Citizens Advice Challenges the Spanish Instructions for the Application of Residency for UK NationalS

Possession of a residence document is not a prerequisite for lawful residence in accordance with Union law because under Union law the right of residence is conferred directly on EU citizens by the Treaty and is not dependent upon their having fulfilled administrative procedures.

Withdrawal Agreement extract.

Residency rights under the Withdrawal Agreement.

Where a host State (Spain included), has chosen not to require United Kingdom nationals, their family members, and other persons, residing in its territory in accordance with the conditions set out in this Title, to apply for the new residence status as a condition for legal residence, those eligible for residence rights under this Title shall have the right to receive, in accordance with the conditions set out in Directive 2004/38/EC, a residence document, which may be in a digital form, that includes a statement that it has been issued in accordance with this Agreement.

In a declaratory residence scheme (as per Directive 2004/38/EC), the residence status is conferred directly on the beneficiaries by operation of the law and is not dependent upon their having fulfilled administrative procedures. In other words, the ‘source‘ of the residence status and the entitlements stemming thereof is the fact of meeting the conditions Union law attaches to the right of residence – no decision of national authorities is needed to have the status, although there may be an obligation to apply for a residence document attesting the status.

Issuance of residence documents during the transition period

During the transition period, a host State may allow applications for a residence status or residence document to be made voluntarily from the date of entry into force of this Agreement.

Decisions to accept or refuse such applications shall be taken in accordance with Article 18(4) of the Withdrawal Agreement.

Similarly, the decision to operate a voluntary scheme does not absolve the host State from its obligations under Union free movement rules, such as to decide on pending applications or to process new applications.

Residency application procedure under EU law

For periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities.

The deadline for registration may not be less than three months from the date of arrival. A registration certificate shall be issued immediately, stating the name and address of the person registering and the date of the registration.

Article 13.4 from the Withdrawal Agreement:

The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.

Therefore the residency procedure during the transition period (up till December 31 2020) should mirror the EU regulations (the FOM directive 2004/38/ec) with the difference that the member state can issue a card which can be digital, in the case of Spain, the TiE. The new instructions published by the Spanish government on 04/07/2020 in the state bulletin if posted below and has no resemblance to residency applications under union law. CAB Spain advisers have emailed the EU Commission and the European Parliament for clarification.

The Spanish instructions:

UK Nationals who do not hold a registration certificate.

May submit the application for this residence document, personally or by way of a representative, at the immigration office of the province in which you reside or intend to establish your residence, or by electronic means. Once this has been granted, you must go to the police department that is authorised to issue the document.

Stage 1) Details of the proceedings before the immigration office:

The head of the immigration office, is the person who makes the decision on approving the application.

At the time of your request, the following documentation must be provided:

Application form – EX 20 for nationals of the United Kingdom
A valid passport of the applicant. In the event that the passport is expired, a copy and the renewal application must be provided.
Documentation proving that the applicant is included in the personal scope of the Agreement, specifically, of the start of their residence in Spain, any means of evidence admitted in law must be admitted.
Documentation provided which is written in the rules for the application of article 7 of Royal Decree 240/2007, of February 16, on entry, free movement and residence in Spain of citizens of the Member States of the European Union.

In the case of family members of the United Kingdom national who also hold British nationality, they must prove that said United Kingdom national, with whom they will join or accompany, fulfills the conditions depending on their personal situation.

Once the application has been received, a receipt of presentation of the application for the residence document will be delivered immediately, which will be sufficient to prove your legal right to stay until there is a resolution. The possession of the receipt may not be a precondition for the exercise of other rights or the completion of administrative procedures, provided that the beneficiary of the rights can prove their situation by any other means.

Once the application is registered and in the event that its inadmissibility is not processed, its processing will begin, which will entail the evaluation of the documentation presented.
– If the request does not meet the necessary requirements for processing, the interested party will be required to correct the faults or accompany the required documents within ten business days, indicating that, if they do not do so, their request will be considered to be withdrawn, after a reasoned resolution, which does not exhaust the administrative route, and which may be appealed against to the person in charge of the corresponding Government Delegation or Subdelegation, in accordance with the provisions of section 2a, Chapter II, Title V of Law 39/2015, of October 1, of the Common Administrative Procedure of Public Administrations.

If the application meets the requirements, the resolution on the residence document will be issued and notified within a maximum period of three months.

Stage 2) On the actions before the police agency:

Within a month from the notification of the resolution on the right to the residency document, the applicant must personally request its expedition.

At the time of the request, the interested citizen must provide the following documentation:
Application form –EX 23 Card application
A valid passport of the applicant. In the event that the passport is expired, a copy and the renewal application must be provided.
The form accrediting the payment of the corresponding fee (model 790, code 012).
A photograph, in accordance with the requirements established in the regulations of a photograph issued for national identity document.

At the time of the collection of the residence document, the citizen must present a valid passport.

The residence document will be valid for 5 years for those cases whose residences do not reach 5 years and, therefore, in the field corresponding to the Type of Permit, the term “Temporary” shall be entered; and 10 years for those cases whose residences are older than 5 years and, therefore, in the field corresponding to the Type of Permit, the term “Permanent” shall be entered. After its validity, it must be automatically renewed.

The above procedure is the same as used for non EU citizens. It has no resemblance to the registration for residency under Union Law.

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.