Since Brexit it has become much more complicated to employ UK citizens in Germany. For employers who operate across the border it is important to know which requirements must be met when employing people from the UK in Germany.
As of 1 January 2021, UK citizens are generally treated as nationals of a third country from an EU perspective and therefore no longer enjoy the privileges of EU citizens under immigration law, unless they also have citizenship in an EU state in addition to the UK citizenship.
Visa free entry
Since Brexit the European rights of free movement of workers and the freedom to provide services no longer generally apply to UK citizens in the EU. But entry to the EU, and so to Germany, is possible without a visa, provided the stay does not exceed 90 days in a 180 day period.
This means that UK citizens must leave Germany after 90 days of stay, unless they can show a residence permit that allows them to remain in the Federal territory. But UK citizens are generally not entitled to take up employment in Germany during the 90 days of their permitted visa-free stay.
UK citizens need a separate residence and work permit (Aufenthaltstitel) if they want to stay for longer than 90 days or if they want to work.
Exception through Withdrawal Agreement
An exception applies to employees and self-employed people from the UK based in Germany who already lived and worked in Germany before the end of the transition period on 31 December 2020. They can remain in Germany and continue to enjoy the right of free movement of workers. This exception was specifically set out in the Withdrawal Agreement between the UK and the EU. Generally, however, such a person should have registered for a residence document-GB (Aufenthaltsdokument-GB) by 30 June 2021.
While it is neither a criminal offence nor a misdemeanor if this has not been done within this timeframe, this may result in disadvantages such as problems in proving legal residence - for example, in case of border controls during cross-border travel. It is therefore highly recommended that individuals in this position register for the residence document-GB, which is still possible.
A British citizen may also be granted a permanent right of residence (Daueraufenthaltsrecht) under the Withdrawal Agreement if certain conditions are met. Among other things, the British citizen must have resided in Germany for at least five years and during the applicability of the EU right of free movement. Periods of absence from Germany of six to 12 months may lead to the loss of entitlement to the right of residence. Each case needs to be examined individually.
The exceptions provided under the Withdrawal Agreement mean that UK citizens who have established a life in Germany do not have to leave the country due to Brexit. It also means that employers with UK employees in Germany can continue to employ them. The same applies to self-employed people from the UK who have established a business in Germany before the end of the transition period.
However, this does not apply to the freedom to provide services: self-employed people from the UK without a registered office in Germany are generally no longer allowed to provide services in the EU as of 1 January 2021. However, there are some exceptions in the Trade and Cooperation Agreement between the UK and the EU. Each individual case must be examined independently, as the exact rules differ depending on the business sector and member state.
Residence permit
In order to be able to employ a UK citizen in Germany, a residence and work permit is required which expressly permits employment in Germany in accordance with the provisions of the German Residence Act.
As British nationals belong to a privileged nation in accordance with the regulations on German immigration law, they can apply for a residence permit at the foreigners authorities (Ausländerbehörde) after visa-free entry into Germany, unless they plan to take up work directly after entering the country. If this is the case, they can also apply for a residence title in the UK at the German diplomatic mission abroad.
Employees are responsible for their own documentation but employers should check whether a lawful residence and work permit has been obtained, otherwise they will face sanctions.
Business trips
An exception to the principle that every UK citizen requires a residence permit for employment in Germany applies to short-term business trips to Germany that do not exceed 90 days. The term ‘business trip’ is regulated by German immigration law and is limited to certain activities, such as attending meetings or negotiations, participating in business deals or signing contracts.
These activities are legally not considered as ‘employment’ under the German Residence Act and are not subject to authorisation. A business trip is in principle not considered as ‘employment’ if the business traveler does not exceed a total of 90 days within a period of 180 days and:
- is employed abroad in the commercial sector by an employer based in Germany; or
- conducts meetings or negotiations in Germany for an employer based abroad, prepares contract offers, concludes contracts or supervises the performance of a contract; or
- establishes, supervises or controls a German part of a company for an employer based abroad.
In these cases UK citizens can enter Germany and work as part of the business trip without the need for a residence and work permit. However, any activity that goes beyond these requirements is considered ‘taking up employment’, which is generally not permitted without a separate residence and work permit. Employers should check carefully whether the planned activities of their employees are actually business trips or a gainful employment in Germany that requires a permit.
Contact an adviser
