AFTER BREXIT

The United Kingdom of Great Britain and Northern Ireland ceased to be a member state of the European Union and became a third country on January 31^st, 2020. Said departure is regulated by the Agreement on Withdrawal of the United Kingdom from Great Britain and Northern Ireland of the European Union and the European Atomic Energy Community (hereinafter, the “Agreement”), negotiated, and ratified by both parties.

However, this Agreement established a period that lasted, in principle, until December 31^st, 2020. During its validity, the European Union legislation on free movement and consequently all its rights continued to apply, as if the United Kingdom would continue to be part of the European Union.

Thus, the Agreement is the regulation that governs and will govern the conditions of residence and the rights of the persons included in its scope of application. Therefore, once it has entered into force, two types of regimes are distinguished:

1. The regime applicable to nationals of the United Kingdom, their family members and any other persons included in the scope of the agreement (those who reside in Spain before the transitional period): That they will be subject to the provisions of the latter, that is, to the application of European Union law on free movement with the particularities established therein.

2. The regime applicable to nationals of the United Kingdom, their family members and any other people who are not beneficiaries of the Agreement on withdrawal (those who enter Spain after December 31st, 2020): They will be considered nationals from third countries and the general immigration regime will apply to them.

Considering the above and to adapt the Spanish Legal System to the new situation, the Government of Spain approved Royal Decree-Law 38/2020, of December 29th, introducing various adaptation measures, in line with the Commission European which has published a comprehensive guide of more than eighty briefing notes on how best to address these changes.

For UK nationals and their family members that have applied their residence right in accordance with Union law before the finalization of the transitional period, and who continued to reside there after that period; this is, before January 1st, 2021, Spain is their “host country”, according to what is established in articles 9, 10, and 13 of the Agreement on Withdrawal, and they continue to maintain their rights of residence, work, studies and Social Security, as if they were community citizens.

Furthermore, the Agreement on Withdrawal does not require physical presence in Spain after the end of the transitional period, so temporary absences that do not affect the right of residence are accepted; as well as longer absences that do not affect the right of permanent residence (the right of permanent residence will only be lost due to absence from the host State for more than five consecutive years as established in article 15 of the Agreement on Withdrawal).

In order to document UK nationals and their family members and any other people residing in Spain in accordance with the conditions established in the Agreement, Spain has opted for them not to have to apply for a new resident status to have legal residence, but they will have the right to receive a residence document, Foreigner Identity Card (TIE) format, which may be in digital format and which mentions that it has been issued in accordance with art. 18.4 of the Agreement.

By virtue of this, in relation to the validity and considering the provisions on temporary and permanent residence contained in the Agreement, it has been established that the temporary residence documents have a validity of 5 years and the permanent documents of 10 years. After said term, it must be automatically renewed.

For their part, for those citizens of the United Kingdom who arrive after December 31st, 2020, and who are not included in it, they will be considered third-country nationals and, without prejudice to the application of a special future mobility scheme, will be subject to the provisions of the general immigration regime.

For practical purposes, we proceed to briefly analyse the cases in which the national citizen of the United Kingdom may find himself depending on his specific circumstances:

– National of the United Kingdom who has a Certificate of Registration of Citizen of the European Union: He will be subject to the Agreement on Withdrawal and, therefore, to the application of European Union Law on free movement with the particularities established therein.

To obtain the residence document, the Registration Certificate will be replaced by the new residence document (TIE, as in the Spanish acronym for “foreign identification card”). Requests for the substitution of the registration certificate that they already have, may be submitted at any time, also after the transitional period.

• If the registration certificate is temporary: Obtaining the temporary residence document will require two procedures, before the immigration office and the police department and will be valid for 5 years.

Nevertheless, in case of being the holder of a temporary registration certificate but without reaching 5 years of legal residence in Spain, the person can wait to make the change once those 5 years have elapsed. In this way, a document of permanent residence will be directly issued.

• If the registration certificate is permanent: Obtaining the permanent document will require only one procedure, before the police department, and will be valid for 10 years.

– National of the United Kingdom who does not have a Certificate of Registration of Citizen of the European Union, but resided in Spain before the transitional period or that enters after, but is within the scope of the agreement: Can continue to reside in Spain, but will have the right and the duty to request the new residence document (TIE) at the immigration office of the province in which you reside or electronically, but you must prove that you resided in Spain before the end of the transitional period.

– National of the United Kingdom who is not a beneficiary of the Agreement by not residing in Spain before the transitional period: They will be considered third-country nationals, the general immigration regime being applicable to them.

– Family member of a national citizen of the United Kingdom residing in Spain: The members of the family are beneficiaries of the Agreement and, therefore, have the right to obtain the residence document (TIE).

• If they have a family card of a resident of the European Union: They can request its replacement by the residence document at the established police offices. Your temporary or permanent family card will be replaced by the new residence document.

However, your family card will remain valid if its validity does not expire and serves to prove your legal residence in Spain and to benefit from the Agreement.

• If you do not have a European Union resident family card: Because you did not request it before the transitional period or because you arrived in Spain later, you will have the right and the duty to request the new residence document (TIE) in the immigration office of the province in which you reside or electronically. The request will be evaluated individually and, if it is resolved in a positive way, it will allow them to request the issuance of the document.

Having said the foregoing, it is important to specify that administrative residence, which is the subject of this report, should not be confused with tax residence, since a person may have a residence permit or administrative residence in a State and not be considered a tax resident in that State, a condition accredited by the Administration through a certificate issued by the competent Tax Authority of the country in question.

For a person to be considered a tax resident in Spain, it is required that they stay more than 183 days, during the calendar year, in Spanish territory. To determine this period of stay in Spanish territory, sporadic absences will be counted, unless the taxpayer proves his tax residence in another country, or that his main nucleus or the base of his activities or economic interests, directly or indirectly, resides in Spain. 

Although it is necessary to consider that there is an iuris tantum presumption, by which a person will be considered a tax resident in Spain when the spouse not legally separated and the minor children who depend on him or her habitually reside in Spain.

In any case, it is necessary to carry out an individual analysis of each specific case to determine the residency options in Spain for nationals of the United Kingdom.