German Work Permit for British Employees

As of 31 January 2020, the United Kingdom is no longer a member state of the European Union. With the official withdrawal, the withdrawal agreement negotiated between the United Kingdom and the European Union came into force. This provided for a transition period until 31 December 2020. Since then, the United Kingdom has no longer been represented in the institutions, bodies or offices of the European Union, but had to continue to apply EU law until the end of the transition period. The third-country, which is now to be classified as fundamentally legal, has therefore remained part of the Single Market and the Customs Union for the time being. With the end of the transition period, EU citizens’ privilege to invoke the Freedom of Movement for workers from Article 45 of the Treaty on the Functioning of the European Union (TFEU) will now finally cease to apply to British citizens.

However, it was additionally agreed in the withdrawal agreement that the already acquired rights of British nationals living within Germany would be protected for life. This means that they will continue their work, studies or everyday life regardless of Brexit. To obtain existing or new work permits, close attention should therefore be paid to the withdrawal agreement’s provisions.

In overview, the following should be noted for British employees:

• When obtaining a work permit, a distinction is made between British workers who worked in Germany before 31 December 2020 with the right to Freedom of Movement and those who only wish to enter Germany for gainful employment after this date.
• Residence rights with the right to work that already exist and are secured by the Withdrawal Agreement must be confirmed with the competent German authority by June 2021.
• There are special regulations for cross-border commuters, posted service providers, soldiers and self-employed persons.
• From 1 January 2021, British nationals entering Germany to work will be treated in the same way as other third-country nationals concerning work permits. Still, they will benefit from the basic prior visa requirement.
• Business trips and temporary placements / postings of highly skilled workers have been treated separately in the short-stay visa requirement.

For further questions and assistance, please contact us personally. With our lawyers for residence and immigration law, qualified legal representation is available to clarify all of Brexit’s uncertainties.

British employees covered by the Withdrawal Agreement are entitled to continue working in Germany even without the corresponding document. In principle, the following requirements apply:

• You must be a British citizen (with no other citizenship of an EU member state) and continue to reside in Germany on December 2020. Accordingly, your main focus of life must already be in Germany before you leave. It should be noted that a person may have centres of residence in several countries, for example, due to seasonal reasons.
• If you were not in Germany on 31 December 2020, you must have had a harmless period of absence i.e. Germany was your centre of residence even if you were away at the time.
• Furthermore, you must have been entitled to freedom of movement on 31 December 2020.

If you meet these requirements as a British employee, you can invoke the continuation of your previously existing right to freedom of movement. The withdrawal agreement also secures this right after the Brexit transition phase from 1 January 2021.

The following rights of British workers in Germany are set out in Art. 24 of the Withdrawal Agreement:

• the right not to be discriminated against on the grounds of nationality in respect of employee pay and other terms and conditions of employment;
• the right to take up and pursue gainful employment per the regulations applicable to the nationality of the receiving State or the State of employment;
• the right to assistance from the employment services of the receiving State or the State of employment as offered to its own nationals;
• the right to equal treatment concerning employment and working conditions, in particular concerning remuneration, dismissal and, in the case of unemployment, reinstatement or re-employment;
• the right to social and tax benefits;
• collective employment law rights as an employee;
• the rights and benefits granted to national workers in respect of housing;
• the children’s right to participate in general education, apprenticeships and vocational training under the same conditions as nationals of the host or working State, if these children reside in the territory where the worker works.

British nationals who are not resident in Germany on 31 December 2020, but who work there as employees (or also as civil servants) and are not merely posted to provide a service for a foreign employer, fall under the term “cross-border commuters”. Cross-border workers’ rights correspond to those already mentioned for workers with the right of residence and are also protected by the withdrawal agreement. This means that they continue to have the right to work in Germany without residing there. This also applies to self-employed persons established in Germany.

An employed cross-border worker retains these rights under the provisions of the Withdrawal Agreement even if the following circumstances occur:

• If they are temporarily unable to work due to illness or accident;
• if they make themselves available to the competent employment office in the case of duly confirmed involuntary unemployment after more than one year’s employment;
• in the case of duly certified involuntary unemployment, they makes themselves available to the competent employment office after the expiry of their employment contract of less than one year or in the case of involuntary unemployment occurring during the first twelve months; in this case, the status of an employed person shall be maintained for at least six months;
• if they start vocational training; the maintenance of employment status presupposes that there is a connection between this training and the previous occupational activity unless the person concerned has previously lost their job involuntarily.

It is essential for British nationals who wish to invoke the cross-border commuter scheme to note that a special permit must be obtained for this purpose from the Foreigners’ Office or local immigration authority responsible for their place of work.

In particular, British nationals who have been posted to Germany by a British company to provide services must be prepared for extraordinary changes to their employment residence rights. If these posted service providers reside in Germany but are not otherwise entitled to Freedom of Movement, they are generally not covered by the withdrawal agreement and cannot claim residence rights and work permits as a result. Until 31 March 2021, they can still reside in Germany and carry out their previous activities. But if the posted service providers want to live in Germany after this date, they must apply for a residence permit per German residence and immigration law at the competent foreigners’ authority. Such a residence permit requires further green cards to entitle the holder to stay in Germany and be applied for in Germany.

In addition to this principle, there are rights under the withdrawal agreement for posted service providers residing in Germany by way of exception if:

• a secure livelihood with health insurance cover exists and will continue from 1 January 2021,
• on 31 December you have a part-time job with a company based in Germany or another EU member state,
• you are studying in Germany alongside your service activity, or
• you are married to an EU citizen and derive Freedom of Movement rights from this.

Another way to improve posted service providers’ position concerning work permits and residence rights is to relocate the employer’s company to the EU. If the posting company is based in another EU member state, posted British nationals can invoke Vander-Elst permit and continue working in Germany. Our lawyers provide comprehensive support and legal assistance in this process for company law. Here you can already get an overview of what companies need to consider for a possible relocation.

The UK’s completed exit from the EU means that British nationals wishing to work in Germany for the first time from 1 January 2021 will no longer be able to invoke the Freedom of Movement for workers under Article 45 TFEU. This means that British nationals, as well as other third-country nationals, will need a residence title to take up employment in Germany. In order to be able to apply for one in Germany, German law generally requires the existence of a visa.

To find out about any exceptions to this visa requirement, please contact our lawyers in residence and immigration law.

The requirements for a residence title entitling to gainful employment often depend on the individual case. Relevant points of examination are, for example:

• Nationality,
• school or university education,
• general conditions of employment,
• special qualifications,
• language skills.

In some cases, measures by the Federal Employment Agency are required before taking up employment and before obtaining a residence permit for this purpose. In order to speed up the residence permit procedure, which may be slowed down due to busy immigration authority offices, advance approval from the Federal Employment Agency can be applied for.

Overall, the procedure for applying for a residence permit with authorisation to work requires advance planning and organisation. In particular, any existing different reasons for residence must be discussed and weighed up. For example, whether an application for an EU Blue Card can be considered. Our lawyers for residence and immigration law will accompany and represent you in this procedure and work out the best possible solution for your residence and work permit.