The effects of "Brexit" on work-related migration to Germany

Following the end of the transition period on 31 December 2020, United Kingdom nationals are subject to a general visa requirement for entry into Germany. In this article we wish to provide a brief, non-exhaustive overview of the related obligations and possible exemptions.

No residence document for short business trips

Even in the past it was possible for nationals of certain countries - as is now also essentially the case for UK nationals - to enter the European Union without a visa. No visa is required for short stays, such as short business trips for up to 90 days within a 180-day period. Employees holding UK nationality can enter Germany using their passports.

During the stay however, business trips must not exceed the threshold beyond which they constitute a genuine gainful activity. The taking up of a gainful activity requires a corresponding residence document. Activities permitted within the scope of a business trip include the participation in meetings, the conducting of negotiations, the purchase of goods or the conclusion of contracts with German business partners. These actions are not classified as gainful activities. If the scope of the activities goes beyond this or if the 90-day threshold is exceeded, there is a risk of illegal employment of foreigners or of an illegal stay with significant penalties.

Further exemptions from the visa requirement apply for example to corporate-law organs (directors) or to employees employed abroad by a German employer, or whose role is to form, supervise or manage a business unit in Germany for a foreign employer. These actions likewise do not apply as gainful activities if they do not exceed 90 days within a 180-day period.

Residence document for the conducting of a gainful activity

A distinction must be made between UK nationals entering Germany for the first time on or after 1 January 2021 and UK nationals who entered Germany before this date.

As with all third-country nationals, UK nationals entering Germany for the first time after this date require a residence document for gainful activity. This can be applied for to the German diplomatic mission prior to departure. Alternatively, the application can be submitted to the responsible German aliens authority within 90 days of entering the country.

UK nationals who entered Germany prior to 1 January 2021 must apply to the responsible aliens authority for a residence document by 30 June 2021. Up until that date they are permitted to continue working in Germany without restrictions. Employers should ensure that their employees submit the application in sufficient time prior to this deadline, and should request a copy of the new residence document for inclusion in the personnel file.

New rules also apply to the posting of workers

When posting workers, a distinction must also be made between employees entering the country before or on/after 1 January 2021.

Persons entering Germany for the first time on or after 1 January 2021 are subject to the general rules on long-term stays for the purpose of gainful activity. Accordingly, a residence document is required.

Employees who were posted to Germany by a UK company prior to 1 January 2021 for the purpose of providing services were required to apply for a residence document in Germany by 31 March 2021. Up until that date they were permitted to continue working in Germany without a residence document. Provided the application was submitted on time, the posted workers can continue working for the duration of the application procedure.

Summary

Brexit has now been properly implemented. As a result, UK nationals are subject to a general visa requirement. However, several exemptions apply, in particular to short stays. Employees and employers should concern themselves with this matter at an early stage, and ascertain whether the planned stay is covered by any of the exemptions. It may then be necessary to apply for a residence document.