BREXIT and Immigration to Germany

The people’s voice in majority said „out“. So be it; this is nothing but a democratic decision. As it has been said, “When you’re out, you’re out.” No chance to change coaches anymore. Oh, I meant referendums anymore. How will this effect Brits right now in Germany? Will they be kicked out? May they stay? I want to briefly discuss legal consequences of the BREXIT for immigration – as of now. What rules will be applicable for future relocations? Nobody knows.

Immigration Status after BREXIT

Britons and their non-European family members will lose their status as soon as BREXIT comes into effect because they do not belong to the European Union anymore. For those persons who are here on a temporary as well as a permanent status, the BREXIT withdraws the grounds for their legal sojourn under the free right of movement. Britons are then considered third country foreigners. They will require a residence permit pursuant to §4 I 1 AufenthG.

§51 I no. 1 AufenthG determines that a residence title expires once it loses its validity. Upon legal BREXIT, Brits will not have a residence title anymore. Pursuant to §50 AufenthG, persons are obliged to leave without undue delay after their permit expires. However, it is seriously to be expected that some kind of intertemporary provision will be issued for those living here now. Britons wanting to enter Germany will have to follow the general rules: apply for a visa from home or stand in line like all the rest.

Expectations for Immigration Status After BREXIT

So far the consequences can merely be predicted now. When suddenly millions of English, Scots, Wallisians, (northern) Irish have to leave their jobs and / or businesses, this will create an unbearable strain on the German economy. It can be assumed that those living here legally, will be able to continue to live here. We will now have to differentiate between those with a “temporary” and those on “permanent” status. Hence, it is to be expected that those persons living here already will not lose that status as such and can remain. The exact details are still to be negotiated.

Those persons on a temporary status can expect to continue as a normal third country nationals on grounds reflecting their reason to be here. A student will receive a permit to study at the university pursuant to §16 I AufenthG; an employee pursuant to §18 AufenthG, and a person in business based on §21 AufenthG. They will need a residence permit based on their reason to be here. It is imaginable that such first permits might be granted ex officio or under relaxed conditions. Later if a renewal is due, it can be assumed that they will be treated as a “ordinary” third country national.

Britons having had “permanent EU status” will presumably change from §4a FreizgG to §9 AufenthG – maintaining permanent residency. The difference between both kinds of permanent status is only hidden. The most important difference will be the time of permitted absence without jeopardizing one’s permanent status. Pursuant to §4a VIII FreizgG, Europeans are allowed to be outside of Germany temporarily for two consecutive years. Third country nationals only have a grace period of six consecutive months (§51 I no. 7 AufenthG) – both only for temporary purposes. So, if you have left for good then you are out for good.

Another major difference between “ordinary” and “European” foreigners lies in the status’ quality. In the event, German immigration authorities do not want a European inside of Germany, they have to cancel the European’s freedom of movement and possibly take the foreigner to court. Europeans conceptually have the right to be in Germany. So the threshold is high to do so. In contrast to that, “ordinary” foreigners have to combat the authority to remain in.

When will BREXIT happen?

Better ask a fortune-teller than a lawyer. Britain’s Prime Minister has to formally give notice to the European Commission (art. 50 TFEU). then a two-year period starts where the Union and the UK have to come to a resolution on how the "divorce" will be realized. If nothing is negotiated inside that period, then EU membership automatically expires. And what until then? Simple. “Business as usual.” Legally nothing has changed yet. so far it is only the intention to give notice before really giving notice.

Dual Citizens

Oh, you are a dual citizen of UK and another EU country? You are concerned about the BREXIT issues? Forget your concerns! Forget them instantly. You have and will retain your EU status – based on the other citizenship. The same will be true for your non-EU dependents as they derive this status from you.

How to Prepare for after the BREXIT?

Start collecting

• diplomas,
• reference letters from previous employers,
• get Letters Of Interest from Germany-based business partners, if freelancing or self-employed, start working on your business plan.

• N.B. This is the legal situation as of June 29, 2016. Updates will follow shortly after they are issued as law.

Divorcing the EU Spouse and Spouse‘s Departure Prior to Applying for a Residence Permit

Getting divorced is typically something not so pleasant. It becomes more dramatic when your residential status might be endangered. The ECJ ((judgement of July 16, 2015 re C-218/14) had to decide on a case when a couple split up and the European ex-partner left the host country before they applied for divorce. What happens to the non-EU spouse? Does this person’s status remain, change, or end before the three year period has elapsed? Can you simply just reapply for something?  [PPD_PAYTOREADMORE]

Let us tell you what happened. Three third-country citizens (an Indian, a Cameroon, and an Egyptian) had married three European ladies (Lithuanian, German, and Latvian) and all had cohabited for more than four years in Ireland. In all three cases, the women abandoned their men and applied for divorce in their individual home country. The Irish authorities had the opinion that the men could no longer apply for a residence permit because they had already lost their residential status. They believed to have the right opinion even though all men stayed longer than three years in Ireland. The men applied in court against this decision.

Once the citizen of the union leaves the host country for good, then the remaining non-EU family members automatically lose their residential status – by law. This is because their status is dependent upon the European's living in the host country. Understand here as host country that European country where this family lives but is not its citizen. On the other hand, the EU Directive 2004/38/EG determines that non-EU have the right to be in the host country – under certain conditions. Does it suffice that the wives later applied for divorce for the men to retain their status? Since the High Court of Ireland did not feel competent enough to interpret European law, it applied to the European Court of Justice.

ECF held that the men were not entitled to retain their European status; they had lost it – automatically. Art. 7 subsec. 2 Directive 2004/38/EG clearly states that non-Europeans have the right to be in Europe when they accompany or follow their European spouse. If the European departures then they are not cohabiting anymore. The requirements for a European status do not exist anymore.  Game is over!

However, the court also emphasized that the host countries nevertheless could give these third-country citizens an extended protection in order to remain in the country. This would be pursuant to national law and not to the Directive 2004/38/EG.

In Germany, this would mean that the foreigner’s office could provide them a Fiktionsbescheinigung that they can apply for a normal residence permit.

Expulsion of EU Citizens

The BVerwG ruled on August 3, 2004 (re 1 C 30.02) that EU-citizens can only be expelled upon a discretionary decision by the office for foreigners (§6 FreizügG).

Fighting Illegal Deportation of an EU Citizen and Correctly Implementing Administrative Discretion

What to do with a rampant Italian when he has been prosecuted twice for battery and offenses against property? The competent foreigners' office did not want him to remain but BVerwG had the final say on March 20, 2008 (re 1 C 33.07).