Following the announcement made by the British government to the EU Authorities on the 29th of March 2017, much uncertainty has arisen regarding the consequences withdrawal may cause.
The consequence that most concerns us, and the one that we are going to address in this article, is the impact on British citizens residing in Spain.
Currently, British Expats residing in Spain have EU citizenship, and therefore enjoy rights to freedom of movement, the free movement of workers and freedom of establishment, across the EU member states.
The UK’s withdrawal will mean that British citizens will no longer enjoy EU citizenship, nor the inherent rights of the EU legal order.
This leaves us facing different hypothesis regarding the consequences that Brexit may hold for British citizens residing in Spain.
Some of most flexible scenarios, in the case of a more tolerant Brexit, supposing that the UK comes to some kind of international or bilateral agreement with Spain, would be as follows:
- That the right to freedom of movement for British citizens in the EU is protected
- That this right is maintained but with nuances or limitations
But without a doubt, under our criteria, given that precisely one of the main reasons Brexit triumphed in the UK is due to the existence of freedom movement and residence for European citizens in the UK, the most likely scenario is that of a total or hard Brexit, which would mean the reciprocal loss of the right to freedom of movement and residence for British citizens in the remaining EU member states.
This is the scenario that we are concerned with, and are therefore going to analyse. Would this mean a hypothetical loss of rights for British citizens that are currently legal residents in Spain? In our opinion it is unfeasible that a status of legal residence could be converted into that of an illegal status.
That being, among other reasons, due to the fact that the Spanish regulations in force establish procedures for people to be able to modify their regime of leave to remain, or legal status (for example, modification from the EU regime to a situation of residence and self-employment due to the annulment of a marital link or divorce). Consequently, when the time comes, the Spanish Government will establish the necessary course of action to be taken to modify the residential status of British citizens residing in Spain.
Therefore, it will be possible, on a case by case basis, to initiate legal procedures for modification from EU Legal Status to Foreign Legal Status, with some deadlines and a series of requirements of an economic nature, taking into account the personal circumstances of each and every applicant.
Some practical examples of this kind of procedure are:
- A British citizen with Spanish family could request an EU residency card
- A British citizen who has resided in Spain for less than 5 years could request temporary leave to remain, whether non lucrative (without work) or with the right to work
- A British citizen who has resided in Spain for more than 5 years could request long term leave to remain
And to our understanding, another of the substantial reasons for which British citizens in Spain will maintain their rights after Brexit, will be either due to accession to the European Economic Area (e.g. Norway, Iceland) or due to bilateral agreements (e.g. Switzerland) between the UK and the EU which allow the free movement of their citizens.
In view of the scenario of a hard Brexit, which would entail the loss of the right to freedom of movement for British Citizens, and as we have underlined above, in order to modify your status of residency in Spain (From EU to Non EU), applicants should be legal residents in Spain. That is to say that applicants should have requested and obtained the Certificate of Registration as a European Citizen (Green Card), which is the only (and obligatory) document that certifies residency of the aforementioned British citizens in Spain (please note that the NIE neither grants nor enables residency in Spain). Therefore, the Certificate of Registration as a European Citizen is the only document that certifies your legal residency in Spain, and, is the document that will allow you, if necessary, to modify your status of legal residency in Spain, from EU to Non EU.
Given all of the above, at MSG LEGAL our advice is above all to stay calm, not to take rash decisions (such as proceedings to gain citizenship in other EU countries, sale of property in Spain…) to stay informed via official channels o via Law Firms with expertise in the field, on any specific news affecting the rights of British citizens residing in Spain, and to legalise your residency status (Certificate of Registration as a European Citizen).
At MSG LEGAL we are at your disposal for any enquiries you may have on this matter, to advise you on any course of action you should take, and handle the obtainment of the Certificate of Registration as a European Citizen for you, if you so require.
Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice.