BREXIT - WHAT ARE THE CURRENT PROVISIONS IN RESIDENCE AND EMPLOYMENT LAW? AUSTRIA - SCWP Schindhelm

 
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BREXIT - WHAT ARE THE CURRENT PROVISIONS IN RESIDENCE AND EMPLOYMENT LAW? AUSTRIA - SCWP Schindhelm
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-coun-
                                                       try 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 so-
cial 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 busi-
                                                       ness activity.

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NEWSLETTER
                                                                                         BREXIT

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 asso-
                                                          ciated 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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NEWSLETTER
                                                                                        BREXIT

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 bor-
                                                     der.
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 na-
tionals, the Schengen entry requirements for

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                                                                                        BREXIT

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 certifi-
cate, 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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NEWSLETTER
                                                                                       BREXIT

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 con-
tract 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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NEWSLETTER
                                                                                      BREXIT

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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NEWSLETTER
                                                                                         BREXIT

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 resi-
dence 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 resi-
dence 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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NEWSLETTER
                                                                                     BREXIT

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

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

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-       Florian.Buenger@schindhelm.com
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.       Katarzyna.Gospodarowicz@sdzlegal.pl
In addition, the employee must have been em-
                                                      Romania:
ployed by the posting company for more than
                                                      Helge Schirkonyer
nine months.                                          Helge.Schirkonyer@schindhelm.com
                                                      Spain:
                                                      Luis Bravo
                                                      L.Bravo@schindhelm.com
                                                      Moritz Tauschwitz
                                                      M.Tauschwitz@schindhelm.com

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