Brexit update: What to bear in mind from an Austrian immigration law point of view as per 01.01.2021

After many months of tough negotiations on a Brexit trade agreement, the United Kingdom of Great Britain and Northern Ireland and the European Union finally reached an agreement on 24.12.2020 – just before the end of the transition period. A hard break between the EU and the UK could thus be avoided. From the perspective of Austrian immigration and foreigners’ employment law, the following applies – in accordance with the current legal situation in Austria:

The “Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part” regulates the economic relations between the EU and the UK and is to be applied provisionally as of January 1, 2021. One of the politically and economically most important points of the pact is the avoidance of tariffs in order to ensure the most unhindered trade possible. However, many other areas such as cooperation regarding justice, social security, energy matters or fishing are also regulated in the more than 1000 pages of the pact.

With regard to immigration issues, the agreement contains only a few details. There are no detailed (special) regulations for British citizens who want to work and/or settle in the European Union from 01.01.2021.

The following regulations apply from the perspective of immigration law as of 01.01.2021:

British nationals who have exercised their right of residence in Austria before the end of the transition period on 31.12.2020 or who have exercised employment as cross-border commuters in accordance with Union law and who continue to reside there or work as cross-border commuters thereafter will continue to have unrestricted access to the Austrian labor market on the basis of the withdrawal agreement.

British nationals who wish to take up long-term employment in Austria from 1.1.2021 will not be granted such special status under the Withdrawal Agreement. Since the Trade and Cooperation Agreement of 24.12.2020 does not provide for any special regulations either, the same regulations that apply to other newly arriving third-country nationals therefore apply to these individuals. British nationals who plan to work or settle in Austria for more than six months must therefore apply for a residence permit under the Settlement and Residence Act (such as a Red-White-Red Card for highly qualified key workers).

However, the Trade and Cooperation Agreement contains provisions on short-term business trips, intra-corporate transferees, contract service providers and freelancers.

In particular, it provides for facilitation of the posting of highly qualified key workers by British companies. Thus, a confirmation of posting or a work permit with a validity period of up to 6 months within a 12-month period can be issued for certain services without a labor market test. These services include, among others, the cross-border provision of legal and tax advice, accountancy and bookkeeping services, as well as travel agency, tour operator or tour guide services in Austria.

Business travelers employed in senior management positions by British companies may also engage in activities related to the establishment of a company in Austria for up to 90 days within a 180-day period without labor market authority approval.

Furthermore, the agreement contains a clause on short-stay visas (stay of 90 days within a period of 180 days). In this clause, the EU and the United Kingdom have agreed that short stays in the EU or the United Kingdom will continue to be exempt from visa requirements.

Authors: Mag. Eva Krichmayr; Mag. Julia Hulfeld