BREXIT from a German Perspective: Employment

Written on 8 Sep 2016

Do you engage UK citizens in your business? German employers need to get smart and beat Brexit

On 23 June 2016, the UK voted to leave the European Union (EU) – commonly referred to as a vote for a “Brexit”. The UK government has yet to pull the formal trigger for leaving the EU. When it does, it will have a significant impact on UK citizens living and working in Germany.

An end to freedom of movement for UK citizens

UK citizens currently enjoy the EU right of freedom of movement for workers, allowing them to settle and work in any EU country. In Germany, statute regulates the general movement of EU citizens (Freedom of Movement Act/EU) and the legal status of EU citizens and their family members.

Following Brexit, the UK will become, from an EU perspective, a “third country”. Whilst it remains possible that certain EU rights will be retained post Brexit, as part of the UK’s exit negotiations, for now German businesses must assume that UK citizens will lose all privileges associated with their EU citizenship. This includes their right to free movement across the EU.

Absent this freedom, UK citizens may be treated for immigration purposes like any other (privileged) third country. What does this mean? In short, UK citizens may only be entitled to an accumulated stay in Germany of up to 90 days within a period of six months. They may not be allowed to stay longer or take up employment without a corresponding residence permit.

Is German citizenship the answer? Acting now – before a Brexit – will be critical.

Businesses should consider now whether UK citizens living and working in Germany are, in fact, able to apply for German citizenship – negating the possible consequences of a Brexit.

However, time is of the essence. Provided the UK is still a member of the EU when an application by a UK citizen for German citizenship is made, a successful applicant will be able to maintain their UK citizenship as well.

This position can be contrasted with that where an application is made post Brexit – the naturalization provisions in the German Citizenship Law generally stipulate that a foreigner (outside the EU) who takes up German citizenship must abandon their original nationality.

Meeting the conditions for German citizenship

The conditions for German citizenship a UK citizen must meet are:

  • an existing unlimited right of residence, an EU Blue Card, or a temporary residence permit which can lead to permanent residence;
  • passing the citizenship test (which requires knowledge of the legal and social regulations and of living conditions in Germany);
  • eight years of ordinary and lawful residence Germany – this period may be shortened to seven years after successful completion of an integration course; and in case of special immigration services even six years). Spouses of German citizens may apply after three years;
  • assurance of independent livelihood without social welfare and unemployment benefit II. This also applies to dependent family members; 
  • sufficient knowledge of the German language;
  • no criminal convictions; and
  • commitment to the free democratic order of the Federal Republic of Germany.

Once the UK government formally triggers a Brexit – it will still not be immediate, taking perhaps up to two years. Therefore, it is important for German businesses to note that UK citizens in Germany, who may not yet meet the length of residence requirement for German citizenship, (perhaps having only been resident for five or six years), may in fact have met the eight year requirement by the time the UK finally exits the EU.

Post Brexit – UK citizens may need a residence permit

Following Brexit, on the assumption that there will be no continued free movement of UK citizens agreed in the exit negotiations, any UK citizens who have not obtained German citizenship, will need to apply for a residence title – if not, they will be subject to the rules limiting an individual’s maximum stay in Germany to 90 days, accumulated over a six month period.

The grant of a residence title is subject to certain conditions being met, including in many cases the approval of the Federal Employment Agency. However, an employee who has a job offer which meets a designated annual gross salary threshold and a university degree may be granted a residence title EU Blue Card, without the approval of the Federal Employment Agency. The annual gross salary threshold for 2016 is EUR 49,600.00.

Immediate steps for businesses engaging UK citizens

Businesses should conduct an audit of any UK citizens engaged by them, raising with them as soon as possible the possibility of applying for German citizenship before Brexit. The period of time it will take for the UK to Brexit means that German citizenship is a real option even for those UK citizens who have not yet met the 8 year residence requirement. A successful application during the run-up to a final Brexit will enable UK citizenship to be maintained along with the individual’s new German citizenship. Businesses must also keep a careful eye on the course the UK’s Brexit negotiations take – not only in respect of whether or not there will be any continued automatic right for existing UK citizens to work in Germany but also with an eye on the impact of these negotiations on their businesses’ future workforce requirements.