“Swallows” after Brexit, Green Residence certificates and the 90 day rule

* The UK has a transition period which ends on 31 December 2020. After this period, British nationals will become subject to the Schengen area restriction of 90 days in a rolling 180 day period. They will not need a visa. Those who are legally resident in Spain (ie registered with the police immigration division) will obviously not be considered “visitors” for these purposes.

* It is therefore vital to register as a European Citizen Resident before 31 December 2020 if at all possible … BUT ... those who register are those who are coming here to live, to be settled in Spain and the registration is itself a formal declaration that the person is living in Spain or intends to live in Spain from this point on

The situation for so called “swallows”, those part-time residents who visit Tenerife for several months each winter but stay under 183 days a year so as not to become tax resident, is clearly going to be more difficult, because historically they often visit Tenerife for more than three months and after 31 December 2020 will be restricted to 90 days in any 180 as are all other non European 3rd-country nationals . https://ec.europa.eu/assets/home/visa-calculator/calculator.htm

British nationals who have applied for the green Certificado de Registro who just want to retain EU advantages for free movement in Spain after Brexit when they just visit for a few months or so at a time, sadly simply cannot continue to do so. There are implications both for state health care and for taxation. UK pensioners who have processed an S1 document here in order to qualify for residency are registered with the UK as living here permanently and the UK can and already does notify the Spanish tax office of any private pension amounts received by them – all be it that this can take up to 2-3 years to filter through.

The withdrawal agreement also provides for the continued use of the Spanish healthcare system funded by the UK by means of an S1 document only while the holder remains a resident of Spain.

The previous situation was that when a prospective part-time European citizen resident arrives in Spain and wants to stay longer the 90 days, they must register for a green certificado for EU citizens in order to comply with immigration regulations and in reverse, de-register when they leave Spain perhaps four or five months later. The fact is that many Swallows never did this is because as EU citizens they were not closely monitored by Spain – it’s one thing to be illegal as an EU national in an EU country but another thing entirely to be an illegal alien! If these people have registered but have left without de-registering, they may still be on record as living in Spain and so may have problems accessing the residence based benefits in the UK ie the right to use the NHS as anything other than a visitor – the registration of an S1 health document obtained from the UK implies their permanent residency in Spain for this purpose.

Going forward to 2021 if Swallows de-registered as residents in Spain to confirm their return to UK, re-registering could be problematic for British citizens because of the expected more stringent residence registration requirements for non European 3rd-country nationals which would apply to British citizens from 1 January 2020.

There is unlikely to be a workaround – the UK’s Ambassador to Spain, confirmed that the British and Spanish authorities are aware of “the swallow issue”, and the matter is firmly on their radar BUT at the time of writing could not confirm that special rules will be put in place, or be able to be agreed in the bilateral negotiations which are ongoing throughout this year and naturally which are yet to be concluded. He also stressed, contrary to what many “swallows” think and allege, that the UK and Spanish authorities are not only planning to monitor and enforce these systems, they are already talking to each other and doing so.

More recently a British “swallow” who obtained a green residence certificate (up until 6 July 2020) in order to try to get around the 90 in 180 rule, but are not really, nor do they want to be, residents in Spain for tax purposes etc., would in fact be flagged up on their entry or exit from Spain, because as 3rd country nationals from 1 January 2021 their passports will be monitored and entry dates, exit dates and hence length of stays recorded like any other non-EU citizen.

This is important because of the rules on how long a foreign resident can be absent from Spain without losing their residency status and hence their rights under the Withdrawal Agreement.

If you have been legally resident in Spain for fewer than five years your status may be affected if you are absent for six months or more in one year. There are some exemptions to this rule where one single absence of 12 consecutive months may be permitted, for reasons such as pregnancy and childbirth, serious illness, study or vocational training.

Clearly from 1 January 2021 staying in Spain longer than the 90 days allowed at a time, because the British National in question had recently applied (under 5 years) for a green certificate of residence, would be allowed, BUT if they disappear for 6 months or more in a calendar year in order to avoid paying tax in Spain , they will then fall foul of the loss of residency status rules and the green certificate can be revoked.

Once the British national is a permanent resident in Spain (i.e. resident for 5 years or more), the Withdrawal Agreement states that their residency right will only be lost through absence from the host state for a period of more than five consecutive years.

From the 6 July 2020 those already registered here in Tenerife have the opportunity to change their police registration document (properly called a Certificado de Registro but also known as a green NIE, green card, residencia, Green certificate) to a third-country nationals’ card, the TIE (tarjeta ID extranjeros) This is a European level plastic biometric identity card which shows the country of residence and also that the bearer had taken advantage of their article 50 rights.

* Those who are not yet registered will have at least until the end of this year to do so (31/12/2020) … BUT from the 6 July 2020 new arrivals are issued with a TIE plastic card immediately. It is very clear that holders of this document are in all senses residents of Spain . Incidentally, if you are trying to apply you should keep checking for appointments as they are released in tranches.

IT IS ALSO IMPORTANT TO NOTE THAT BONE FIDE RESIDENT BRITISH CITIZEN HOLDERS OF AN EU CITIZEN GREEN RESIDENCE REGISTRATION CERTIFICATE, EITHER A4 SIZE OR GREEN PAPER CREDIT CARD SIZED, HAVE NO OBLIGATION TO DO ANYTHING UNLESS THEY SO WISH. THE GREEN DOCUMENTS ARE COMPLETELY VALID FOR THE TIME BEING however it may be convenient for them to apply for a Biometric TIE residence permit to document their permanent status and for practical purposes of identification. The Spanish authorities advise that the new TIE card is more physically durable than the (green) paper registration certificate, and will be useful for other administrative processes as well as for use at the external border.

I will publish updates as they occur here but reliable information can be obtained here https://www.lamoncloa.gob.es/lang/en/brexit/howtoprepare/Paginas/190108residence.aspx (scroll down page) and here https://www.gov.uk/guidance/living-in-spain#brexit-what-you-should-do. and here https://www.janetanscombe.com/forms-formalities