Brexit and Immigration Law

March 7, 2019

Consequences for British citizens, their families and employers, as well as dual nationality issues

The decision of Great Britain to leave the European Union (Brexit) and the related concerns of all the parties involved are omnipresent. Even now, two weeks before the date of the withdrawal, all scenarios from the planned and contractually regulated exit to the specter "Hard Brexit" (EU exit without agreement) are conceivable. Brexit would have serious consequences for all those who have benefited from EU fundamental freedoms so far. Freedom that has become a matter of course in the younger generation. Being free to travel, work and settle anywhere within the EU, makes the process of identifying oneself as "affected" even more difficult.

Hereinafter, we would like to present an overview of possible scenarios, options for action and their consequences with regard to Brexit. While doing so, as specialists for German Immigration Law, we will limit our remarks to questions of entry of British citizens to European Union as well their long-term stay in the EU in Germany. The information is as well limited to citizens of Great Britain and their family members living in Germany (except for questions on dual nationality).

 

Am I affected?

Short term stays (for example tourism or visit)
For British citizens entering Germany for short-term purposes (for example, as a tourist or visitor), there are consequences in terms of border controls and a limitation of period of stay. The EU is planning to introduce a special regulation that will allow British citizens to enter Germany without a visa for a short term stay (see Positive States). This must be distinguished from inclusion into the list of so-called “Best-Friend States”, i.e. list of countries, whose nationals can enter the EU visa-free and accordingly apply for a residence permit for long-term residence from within Germany during their lawful state. This special benefit is likely to apply to British citizens in the long run but is not yet in the concrete planning phase.

Stays for long-term purposes (work, study, etc.)
Affected in a narrower sense are all British nationals residing in Germany for long-term purposes, no matter if employed or unemployed, students and pensioners, adults and minor aged. Affected in this context means for them that potential consequences may arise regarding the legality of their residence. Certain steps must be taken in order to be able to maintain the current factual residence status beyond Brexit.

Employer
Affected are employers who employ one or more British citizens. They will have the same duty as employers of third-country nationals - review the admissibility of employment due to Immigration Law. Especially small and medium-sized companies are well advised with an early assessment of the situation.

Family members of British nationals with non-EU citizenship
Brexit is of particular importance for family members of British nationals who do not have a European Citizenship. These family members have far-reaching rights to freedom of movement and residence as well as access to the labor market in Germany. They should therefore take timely measures to clarify their future residence status.

Questions of nationality
Also affected are German citizens who intend to acquire British Citizenship while retaining the nationality of origin (and, vice versa, British nationals who seek to acquire German citizenship while retaining British citizenship). While EU law has so far regulated the possibility of multiple citizenship, in the future this could (again) depend on the requirement of reciprocity. For already completed naturalization procedures no consequences can arise. However, it remains unclear how the naturalization applications applied for but not yet completed at the Brexit deadline will be dealt with (see deadlines).

 

What consequences does Brexit have for me?

Below, you can find Immigration Law scenarios. They are divided between those the still-negotiated exit agreement (Regulated Brexit) compared with those in the case of an unregulated exit (Hard Brexit).

 

Residence of British Citizens

    Regulated Brexit (with withdrawal agreement)

    British nationals do not have the EU - citizenship after 29.3.2019. They keep their right to free movement life-long if:

  • They have their residence in the EU by the end of a two-year transitional period until 31 December 2020. A transfer of residence to the EU (immigration) is still possible until then.
  • An application is required.
  • Hard Brexit

    British nationals do not have EU - citizenship after 29.3.2019.

  • Three-month transitional period starts after 29.3.2019 (extension of deadline by three months possible).
  • After that the affected persons need a residence permit (see recommendations for action).

 

Residence of family members from third countries (non-EU Countries)

    Regulated Brexit (with withdrawal agreement)

    Family members with citizenship of a non-EU state can continue to exercise their rights until the end of the transitional period.
    They also retain their rights derived from the Freedom of Movement through their British family members, when they fulfil the following conditions:

  • they have their residence in the EU by the end of a two-year transitional period until 31 December 2020. A transfer of residence to the EU (immigration) is still possible until then
  • application required
  • The right to gainful employment remains.
  • Hard Brexit

  • Family reunification with British citizens from non-EU states is subject to conditions (language skills, integration, coverage of livelihood). If these are fulfilled, the family members can be employed without limitations.
  • Independent residence title in case of divorce application under certain conditions (see deadlines).

 

Consolidation of Residence

    Regulated Brexit (with withdrawal agreement)

  • residents, who have been eligible for settlement permits remain permanently entitled
  • application required
  • Hard Brexit

  • Undetermined. Possible is a crediting procedure of prior stay periods via the Freedom of Movement Act or inventory protection based on international law.
  • Unilateral measures to maintain the status of permanent residents are likely, even though there are no specific arrangements planned yet.

 

Naturalization

    Regulated Brexit (with withdrawal agreement)

  • Assumption of British citizenship while retaining the German remains possible if the application is submitted by 31.12.2020 (and the conditions are fulfilled).
  • application required
  • Hard Brexit

  • Assumption of British citizenship while retaining the German one remains possible if the application is made by 29.3.2019 (and the conditions are fulfilled). Generally, the timing of the decision is crucial. In the case at hand, derogation from this rule is intended. Instead, the date of the application is considered as significant, if there is a lawful and habitual residence is given.

 

Social Security

    Regulated Brexit (with withdrawal agreement)

  • British nationals residing in a Member State of the EU retain their entitlements from health and pension insurance and other social security funds, resp. they would be reciprocally considered.
  • BAföG transitional regulation until the end of the training.
  • Hard Brexit

  • Abolition of the arrangements for the coordination of social security systems. But new national scheme planned for backup.
  • Apprentices and students who receive funding for regarding to BAföG can receive it until the end of the training period.

 

What must be done?

Relevant deadlines

Brexit relevant deadlines

 

Recommendations for action

  • Classify, whether you are “affected“
  • Identify the competent foreigner’s authority by place of residence, inform on BAMF
  • Filing the application for naturalization before 29.03.2019
  • application for residence permit ideally before 29.03.2019 (under certain conditions before 29.06.2019).

 

Our service

For more than 20 years, we are assisting clients regarding Immigration and Citizenship Law as well as related legal fields. Our vision is a cosmopolitan Germany and Europe that benefits from incoming immigration. While we regret the decision of the United Kingdom to leave the European Union, we see it as our mission to guide our clients through the Brexit process and organize it as smooth as possible.

You are an employer and would like to inquire about the necessary procedure in good time? You are connected to both Germany and the United Kingdom and would like to know more about your dual citizenship eligibility? Are you still living in the UK and considering moving your residence to Germany alone or together with your family? For these and all other questions in connection with the above-mentioned matter, please contact us and schedule an appointment for an initial consultation. We will advise you in detail and together with you develop a strategy that helps you to obtain justice. Write us an E-Mail or give us a call!

 

 

vpmk Rechtsanwälte | Berlin

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