Where do British citizens vacation most often?

Right board

RA Dr. Gunther Mävers, Maître en droit (Aix-en-Provence), michels.pmks Rechtsanwälte Partnerschaft mbB, Cologne

With effect from January 31, 2020, the United Kingdom's withdrawal from the European Union has finally become effective. Nevertheless, the exit agreement between the European Union and the United Kingdom provides for the EU regulations to continue to apply to a large extent until December 31, 2020. At present, British nationals can therefore continue to travel to Germany at any time - like other Union citizens - for stays of up to 90 days within 180 days and stay here for longer if they either pursue gainful employment or are seriously applying for one, cf. already https://efarbeitsrecht.net/brexit-was-gilt-im-arbeitsrecht/.

But what applies to newly arriving British citizens after the end of the transition period (for those who are already in Germany and have their place of residence here or who justify this before December 31, 2020 see https://blog.handelsblatt.com/rechtsboard/) 2019/10/23 / brexit-effects-on-labor-migration-law-in-the-no-deal-scenario /. Although the negotiations between the European Union and the United Kingdom are (still) ongoing, it is only a few weeks before the end of the transition period (again once) it is not yet clear whether they will be successfully concluded after they have almost failed several times - this is also not a novelty. The following article is devoted to the effects of a failure of these negotiations and their effects on residence and labor migration law by British nationals who are new to the country on January 1, 2021 and want to take up employment in Germany.

Entry and residence

With regard to entry and residence in the European Union and any of its Member States, as of January 1, 2021, newly arriving British citizens would not be granted any entry and residence privileges. After the end of the transition period, they would no longer be EU citizens (“Union citizens”) and would therefore not benefit from any of the rights previously granted to them because of their Union citizenship. Therefore, the question of whether they will be entitled to cross the border of an EU member state and stay in an EU member state would have to be regulated and considered by both EU and national laws, depending on the length of stay.

In principle, every third-country national is required to have a visa before entering the Schengen area (including Germany) under EU law (EU Regulation 810/2009 - Visa Code) and national law (Section 4 (1) Residence Act). However, EU Regulation 2018/1806 provides for an annex listing the countries for which the visa requirement has been lifted. As early as November 13, 2018, the European Commission had already proposed to add British nationals to this appendix and also to allow them to enter the EU without a visa for short stays, but only with the proviso that the United Kingdom in return also allows all EU Citizens are granted visa-free entry (COM (2018) 745 final). Since this reciprocity seems to be guaranteed by corresponding privileges for Union citizens when entering the United Kingdom, this should also be implemented from January 1, 2021.

As a result, this would mean that neither British citizens nor German citizens (like all other Union citizens) would need a visa if they were to enter the Schengen area or the United Kingdom for short stays of up to 90 days in a period of 180 Days.

British citizens (information in the passport: “British citizen”) will therefore not require a visa for visiting and / or business trips with a maximum stay of 90 days within a period of 180 days. The same applies to British citizens with the information "British overseas territories citizen", "British overseas citizen", "British subject", "British national (overseas) and" British protected person "in their passports. When crossing the border, the documents and receipts required for entry into the Schengen states must be carried with you, in particular a valid travel document as well as evidence of the purpose and circumstances of the intended stay. In addition, they must have sufficient means of subsistence (both for the duration of the intended stay and for the return journey). This also regularly includes taking out valid and appropriate travel health insurance; whereby the possession of an EHIC card is no longer likely to be sufficient as a rule.

The privilege of visa exemption to the extent mentioned applies - apart from a few exceptions (see below) - only as long as no gainful activity is to be carried out.

Gainful employment

If entry is not only for business or tourist purposes, but also for the purpose of intended employment, no privileges would no longer apply to newly arriving British citizens without an agreement between the EU and the United Kingdom or without corresponding national laws in the member states. So far (until December 31, 2020) British nationals continue to enjoy the full so-called free movement of workers (Art. 45 TFEU). This includes the right of employees to apply for jobs actually offered in other Member States, to reside there for this purpose and also to pursue employment and to stay to a certain extent even after its termination. All these privileges would come to an end by the end of the year. British nationals entering the country for the first time would then be treated on an equal footing with non-privileged third-country nationals such as Indians and Chinese.

Short stays

First of all, to counteract a common misunderstanding, it should be pointed out that if you are able to enter the country for short stays of up to 90 days within 180 days, you are generally not allowed to take up gainful employment. Only activities that do not constitute employment are permitted, regardless of whether it is self-employed or dependent employment. The following activities, among others, are permitted

  • Participation in meetings;
  • Conduct negotiations;
  • Purchase of goods;
  • Conclusion of contracts with German business partners

In the case of activities going beyond this, according to the general definition of an employee, the decisive factor is whether an externally determined activity is performed for someone else, in which one essentially cannot freely dispose of the time and place of the activity. If this is the case, a residence permit is required to take up employment, regardless of how long the employment, i.e. from the first moment of employment. Otherwise, there is illegal employment that constitutes an administrative offense and can result in a fine of up to € 5,000 for the employee or € 30,000 to € 500,000 for the employer. Of course, this also applies to the British.

Incidentally, third-country nationals are only allowed to take up gainful employment if one of the few exceptions provided for in the Employment Ordinance applies. There it is provided for specific purposes for short stays that these do not count as employment (Section 30 Employment Ordinance). With this non-employment fiction, it is practically legally faked that the exercise of the activity is not an employment. This applies to the following activities, among others:

  • Activities as a manager, executive employee or as a business traveler for up to 90 days within a period of 180 days
  • certain activities (including interns and in-company training) for up to 90 days within a period of twelve months
  • Activities in the context of the provision of services by foreigners who have the legal status of long-term resident in another member state of the European Union, of up to 90 days within a period of twelve months and
  • Activities of certain persons who are exempt from the requirement of a residence permit

With regard to business travelers, it should also be noted that this exception does not apply in general, but only to certain types of business travel, namely to people who

  • are employed by an employer based in Germany in the commercial sector abroad,
  • conduct meetings or negotiations in Germany for an employer based abroad, prepare contract offers, conclude contracts or monitor the implementation of a contract, or
  • Establish, monitor or control a domestic part of the company for an employer based abroad,

and - this applies to all three case groups - who do not stay in Germany for more than 90 days within a period of 180 days in the course of their employment while maintaining their habitual residence abroad.

If the requirements for these exceptions are met, this means for foreigners who can enter the country without a visa that they do not need a residence permit to work within the specified time and content limits.

Long term stays

With regard to long-term stays, explicit rules are required in order to prevent newly arriving British nationals from reverting to the level of non-privileged nationals from January 1, 2021. To regulate this falls within the sole competence of the Federal Republic of Germany, since the EU has no legislative power in this regard.

According to the national regulations, every third-country national must apply for a residence permit for the purpose of gainful employment at the German embassy or the German consulate general in their home country or country of residence before taking up employment (§§ 4 Paragraph 3, 71 AufenthG). This would of course also apply in principle to British nationals from January 1, 2021. As in most other countries, however, Germany has introduced a number of privileges in relation to some nationals. In Germany, the most privileged citizens - such as Americans, Canadians, Japanese, Australians or South Koreans - benefit from the following privileges:

  • Residence entitlement of more than 90 days if a residence permit has been applied for before the final decision has been made (Section 41 (1) and (3) of the Residence Ordinance)
  • Possibility of issuing a residence permit for the purpose of gainful employment for any type of employment regardless of the employer's seat (Section 26 (1) Employment Ordinance)

This is intended to enable these privileged nationals to enter the country before the residence permit is issued, including for longer-term stays and to carry out the procedure in Germany. If you apply for a residence permit in good time before 90 days have elapsed, you will be issued with a fictional certificate on the basis of which the further stay is deemed to be permitted. However, the proposed employment may only be commenced after the residence permit has been issued.

According to the legislature, these privileges will now also be granted to British nationals from January 1, 2021. This is to be regulated by the Second Ordinance amending the Employment Ordinance and the Residence Ordinance (BR-Drucks. 747/20). According to its explanatory memorandum, the aim of this draft is to give nationals of the United Kingdom of Great Britain and Northern Ireland who are not covered by the Withdrawal Agreement easier access to the labor market; This privilege is intended to take account of the diverse trade and economic relationships between Germany and the United Kingdom of Great Britain and Northern Ireland. Without the regulation, nationals of the United Kingdom of Great Britain and Northern Ireland, who are not covered by the Withdrawal Agreement, usually have to prove a qualification as a skilled worker in order to be granted a residence permit for employment - and thus a domestic or recognized equivalent foreign qualification. This would be omitted with the privilege in Section 26 (1) of the Employment Ordinance.

Nationals of the United Kingdom of Great Britain and Northern Ireland would thus have the same access to the labor market as nationals of other major trading partners, such as the United States of America, Japan, Australia or Canada. The Federal Employment Agency could then approve any employment regardless of the formal professional qualification and the seat of the employer, but would of course check the equivalence of the employment conditions as part of the priority check.

outlook

As long as the negotiations between the EU and the United Kingdom are still ongoing, there is still no clarity about the regulations that will apply to newly arriving British nationals from January 1, 2021. Should the Federal Council approve the draft regulation in its last session - which is likely to be the case - this would ensure equal treatment of British nationals with nationals of the most important trading partners outside the EU, at least in terms of residence and labor migration law And rightly so, given the decades-long partnership.

Category: Guest Posts, Mävers, Gunther | Tags: labor migration law, exit agreement, Brexit, employment

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