The Brexit process is currently ongoing. On 30 March 2019, the EU membership of the United Kingdom is going to end. However, the planned withdrawal agreement stipulates an additional transition period until 31 December 2020 during which EU legislation continues to apply to and in the UK. This situation also raises questions in German law, especially with regard to regulations which require EU membership to apply. How are the UK and UK citizens going to be legally treated during this transition period? A bill presented by the German Federal Government on 29 October 2018 is now intended to establish legal clarity.


Until January 2021, the UK will be legally treated as EU member state

The German transitional Brexit regulations for the so called » Brexitübergangsgesetz « (Brexit Transition Act) state that all federal regulations referring to EU membership will continue to apply to the UK.

Exceptions:

Provisions in the German constituion (Basic Law or » Grundgesetz «) are not included:

  • German citizens can no longer be extradited to the UK as of the beginning of the transition period
  • The UK is no longer automatically considered a safe third country for asylum seekers. It will have to be determined as such by a sub-constitutional law.

In addition, regulations of the European Election Act (» Europawahlgesetz «) in favour of EU citizens will no longer apply to UK citizens starting from the time of exit. As of 30 March 2019, UK citizens will be excluded from voting in European elections regardless of their residence. German citizens residing in the UK will no longer be allowed to participate aswell.


Transitional Brexit regulations: More favourable treatment of applications for naturalisation in Germany

The German transitional Brexit regulations also call for a special arrangement both in favour of UK citizens having applied for naturalisation in Germany and German citizens having applied for naturalisation in the UK, as long as the application has been submitted before the end of the transition period. With regard to citizenship, the following rules generally apply in Germany:

  • Citizens of an EU member state or Swiss citizens do not have to give up their former citizenship upon being naturalized in Germany – dual citizenship is allowed. Citizens of a third country, however, do not enjoy this privilege. In order to become a German citizen, they will, in most cases, have to give up their former citizenship.

  • Germans who wish to become citizens of another EU member state are allowed to keep their German citizenship. If they, however, aim for the citizenship of a third country and do not wish to lose their German citizenship, they will have to obtain a special permit (» Beibehaltungsgenehmigung «) in advance.

As of now, the UK still counts as an EU member state. However, after the planned transition period is over, starting from 1 January 2021, UK citizens will be considered citizens of a third country. When applying for naturalisation in Germany after the end of the transition period, UK citizens will therefore have to give up their UK citizenship. But what happens if you apply for naturalisation during the period of transition, meaning before 31 December 2020?


Current legal situation in Germany regarding citizens during the Brexit

So far, procedural rules determine that the regulations in force on the date of the authorities’ decision on the application for naturalisation are those applicable:

  • If the authorities reach their decision before 31 December 2020, UK citizens will be regarded as EU citizens and will therefore be allowed to keep their UK citizenship.
  • If the authorities reach their decision on 1 January 2021 or later, UK citizens will be regarded as citizens of a third country and will have to give up their UK citizenship.

This regulation, however, creates a state of considerable legal insecurity for the applicants as they have no opportunity to assess how much time their application process will require. In case of a long application process, they risk receiving a decision on their application only after 31 December 2020.


Legal situation after the enactment of the German Brexitübergangsgesetz (Brexite Transition Act)

The German transitional Brexit regulations seek to provide clarity for applicants on this matter. Applicants for naturalisation should not have to carry the burden of long administrative procedures. Therefore, the bill states the following:

  • British citizens having applied for German citizenship before 31 December 2020 will be treated as EU citizens. They will be able to keep their UK citizenship and additionally acquire the German citizenship.
  • German citizens having applied for UK citizenship before 31 December 2020 will not have to apply for a special permit to keep their German citizenship.

In both cases, it is however vital that all additional requirements for naturalisation are fulfilled before 31 December 2020 and continue to be fulfilled on the date of naturalisation. The Brexit Transition Act still has yet to be adopted. It is, however, to be expected that it will enter into force over the next few weeks.