Brexit – What Are the Current Provisions in Residence and Employment Law?

BREXIT – WHAT ARE THE CURRENT PROVISIONS IN RESIDENCE AND EMPLOYMENT LAW?

AUSTRIA For UK-Citizens, who have not worked in Aus- tria before 31.12.2020 are subject to the same Immigration and residence regulations as other newly arriving third-country nationals. They can then be admitted under Residence before 01.01 2021 in Austria certain conditions, for example by means of a

Since 01.01. 2021, UK-Citizens may continue Red-White-Red Card (“Rot-Weiß-Rot Karte)” to have unrestricted access to the Austrian la- as highly qualified key workers, qualified bour market, if they exercised their right of res- skilled workers in shortage occupations, start- idence in Austria before 31 December 2020 and up founders or by means of seasonal worker em- continue to live in Austria beyond that point. ployment permits in the context of special quo- However, UK-Citizens residing in Austria must tas. apply for an "Article 50 TEU" residence title by 31.12.2021, in order to ensure their right of res- Business trips idence and the associated unrestricted labour In general, as a citizen coming from the UK, market access beyond 31.12.2021. there is no necessity of applying for a Visa when The same applies to UK-Citizens that are just traveling to Austria. A UK-National may stay in living in Austria. They may continue to reside Austria for up to 90 days in any 180-day period. in Austria, as long as there is no drawing of social welfare benefits for themselves and their This rule applies to both short-term business family members. There is also a need for a com- trips and longer-term posting of workers. prehensive health insurance. Employment

An issued residence permit is valid for 5 years. If a UK-Citizen is to be temporarily employed In case a permanent right of residence is already in Austria by the employer within the group of acquired, the residence title is valid for 10 years. companies, a residence permit may be obtained.

The residence permit entitles to stay and to Residence after 01.01 2021 in Austria work. The requirements include an employment Since 01.01.2021, every UK-Citizen that in- in the company of at least nine months, the sub- tends to live in Austria for more than 3 months mission of an employment contract proving the at a time, must apply for a valid residence per- necessity of the temporary transfer and proof mit. that the company is engaged in a genuine business activity.

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CZECH REPUBLIC third-country national, i.e., such UK citizen needs to obtain the relevant residence and work Immigration and residence permit at the Czech embassy abroad.

In order to determine which rules apply to UK UK citizens entering the Czech territory for the citizens residing in the Czech Republic, it is first time after the end of transition period shall necessary to determine whether the UK citizen be granted Long-term residence permit, simi- entered Czech Republic before or after the end larly to the third country nationals. Long-term of the transition period i.e. 31.12.2020. residence permit may be granted for the purpose of work, study, family reunification, business UK citizens who legally resided and / or worked etc. in the territory of the Czech Republic before or during the transition period will not be subject The law amending the Czech law on the resi- to any change in relation to Brexit. However, dence of foreigners in the Czech Republic is these persons are obliged to prove that they currently being discussed in parliament. It is to were legally residing in the Czech Republic be- be expected that the changes will take place this fore the end of the transition period. The burden year. As soon as the final legal text is accepted, of proof rests on the British citizen residing in we will inform you. the Czech Republic. In practice, the UK citizen is required to provide an employment contract, It remains to be added that Trade and coopera- lease agreement, etc., which shows that the con- tion agreement between the European Union tractual relationship started before the end of the and the transition period. This category of UK citizens European atomic energy community, of the one shall also apply for a Certificate of Temporary part, and the United Kingdom of Great Britain Residence or Permanent Residence. and Northern Ireland, of the other part only reg- ulates certain forms of job mobility for business A British citizen posted to the Czech Republic purposes, namely: for work before the end of the transition period shall receive a work permit issued by the com- – Allows the transfer of employees from EU petent Czech employment office. / UK based companies to work in an associated company based in the UK / EU for a Employment maximum of 3 years (so-called intra-cor- porate transferees). UK citizen, who commutes to the Czech Repub- – Facilitates the movement of "contractors" lic for work (so-called cross-border worker), or "independent experts". shall apply to the relevant labor office for a re- – Allows so - called "business visits", which spective certificate. If such UK citizen decides do not provide services, entry, short stay to settle in the Czech Republic, a temporary res- and the performance of certain activities. idence permit shall be requested. Although the Agreement on Trade and Cooper- UK citizen who already has a temporary or per- ation leaves the conditions for entry into the la- manent residence in the Czech Republic shall bor market of both parties to national regula- exchange his residence card for a biometric one tions, it lays down detailed rules for the coordi- in the period from August 2021 to August 2022. nation of social security.

UK citizen who plans to work, study or stay in The agreement provides access to social secu- the Czech Republic for a long time is seen as a rity for all persons who have been or are subject

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to the regulations of the Contracting Parties. At visa-exempt third-country nationals apply. the same time, the condition is set that the When crossing the border, travellers must carry Agreement applies only to persons in the so- with them the documents and evidence required called cross-border situation. for entry into the Schengen States, in particular a valid travel document and evidence of the pur- The Trade and Cooperation Agreement regu- pose and circumstances of the intended stay. lates access to sickness and maternity benefits, They must also have sufficient means of living all types of pensions, benefits for accidents at (for the duration of the stay and the return jour- work and occupational diseases, and unemploy- ney). This also includes adequate travel health ment benefits. Family benefits, long-term care insurance (as of 01.01.2021, the EHIC card will benefits and some other benefits are expressly regularly no longer be sufficient). excluded. This means that their provision will be governed exclusively by the national regula- Employment tions of both parties, not by the Agreement. From 01.01.2021, the general immigration law

for third-country nationals will apply to newly GERMANY arriving British citizens. But even for longer-

Immigration and residence term stays in Germany - for example, for study or work purposes - newly arriving British na- Since 01.01.2021, British nationals who were tionals do not need a visa. They must apply for previously entitled to reside or work in Ger- a residence title at their future place of residence many and who had exercised this right have es- at the Foreigners Authority. However, if they sentially the same rights as they had before wish to work before obtaining a residence title, Brexit. These rights exist by operation of law, they must apply for a visa that allows them to so they can be asserted without further action. work before entering the country. In order to prove these rights, it is mandatory to have a residence document, which can be ob- Newly arrived British professionals and other tained from the responsible Foreigners Author- employees are granted easier access to the la- ity (Ausländerbehörde). Until June 30, 2021, bour market. In order to take up employment in British nationals who were residing in Germany Germany, the approval of the Federal Employ- on 31.12.2020, and who will continue to reside ment Agency (Bundesagentur für Arbeit) can be in Germany, must report their residence to the granted with a priority check for the pursuit of Foreigners Authority responsible for their place any employment, regardless of the location of of residence in order to obtain the new residence the employer. document. This privilege only applies to British citizens who have been treated as EU citizens As of 01.01.2021, the facilitations granted on by virtue of their status during the UK's mem- the basis of the Freedom of Movement are no bership of the EU. longer applicable for non-EU family members of British and German nationals, neither when Business trips applying for a visa nor when crossing the border. British citizens do not need a visa for visits and/or business trips with a maximum duration HUNGARY of stay of 90 days within a period of 180 days. However, this only applies as long as no gainful Immigration and residence employment is to be carried out. For British nationals, the Schengen entry requirements for

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Based on the Withdrawal Agreement, people – being family member of an EU national or from the UK and their family who arrived to a non-EU national who has authorisation to Hungary before the end of the transition period work (subject to conditions); (31.12.2020) may retain their acquired rights re- – working as a head of the branch and repre- sulting from the EU citizenship even after the sentative office of the third country com- end of the transition period, such as for example pany; their national permanent residency. An applica- – being holder of an EU Blue Card. tion for the new status needs to be made to the Hungarian Immigration Office by 31.12.2021. ITALY Until this day documents (registration certificate, residence card, permanent residence card) Immigration and residence issued earlier remain valid. The mobility of persons is also part of the ongo- All British citizens who are registered as resi- ing negotiations on future relations between the dents in Italy by the end of the implementation UK and the EU. Unless otherwise agreed, UK period will be able to stay in Italy without the nationals and their family members who arrive need of a visa. However, from 01.01.2021, they in Hungary after the end of the transition period may be asked to show a proof of residence when will be subject to the general rules applicable to re-entering, such as an identity card, a registra- third-country nationals. tion certificate or a utility bill in their name. Also, UK Nationals registered as residents after In relation to third country nationals the general 31.12.2020 will retain their right to stay in Italy. conditions for staying longer than 90 days in Those who have not yet resided continuously Hungary are set out in Act No. 2 of 2007 on the and lawfully in Italy by the end of the transition Admission and Residence of Third-country Na- period will also be able to stay until they have tionals, depending on the purpose of the stay. reached the five-year threshold, at which point Detailed information on the procedures is avail- they will qualify for the right to reside perma- able on the website of the Hungarian Immigra- nently. Until this five-year threshold has been tion Office. met, continuity of residence is necessary, which will be broken by a period or periods of more Business trips than six months in total in any 12-month period.

For short-term stays of up to 90 days in any 180- After 31.12.2020, British citizens who are not day period, the European Union has adopted a registered as Italian residents will be allowed to specific regulation pursuant to which UK na- stay in Italy for no longer than 90 days within tionals will be exempt from the visa require- any period of 180 days. This applies to a person ment, if EU citizens are also exempted from the who travels as a tourist, to visit family or visa requirement in the United Kingdom. friends, to attend business meetings, cultural or sport events, or short-term studies or training. Employment NB: Visit to Schengen countries within the pre-

Persons who were lawful residents in Hungary vious 180 days before another travel counts to- prior to 01.01.2021, have the right to work, as wards the period of 90 days! At the Italian bor- long as their residency status remains valid. der control, British citizens may be asked to These persons will not need to apply for a work show a return ticket, to have enough money for permit. In any other cases, UK citizens have to the stay and to have their passport stamped on apply for a work permit, unless they can rely on entry and exit. any of the following exemptions:

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Business trips The privileges from the Withdrawal Agreement do not apply to posted employees. Based on the Except all the actions that travellers need to take provisions of Polish national law, which has en- (such as having a valid passport), UK Nationals tered into force on 01.01.2021 these persons should be aware of extra requirements if they will be able to submit from that date an applica- travel to Italy for business purposes. They are tion for a special temporary residence permit. obliged to get a visa, work permit or other doc- An application for granting the temporary resi- umentation if they plan to stay longer than 90 dence permit for British posted workers may be days, unless any of the following applies: submitted no later than by 31.12.2021.

– transferring from the UK branch of a com- The British citizens and their family members pany to a branch in Italy; who are not beneficiaries of the Withdrawal – carrying out contracts to provide a service Agreement will be subject to the general rules to a client in Italy when their employer has of entry and stay on the territory of Poland re- no presence there; lating to third-country nationals. This means – providing services as a self-employed per- that in general the UK citizens need to have visa son. or residency permit in order to stay in Poland.

Employment The legal basis for rendering work in Poland is Regarding work privileges, British people who in general work permit. Depending on the fac- will want to start working in Italy after the tual circumstances of the particular UK citizen Brexit, will be required to apply for a work visa case, we may deal with different types of work or another resident permit granting work privi- permits. Most common is type A when the em- leges. They will be obliged to satisfy several re- ployee is on Polish payroll. quirements, such as having an employment contract and keeping it for the entire duration of the Employment stay in Italy. Employees can be temporarily posted to Poland.

In general, the posting employer need to apply POLAND for work permit for the posted employee (type

Immigration and residence D-E depending on kind of posting). There are some exceptions from obligation of having If British citizens have registered their stay in work permit. This is situation when the UK em- Poland before 31.12.2020, they can stay and ployee is posted to the Polish company which is work based. Residence permits issued to the related by capital or managing persons to the United Kingdom citizens and their family mem- Polish company. However, this exemption bers until the end of the transition period will works only for 30 days in calendar year. remain valid for the period for which they were issued, but no longer than until 31 December If the work permit is issued, the employee may 2021. apply in the Polish Embassy in London for Polish national visa type D. The visa is issued From 01.01.2021, beneficiaries of the With- for maximal one year. drawal Agreement will be able to submit appli- cations for a new residence document to voi- ROMANIA vodeship offices. Immigration and residence

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After the end of the transition period the United All British citizens and their family members Kingdom nationals who have exercised their who obtained a legal registered right of resi- right to work in Romania before 31.12.2020 and dence in Slovakia before or by 31.12.2020 will wish to continue to do so will have unrestricted automatically receive one of the types of perma- access to Romania and to the Romanian labour nent residence, guaranteeing all rights under the market on the basis of the new residence permit Agreement on Exit. The residence permit was they obtained or applied for under the With- automatically changed on 01.01.2021. drawal Agreement. British citizens and their family members apply Business trips for a new residence permit as third country na- British citizens for whom the regulations of the tionals no later than 30.06.2021, depending on Withdrawal Agreement do not apply, can travel the length of stay in Slovakia before 01.01.2021 to Romania for up to 90 days in any 180-day (permanent residence for 5 years or permanent period without a visa. This applies if you travel residence for an indefinite period). as a tourist or if you are attending business meetings. In the case of British citizens and their family members who have had a registered right of res- It is important to know that visits to other EU- idence in Slovakia for less than 5 years by the Schengen countries do not count towards the end of the transition period (31.12.2020), their 90-day limit in Romania as it is not in the right of permanent residence was changed to the Schengen area. Therefore, also visits to Roma- duration of 5 years. nia do not count towards the 90-day visa-free limit in the Schengen area. For British citizens and their family members

who have had a registered right of residence in Employment Slovakia for more than 5 years by the end of the Without application of the Withdrawal Agree- transitional period (31.12.2020), the right of ment, in case of assignment/secondment or gen- residence was changed to permanent residence erally in order to work in Romania, British citi- for an indefinite period. The Ministry of Interior zen will need a work permit as well as a visa to of the Slovak Republic recommends applying live and work in Romania. The employee must for document exchange by 30.06.2021. obtain a visa by applying through the diplomatic missions and consular offices of Romania. Af- British citizens who had legal residence in the terwards a work permit has to be obtained for territory of Slovakia but were not registered be- the employee in Romania in order to be allowed fore 01.01.2021, but who wish to continue to re- to legally work in Romania. main in Slovakia, should contact the relevant department of the Aliens Police as soon as pos- SLOVAKIA sible to register your stay. The requirement for registration is credible proof that they have re- Immigration and residence sided in Slovakia prior to 01.01.2021 and have met and continue to meet the residency require- In accordance with the EU-UK agreement, Slo- ments as an EU citizen prior to 01.01.2021. Af- vakia has decided to apply the determination ter registering their residence, they can continue system (Article 18(4)), on the basis of which no to use their residence rights in Slovakia as much new residence procedure is required for the ben- as before. By registering their residence, they eficiaries of the agreement. acquire permanent residence, which guarantees all rights under the Withdrawal Agreement, and

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they are issued a certificate of permanent resi- SPAIN dence. Immigration and residence Family members of British citizens who do not After the end of the transitional period, British have registered residence as family members of citizens in Spain basically have the same rights EU citizens in Slovakia, who wish to remain in as all non-EU foreign citizens since 1 January the Slovak Republic as a family member of a 2021. However, the withdrawal agreement con- British citizen covered by the Agreement on cluded between the EU and the United King- Withdrawal, must report to the relevant Aliens dom offers some relief in various respects. Police Department to register their residence;

The requirement for registration is credible Residence before 01.01.2021 proof that their family relationship with a Brit- If British citizens have lived in Spain before ish citizen existed before 01. 01.01.2021 and 31.12.2020, they can apply for residence in that the British citizen of which he/she is a fam- Spain as if they were EU citizens from 2021. ily member (i) had a registered right of residence or a right of permanent residence before British citizens who have been in possession of 01.01.2021 or (ii) resided in the territory of the an "EU membership certificate" for more than 5 Slovak Republic before 01. 01. 2021 and ful- years have direct access to permanent residence filled and continues to fulfill the registration re- before their document. This new residence doc- quirements as an EU citizen. By registering res- ument will be valid for 10 years and will be idence, this person acquires permanent resi- marked as "permanent" dence, which guarantees all rights under the Withdrawal Agreement, and receives proof of Residence after 01.01.2021 permanent residence. From that date, every British citizen who wants to live over 3 months in Spain needs to request British citizens who did not reside or were reg- a valid residence permit. istered in the territory of the Slovak Republic before 01.01.2021 can apply as third-country Employment nationals from 01.01.2021 accordingly (de- In order to work as an employee in Spain, Brit- pending on the type of right of residence), ac- ish citizens will have to opt for one of these two cording to the conditions of the Law on Resi- routes: dence of Foreigners. You can apply for residence at the Embassy of the Slovak Republic Residence and work permit for employees. abroad (for example in London) or at the rele- For this purpose, the applicant must have a job vant department of the Aliens Police in Slo- offer that fits within the occupations provided vakia. for in the National Employment System (SNE)

Business trips or prove that he is exempt from the application of said system and can be hired with any job British business travelers coming to Slovakia on offer. business do not need a visa if they stay less than 90 days; they also do not need a work permit if Highly Qualified Worker Permit. they are not engaged in paid activity. To process this permit, it is required to have higher education related to the position offered and that the job offer involves a high salary

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(more than 54,500.- euros per year for direc- CONTACT tors and managers and more than 40,500.- euros for other professionals). Austria: Thomas Ruhm In all other cases, if the British citizen does not [email protected] wish to come to Spain as an employee, there are Julia Spitzbart the general visa options, for example: [email protected]

– Investor’s visa, if the interested party in- Czech Republic/Slovakia: tends to make an investment in real estate Monika Wetzerlova [email protected] to obtain residency. – Student visa, which allows the interested Germany: party to modify it afterwards to a work per- Christian Reichmann mit. [email protected] – Non-lucrative residency, which requires Hungary: the possession of sufficient economic Beatrix Fakó means and private health insurance. [email protected]

Employees can be temporarily posted to Spain Italy: by their employer for a specific task. For this, Florian Bünger various requirements must be fulfilled, includ- [email protected] ing that the employee must have "habitually" Poland: carried out the activity in his/her country of Katarzyna Gospodarowicz origin and have done so for more than one year. [email protected] In addition, the employee must have been em- Romania: ployed by the posting company for more than Helge Schirkonyer nine months. [email protected] Spain: Luis Bravo [email protected] Moritz Tauschwitz [email protected]

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