Does a Short Visit to Spain Reset the Five-Year Absence Rule Under the Withdrawal Agreement?

This article is based on the most up to date knowledge available. To date, no case law or precedents have been established on this matter. *Note an update.

The key issue is whether a UK national and permanent resident returning to Spain for a short visit resets the five-year absence rule under Article 15(3) of the Withdrawal Agreement, even without re-registering on the padrón. This remains a grey area because Spain has not explicitly defined what constitutes a “return” for this purpose.

Legal Basis. What Article 15(3) of the Withdrawal Agreement Says:

Article 15(3) states:
“Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding five consecutive years.”
This provision is clear and unconditional:
No Additional Conditions. The only requirement is that a person is not absent for five consecutive years. There is no mention of needing to re-register on the padrón or any other bureaucratic steps.

It is important to add 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”. (Paragraphs 1,2 and three refers to U.K. Nationals, EU citizens and their family members EU and non EU)

Furthermore, below is the translation from an extract from the padrón law, in relation to residency rights:

Article states that the registration of foreigners in the municipal register does not constitute proof of their legal residence in Spain, nor does it grant them any rights beyond those conferred by current legislation, especially regarding the rights and freedoms of foreigners in Spain.

This means that being registered in the municipal register does not automatically imply that a foreigner has a residence or work permit. However, registration is a requirement for accessing certain services and rights in Spain, such as public healthcare in some cases, schooling for minors.

No Minimum Stay Required:

The text does not specify how long a return visit must be in order to interrupt the five-year period.
Physical Presence Is the Only Test – Since the Withdrawal Agreement does not define “absence”, the natural interpretation is that a person must simply set foot in Spain within five years to reset the clock.

The Role of the Padrón

Not a Requirement for Residency – Spanish law does not treat padrón registration as legal proof of residency, only as a declaration of habitual residence for municipal purposes.
Not Required to Obtain Residency. The padrón is not a legal requirement to register for residency, although the foreigner’s office (Oficina de Extranjeros) often insists on it in practice.

Not Required to Maintain Residency:

There is no law stating that a permanent resident must remain on the padrón to retain their status.

The Grey Area:

Can Spain Impose Additional Conditions?
If Spain were to argue that a short visit without padrón registration does not count as a return, it would be an unlawful additional requirement, because:
Article 15(3) does not impose such a rule.
The five-year absence rule is based purely on physical presence, not administrative registration.

Other EU member states do not impose a padrón like requirement, making Spain’s approach potentially inconsistent with the Withdrawal Agreement’s uniform application.

Does a Short Visit Without Padrón Registration Reset the Absence Clock?

If a UK national with permanent residency returns to Spain for a short period (e.g., a few days or weeks) without re-registering on the padrón, the key legal question is whether physical presence alone is sufficient to interrupt the five year absence period.

If Spain only recognises padrón registration as proof of return, then failing to re-register could mean the absence clock continues to run.

If entry into Spain alone (e.g., border records, TIE transactions) is sufficient, then the five year period should reset upon each return.

Evidence of residency beyond the padron.

To demonstrate a return to Spain, a UK national should keep alternative proof of their presence, such as:
Entry records (passport stamps, travel tickets)
Financial transactions (Spanish bank account activity, purchases, utility bills)
Property ties (rent, ownership documents)
Any other official interactions (e.g., visiting immigration authorities, renewing a Spanish driving licence)
If Spanish authorities deny permanent residency based solely on the absence of padrón registration, that would likely be an unlawful additional condition, breaching the Withdrawal Agreement.

Can This Be Challenged Under EU Law?

Yes, if Spain were to revoke someone’s permanent residency for failing to re-register on the padrón, a legal challenge could argue:
Spain is exceeding its powers by imposing conditions that do not exist in the Withdrawal Agreement.

EU law prioritises physical presence over administrative registration, meaning the five year absence rule is reset upon return, regardless of padrón status

The requirement to re-register on the padrón for short visits or to reset the absence clock is an additional burden not envisaged by the Withdrawal Agreement and should be considered disproportionate.

To summarise.

Is there anything permanent residents can do if they are challenged on their residency status for absences?

While there is no case law specifically addressing whether short visits to Spain without re-registering on the padrón reset the five-year absence rule under the Withdrawal Agreement, this issue could become significant in the future, particularly if Spanish authorities adopt a stricter interpretation of residency retention requirements.

The padrón, much like local address registration systems in other EU states, is not a legal determinant of residency status but an administrative tool for local services. However, Spain’s interpretation and application of the padrón in immigration matters can make it appear more consequential than in other EU countries. If individuals face residency revocation due to non-registration on the padrón despite physically returning to Spain, this could give rise to a legal challenge to clarify whether physical presence alone is sufficient to reset the absence period.

Ultimately, while Spain’s current position remains unclear, any attempt to revoke residency on these grounds could be contested through national appeals, EU complaints, or legal action, setting an important precedent for others in similar situations.

Should any new information come to light, including any cases, lowercase to use obvious, or I receive notification where residents have been challenged there will be additions to this article.

*Update: While the CJEU Judgment in Case C-432/20 (20 January 2022) is not a precedent for cases under the Withdrawal Agreement, it was decided in the context of third country nationals. However, we believe it could serve as a persuasive precedent when challenging the interpretation of ‘continuous absence’. The ruling confirms that short and irregular returns to the EU can interrupt an absence period, which may be relevant if Spain applies a strict five-year rule without considering physical presence within that time. We will continue to assess how this case law can support future challenges.

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.