On 22 March 2020, German Chancellor Angela Merkel and the Minister-Presidents of all 16 German Federal States agreed on further measures regarding stay-at-home and social distancing. Furthermore, the operations of the German immigration authorities (diplomatic missions abroad, immigration offices in Germany) have been reduced significantly, so new assignments to Germany or the international hiring of new foreign talent will be delayed; application processes for long-term residence and work permissions are impacted in the same way. Germany has limited, with effect as of 18 March 2020, the entry to Germany for EU member states and Schengen Associated States with entries from Austria, Denmark, France, Italy, Luxembourg, Spain, and Switzerland being subject to police control.
With this GMS Flash Alert we would like to provide an update on the measures taken in Germany, which we reported on earlier in GMS Flash Alert 2020-067 (18 March 2020). While German diplomatic missions abroad have closed and visa application processing has been suspended, the action being urged in Germany is: ‘stay at home’ and ‘distance socially’. This also has an impact on local immigration offices in Germany.
Companies with global presence and individuals operating across borders need to be increasingly aware of the relevant risks associated with travel and new work arrangements consequent to the COVID-19 outbreak.
Furthermore, the operations of the German immigration authorities (diplomatic missions abroad, immigration offices in Germany) have been reduced significantly, so new assignments to Germany or the international hiring of new foreign talent will be delayed; application processes for long-term residence and work permissions are impacted in the same way.
Following the guidelines of the EU Commission from 16 March 20201, Germany has limited entries from non-EU member states to Germany with immediate effect. The travel ban is supposed to last for 30 days – however, it is not clear, if (a) 30 days are considered as one month or (b) on actual/360-day basis. Furthermore, it is important to ascertain if 16 March 2020 is included in the calculation or not.2 For example, the German diplomatic missions in India refer to “until April 15, 2020”.3
Currently, crossing the border from a non-EU member state is possible for the following groups of travelers and under the following conditions:
The German Federal Ministry of the Interior, for Building and Community (in German: Bundesministerium des Innern, fuer Bau und Heimat) interprets the situation of non-EU/EEA nationals with residence and work permissions or national visa as follows:
Non-EU/EEA nationals with a valid national visa or long-term residence and work permission of an EU member state, the U.K. or Associated Schengen member state may also enter Germany for a unavoidable transit to their “home country,” although is it not clear if “home country” means the country of citizenship or residence country. With regard to the purpose and the approach for holders of a German national visa or residence and work permission, the latter interpretation appears to be more reasonable.
Germany has limited, with effect as of 18 March 2020, the entry to Germany for EU member states and Schengen Associated States as follows:
With effect as of 19 March 2020, the land border crossing points at the borders to Austria, Denmark, France, Luxemburg and Switzerland are limited. The list of the limited border crossing points has been published on the website of the Federal Ministry of the Interior, for Building and Community.9
Entries to Germany from those countries are possible for returning German citizens as well as the following groups of travelers:
The Federal Ministry of the Interior, for Building and Community published a guidance document, which confirms that cross-border delivery of services like in a so-called Vander-Elst setting are also encompassed by the “cross-border travelers for work purposes” alternative. For this, the project contract acts as substitute of the employment contract with a local employer.10 So far, it had not been clear, if only locally-employed cross-border commuters could made use of the exemption.
The majority of German diplomatic missions (approximately 3/4) have shut down and offer only emergency services. A harmonised practice isn’t in place, and it is necessary to check the website of each diplomatic missions to see:
An emergency in this context also entails a visa application to be filed in order to travel to Germany as a non-EU/EEA national with an essential function.
More and more German immigration offices are closed for the public entirely or offer just limited slots for visits under enhanced measures to help prevent the staff from getting infected with COVID-19. Because almost 600 different immigration offices exist, the practice can vary greatly. However, there is a tendency that decisions are made according to written procedures and available long-term residence and work permissions are sent via mail to the personal addresses of applicants.
On 22 March 2020, Chancellor Angela Merkel and the Minister-Presidents of all 16 German Federal States agreed on further measures in light of Stay-At-Home and Social Distancing, which have to be implemented by each Federal State. Federal States are allowed to apply even more restrictive measures, so foreign nationals need to check the local measures being introduced.
The guidelines were announced during a press conference on 22 March 2020, and are published online.11 The main topics concern the following:
The above measures will apply for a period of at least two weeks.
This Flash Alert is based on the available information on 23 March 2020 (at: 17:00 CET). Assignments to Germany and hiring new personnel from abroad will be significantly delayed due to the closure of many diplomatic missions. Regardless of available appointments, it is recommended that you not travel to Germany during the time of the travel ban. A high risk exists that the entry will be denied – unless, as described above, the traveler can prove he or she has an essential purpose.
With regard to the measures impacting social life in Germany, companies shall instruct their employees and assignees accordingly. A violation can become subject to criminal prosecution with a maximum sanction of five years of imprisonment.12.
1 Guidelines are published as document COM (2020) 115 final (PDF 314 KB) and are available in English.
2 From a German administrative law perspective, the calculation of the period is subject to Sec. 31 of Administrative Procedure Act (in German: Verwaltungsverfahrensgesetz – abbreviated as “VwVfG).2 Pursuant to Sec 31 (1) VwVfG in conjunction with Sec. 187 (1) of the German Civil Code (in German: Buergerliches Gesetzbuch) the period started on 17 March 2020 with a perspective ending on April 15, 2020 at 23:59. See a translation on the Federal Ministry of the Interior website, for Building and Community.
3 See, as example, the information of the German diplomatic missions in India website under the segment “Urgent Notice”.
5 For more information see this web document.
6 Such as the Directives 2009/50/EC, 2014/66/EC or 2016/801/EC.
7 Available only in German.
9 Available only in German.
10 For more information see the document (PDF 109 KB).
12 Those measures are usually based on Sec. 28 (1) (in conjunction with Sec. 32) IfSG.12. A violation can become subject to criminal prosecution with a maximum sanction of five years of imprisonment (see Sec. 75 (1) and (3) IfSG; IfSG is the abbreviation of the German Infection Protection Act (“Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen (Infektionsschutzgesetz - IfSG)“), available only in German.
* Please note that KPMG LLP (U.S.) does not provide any labour law or immigration services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.
The information contained in this newsletter was submitted by the KPMG International member firm in Germany.
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