Germany – Business immigration: be smart, be ahead of Brexit

Written on 4 Oct 2016

Do you hire 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 in Germany (Freedom of Movement Act/EU), their legal status and the legal status of their family members.

Following Brexit, from an EU perspective, the UK will become 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 the time being, German businesses must assume that UK citizens will lose all of the privileges associated with their EU citizenship.  This includes their right to free movement across the EU.

Without this freedom, for immigration purposes, UK citizens may be treated 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 to take up employment unless they obtain a residence permit conferring these rights.

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

Businesses should already be considering whether UK citizens living and working in Germany are, in fact, able to apply for German citizenship – thus neutralising the possible consequences of a Brexit.

However, time is of the essence. Provided that the UK is still a member of the EU when a UK citizen applies for German citizenship, if that citizen’s application for German citizenship is successful, that citizen, will be able to maintain their UK citizenship as well as their newly-acquired German citizenship.

In contrast, if a UK citizen were to apply for German citizenship post Brexit, the outcome would be completely different. This is because the naturalization provisions in the German Citizenship Law generally stipulate that a foreigner who is not a national of an EU country and who takes up German citizenship must abandon their original nationality and citizenship.

Meeting the conditions for German citizenship

The conditions for German citizenship that 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 in Germany – this period may be shortened to seven years after the successful completion of an integration course. In case of special immigration services, this period may even be shortened to six years).  Spouses of German citizens may apply for German citizenship after three years;
  • assurance of independent livelihood without having to rely on 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.

Brexit will not occur immediately after the UK government formally triggers it.  – It might take up to two years for Brexit to become a reality.  Therefore, it
is important for German businesses to note that UK citizens who are residing in Germany, and who do not, at this stage, meet the required length of residence for German citizenship, (e.g. if they have only been resident in Germany for five or six years), may in fact meet the eight-year requirement by the time the UK finally exits the EU.

Post Brexit – UK citizens may need a residence permit

Following Brexit, and assuming that the exit negotiations do not grant UK citizens the right to free movement across the EU, any UK citizens who have not obtained German citizenship by that time, will need to apply for a residence title. Otherwise, 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 by 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 hiring UK citizens

Businesses should conduct an audit of any UK citizens hired by them, raising with them as soon as possible the possibility of applying for German citizenship before Brexit. Since it will take some time for the UK to actually leave the EU, 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 citizens to maintain their UK citizenship along with their new German citizenship.  Businesses must also keep a careful eye on the course that 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.