German Immigration Law after Brexit


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For both British and German citizens, the previous freedoms between the countries were taken for granted. After Brexit, however, numerous questions arise with regard to residence law. Here you will find some guidance. Contact Schlun & Elseven Rechtsanwälte for specialised legal service.

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British Nationals and their Family Members: Right of Residence in Germany after Brexit

Around 1.2 million British nationals living abroad in the EU have so far benefited from the fundamental freedoms of EU law. Now, the UK’s long-planned withdrawal from the European Union was completed on 31 January 2020. As expected, this had a particular impact on the individual residence rights of British nationals. In the course of this, questions arise as to whether current residence permits must remain in force or be confirmed and how the granting of residence permits will be regulated in the future.

Expertise in the implementation of EU Community law at the national level, and a thorough understanding of European and national sources of law, in migration law are crucial in this regard.

Lawyers for German Immigration Law: Our Expertise

To ensure that you submit the correct applications to the relevant immigration authorities and embassies, it is advisable to seek competent legal advice from specialised lawyers for immigration law. Expertise in the implementation of EU Community law at national level and a thorough understanding of European sources of law, particularly in European migration law, are crucial in this regard.

Schlun & Elseven Rechtsanwälte PartG would therefore like to offer you legal support for your questions regarding the right of residence after Brexit already with this detailed information page. For personal representation or further questions, please contact us directly. We can advise you on site at our offices in Aachen, Cologne and Düsseldorf as well as nationwide with the help of our conference rooms in Berlin, Hamburg, Munich, Stuttgart and Frankfurt. Clear communication with our clients is particularly important to us, which is why we offer our services in English as well as a number of other languages.

The Current Status of Brexit

Since 31 January 2020, the United Kingdom has officially ceased to be a member state of the European Union. It is therefore legally classified as a third-country. The withdrawal agreement negotiated between the United Kingdom and the European Union came into force with the official withdrawal, which provided a transition period until 31 December 2020. Therefore, the United Kingdom was no longer represented in the institutions, bodies or offices of the European Union, but continued to apply EU law until the end of the transition period. It remained part of the Single Market and the Customs Union for the time being.

In the withdrawal agreement, it was also agreed that the rights of British nationals already living within the European Union would be protected for life to continue their work, studies, or everyday life regardless of Brexit. Nevertheless, concerning residence rights in general, there are various cut-off dates to consider:

  • 31 December 2020: The existing rights of free movement for British citizens continued unproblematically until 31 December 2020.
  • 1 January 2021: From this date, the United Kingdom is legally considered a third country and is no longer treated as a member state the European Union. This means that British nationals are now no longer citizens of the Union under European law and German residence law. However, it is possible to retain residence entitlements acquired until then through the withdrawal agreement provisions.
  • 30 June 2021: By this date, residence rights existing on 31 December 2020 must be notified to the competent German authority to obtain the new residence document required in the future.

Residence Permits

The withdrawal agreement negotiated between the United Kingdom and the European Union serves primarily to preserve existing residence rights and the residence status of persons who have effectively exercised their European right of free movement by 31 December 2020. With regard to the relevant provisions in the withdrawal agreement, a distinction must be made between different residence entitlements. There is the possibility of obtaining a simple residence permit or, under certain further conditions, a permanent residence permit. Furthermore, in order to secure the right of residence of British citizens who work but do not live in Germany, the regulations on cross-border commuters must be examined more closely.


Simple Right of Residence in Germany

The regulations on securing your right of residence in Germany are relevant to you if you,

  • you do not have German citizenship by 31 December 2020,
  • you reside in Germany on that date and wish to continue to reside there,
  • have British citizenship and
  • do not hold another citizenship of an EU member state.

Whether there is a right of residence under the Withdrawal Agreement is determined according to the criterion of the centre of gravity of life. Accordingly, anyone who is only temporarily residing in Germany on 31 December 2020 without having a centre of life there cannot invoke a right of residence under the Withdrawal Agreement.


Permanent Right of Residence

Under further conditions, you as a British citizen may also be granted a permanent right of residence under the Withdrawal Agreement. The requirements for this are no longer derived from the right of free movement, which is the implementation of the European Free Movement Directive, but arise from their own rules:

  • The British national must have resided in Germany for five years. Periods of residence in other member states of the European Union do not count.
  • The five years of residence must have been acquired as a person entitled to Freedom of Movement. Residence under a residence title as a third-country national cannot therefore be counted.
  • The right of permanent residence also applies if British nationals had a five-year residence in Germany before 31 December 2020 and left Germany less than five years ago, but now wish to reside there again after 31 December 2020.
  • Permanent residence status can also be acquired after 1 January 2021.

However, if the stay in Germany is interrupted with an impact on the five-year rule, the counting must start again. It should be noted, however, that not every interruption of residence in Germany also interrupts the course of the five-year interval for obtaining permanent residence.

The loss of the right of permanent residence according to the Withdrawal Agreement only occurs when the entitled person no longer resides in Germany for five years.


Cross-border Commuters

Cross-border commuters within the meaning of the Withdrawal Agreement continue to have the right to work in Germany without having their habitual residence (social and economic centre of life) there.

British citizens who are gainfully employed in Germany as employees (or as civil servants) and have not merely been posted to Germany to provide services for a foreign employer are covered by the cross-border commuter provision of the Withdrawal Agreement. In addition, self-employed persons established in Germany may invoke it. However, self-employed persons who provide services in Germany only occasionally and on a cross-border basis do not.

Established self-employed persons and employees must, however, expect that they will have to submit comprehensive evidence to the competent immigration/foreigners’ authority in order to invoke the cross-border commuter regulation and apply for the corresponding document.


Rights of Family Members

Family members of a person with British citizenship (third-country nationals) must also apply by 30 June 2021 to secure their right of residence in Germany if they

  • hold a residence card
  • or permanent residence card,
  • or if they wish to join their British family member in Germany after 31 December 2020.

According to the Withdrawal Agreement’s definitions, “family members” are spouses, registered partners and children up to the age of 21. Other relatives in a straight line (e.g. parents, grandparents, children, grandchildren) are included in the scope if they are supported financially or in kind by the British national. Other relatives may be considered, where appropriate, by the discretion of the competent authority, according to each case’s circumstances.

Naturalisation and Dual Nationality: Immigration Law after Brexit.

British citizens in Germany do not have to make the efforts to obtain a right of residence as described above if they have a right of residence as a European Union citizen or have already been naturalised in Germany. Following Britain’s official withdrawal from the European Union and its current classification as a “third country”, British nationals can only claim rights as citizens of the Union if they have more than one nationality. In addition to British nationality, you must hold another nationality of a member state of the European Union other than German nationality.

Furthermore, the EU has concluded an agreement with several non-EU states on extensive rights of residence. This means that after the end of the transitional period, British nationals can claim continuing rights of residence if they hold an additional nationality of the following countries:

  • Iceland
  • Liechtenstein
  • Norway
  • Switzerland

In order to invoke a right of residence in Germany from a multiple nationality, you must have provided proof of this to the relevant registration authority.


Naturalisation: German Immigration Law after Brexit

The fact that naturalisation has become popular as a “Brexit solution” for some British nationals is particularly evident in the significant increase in naturalisation figures in Germany.

Especially after the Brexit referendum on 23 June 2016, there was a jump in the number of naturalisations of UK citizens in Germany. In 2017, after the referendum on leaving the EU, a total of 7,493 naturalisations were counted. In comparison, 622 UK citizens were naturalised in Germany in 2015. At that time, the debate on leaving the EU was still in its early stages. Then in 2019, naturalisation numbers of UK citizens in Germany peaked at 14600.

Naturalisation, a popular alternative to claiming residence rights under the withdrawal agreement, is only possible under strict conditions. In addition, the official exit from the EU has brought about some changes with regard to the possibility of acquiring dual citizenship, which must be taken into account when applying for naturalisation.


Dual Citizenship: German Immigration Law after Brexit

For many dual nationals, the question arises as to whether they will have to choose one nationality after the Brexit transition period until 31 December 2020 or lose the other when acquiring one nationality.

If you already have dual nationality at this point, the UK’s withdrawal from the EU will not affect this. This means that you do not have to choose between German and British citizenship, because the withdrawal agreement protects these pre-existing rights.

In return, acquiring a second nationality after the official withdrawal may pose some problems. German nationality law basically provides that a German loses German nationality as soon as they acquire foreign nationality. Multiple nationalities are usually to be avoided. An exception was made for EU member states in 2007. According to § 25 (1) Nationality Act (StAG), a German does not lose German nationality if he or she acquires the nationality of another member state of the European Union or Switzerland. In turn, this also applies to the retention of EU citizenship when acquiring German citizenship. Thus, the exemption previously also applied to the United Kingdom and was also effective until 31.12.2020 due to the transitional period.

However, applications submitted by 31 December 2020 also permit dual nationality, even if the acquisition has not yet taken place by the aforementioned date. For such a case, the German legislator has provided a remedy with Art. 3 of the Brexit Transition Act. However, it is a prerequisite that all other naturalisation requirements were fulfilled before the end of the transitional period and continue to be fulfilled when the naturalisation certificate is handed over.

However, dual citizenship is no longer possible for naturalisation applications submitted after 31 December 2020 or for applications whose requirements were not met until after that date. In this case, you lose your British citizenship when you acquire German citizenship. You should bear this in mind when applying for naturalisation in Germany.

Specific Residence Issues

In addition to the basic questions on the right of residence, the Withdrawal Agreement also regulates special features for seconded service providers, soldiers and British nationals seeking to join them in Germany.


Posted Service Providers

British nationals who have been posted to Germany by a British company to provide services, who live here but are not otherwise entitled to freedom of movement, are generally not covered by the Withdrawal Agreement and cannot claim any residence rights as a result. In this case, posted service providers may remain in Germany until 31 March 2021 and continue to perform their previous activities. If they wish to remain in Germany after this date, it is possible to apply for a residence permit from the German residence law at the competent foreigners authority. If the posted company is based in another EU member state, you can also invoke the so-called “Van der Elst” Visa and thus continue to work in Germany. This means that posted service providers are not obliged to apply for a visa beforehand or to leave the country first.

In addition to this principle, there are exceptional rights under the withdrawal agreement for posted service providers resident in Germany.


Soldiers

For soldiers, there is the special rule that they are treated like employees under European law. Thus, as a soldier stationed in Germany for the British armed forces, you can invoke employee residence rights under the Withdrawal Agreement.


Possibility of Reunification with Germany

As a third-country national, a visa is generally required before moving to Germany. This therefore also applies to British nationals who are entitled to reside in Germany under the Withdrawal Agreement but do not wish to move to Germany until after 1 January 2021, as they are to be treated as third-country nationals from 31 December 2020. There is an exemption from the visa requirement for third-country nationals for British nationals and nationals of some other states. However, after entering Germany, a residence document (residence card, permanent residence card) must be applied for at the Foreigners’ Office/Immigration Authority within three months.

Summary: Requirements for Rights under the Withdrawal Agreement

We have already explained some of the requirements that you, as a British citizen, must fulfil in order to claim residence rights in Germany under the Withdrawal Agreement. However, before you can report to the competent immigration authority, you must fulfil the necessary requirements in order to ultimately receive the new residence document.

In addition to the personal requirements already explained in part (see above), you must also fulfil formal requirements. These include meeting deadlines and submitting various documents to the competent authority. This is because evidence confirming your identity and your previous right to Freedom of Movement is required for the residence notification at the Immigration Authority/Foreigners’ Office. Which We would be happy to help you get a precise overview of the necessary documents and other requirements.

If you are able to provide all the evidence for the new residence document and if all other requirements are met, you will be issued the document in “cheque card format”. This document is valid for a minimum of five years and a maximum of ten years. In addition, existing permanent residence rights and rights to gainful employment are noted on it.

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Practice Group: German Immigration Law

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German Immigration Law

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