Brexit and Immigration Germany - 3rd 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 – shortly before the "divorce" is final. What is now to be done? How do I maintain a legal status? What rules will be applicable for future relocations?
Immigration Status before BREXIT
Before the BREXIT really kicks in, it is "life as usual" for all British residents and their non-European direct family members. 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.
When will BREXIT happen?
Britain's Prime Minister, Ms. May, has now formally given notice to the European Commission (art. 50 TFEU). In spite of any tug-of-war of "to brexit or not to brexit", the two-year period will end with the expiration of March 2019. 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 a hard BREXIT
Britons and their non-European family members will automatically lose their freedom of movement and so any legal residential status as soon as BREXIT comes into effect. They no longer belong to the European Union. At first glance, this sounds harsh but there is a solution at hand. The persons now here on a temporary as well as a permanent status will maintain their status – upon application. As BREXIT deadline draws near, the question comes up, will BREXIT be soft or hard or at all. In the case of a hard BREXIT, Britons will immediately need a residence permit. Pursuant to §11 III FreizügG these persons living here previously shall retain their legal status – as is. However, this needs to be applied at your local immigration office.
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 (§51 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 StAG. 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.
Parallel to that apply for your new status in Berlin via the webpage "Departure of the United Kingdom from the European Union (Brexit)". If you live somewhere else in Germany, click this sentence to find your local immigration office.
The German parliament has reacted with adjustments to the law pretty much as expected. Please follow the press for more current developments on BREXIT as such. This update reflects German law as of January 2020.
Visa Waiver Period – 90 Days
Under Directive (EU) 2019/592, UK nationals will be allowed to travel to the Schengen States for a period of 90 days within 180 days, i.e. also enter Germany, visa-free and stay here as soon as hard BREXIT commences. This means that they will remain citizens who enjoy the visa waiver privilege but when it comes to taking residence here, they will have to apply from home. However, this right does not include the exercise of gainful employment or running a business / company. Within a transitional period, UK citizens are allowed business trips to Germany pursuant to §30 no. 1 BeschV i.c.w. §16 BeschV.
Transitional Period for Entry, Residence, and Employment
The Federal Ministry of Interior plans a transitional period of 3 months for UK nationals after a no-deal BREXIT takes effect. It can be renewed for another 6 months, under a ministerial ordinance. During this transitional period, UK nationals do not need a visa for entry and sojourn and may work without a work permit. This also applies to those family members who were entitled to vested benefits on the BREXIT date – the European status.
After the Transitional Period: Privileged to Obtain a Residence Permit
After the end of the transitional period, UK nationals - if they are not in Germany during a visa waiver period – will generally require a residence permit to live and / or work in Germany, as do other third-country nationals. N.B. Working, as a rule, is not permitted during any visa waiver period!
The Federal Government has submitted a bill according to which relief for UK nationals and their family members would be included in the new §101a AufenthG:
- European status for the purpose of education, gainful employment, running a company or freelancing or family reunification: UK nationals and their family members who fulfill the requirements of §2 or §3 FreizügG / EU on the BREXIT date will be entitled to receive a residence permit for such reason.
- Permanent Residency: UK nationals and their family members who have a permanent EU status in Germany on the date of BREXIT (§4a FreizügG / EU) will be granted a settlement permit – pursuant to §9 AufenthG.
UK nationals and their family members will normally be subject to the rules and regulations applicable to third-country nationals under a no-deal BREXIT unless they are privileged under the above-mentioned rules. Therefore, after BREXIT, UK citizens and their family members as well as their employers have to carefully check for which permit, they will be eligible.
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