Brexit and Immigration Germany - UPDATE
The people's voice in majority said "out". So be it; this is nothing but a democratic decision. It is also normal, that people cry out loud if their opinion is not followed. How will this effect Brits in Germany right now? Will they be kicked out? May they stay? I want to briefly discuss the legal consequences for immigration of the BREXIT -- after the "divorce" has been filed. What rules will be applicable for future relocations?
Immigration Status before BREXIT
Before the BREXIT really kicks in, it is "life as usual" for residents. Since the freedom of movement only ends, when BREXIT comes into force, your residential status has not ended just because Ms. May officially applied "for divorce". You are not yet in Germany but prefer to be here? What is keeping you back? If you do not relocate before BREXIT takes effect, you will have to stand in line as all the "other" nationals. It is your choice...
When will BREXIT happen?
Britain's Prime Minister, Ms. May, has now formally given notice to the European Commission (art. 50 TFEU). A two-year period has now started. Within this period, the European Union and UK have to come to a resolution on how the divorce will be realized. If nothing is negotiated inside that period, then EU membership automatically expires. Until then, it is life as usual -- seen from immigration perspective. Assuming no resolution between UK and EU will be achieved then it is a full stop!
Immigration Status after BREXIT.
Britons and their non-European family members will automatically lose their freedom of movement as soon as BREXIT comes into effect because they no longer belong to the European Union. At first glance, this sounds harsh but there is a solution at hand. The persons here now on a temporary as well as a permanent status will not automatically become illegal! Pursuant to §11 III FreizügG these persons living here previously shall retain their legal status – as is.
Persons living here for more than five years will continue with permanent residency, a.k.a. settlement permit. Such British subjects having residence for less than five years will be treated as if they had had a (temporary) residence permit all along. So far, there is no reason to worry. However, the devil is in the details... Do not forget, we are talking of an event to happen on March 29, 2019!
Temporary Residence Permit
So much to the consequences as they are – now. Pursuant to §7 I 2 AufenthG, those persons on a temporary status can expect to continue as a normal third-country national on grounds reflecting their reason to be here. Everybody will have some sort of concept / purpose of being in Germany and not anywhere else in the world. A student will receive a permit to study at the university pursuant to §16 I AufenthG; an employee pursuant to §18 AufenthG, and a person in business based on §21 AufenthG. Latest when a renewal is due, it can be assumed that they will be treated as a “normal” third country national. This means you are continuing with a head start. It is expected that you will have to show that you meet the requirements as every other non-European has to for your individual reason to be here.
Permanent Residency after BREXIT
Britons having had “permanent EU status” will change from §4a FreizgG to §9 AufenthG – maintaining permanent residency. The difference between both kinds of permanent status is only hidden. The most important difference will be in the time of permitted absence without jeopardizing one's permanent status. Pursuant to §4a VIII FreizgG, Europeans are allowed to be outside of Germany temporarily for two consecutive years. Third country nationals only have six consecutive months (§51 I no. 7 AufenthG) grace – both only for temporary purposes. So, if you have left for good then you are out for good. However, such persons living now under a settlement permit, will not lose their status if they have been in for 15 years when their financial livelihood (= basic need, health insurance, and accommodation) and no reasons for expulsion exist (§15 II AufenthG).
Conceptual Difference in Status
Another major difference between “normal” and “European” foreigner lies in the status quality. Europeans conceptually have the right to be in Germany. The threshold to end a European's residence is very high the longer this person lives in Germany. In contrast to that “normal” foreigners have to combat the authority to remain in Germany.
On October 29, 2018, the German Federal Government published the draft bill for the BREXIT transition period in regards to naturalization as German citizenship. British citizens that apply for naturalization in Germany before the end of the transition period will be able to retain their British citizenship based on §25 II 1 Citizenship Act. This transitional period lasts from March 2019 until December 31, 2020. This means applications for naturalization submitted until December 31st, 2020 are privileged in so far that British citizenship does not have to be renounced.
How to Prepare for after the BREXIT?
- reference letters from previous employers,
- get Letters Of Interest from Germany-based business partners, when freelancing or self-employed, start working on your business plan.
Certificate on the Right of Permanent Residence
This certificate is something for those persons less relaxed and what to always clearly show their status or who are frequent travelers. Though this certificate does not grant any more and especially not less rights, it is only declaratory. It is not necessary to exercise rights or to complete administrative formalities.
These are the requirements to obtain this certificate:
- citizenship of the EU or nationals of Iceland, Liechtenstein or Norway,
- passport showing that citizenship,
- residence in Germany for five years or more under the right to freedom of movement,
- living here for a certain reason:
- as an employee,
- self-employed person,
- non-employed person with sufficient means of subsistence,
- biometric passport picture,
- personal appearance in the office to pick up the certificate,
- application form "Antrag auf Ausstellung einer Daueraufenthaltsbescheinigung (application for the issue of a permanent residency card),
- current address registration slip to prove your continued five years of residency in Germany.
Best is to apply in writing (normal mail) or send PDF documents per email to the office and await their invitation to an appointment which you have to attend in person. If you lack German abilities, best bring someone to interpret with you.
N.B. This update reflects the legal situation as of October 29, 2018. Further updates will follow shortly after they are issued as law.