it is closely associated with a specific individual or event, for example, it was once owned by a well-known historical figure
• significant historical context – it is closely associated with a specific historical, artistic, social, cultural, religious, scientific or technological development
• significant geographic context – it is closely associated with a specific place or region
• previously recognised status – the status of the item has been recognised, for example, it has received a prestigious award, been recognised as a national treasure (by meeting the Waverley Criteria) or been part of a noteworthy exhibition

You should support your application with an explanation and evidence of why you believe the item is, either or both:

• rare
• a most important example of its type

Each item is assessed by recognised experts from a prescribed institution who will advise the Animal and Plant Health Agency (APHA) on whether an exemption certificate should be granted. It is expected that a very high threshold will be set to decide whether an item meets these criteria.

Apply for an exemption certificate

If you consider your item meets the criteria for a pre-1918 outstandingly high artistic, cultural or historical value, you need to complete an application for an exemption certificate through the Ivory service.

In your application, you must declare that in your opinion the item meets the criteria to qualify for an exemption certificate. You will need to explain your reasons for this and include supporting documents and a photograph of the item that shows any distinguishing features.

If your application is complete and the information submitted is in line with the requirements of the Act, we will refer your application to an expert assessor at a prescribed institution. However, if we consider that your item clearly does not meet the exemption criteria, we may decide that it does not require expert assessment and refuse your application.

If your item already has an exemption certificate that was awarded to someone else, then you can notify APHA of your intention to sell your certified item of outstandingly high artistic, cultural or historical value. You will need the exemption certificate reference number. This notification will cost £20.

If you do not know if your item already has an exemption certificate, a revoked exemption certificate or if a previous application for an exemption certificate has been made, then you can answer no to these questions in the application process, provided you have taken all reasonable steps to find it out. You can then proceed with making an application for an exemption certificate. This application will cost £250.

If you are able to provide a reference number for a previous unsuccessful application or a reference number for a revoked exemption certificate relating to the item, APHA will send the new application to a different expert, if one is available.

The prescribed institutions are all accredited museums with significant experience of working with ivory. They represent a range of specialisms consistent with the range of ivory items likely to be covered by this exemption. When we receive an application, we will determine which institution to refer it to for advice, based on the type of item.

The prescribed institutions are:

• the Ashmolean Museum of Art and Archaeology
• Glasgow Museums
• the Horniman Museum
• Manchester Museum, the University of Manchester
• the National Maritime Museum
• National Museums Scotland
• the Royal Armouries Museum
• University of Cambridge Museums
• the Victoria and Albert Museum

After reviewing your application, the expert may decide that a physical inspection of the item should be made. In this case, we will contact you to make the arrangements.

After the assessment, APHA, acting on behalf of the Secretary of State, will decide, taking into account the expert advice, whether or not to award the exemption certificate. If your application is unsuccessful, we will tell you why. The item can only be legally sold or hired out once it has been awarded an exemption certificate.

APHA will aim to let you know the outcome of your application within 35 working days. If it is going to take longer, we will let you know.

The opinion of the expert cannot be relied on for any purpose other than the expert assessor’s statutory function under the Act.

If your exemption certificate application is refused or revoked

If your item is refused an exemption certificate or your exemption certificate is revoked, you can make a new application, or appeal to the First-tier Tribunal.

Make a new application for an exemption certificate

Making a new application costs £250. You can do this using the ivory service. You will need to include the reference number of the unsuccessful application or the revoked exemption certificate relating to the item so that APHA can send the new application to a different expert, if one is available. If you do not know the reference number, you can answer no to the question asking if the item has a revoked exemption certificate or if a previous application for the item has been made, if you have taken all reasonable steps to find out.

Where the new application is referred to a different expert, APHA will provide that expert with:

• a copy of the previous assessment relating to the item
• a copy of the reasons for the revocation (if the application relates to an exemption certificate for an item that has been revoked)

Where an application for an exemption certificate has been refused or an exemption certificate revoked, the owner of the item can ask APHA to disclose:

• the opinion of the assessor and the reasons for forming that opinion, as notified to APHA
• the identity of the prescribed institution to which the item was referred

When APHA disclose an expert assessor’s opinion or the identity of the prescribed institution, APHA must notify the prescribed institution to tell them what has been disclosed. APHA will disclose the opinions and identity of the expert to the person who made the application within 7 days, starting from the day APHA received the request for disclosure.

Selling your certified item of outstandingly high artistic, cultural or historical value

An exemption certificate, once awarded, will accompany an item when ownership of that item is transferred.

When an item that already has an exemption certificate is sold or hired out by a person who was not awarded the original exemption certificate, that person must notify APHA of their intention to sell their certified item of outstandingly high artistic, cultural or historical value.

The person who is intending to sell or hire the item will need to:

• provide their contact details (including email address, if any)
• provide the name and address of the owner of the item, if the applicant is not the owner
• confirm whether the item is going to be sold or hired (where this is known)
• declare that the exemption certificate relates to the item that is going to be sold or hired
• declare that the information on the exemption certificate remains accurate and complete
• declare that the item continues to satisfy the conditions of being of outstandingly high artistic, cultural or historical value
• pay a £20 fee

Keeping an exemption certificate up to date

You must contact ivoryact@apha.gov.uk if:

• something happens to the item or you find out something about the item that means it may no longer be exempt
• something looks wrong on your certificate

You must quote your certificate number in your email.

Request a replacement exemption certificate

You can contact ivoryact@apha.gov.uk to request a replacement exemption certificate if

• the certificate has been lost
• you have been unable to get the certificate from the previous owner

To replace a certificate you can contact APHA with the certificate number, or if that is not available, the name of the previous owner and a description of the item. APHA will try to locate the certificate and send you a copy.

How to appeal

You’ll be provided with details of your rights to appeal. You can appeal to the First-tier Tribunal against our decision to:

• refuse your application for an exemption certificate
• revoke an exemption certificate

You can appeal our decision if you think that it was:

• based on an error of fact
• wrong in law
• unreasonable

For example, if you:

• believe that not all the information you provided in the application was taken into account, causing APHA, on behalf of the Secretary of State, to make an error of fact
• disagree with the rationale for the decision and believe it to be unreasonable

Process for appeal and First-Tier Tribunal powers

The First-tier Tribunal is independent and will listen to both the person making the appeal and APHA’s representations before it reaches a decision.

The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules (2009) (SI 2009/1976) set out many aspects of tribunal procedure. This includes:

• how you should lodge an appeal with the First-tier Tribunal
• how affected parties will be notified of the appeal
• specific documents the First-tier Tribunal needs
• the deadline for making an appeal to the First-tier Tribunal

If you want to appeal, you must send a notice of appeal to the General Regulatory Chamber of the First-tier Tribunal within 28 days from the date that you were sent the decision to refuse or revoke an exemption certificate.

All affected parties will be notified about the appeal, for example, the person making the application to the First-tier Tribunal and APHA.

Send a notice of appeal

To start an appeal, you must send a notice of appeal to the tribunal. This is a document that starts proceedings. The tribunal procedure rules explain what the notice of appeal must include.

Your notice of appeal must also include:

• documents and evidence specified in section 3(1)(a) to (g) of the Ivory Act, including the information and evidence originally provided to APHA in the application for an exemption certificate
• a copy of the notice sent to the applicant detailing the decision to refuse or revoke the exemption certificate

Tribunal powers

If an owner makes an appeal to the First-tier Tribunal, the tribunal may:

• confirm APHAs decision to refuse the application or revoke the exemption certificate
• require APHA to issue an exemption certificate or cancel the decision to revoke an existing exemption certificate
• refer the decision to refuse or revoke the exemption certificate back to APHA for reconsideration

Appeals against the tribunal’s decision

You can appeal against the decision of the First-tier Tribunal on a point of law, you can do so with the permission of the First-tier Tribunal. This is only if the tribunal has not already decided to review its own decision.

If permission is refused, you can renew the application for permission to the Upper Tribunal.

Appeals referred to APHA

If the court or tribunal refer a decision back to APHA, APHA will notify you of their fresh decision within 28 days starting from the date of the order or direction from the court or tribunal. If the decision is referred back to APHA, they will:

1. Refer back the application to an expert in a prescribed institution within 7 days starting from the date of the order or direction.
2. Consider the fresh opinion and notify you of the fresh decision within 28 days from the date when APHA receives the expert assessor’s opinion.

After an appeal is made

If you have made an appeal to the First-tier Tribunal against your item’s exemption certificate being refused or revoked under section 5(1)(a) of the Act, you cannot make a new application for an exemption certificate for the relevant item until that appeal is determined.

If an appeal is unsuccessful, you can make a new application for the same item. In making a new application you will have to pay a £250 fee. If your item is refused an exemption certificate for a second time, you can also appeal that decision.

In certain circumstances, APHA may decide not to oppose the appeal sent to the First-tier Tribunal. The appeal would then be treated as if it was in your favour and there’s no need for the First-tier Tribunal to hear it. If APHA decide not to oppose an appeal, they would grant an exemption certificate or reinstate the exemption certificate in question, within 28 days of making the notification.