May 06 2019

UK residents in Spain: How will Brexit affect me?

By activating Article 50 of the Treaty on the European Union on 29 of March 2017, the United Kingdom initiated a negotiation period of 2 years, during which the European Union together with the UK were supposed to agree on an exit deal. This deal concerns all the aspects regarding the connections between the State and the Union after Brexit, including residency requirements for UK citizens living in EU member States.

However, no exit deal has been found before the deadline of 29 of March, 2019, and consequently, the consequences of Brexit over UK residents in the EU are still unclear.

Yesterday, the EU member States have agreed to grant a new negotiation extension in order for the UK Parliament to reach an agreement with the EU before October 31, 2019, day after which the Brexit will enter into force with or without a deal.

There are therefore three scenarios possible:

The UK stays a EU member. After the ruling of the Court of Justice of the European Union (Case C-621/18), it is now established that the UK still has the possibility to revoke his activation of art.50 TUE and remain a member State.
A deal is found before October 31. Brexit will then officially happen on this date (or earlier if another date is agreed on).
No deal is found before October 31. In this case, Brexit will happen on this date without an exit deal.

What would be the consequences over UK citizens residing in the EU in all three of those scenarios?

This question is particularly relevant in the case of Spain, were most of the expatriated UK citizens in the EU live. Indeed, nearly 300 thousands british nationals reside inside the Spanish territory, more even that in Ireland.

I/ The UK remains a member State of the European Union

In this case, there will be no consequence on the residency and the rights of UK citizens residing in Spain. They and their family members will continue to enjoy the rights conferred by the European citizenship the same way they did, including the freedom of movement.

II/ Soft Brexit (with exit deal)

In this case, the conditions that will be applied to UK residents and their family in EU member States will be the ones of the agreement. For now, they are still unknown.

In the previous draft deal that was rejected, a transition period was established until 31 of December 2020. During this transition period UK residents in EU countries and their family members would have been able to carry on their stay abroad in the same conditions as before. However, they would have lost their right to participate to the European elections and to make use of the European Citizens Initiative for legislative proposals.

After this transition period, according to the previous draft, if UK nationals had wish to continue residing in Spain, they would have had to apply for residency (Tarjeta de Identificación de Extranjeros, TIE). The draft deal provided that UK residents in EU member States for a continuous period of 5 years in Spain, starting before the transition period, would have been able to apply for permanent residency. The EU citizen register certificate and the family member of a EU citizens card would have been used as a mean to demonstrate their legal residency abroad.

However, it’s important to note that those were the terms of the last rejected agreement. They will probably be different if a new deal is reached.

What you should do as soon as possible:

Register as a EU citizen resident in Spain. To do so, you need to schedule an appointment promptly at
https://sede.administracionespublicas.gob.es/icpplustiem/ title=”Cita previa Administraciones Públicas”

III/ Hard Brexit (without exit deal)

If no exit deal if found before the deadline of Octobre 31, as other EU countries have done, the Spanish government has passed a law in March 2019 in order to provide some guarantees to UK citizens residing inside its territory (Real Decreto-ley 5/2019 de 1 de marzo).

This law will only enter into force if a Brexit without deal happens, on the date of the withdrawing of the UK as a member State of the EU.

Under this law, a UK citizen and his/her family members residing in Spain before the entry into force of Brexit will be able to stay in Spain and continue to work and enjoy the Spanish social security during 21 month following the Brexit date. During this period, they are required however to apply for residency documents (Tarjeta de Identificación de Extranjeros, TIE) that would replace their EU citizen register certificate and family member of a EU citizens cards. They will remain legally in Spain until the resolution of their application.

For UK citizens and their families that would not possess EU citizen register certificates or family member of a EU citizens cards, the law provides a simplified procedure of residency and work permit with similar requirement of those applicable to EU citizens.

The law also provides the right to UK nationals and their family residing in Spain before the Brexit date to apply for permanent residency after spending at least 5 years residing legally and continuously in Spain.

Several aspects of the law, such as the access to the Spanish health care system and the rights of posted workers, remain uncertain however because they are conditioned to an equal treatment of Spanish citizens by the British system.

The Spanish law also provides that UK driving licence will be recognized in Spain for a 9 months period following the Brexit date. After this period, the conditions applicable to UK driving licences will be the one in force for licences delivered by third countries authorities.

Notwithstanding the above, it is not to be excluded that EU member States can decide to apply harmonized conditions to the UK citizens residing in their territories. In this special case, this agreement would prevail over the previously quoted Spanish law.