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Brexit: what does it mean for UK nationals in the EU?

  • Europe
  • Brexit
  • Employment law

01-02-2021

A key consequence arising from Brexit is the end of free movement in the UK.

We have focused in previous briefings on the steps EU nationals either in or coming to the UK need to take in light of Brexit. Of equal importance are the implications of UK nationals living in the EU before the end of the transition period, those who travel to Europe frequently as part of their employment and those who move there from 1 January 2021.

Employers are wise to consider each category of employee and indeed contractor staff, to ensure that the activities carried out are done so lawfully. In this briefing we will explore some typical employment scenarios and how Brexit impacts on those situations.

Scenario 1 : An international organisation has its head office in Munich. There is a profile of UK nationals employed in Munich and who travel frequently to Munich from the UK. What should this employer be thinking about?

  • UK nationals resident in Germany before the end of 2020 benefit from Withdrawal Agreement protection. UK employees in Germany must have been registered as German residents with the local registration office by the end of 2020. They must then submit an application with the local immigration authority by 30 June 2021 to secure their status. As with the UK’s EU Settlement Scheme there is a need to evidence their residency in Germany before 31 December 2020. At the end of this process they will receive the “residence document GB” ("Aufenthaltsdokument-GB")
  • UK nationals travelling to the head office frequently may qualify as a frontier worker. Frontier workers under German immigration law are UK nationals who do not reside in Germany but who have a German employment relationship, i.e. with a German employer and who visited Germany frequently for their work before 31 December 2020. UK national frontier workers can evidence this status by applying for a “residence document for frontier workers GB” ("Aufenthaltsdokument für Grenzgänger -GB"). The application is made to the local immigration authority at their place of work
  • brand new employees from 1 January 2021 will require a visa and there are a number of considerations here including whether the role is eligible for a visa and the timescales and costs of the process. UK employees may enter Germany for a short-term stay, e.g. business trips (90 days in any 180-day period) for the Schengen area and can apply for the relevant work permission in Germany
  • visa options include an EU Blue Card or a residence permit for other skilled workers. An EU Blue Card requires a higher education qualification and a minimum salary of 56,800 EURO. For any other work permission approval from the employment agency is required; their role is to review the conditions of the employment and in particular whether the salary is comparable with other candidates in the German labour market for this job
  • the application procedure typically takes a minimum of 8 weeks and longer if the employment agency needs to be involved

Scenario 2 : The international organisation has a major site in Switzerland as well as its head office in Munich. UK employees often go to both countries to visit, train and meet with customers. Are there any additional considerations here?

  • Switzerland is not in the EU but there are arrangements with the EU and whilst they don’t replicate free movement, they do create some ease of working
  • as with Germany, UK nationals may be classed as frontier workers as the UK has a separate Brexit related agreement with Switzerland. This agreement covers UK nationals who obtained a EU/EFTA cross-border commuter permit before 31 December 2020; in the main, these employees do not need to take any action. UK nationals coming temporarily to Switzerland to work from 1 January 2021 may still be admitted as cross-border commuters if they have lived in Germany for at least six months; there are criteria to be met however in terms of the location of the site in Switzerland and in Germany. In our scenario Munich is not sufficiently proximate to the border to qualify
  • depending on the nature of the activities the UK nationals need to do at the Swiss site the business visitor route may be sufficient for both UK nationals living in Germany and UK nationals still resident in the UK as this route permits a range of activities without a work visa including attending meetings, conferences, seminars and interviews; giving a one-off or short series of talks and speeches and negotiating and signing deals and contracts
  • for anything more the employer will need to embark on a more detailed analysis. For a cohort of UK nationals employed in Germany (and having been issued with a residence permit) the Posted Worker route may be helpful as this will allow them to be posted to Switzerland to work for up to three months or 90 days per calendar year via a notification procedure
  • for anything more than 90 days or for UK employees not based in Europe our employer will need to look at a work permit process via the competent cantonal migration or labour market authority. As with all visa applications there are costs and timescales implications and qualifying criteria to meet. In addition, Switzerland has a quota of UK nationals who may be employed for more than 120 days; in 2021 this is only 3,500

Scenario 3 : A UK company has no EU operations but its UK Sales staff travel throughout Europe selling products. Is this still permissible?

Here the UK company need to think about its options:

  • firstly, consider each country where the Sales team need to go, what they are doing there and whether those activities could be classed as visa free business visits. It is important to remember that in this assessment one size does not fit all and a country by country assessment will be needed. As an illustration this sales team visiting German potential customers can do so without a visa as selling products in Germany is a permitted activity but the employer needs to remember the Schengen time limits of 90 days in any 180-day period including leisure time for the Schengen area
  • secondly, do any of the Sales team have Withdrawal Agreement protection in any country as a frontier worker? Again a country by country assessment is needed; as we have mentioned above in Germany a local employment contract is needed so that would not be feasible in this case
  • finally there is the visa process. Whilst possible, this option is more likely to become challenging in terms of cost and process where the employer is looking at multiple short visits to lots of countries

As the above scenarios illustrate one of the key consequences from a people perspective arising from Brexit is that it has become less attractive for the UK workforce to work in EU roles. Their rights are very limited compared to the rights they previously enjoyed pre Brexit. Those with residence or a pattern of travel have more options which may provide a soft landing and of course the current travel restrictions prevent the immediate impact from being felt.

Now is the time however for businesses in the UK or Europe to think about business travel and assignments, assess risk and options and educate their workforce on the big changes in approach we need to consider to avoid illegal working and the risks that brings for both employees and employers.

For further insights from our team in Germany and Switzerland, listen to our podcast.