WRITTEN BY Sagardoy Abogados
1.1 Has any guidance been issued on how UK nationals can obtain settled residence status and permission to work from 1 January 2021 and what proof of residence is needed for current residents to maintain their status?
On 2 July, the Spanish government published a decision in the Official Gazette establishing the procedure for issuing residence document set out in the Withdrawal Agreement (WA) for UK nationals and their family dependents.
The WA preserves the rights of UK citizens residing in Spain until the end of the transitional period on 31 December 2020, along with their family dependents from third countries (future children are also included).
Until 6 July for stays over three months, UK citizens and their third-country family dependents were required to apply for the EU registration certificate and residence card as EU family dependents respectively. From 6 July until 31 December, UK citizens and their third-country family dependents who intended to reside in Spain after the end of the transition period, were able to apply for a residence document/ card stating their condition as beneficiaries of the WA, if they met the conditions established in the WA.
The process varies depending on whether they already hold an EU Registration Certificate / EU family dependents card.
UK nationals and their dependents holding EU Certificates or EU family dependents cards issued before the end of the Transitional Period
Holders of the residence documents indicated have residence status in Spain which is maintained after 1 January 2021. In addition, residence documents already in place are valid as evidence that the holder benefits from the provisions of the WA.
Holders of the EU registration certificate/EU family dependents card have the right to apply for a residence card (Tarjeta de Identidad de Extranjero, TIE) that expressly reflects their status as a beneficiary of the WA.
The two-stage process is as follows:
First, submission of a residence card application. Applicants must provide documentation:
- Certificate of Registration for UK citizens;
- EU dependent residence card for family dependents;
- census certificate proving current home address;
- proof of payment of the government fee.
Second, collection of the residence card.
Although this process is not mandatory, it is highly recommended UK nationals apply for the residence card to avoid any hassles with authorities when interacting with them, specially while crossing borders or undertaking administrative proceedings.
UK nationals and their dependents without EU registration certificates and residence cards at the expiry of the transitional period
UK nationals seeking resident status in Spain who fall under the WA should have entered Spain prior to 31 December 2020 to be entitled to reside in Spain and acquire the right as beneficiaries of the WA.
The application for the residence status as a beneficiary of the WA must be made within three months from entry date into Spain. If the application is submitted after the three-month period, evidence of the the grounds for late submission will be needed. The Spanish authorities will determine on a case-by-case basis whether to allow late applications.
The process to obtain the residence card is as follows:
- Submission of the residence document application through the online platform. Applicants must prove:
- financial reliability;
- full private or public medical coverage;
- place of residence in Spain through provision of a census certificate;
- documentation proving family dependent status and the principal's passport and residence card for family dependents;
- payment of the government fee.
- Application for the residence card once a residence document is granted.
- Collection of the residence card.
During the application and processing of documentation, UK nationals may continue their work or professional activity.
2. BUSINESS TRAVEL
2.1 Do UK employees need a business visa from 1 January 2021?
Regulation (EU) 2019/592 of 10 April 2019 exempts UK citizens from the requirement for a Schengen visa. It applies from the day the UK is no longer subject to EU law. UK citizens can enter and stay in the Schengen area for a maximum of 90 days in any rolling 180-day period.
However, even if allowed to enter and stay visa-free, they will nonetheless need a residence or work permit to work in Spain (unless a specific exemption is agreed). In Spain, business visitors must generally limit their activities to the following:
- attending business meetings or discussions;
- attending seminars or 'fact-finding' meetings;
- attending conferences.
In addition to the above, if the purpose of the visit is to acquire knowledge about client needs, through industrial, commercial meetings or meetings related to those client needs, without being part of the productive activity of the organisation in Spain, a work permit should not be needed (the source of salary must be from abroad, that is, the country of employment).
If a business trip, even if it is very brief, involves activities other than those outlined above, a work permit will typically be required. Additionally, even when activities are limited to those listed above, if the foreign national will generate profit for the host entity, receive compensation from the host entity, or take direction from the host entity, a work permit may be required.
2.2 What documents are needed on arrival for business travel from 1 January 2021?
Travel documents (valid passport) with a validity of less than ten years.
Proof of duration and purpose of stay as border control may ask additional questions concerning duration and purpose of stay (i.e. an invitation letter from the organisation in Spain).
They will also need to be able to provide evidence of sufficient economic means, accommodation and return flight tickets.
2.3 Do UK nationals need additional permission to work for business travel from 1 January 2021 in the event of no deal?
For work purposes, a permit allowing the UK national to work must be applied for prior starting work activities which do no fall under the business visitor conditions described in 2.1 above.
3. EMPLOYMENT AND RESIDENCE
3.1 Do UK nationals need permission to work and stay in Spain from 1 January 2021?
Yes, unless they can rely on an exemption such as:
- business trips as described before;
- family members of an EU national or a non-EU national who has authorisation to work (subject to conditions);
- holders of a Long-Term Residence Permit in Spain;
Van Der Elst exemption' (subject to conditions).
3.2 If permission to work is needed after 1 January 2021, do any quotas apply to the employment of third-country nationals?
No. Spain does not apply quotas.
3.3 If permission to work is needed from 1 January 2021, what categories of permission are commonly granted?
The most common categories will be:
- highly skilled employees: bachelor's degree and annual remuneration corresponding to the job position;
intra-company transfer (payroll and social security paid in UK): bachelor's Degree or more than three years' experience in the field plus three months' seniority with the sending entity or sending group (2019).
3.4 If permission to work or stay is needed from 1 January 2021, how long does the procedure take?
20 business days for the residence permit plus ten business days for the visa process.
3.5 If permission to work and stay is needed from 1 January 2021, what Government fees are payable?
For both residence permits (allowing holders to work): EUR 71.81
4. FRONTIER WORKERS
4.1 What formalities will apply to UK frontier workers working in Spain but living in another country from 1 January 2021?
UK nationals residing outside Spain with cross-border worker status must apply for documentation certifying their status at the withdrawal date as set out in Article 26 of the WA.
From 1 January 2021, UK frontier workers starting work activities from this date have to obtain the corresponding work permit for third-country cross-border workers based on the Spanish legal framework.
5. PERMANENT RESIDENCE
5.1 From what date are third-country nationals entitled to apply for permanent residence?
Third-country nationals are eligible for Long-Term Residence after five years of legal, continuous residence in Spain. This can be renewed every five years.
6. SECURING RESIDENCE AND WORK STATUS
6.1 What steps could UK nationals take currently to secure their residence and work status?
UK citizens and their family dependents who are already in Spain have to apply for the residence permit within three months of arrival in Spain to benefit from the WA.
Additionally, they can take the following actions, where appropriate:
- register their marriages if they are married to a national of an EU country where marriage registration is compulsory;
- apply for Spanish nationality if they comply with the legal conditions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.