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Brexit: what do companies need to be aware of with regard to British employees?
“Now that the uncertainties surrounding the withdrawal is over, we need to establish a secure legal framework for the future relationships between citizens and the companies they work for – and not only for the duration of the transition period,” insisted Ingo Kramer, President of the Confederation of German Employers’ Associations from 2013 – 2020.1 That secure legal framework is now in place. Great Britain left the EU on 1 February 2020. As a result, British citizens are no longer citizens of the EU. From the beginning of 2021, new rules came into force for anyone wishing to employ British nationals in Germany.
What do German employers need to be aware of when appointing or continuing to employ British nationals? In what circumstances should you ask to see evidence of permission to reside in Germany? Are we required to include relevant documents with the payroll accounts? I think that employers who employ (or wish to employ) British nationals after Brexit will need to make sure they are well informed about requirements. In what follows, I have put together some key information on the subject.
Transition regulations – the same procedure as every year …
The EU’s transition regulations remained in force until 31 December 2020. British nationals who had moved to Germany before the end of the year benefited from the rights of free movement guaranteed to all EU citizens and could continue to work freely in the EU and, hence, also in Germany, because they were covered by the provisions of the Withdrawal Agreement. For companies with British employees, there was, up to that point, no need to do anything.
From 2021: new rules for British nationals
The legal situation changed with the ending of the transition phase. From 1 January 2021, new rules apply for employing British nationals. If an employee in Germany is covered by the terms of the Withdrawal Agreement, then he or she can continue to work in your company without any documentation being necessary. These EU freedom-of-movement rules apply to all British citizens, among others, who were working for you legally before 31 December 2020. They also apply to British nationals who have previously resided in Germany and have worked for you since 1 January 2021, or who will subsequently undertake work for you. Providing that your British employee has a clear right, granted by the terms of the Withdrawal Agreement, to remain in Germany, you, as an employer, do not need to copy any documents, scan them or keep them with the payroll records. There is a requirement, however, that those of your employees, who are entitled to remain under the provisions of the Withdrawal Agreement, register with the appropriate immigration authorities by 30 June 2021 at the latest, in order to apply for the relevant documentation. This applies both to British nationals and to dependents of British nationals with either a residency permit or a long-term residency permit.
After 30 June 2021: residency permits required
For your own legal security, after 30 June 2021, you should ask your British employees to provide evidence of their right to remain in the country, as laid down in the Withdrawal Agreement. If you wish to set a deadline for this, please bear in mind that this cut-off point may extend somewhat. Why? Because the allocation of appointments and the provision of documents relating to residency permits all usually take time. Once the relevant documentation has been produced, you do not need to copy them, scan them or include them with your payroll accounts. You can make a note of the status of the residency permit for your own purposes, but you are not legally obliged to do so. Equally, you do not, as an employer, need to inform the immigration authorities when you terminate an employee’s contract.
From 2021: new British immigrants need residency permits
British nationals who arrived in Germany after 1 January 2021 are classed as third-country nationals. Exceptions to this are British nationals who fall within the scope of the EU’s freedom of movement legislation or the Withdrawal Agreement and can provide documentary evidence to that effect. Otherwise, the rules are that third-country nationals, who work in Germany and who wish to reside long-term, need proof of their entitlement to remain. The latter is issued by the relevant immigration authority. An exception to this involves people with multiple citizenship, who are also nationals of an EU or an EEA state.
New: ‘Best-Friends’ regulations – simplified residency requirements
For British nationals, who move (or have already moved) to Germany after 2020, requirements for obtaining residency entitlement have been eased. Why? Because nationals of certain countries have privileged entitlement to long-term residency when they immigrate – in virtue of the so-called ‘Best-Friends’ regulations. The United Kingdom of Great Britain and Northern Ireland has recently been added to the list of ‘Best-Friends’ countries. Accordingly, British nationals can move to Germany, legally and without a visa, in order to live and work long-term even after Brexit coming into force. Within 90 days of their arrival, they must, however, apply for a residency permit, since they are no longer covered by the right to free movement enjoyed by EU nationals.
Moreover – as for citizens of all other countries on the ‘Best Friends’ list – there are no restrictions on the kind of work for which permits are available. British nationals do not have to provide evidence of appropriate qualifications, such as, for instance, educational qualifications or degree certificates.2 Nor do they need proof of their professional status to obtain a work permit. Nonetheless, the German Federal Employment Agency must agree and complete a ‘priority assessment’. This involves a check as to whether there are other potential candidates with greater legal entitlement to consideration for the vacant position. In addition, the immigration authorities can, at their discretion, scotch the entire process and refuse residency.
1 Source: www.netzwerk-ebd.de/
2 §26 abs. 1 BeschV (§26, section 1: German Employment Regulations)
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by Till Achim Lobenstein