No Deal Instructions For Residents – Contingency Plan Follow Up

Further to the No Deal Contingency Plan the Spanish Government published earlier this month, with regards to instructions on how to obtain the required documentation as a resident from a ´third country´. This would be the status of UK nationals, if the UK exits the EU without a deal. In this case there will not be a transition period. (There will be a grace period described below.) Whichever date that will be – earliest 31st of October 2019?

Residency

The main difference between EU and non EU residents is that EU citizens have freedom of movement and that entails being allowed to work and settle in any of the EU member states.  Non EU citizens who wish to reside and/or work in Spain,  need to ask for authorisation first through the Spanish consulate in their homeland. In the case of British citizens already residing here on the day the UK exits the EU, there will be procedures to obtain a TIE certificate and prior authorisation to work and/or reside here where applicable.

With regards to arranging for the new residency documentation as non EU residents in Spain, there will be a grace period of 21 months.

All those who have registered as EU residents before the exit date, plus those that are residing here but have not applied for residency as yet, will be considered legal residents and also allowed to work in Spain. The EU resident certificates will remain valid proof of legal residency during this grace period whilst they have not been replaced by the new non EU residency document. This provided they have not expired (non EU family members of EU residents). All UK nationals residing in Spain and their family members will need to obtain a new residency card to document their status as non EU residents before the end of the grace period. The card is known as a TIE – Tarjeta de Identidad de Extranjero.

As we interpret this from the published instructions, there will be 4 different procedures:

Group I

Those with residency certificates that state they are permanent residents, “residente comunitario con carácter permanente desde ….”. This certificate will sufficiently accredit legal and continuous residency of 5 years or more, entitling you to apply for the TIE for non EU citizens that accredits “residencia de larga duración” without the need to apply for residency authorisation first.

The group above will need to apply for the TIE personally at the foreigners office of the Policia Nacional. You will need to supply: passport, proof of payment of the administrative fee ´tasa´ and a photograph.
The same applies for a non EU family member of a permanent UK resident who also has a permanent residency card.

Group II

Those who have resided in Spain legally for 5 years or more, but don’t have a certificate that confirms this status:

These will need to apply for an authorisation of “residencia larga duración” with the Extranjería (provincial foreigners office in their province). The group will need to accredit their legal and continuous residency first. They will be asked to supply other documentation besides the EU residency certificate. Could include a report from the education authorities re attendance at school if you have children that are obliged to attend. A criminal records check can form part of the procedure. Periods of absence from Spain during the 5 years can influence the accreditation negatively.

The Extranjería office will respond to your application within 3 months and if you receive a positive reply, you will need to apply for your TIE residency card within one month at the Foreigners office at National Police in your area.
According to the Foreigners Law, the TIE ´residencía larga duración´ will need to be renewed every 5 years, but the instructions for UK nationals only mentions that it will be valid for whatever period will be decided on.

Group III

Those who reside in Spain legally, so will have registered as residents before the 29th of March/April 12/October 31, but are not considered permanent residents yet (under 5 years):

They will need to apply for a TIE “residencia temporal” with the National Police in their area and present their EU residency certificate and valid passport, pay the “tasa” (administrative fee) and provide a photo. A criminal record check can form part of the procedure.

The TIE will be valid for up to five years depending on when you registered as EU resident.  Example: if you registered as EU resident two years before you apply for your TIE, the TIE will be issued for 3 years. The TIE will differ from regular TIE´s in that it will mention you are from the UK, using the following text: “autorización de residencia temporal y trabajo de nacional del Reino Unido”. Presumably to make it clear that you applied under the extraordinary circumstance from EU regime to non-EU foreigners regime.

Once the TIE expires, you need to apply for an authorisation for “residencia larga duración” and once granted, apply for a TIE “larga duración” as well.

According to the Foreigners Law, the TIE “residencía larga duración” will normally need to be renewed every 5 years. In this case, the instructions for UK nationals only mention that it will be valid for whatever period will be decided on.

Group IV

Those who reside in Spain but haven’t registered as resident before the 29th of March/April 12/October 31, so without an EU residency certificate:

They will need to apply for a residency authorisation first, with the Extranjería Office in their province (or electronically) and once that has been resolved positively, apply for a TIE “residencia temporal” (temporary residence).

Residents in this situation need to apply for the residency authorisation as soon as possible after the exit date, as the application receipt will accredit their legal residency in Spain, until they will be issued the TIE.

If your application meets the requisites, it will be processed, if declined, you will be given 10 days to provide required additional documentation. If you fail to do so, the application will be denied, with possibility to appeal. A criminal records check can form part of the procedure.

You will need to provide proof of residence (through your certificate of registration on the padrón, rental contract, ownership of property, employment contract, enrolment at a study centre), proof of either employment or self employment, and if not working, provide proof of medical insurance and proof of income, that needs to be over the amount established in the General Budget as valid for the non-contributory pensions. So equal to the requisites for EU residents.

The Extranjería Office will respond to your application within 3 months and if you receive a positive reply, you will need to apply for your TIE residency card within one month after approval with the National Police in your area. The TIE will differ from regular TIE´s in that it will mention you are from the UK, using the following text: “autorización de residencia temporal y trabajo de nacional del Reino Unido”. Presumably to make it clear that you applied under the extraordinary circumstance from EU regime to non-EU foreigners regime.

The TIE “residencía temporal” will be valid for up to 5 years, taking into account the period you have been able to accredit as “irregular EU residency”. Example: if you can accredit that you were a resident for 3 years before your application for TIE, it will be issued for 2 years and when that period is up, you would need to apply for “residencia larga duración”.

If you’ve only been a resident for a short period before the exit date, your application for the TIE could be issued for a limited time and require renewal. This would be the procedure before you can apply for “residencia larga duración”. This renewal will take place under the same conditions as mentioned in these instructions.

Note: the Foreigners Law includes another requisite to meet when applying for residency authorisation “larga duración”, with regards to accrediting integration through a certificate issued by the authorities in your Autonomous Region with regards to courses taken to this end. It appears that those UK citizens, resident in Spain before the exit date, are exempt when applying for the authorisation during the grace period, but we cannot be sure this will remain the case once that has ended.

Note* The Spanish no-deal contingency (Royal Decree) plans make it clear that non-EU family members of UK Nationals also need to update their cards but does not mention the scenario of UK Nationals who are spouses of EU citizens.

We wish to advise all these citizens that if their circumstances (not included in the royal decree) are not legally formalised in that or other law, that they should be aware that when making an application for a TIE, that the residence card should be issued under Article 10.  This would result in that UK  nationals entitlement to “freedom of movements rights” are reserved.

Note* 29/11/2019 The group above which CAB are calling ‘group 5’ have now been added to the Spanish website on the information of the contingency plan. (On the Spanish government website also applies to spouses of Spanish nationals). CAB Spain are doing research as this may as may only be applicable under Spanish national law for those spouses already residing in Spain and not for post Brexit arrivals.

Conclusion.

Under EU law, the right to apply for a family residence card applies to those EU citizens exercising their rights of “freedom of movement”. The EU directive also allows for a member state national law to allow the rule to apply for Non-EU spouses of their nationals to be provided with a residence card/certificate of a EU family member or the TIE.

Non-EU Spouses of Spanish nationals residing in Spain can also request and obtain a family card of a citizen of the Union.

The above is a summary of the most common cases, the Instructions also include information for cross border workers, students.

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.