Residence and labor law consequences of an Brexits without withdrawal agreement
I. Impact on residence and work permits for EU nationals
Where German companies or their subsidiaries employ employees of other nationality in the UK, a Brexit without a withdrawal agreement would in principle mean that the transitional phase originally provided for in the withdrawal agreement until 31st December 2020 - which was not to change the respective residence status - would not take effect.
However, according to the current information from the British government, even in case of a hard Brexit, EU citizens who are resident in the UK at the time of a Brexit without a withdrawal agreement can retain their residence status and apply for a residence permit until 31st December 2020:
EU citizens living and working in the UK can apply for a residence permit via the UK government's website from 30th March 2019 on. The system is already open for testing at this link. https://www.gov.uk/apply-stay-uk-leaves-eu-test-phase
The handling fee of GBP 65,00 will be refunded afterwards. The system will be fully operational from 30th March 2019. You should make your affected employees aware of that.
- For business trips to the UK, no short-term changes for EU citizens until the planned conversion of the entry regulations in January 2021 are to be expected. However, there is no guarantee that the German identity cards will continue to be sufficient. At present (29.01.2019), however, a visa requirement is not to be expected. The Justice Committee of the European Parliament has pronounced itself in favor of maintaining a visa exemption for British citizens even after the Brexit. However, this agreement would only apply to short stays not exceeding 90 days. Tthis regulation will only come into force if Britain agrees to grant the same rights to EU citizens.
II. Effects on residence and work permits for British nationals working in Germany
In the event of an unregulated Brexit British nationals and their family members would no longer have the right to freedom of movement within the framework of Union citizenship but would be regarded in Germany from 30 March 2019 as so-called third-country nationals and would need a residence permit for their stay in federal territory.
In the event of an unregulated Brexit, the German Government provides for a transitional period of initially three months up to and including 29 June 2019:
- During this transitional period, British citizens who have been entitled to freedom of movement and their family members will be allowed to live and work in Germany as before.
- Until the end of the transitional period, British citizens and their family members from a third country (non-EU, Switzerland, Norway, Liechtenstein or Iceland) must apply for a residence permit at the competent immigration authority.
- Until a decision about the application has been made, British citizens who have been eligible for freedom of movement and their family members can live and work in Germany as before.
In the event of an unregulated Brexit, for example the Munich Immigration Office will inform the British citizens living in the city of Munich and their family members by letter as well as on this page about the necessary residence measures.
- Once they have received the letter, they can make an appointment for a personal interview, seek advice and then apply for a residence permit. Appointments can be made online or by telephone. Please bring the completed application form with you.
- What kind of residence permit can be issued to British citizens and their relatives will then be examined on a case-by-case basis.
- Applicants will receive a fictional certificate at the time of their application. With this certificate they can prove their temporary right of residence and work.
- The Munich Foreigners Authority will be able to process all applications in good time if all necessary documents are made available.
Before making an appointment, it is not necessary to register with the Immigration Office Munich (but forexample. necessary in Berlin). We therefore recommend that you check the website of the respective Immigration Office (Ausländerbehörde) of the respective federal state. As an employer, there is initially no action required, but after 29.06.2019 at the latest a copy of the valid residence title has to be included in the personnel file.
III. Social security consequences
It is currently not foreseeable how social security law will develop between Great Britain and the EU. Therefore, the authorities advise that German employees in the UK and British employees in Germany should have their already acquired pension entitlements and insurance periods documented promptly by the competent authorities.
IV. Labor law consequences
Furthermore, effects on the employment relationships in branches or subsidiaries of German companies in the UK are to be expected to the extent that the UK government and the courts will in future no longer be forced to comply with the requirements of European labor law. In the short term it is likely that only some of the regulations adopted from European law will be revoked or amended. In the medium to long term, however, it is to be expected that EU labor law and UK labor law will develop differently.
Please do not hesitate to contact us if you have any further questions!
Specialist Attorney in labour law