Tenerife Guru has been approached over the past few days by numerous UK nationals who are extremely worried about an article they have read in the latest edition of Canarian Weekly released on 24th January 2020 (Issue 1140).
The newspaper’s headline boldly states “Swallows Grounded by Brexit”, whilst the accompanying article implies that from 31st January 2020, UK residents wishing to spend time in Tenerife are restricted to stays of no longer than 3 months. However, Tenerife Guru can confirm that this information is entirely false.
According to the UK / EU Withdrawal Agreement signed on 24th January 2020, UK nationals wishing to visit or stay for extended periods anywhere in Spain from 1st February 2020 onwards may continue to do so under exactly the same rules and rights they have enjoyed up until now.
The “3 months” period referred to in the newspaper article is simply a reference to an existing Spanish law that has applied for the past 8 years – and which is entirely irrelevant to, and unaffected by Brexit.
The said law (which has applied since 2012) states that anyone wishing to spend more than 3 months in Spain must apply for basic ‘residency’, status in Spain. Despite this being a legal requirement since 2012, it is noted that very few ‘Swallows’ have ever applied for Spanish residency to cover their typical 3 to 6 month stays in Spain each year.
So, in light of Brexit, should Swallows now begin applying for Spanish residency to cover their annual visits and what are the implications of this? The legal answer is somewhat complicated, but we have answered some of the more common questions below:
Q: I UNDERSTAND THAT SINCE 2012 I HAVE BEEN REQUIRED TO APPLY FOR SPANISH RESIDENCY IF I STAY MORE THAN 3 MONTHS IN SPAIN, BUT PROVIDED THAT I DO REGISTER, I CAN STAY FOR AS LONG AS I LIKE. HAS THIS CHANGED DUE TO BREXIT?
A: No, the said requirement has existed for the past 8 years and is unchanged by Brexit. Furthermore, nothing in the UK Withdrawal Agreement changes any of your rights to visit or stay in Spain, that you have enjoyed for the past few years.
Q: IF I REGISTER FOR BASIC SPANISH RESIDENCY, WILL THIS AFFECT MY UK RESIDENCY STATUS, OR MY TAX STATUS, OR WHAT I HAVE TO DECLARE FOR TAX IN EACH COUNTRY?
A: No, provided you do not spend more than a total of 6 months in Spain in any calendar year. However, once you spend ‘6 months and 1 day’ in any country, that then becomes your country of tax residence. Stays of 6 months or less DO NOT make you tax resident in Spain.
Q: SO HOW HAS BREXIT CHANGED MY RIGHTS TO VISIT OR LIVE IN SPAIN?
A: The UK / EU Withdrawal Agreement hasn’t changed your rights at all. In fact, it expressly states that your rights must continue unchanged, just as before Brexit. It even goes further to state that member states such as Spain are prohibited from imposing any new rules or restrictions upon UK Nationals that didn’t already exist before Brexit.
Q: I UNDERSTAND THAT THE UK / EU WITHDRAWAL AGREEMENT CREATES A ‘TRANSITIONAL PERIOD’, AFTER WHICH MY RIGHTS MAY CHANGE AGAIN?
A: Yes, a Transitional Period will initially run from 1st February 2020 until 31st December 2020, during which period all existing rights for UK and EU citizens will continue as before. What happens after 31st December depends on whether the UK government reaches a final agreement with the EU, or alternatively, if the UK ends up with a ‘No Deal’ scenario. If an agreement is reached, then reciprocal travel rights for UK nationals will almost certainly continue unchanged. However, in the unlikely event of ‘No Deal’, UK citizens rights to reside in Spain (or any other EU country) could be altered or restricted from 1st January 2021. There is also the possibility that the Transitional Period could be extended further, with all travel rights similarly extended.
Q: IF THERE IS ‘NO DEAL’ AFTER 31ST DECEMBER 2020, HOW LIKELY WILL IT BE THAT MY VISITS TO SPAIN MIGHT BE RESTRICTED?
A: It is very unlikely your rights to visit or stay in Spain will be affected, although the registration requirements may change. Spain’s economy relies heavily on UK visitors and expat UK nationals. Similarly, there is a large number of Spanish citizens currently living in the UK. Any attempt to restrict the movement of either group would have serious economic and logistical implications for both countries. Whilst the Spanish government appear to be playing ‘hardball’ in support of the EU’s negotiating team, the reality is that any attempt to block Swallows from spending part of the year in Spain would be economic and political suicide.
Q: I RECENTLY TRIED TO APPLY FOR BASIC RESIDENCY IN TENERIFE TO SATISFY THE 2012 LAW, BUT I WAS REFUSED. WHAT IS THE CURRENT POSITION?
A: Due to the uncertainty over Brexit, Tenerife’s ‘National Police’ Stations in the tourist areas are currently refusing to accept any new residency applications from UK Nationals. Tenerife Guru has learned this is because the police do not wish to waste time and resources in processing new applications which might become obsolete by the end of the year.
Q: IF THE CURRENT RESIDENCIA CARDS FOR UK NATIONALS BECOME OBSOLETE UNDER A ‘NO DEAL’ BREXIT, WHAT MIGHT THEY BE REPLACED WITH?
A: In the unlikely event of a ‘No Deal’ Brexit, Spain anticipates introducing an alternative ‘T.I.E.’ residency card for UK Nationals (similar to the type currently available to non-EU citizens). However, UK Nationals cannot yet apply for a T.I.E. card, given the strong possibility that a deal will be negotiated with the EU, under which T.I.E. cards would not be required because the existing residency cards of UK nationals may be extended indefinitely.
Q: SO SHOULD I APPLY FOR BASIC RESIDENCY AT THIS STAGE TO PROTECT MY RIGHTS?
A: The technical answer is YES. However, given that most police stations are currently refusing to issue them to UK Nationals, the practical answer is clearly NO. It seems obvious that no UK national arriving in Tenerife during 2020 could be penalised for not applying for basic residency when the police are refusing to process such applications. Tenerife Guru instead advises those intending to apply for residency to simply monitor the situation closely. It would however be sensible to make a start and apply for their ‘Empadronamiento’ (Padron / Electoral roll) certificate (which is required before applying for residency in any event). You can find more information on this here:
https://tenerifeguru.com/empadronamiento-travel-certificate/
For those wishing to view the 2012 law imposing the ‘3 month’ residency application rule, it can be viewed in Spanish here:
https://www.boe.es/diario_boe/txt.php?id=BOE-A-2012-9218
Tenerife Guru will continue to monitor the situation with Brexit closely. As soon as there are any developments affecting UK nationals we will issue further updates both here and on our main information site:
For those UK Nationals still wishing to obtain their residencia in any event, please note that the only police station currently accepting the applications is in the capital Santa Cruz. For full contact details and map, visit our residencia information page here:
https://tenerifeguru.com/residencia/
In the meantime, we would reassure all residents, swallows and visitors that they can continue to enjoy visits to Spain in 2020 in exactly the same way as they have been doing for several years.