The withdrawal agreement and why family reunification should be challenged

The Inconsistency of the Withdrawal Agreement:

Why Family Reunification Rights Should Be Challenged.

Preamble:

In 2022, 293,171 British nationals were registered on the padrón (local census) in Spain. The majority of these individuals were likely still in the process of securing their residency under the Withdrawal Agreement (WA), which protects those who were legally residing in Spain before 31 December 2020.

While exact figures on marital status are not available, we estimate that around 110,000 remain unmarried. Many of these individuals may choose to marry in the future or are in long-term relationships, making this a pressing issue for those who wish to sponsor a non-EU spouse under the WA.

If they marry a non-EU national after 31 December 2020, their spouse will not be covered under the WA. Instead, they must apply for residency under Spain’s domestic family reunification laws, which impose stricter requirements and offer fewer protections.

Children of British nationals who are protected under the WA will also face restrictions in the future if they wish to sponsor a non-EU spouse. Despite being born or raised in Spain under WA protections, they will be denied the same family reunification rights their parents had before Brexit.

While amendments have been made to the WA in other areas, the exclusion of post-transition spouses remains unresolved, leaving many families in legal uncertainty. This raises a key question: why should family reunification be treated differently when other aspects of the WA have already been revised?

The Withdrawal Agreement (WA) was designed to protect the rights of UK nationals living in the EU and EU nationals living in the UK before Brexit. It covers key areas such as residency, healthcare, and social security coordination, ensuring that those who were legally resident before the end of the transition period could continue their lives with minimal disruption. However, one significant area has been left out—family reunification.

Under the current interpretation of the WA, UK nationals in the EU who are protected under the agreement cannot bring in spouses or partners under the same conditions if the relationship was established after 31 December 2020.

This contrasts sharply with the amendments that have been made to other WA rights, such as social security coordination, where protections have been clarified and extended. This raises a critical question: why have certain rights been reinforced while family reunification has been excluded?

There is no clear legal reason why family reunification rights could not have been maintained in the same way that social security rights were clarified. Instead, the restriction appears to be based on political considerations rather than legal necessity.

The UK and the EU negotiated family reunification tightly, prioritizing immigration control over continuity of rights. Yet, the principle of non-regression, which underpins the WA, suggests that existing rights should not be eroded. If social security protections can be amended and reinforced, there is no justifiable reason why family reunification cannot be reconsidered.

Spain, under the Madrid Agreement, follows the same restrictive approach. Despite allowing WA-protected UK nationals to maintain their residency rights, Spain do extend these rights to spouses or partners who were married after the transition period. This creates an arbitrary cut-off, forcing couples into a system that does not recognize the original purpose of the WA—to maintain the rights and stability of those affected by Brexit.

The inconsistency in the application of the WA presents a strong basis for a legal challenge. The fact that other rights have been amended while family reunification remains restricted is a clear case of unfair discrimination. If the principle of non-regression applies to social security, it should also apply to family life. The exclusion of post-transition spouses is not a legal necessity but an arbitrary decision that deserves to be challenged.

Given that aspects of the WA have already been amended, there is a legal and moral argument for a reconsideration of family reunification rights. A test case could highlight the inconsistencies in how WA rights are applied and force a reassessment of whether the restriction on post-transition spouses aligns with the broader principles of the agreement. The fact that amendments have been made elsewhere proves that change is possible. The question remains: why should family reunification be treated differently?

Urgent Action Needed for British Nationals in Spain – Protect Your Family’s Rights

Are you a British national living in Spain with an unmarried partner or children who may one day want to sponsor a spouse under the Withdrawal Agreement?

The Problem
The Withdrawal Agreement (WA) protects British nationals in Spain, but spouses and partners married after the transition period (31 December 2020) are excluded from its residency protections. Instead, they must apply under Spanish domestic law on family reunification, which is far more complex, restrictive, and uncertain.

Why This Matters to You
• If you are not yet married but may be in the future, your future spouse will not be covered by the WA, meaning they will face more difficult residency procedures.
• Your children will also face challenges if they remain in Spain under WA rights but later wish to sponsor a non-EU spouse or partner.
• While the WA has already been amended in other areas, this issue remains unresolved, leaving affected families in legal uncertainty.

What Needs to Happen?

We need to challenge the European Union on this issue and push for legal clarity and fair treatment. The more people who get involved, the stronger our case will be.

How You Can Help
1. Express Your Interest – If this issue concerns you or your family, let us know.
2. Spread the Word – Share this with other British nationals in Spain, especially those who may marry in the future.
3. Stay Informed – We will provide updates on legal actions and next steps.

This is your chance to protect your rights and your family’s future in Spain.

Contact us today to get involved.

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.