“Swallows” after Brexit, the 90 day rule.

The UK had a transition period which ended on 31 December 2020. After this period, British nationals visiting Spain are subject to the Schengen area restrictionS, this is ability to spend 90 days in a rolling 180 day period for visitors, however temporary visitors 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.

If you can substantiate that you had everything in place before the 31/12/2020 to be considered as a settled status resident of Spain – i.e funds, health care, empadronamiento (and /or in some cases flight tickets, utility bills etc) or if not retired or early retired, documented employment or self employment in Spain pre 31/12, but just couldn’t get an appointment at immigration in time– you may still be able to make a residence application under the old transition rules taking advantage of article 50. If that is not the case then settled status residence applications from 1 Jan 2021 must begin with a Visa application by appointment at the Spanish Embassy/Consulate IN THE UK.

The situation for so called “swallows”, those long term visitors 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 previously 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. 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.

Much is being made of a so called “Golden Visa” http://www.exteriores.gob.es/Consulados/LONDRES/en/Consulado/Pages/Visas.aspx but this is really only of help to high net worth individuals.

A British “swallow” who obtained a green residence certificate (up until 6 July 2020) or a TIE residence card under the withdrawal agreement rules 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., will 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. The “blind eye” turned by officials to EU citizens overstaying they’re welcome is about to be focused on NON EU British Citizens.

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, but these are exceptions.

In order to know the maximum time you can be out of the country as a holder of a temporary residence document (a green certificate that DOES NOT have the words “permanente” on it or a TIE with a 5 year validity) you must take into account two different conditions

Most importantly you must not be outside Spain for more than a total of 6 months within a period of one calendar year.

In the case of more than one departure in your first five year period the total of the time spent outside Spain cannot exceed 1 year (365 days). As an example in your first year you spend 45 days outside of Spain, in your second year you spend 95 days outside of Spain and in your third year you spend 60 days of of Spain this would mean that in your final two years you could only be absent from Spain for a maximum of 165 days.

If you comply with these two requirements, you may keep your residence card and renew it (as long as you comply with all the other renewal requirements, which are different according to the type of residence).

All the above information is shown in: Article 162.2 of Royal Decree 557/2011

From the 1st of January 2021 staying in Spain longer than the 90 days allowed at a time with 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 or newly obtained TIE card 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.

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.

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