Member Article

After Brexit has already been postponed several times, the next deadline will now expire on October 31, 2019. With the new Prime Minister at the helm, it is becoming more likely every day that the UK will leave the EU without a withdrawal agreement entering into force. Obviously, UK citizens who live and work in Germany are particularly affected. The same also applies to employers in Germany employing UK citizens. After all, employers must make sure that their employees hold a valid residence permit that allows them to work in the country. Otherwise, employers are facing fines. The following article shows the various precautions that the German government has taken in terms of residence rights in case of a no-deal Brexit.

FREEDOM OF MOVEMENT WITHIN THE EU

In the event of a no-deal Brexit, UK nationals will become third-country nationals. According to Section 4(1) sentence 1 Residence Act, they will require a residence permit. Constellations with dual citizenship are unproblematic if the UK citizen also holds a German passport or that of another EU Member State. In the latter case, the UK citizen would benefit from the EU right of free movement. It is then not necessary to apply for a residence permit. The same applies, for example, if the UK citizen is the spouse of an EU citizen living and working in Germany. In this case, the UK citizen would benefit from the EU right of free movement on the basis of marriage. This does not apply, however, if the UK citizen is married to a German citizen. In this case, a residence permit will be required.

A TRANSITIONAL PERIOD FOR APPLYING FOR RESIDENCE PERMITS

In the event of a no-deal Brexit on October 31, 2019, there will be a transitional period. The German government is planning to adopt what is referred to as a Brexit Residence Transition Ordinance. The transitional period will initially be limited to three months, but may be extended for an additional six months. During this period, UK citizens will not need a residence permit for Germany. As previously, they may work in Germany. It will then be possible to apply for the required residence permit. UK citizens living in Germany may already register with the competent Foreigners Authority. Registration is voluntary and is offered by many Foreigners Authorities. It is planned that the Foreigners Authority will then contact the registered individuals to provide them with information and assistance. Registration is therefore recommended simply for practical purposes.

LAW ON THE TRANSITION OF EU FREE MOVEMENT RIGHTS

The Federal Government has already proposed a law which serves to transfer the right of free movement to the right of residence as a result of Brexit. However, this law only applies to UK citizens who have already exercised their right of free movement in Germany at the time of Brexit. In addition, the law only applies in the event of a no-deal Brexit. UK citizens who want to live and work in Germany after Brexit must apply for a residence permit in accordance with the existing statutory provisions. Only UK citizens who have lived and worked in Germany prior to Brexit are to be protected. The new law provides for adjustments to the Residence Act, in particular by a newly inserted Section 101a Residence Act (new).

In addition, Section 26 Employment Regulations (Beschäftigungsverordnung) is to be amended by legislative decree to the effect that the priority check for UK citizens is no longer applicable. During a priority check, when a residence permit which includes a work permit is issued, it is assessed whether the vacancy might also be filled by a German or EU citizen available on the labor market.

The introduction of Section 101a Residence Act (new) modifies the granting of residence permits for UK citizens. Accordingly, UK citizens who have already been legally resident in Germany for five years are entitled to a permanent residence permit in accordance with Section 9 Residence Act. Restrictive conditions for granting the permit, such as required knowledge of the German language or a certain number of paid contributions to the statutory or a comparable pension scheme, are not required. The only grounds for exclusion are now if the applicant is considered a threat to public security or public order.

If the UK citizen cannot provide evidence of five years’ residence in Germany, the other residence permits under the Residence Act may be considered. For granting those residence permits to UK citizens, Section 101a Residence Act now leaves the authority with no discretion but to grant the permit. If the conditions are met, the applicant is entitled to the residence permit. UK citizens who do not meet the requirements for a residence permit listed in the Residence Act may be issued a residence permit under the general provisions of Section 7(1) sentence 3 Residence Act. Accordingly, a temporary residence permit may also be issued in justified cases for a purpose of residence not covered by the Residence Act. For these cases, Section 101a Residence Act (new) now also leaves the authority with no discretion. The pursuit of gainful activity is to be permitted.

In addition, applicants do not need to demonstrate that they are able to completely make a living or have adequate health insurance coverage. Normally, third-country nationals would then not be granted a residence permit because of an infringement of Section 5(1)(1) Residence Act.

CONCLUSION

After a no-deal Brexit, UK citizens will be privileged in relation to other third-country nationals. This only applies to UK nationals who have already exercised their right of free movement in Germany prior to the UK leaving the EU without an agreement. UK employees and employers in Germany are thus largely protected and do not have to worry. However, employees are advised not waiting too long. They should proactively register with the competent Foreigners Authority and apply for a residence permit in due course. UK citizens wishing to establish residence in Germany for gainful employment only after a no-deal Brexit, will require a residence permit like all other third-country nationals.