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Practical problems in obtaining Visa for Offshore projects in German coastal waters


**** FOR NEW DEVELOPMENTS AS OF 7 JULY 2022 SEE BOTTOM OF PAGE ****


Fleet Hamburg is involved in direct discussions with German authorities with regard to the issuance of visas for offshore personnel destined to operate within German coastal waters. Despite the new German governments’ expressed dedication to expand offshore wind, the German authorities have recently changed their practice of issuing so-called “Vander Elst” visa to such offshore personnel, making it doubtful that the formalities considered by the German authorities to be required for such personnel can possibly be fulfilled, thus seriously prejudicing the realization of offshore wind projects in German coastal waters for campaigns in the year 2022. 

The underlying “problem” – Visa requirement and the unavailability of visas

The underlying problem emanates from the understanding of the German authorities that German immigration law should be applicable to offshore works within German coastal waters, with the sites of such works being considered as “floating construction sites”. As a consequence, all and any foreign “workers” employed in connection with such “construction sites” would need full visa entitling to employment in Germany, irrespective of whether these persons are crewmembers or not. 

The former “workaround” – Vander Elst visa

In the past, the German border police as instructed by the German Federal Ministry of the Interior had taken the position that all persons working in German coastal waters – including crew – required visa to enter and perform services within German jurisdiction. Whilst in a number of interim proceedings in which Fleet Hamburg acted for crew members and owners different German administrative courts of first instance held that the prohibitive actions by the border police were unlawful, the border police continued to require visa for offshore workers, including for crew. In light of this, an implicit “workaround” was found, with German authorities issuing so-called “Vander Elst” visas for all personnel, including crewmembers, which could be quickly obtained and issued. 

This practice was addressed in what can be seen as a landmark decision by the German Federal Administrative Court of 27 April 2021 - 1 C 13.19, which dealt with an appeal against a decision obtained by Fleet Hamburg on behalf of clients from the Administrative Court in Schleswig. The Administrative Court had argued in many shipowner’s favor that offshore personnel working on board of a foreign flagged offshore supply vessel are privileged by the regimes applicable for seagoing vessels, even when working within German coastal waters On appeal, the Federal Court overturned this ruling and found in an obiter dictum that also the so-called “Vander Elst” visas were not sufficient for any persons entering Germany for the purpose of working in German coastal waters, but that rather a full visa or residence permit allowing for also employment and work would be needed. In the following of this decision, the German authorities have now, in December 2021, stated that the current practice of issuing “Vander Elst” visas for such workers would be discontinued. 

The “new” requirements

The German authorities now have demanded “full” working visas for personnel employed in connection with any activities in connection with any work performed in German coastal waters, irrespective of whether the personnel is employed as crew or not. Whilst the specific requirements for such visas differ depending on the intra- or extra European nationality of the person, in many cases in which Fleet Hamburg has assisted to obtain visa from German authorities, the prerequisites of German law could not be fulfilled, leading to a rejection of the visa application. The following impediments to obtaining a visa according to the “new” regime have been identified: 


To the one, impediments on the practical side:

  • Language requirements imposed by the German authorities, i.e. documents needing to be submitted in German language and/or (formal) translation;
  • Limited capacity of the relevant German authorities to deal with visa applications; 
  • Lacking internal communication between different German authorities.


To the other, and more importantly, legal impediments and hindrances:

  • For UK-personnel and employers, following the Brexit, in principle the same rules and regulations apply than to other non-EU personnel and employers. However, some important preferences apply according to the Brexit-Agreement, even though also such personnel needs visa to enter and work in German waters.
  • For other non-EU personnel and employers, the full immigration and visa requirements apply, which in our experience have led to the following problems:


    • In general, the (common) practice of hiring in crew via crewing-agencies (so that the personnel is not directly employed by the owner/operator of the relevant vessel) is considered by the German Federal Ministry for Labour and Social Affairs (BMAS) and German labour law (cf. Sect. 1 Act on Temporary Agency Work) as merely “temporary agency work” employment and thus – in itself – to lead to a mandatory (!) rejection of any visa application.
    • The same applies – in the view of the BMAS – for all and any “pseudo-self employment”, i.e. for all employment contracts which are entered into for a specific, singular project only, with no further prolonged employment being planned. Also in this situation, the German authorities take the view that any visa application for such personnel needs to be – mandatorily – rejected.
  • For all third country nationals the application process via the German embassies that is connected to long waiting times and uncertainties.


    The – preliminary – result / status

    For both UK- and other non-EU employers and personnel, the current situation leads to a – in part: mandatory – rejection of any visa applications and thus to the entry into German waters and employment in German waters being considered as unlawful, with the risk of a public detention of vessels used and possible exit orders and fines being issued with regard to personnel found and detained without the necessary papers for entry. Indeed, Fleet Hamburg is aware of recent cases of such detentions ordered by public authorities due to crew lacking the “correct” visas.

    In assessing options interested parties should be very aware of the current legal situation in Germany and should carefully assess and possibly restructure their employment regimes in order to be able to adhere to the requirements of the German authorities in order not to prejudice any campaigns planned for the year 2022 in German waters. 



    Update:

    Easter in July - The end of visa troubles for offshore wind energy projects?

    In connection with the ongoing saga of visa for offshore personnel working on vessels in German coastal waters, finally a solution seems to have been found. Today, the German parliament passed the so-called “Easter Package”, inter-alia containing a change in law that will greatly simplify matters for most cases.

    In a nutshell, offshore personnel working for offshore windenergy projects in German coastal waters will no longer require a full working permit in order to perform such services since such activity is no longer considered “employment” under German residence law. Specifically, this leads to the following changes:

    Personnel from certain non-EU countries, that are stated in Annex II of EU regulation 2018/1806, (“best-friends-states”; e.g. importantly from the UK or from the Ukraine), will no longer require a working visa and will be able to stay (and work offshore) for up to 90 days within a 12-month period. Please note that a biometric passport might be a requirement for this rule to apply and to enter Germany, depending of the nationality of the employee.

    Personnel from other third-party-countries outside of the EU (e.g. from the Philippines) will only require a Schengen Visa (no work permit) and will be able to stay (and work) for up to 90 days within a 12 month period as well (please note that the Schengen Visa only applies for a stay of a maximum of 90 days within a period of 180 days). The same applies for holders of national long term visa of another EU member state.

    The law will come into force a day after it has been published, which is to be expected to occur still in July 2022.

    For pending or planned visa applications of “best friends” nationals this means that as long as the personnel are not to work longer than 90 days within a 12 month period, no further activity is needed and already pending applications can be withdrawn.

     

    Please contact us to discuss how to proceed with your matters.