The cumbersome and lengthy Brexit process, which began with the vote in June 2016 in which Leave won, has kept thousands of European citizens on tenterhooks for years. For beyond those of us who have watched in astonishment at an exit that has dragged on ad infinitum, there has been a group of Europeans whose lives have gone out of them with every decision: all those who lived straddling the EU and the UK as if they were part of the same country.
And the fact is that, finally and irrevocably and irrevocably, as of 31 December 2020, the EU and the United Kingdom will no longer be part of the same common space.
So what happens to all those citizens who were natives of one of these territories and had residency in the other? And what about those who will want to do so in the future? And what about those who were temporarily displaced for work reasons?
See: 10 key issues in the EU-UK deal
As reported on the UK Government website, the Spanish Government has formally confirmed to the UK Government that British citizens who were legally resident in Spain before 1 January 2021, and as such are beneficiaries of the Withdrawal Agreement, may use any of the following documents to prove their residence status when entering Spain:
- Residence card issued under Article 18.4 of the Withdrawal Agreement (TIE, Tarjeta de Identidad de Extranjero).
- Certificate of Registration of Union Citizens, temporary or permanent.
- Proof of submission of the application for the residence card (TIE).
- Confirmation of the positive outcome of your application for residence (favourable resolution granting the residence card).
- In the absence of any of the above documents, other documents can be submitted to prove your legal residence in Spain before 1 January 2021, such as: a padrón certificate (issued by your local town hall), a work contract, a rental contract or proof of purchase of a property. However, due to current travel restrictions, you should be aware that you may be questioned on arrival by the Spanish border authorities to ensure that you meet the legal entry requirements. The Spanish border authorities will only grant you entry if they are satisfied that you are returning to Spain to your usual place of residence, and therefore reserve the right to refuse you passage.
In turn, in the case of students, they must always present documentation accrediting their enrolment in a course in person or abroad that began before 1 January 2021, as well as proof of accommodation. On the other hand, the Spanish Government has confirmed that students enrolled in on-site or on-site courses, which started after 1 January 2021, will not be able to enter while the current restrictions on passenger travel from the UK by air and sea are in place.
In the following, we will try to answer these three questions. The basic point in answering each of them is whether the citizens in question can benefit from the Withdrawal Agreement in their capacity as beneficiaries.
1— Beneficiaries of the withdrawal agreement
In the Withdrawal Agreement reached between the European Union and the United Kingdom, no specific admission regime is included regarding the future relationship. In other words, from 1 January 2021 there will be no free movement of persons or free provision of services between the two territories.
There are, however, the beneficiaries of the Withdrawal Agreement. And these, basically, are all those who were resident in the European Union or the United Kingdom, being citizens of the counterpart, on 31 December 2020.
In this regard, Spain has opted for what is known as the declarative option regarding the new status of these British citizens residing on 31 December 2020 in Spanish territory. What does this imply? Well, British citizens and their family members have been subject to Directive 2004/38 until 31 December 2020. Therefore, they were obliged to apply for a registration certificate or a EU citizen's family card. Failure to comply with this formality only entails a fine. And that, yes, complying with the formality will facilitate their daily tasks, especially border crossings.
The new residence document can be applied for at any time both by those who arrived before 31 December 2020 and by those who arrive after and are beneficiaries, in any case, of the Withdrawal Agreement. And in the case of family members who are third-country nationals, the new residence document will be obtained, in any case, once their EU citizen family card ceases to be valid.
The exception to the rule of arrival on or before 31 December 2020 mainly concerns cases where there is evidence of a family relationship with a beneficiary of the Agreement which existed before 31 December 2020 but which, for whatever reason, did not lead to actual exercise of residence until after that date. This also covers children born on or after 1 January 2021.
Look at: 3 Critical issues in the current relationship between the EU and the UK
In addition to residents, there are other categories of UK nationals residing in Spain who are covered by the Withdrawal Agreement. And according to the definition given in article 24 of this agreement, frontier workers are other beneficiaries, as long as they maintain that status.
For now, the regulation under which this category of beneficiaries will be documented is in the process of being signed and will be formally communicated to the foreigners' offices and police stations as soon as possible. But it can already be stated that Spain, as it has done with residents, has not imposed an obligation for frontier workers to be documented.
See: How workers in Spain and the UK are dealing with their particular Brexit?
2— Non-beneficiaries of the withdrawal agreement
The general rule is that all UK nationals arriving in Spain from 1 January 2020 will not be beneficiaries of the Withdrawal Agreement and will therefore be considered as third-country nationals and will be subject to the general aliens regime. Therefore, they will have to request the corresponding authorisation.
See: Brexit: What will the life of Europeans and British be like from now on?
3— Posted workers in the framework of the provision of services
There is, however, a third group among the beneficiaries and non-beneficiaries of the Withdrawal Agreement. This group consists of workers posted in the framework of the provision of services.
From 1 January 2021, workers of UK or EU companies who were already posted in the territory of the other party no longer fall within the scope of Directive 96/71/EC. This means that their right to continue to provide services will depend on the national law of the UK or the EU and its member states.
In other words, Spain applies its own rules in this regard. And what are these?
Well, workers posted to Spain by a company established in the UK before 31 December 2020 in the context of the provision of services may, as from 1 January 2021, remain in Spain and continue to provide their services without obtaining prior authorisation to reside and work. Provided, however, that the UK grants similar treatment to workers posted to the UK by a company established in Spain. That is, as long as the treatment is reciprocal between the two countries.
However, in the event that an extension of the initially planned duration of posting is necessary, the corresponding residence and work permit must be applied for.
For their part, workers of companies established in the United Kingdom who are posted to Spain from 1 January 2021 must obtain the mandatory visas or residence and work authorisations provided for in Spanish immigration regulations.
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