Some people may be concerned as to whether their residency application, after the 31st December 2020, will still be covered by the Withdrawal Agreement.
Well the Spanish Foreign Office has made it clear that as long as the applicant can prove, by any legally admissible means, that they were residing in Spain before the 31st December 2020, their application will be covered under the terms of the Withdrawal Agreement. Specifically, if the applicant was registered on their Town Hall census (“padrón de habitantes”) or they had an existing work contract before said date, this will be sufficient evidence, although other means of proof are possible.
In this instance, this means that these applicants will only need to meet the residency requirements as an EU citizen and they will be able to apply from Spain. See our post Living and working in Spain for more information.
However, if the applicant’s entry into Spain takes place after the 31st December 2020, they will have to apply for the appropriate residency visa through the Spanish Consulate in the UK, before traveling to Spain. In this case, if the applicant has travelled to Spain without the visa, they will be entitled to remain in Spain for up to the 90 days permitted under the Schengen rules, but they will need to return to the UK for the residency visa application, as these applications require a physical appointment at the Spanish Consulate in the UK.
If you are interested in applying for residency in Spain and need further guidance, we recommend you seek the assistance of a legally trained professional.
Gabriella Mary Trussler Rowland
4408 Ilustre Colegio de Abogados de Almería
As we all know, citizens of EU and EEA member states are allowed free movement throughout the Spanish territory. This is in theory. In reality, since 11th July 2012, the conditions for residence in Spain for more than 3 months have become much stricter.
Workers’ rights in the EU
Workers originating from another EU member state have the following rights:
- Freely enter, exit, travel and reside in Spanish territory with the exception of the exclusions made on the basis of public order, security or health.
- Perform any activity, as an employed or self-employed worker, to provide or receive services or to permanently reside after having carried out a work activity on the same terms as Spanish nationals, as well as to have access to public employment offers and be employed at the service of the public administrations.
- Match the Spanish workers in terms of: salaries, advancement, professional training, social security, working conditions, union affiliation, etc.
- Aggregation of insurance periods fulfilled in member states, for the purposes of social security benefits.
New conditions introduced for residence in Spain of EU citizens and their families (since 11th July 2012)
In 2007 the contents of a European Directive referring to the right of EU citizens and the family members to move and reside freely within the territory of the member states, was incorporated into Spanish Law (Directive 2004/38/CE).
Although the incorporation included some of the conditions placed upon the rights of free movement and residence within the member states, it did not include all of the requirements under the Directive. This has caused a great deal of financial loss for Spain, especially where the inability to ensure the reimbursement of the costs incurred in the provision of health and social services to European citizens is concerned.
It is for this reason that in 2012 Spain established new conditions to govern the right to residence of EU citizens for a period of more than 3 months.
STAY OF UP TO 3 MONTHS
In the cases of EU and EEA citizens whose stay in Spain does not exceed 3 months, whatever the nature of their stay may be, it will be sufficient to be in possession of a valid passport or ID card, which must be the one used for entry into Spain. These 3 months will not count towards the minimum stay required for the purposes of residency.
RESIDENCE BEYOND 3 MONTHS
The main requirement that must be met by EU citizens who intend to reside in Spain for more than 3 months is that they must be registered in the Central Register of Foreign Nationals. You can complete this registration process, if you are in possession of a valid passport or ID card, at the Foreigners’ Office of the province in which you intend to reside and you will be issued with a certificate on the spot as long as the conditions are met. This certificate will include, amongst other details, your NIE number (Identification Number for Foreigners).
Additionally, since 2012 the following documentation is also required, depending on the situation of the applicant:
a) Employed workers must submit a statement from the employer or certificate of employment, which must include certain details of the employer. Employment contracts registered with the Public Employment Service or certificate of registration in the social security system will always be admitted, although these will not be necessary if the applicant consents to the verification of these details from the social security records.
b) Self-employed workers also have to submit evidence of their situation. Registration in the Economic Activities Census, registration of your establishment in the Company Registry or certificate of registration in the social security system will always be admitted, although, yet again, these will not be necessary if the applicant consents to the verification of these details from the social security or tax records.
c) Those not engaged in work in Spain must submit documentation that attests to the following conditions being met:
- Health insurance, public or private, taken out in Spain or any other country, as long as it provides cover in
Spain, equal to that which is provided by the Spanish National Health System, during the period of residence. Pensioners will be considered to have met this requirement as long as they submit the appropriate certificate to show that they are entitled to healthcare from the state where they receive their pension.
- Be in possession of sufficient funds, for oneself and family members, so as not to become a burden on the Spanish welfare system during the period of residence. Proof of the existence of sufficient funds, whether they consist of a regular income or capital assets, may be provided by whatever means the law allows. The assessment of this self-sufficiency will be made on the merit of each case, always keeping in mind the personal and family situation of the applicant.
d) Students, including those on vocational training courses, must present evidence to certify the following:
- Registration in an educational establishment, public or private, approved or financed by the educational administration.
- Health insurance, public or private, taken out in Spain or any other country as long as it provides complete cover within Spain. However, this will not be necessary if the student possesses a European Health Insurance Card and its validity covers the entire period of residence.
- Affidavit stating you are in possession of sufficient funds for yourself and family members, so as not to become a burden on the Spanish welfare system during your stay.
In the case of EU exchange programmes, evidence of this fact will be sufficient to meet the criteria.
RESIDENCE FOR FAMILY MEMBERS
These rights will be extended to family members who accompany, or will be joining, an EU or EEA citizen:
- If the family members are citizens of a member state they must register in the Central Register of Foreign Nationals.
- If the family members are not citizens of a member state they must apply for an EU citizen’s family member residency card, which will be valid for 5 years from the date of its issue.
Furthermore, all of these procedures could be affected if the UK votes to leave the EU in the upcoming Brexit referendum, so it is important to stay informed on this matter. If these processes are not carried out properly it can cause serious delays in your application, which is why we recommend that you seek the appropriate legal advice from professionals specialised in this area before proceeding.
Gabriella Mary Trussler Rowland
4408 Ilustre Colegio de Abogados de Almería