Brexit, Spanish residency, and the supreme court: A detailed overview

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Introduction

Brexit’s ripple effects span a multitude of spheres, but the impact on residency rights has emerged as a deeply personal concern for many. As UK nationals strive to understand their status in Spain, the recent Spanish Supreme Court ruling brings further clarity. In this article, we dissect the implications of the Supreme Court’s verdict, detail the requirements of RD 557/2011, and highlight their significance for British residents in Spain.

Brexit’s Withdrawal Agreement: Building on Existing Frameworks

The Withdrawal Agreement was crafted to protect the rights of UK citizens living in the EU. Instead of drafting an entirely new set of guidelines, the Agreement references Spain’s existing laws on foreign residency and immigration (like RD 557/2011) for matters not expressly covered. This means that for areas not explicitly addressed in the Withdrawal Agreement, the rules and regulations from Spain’s existing laws take precedence.

RD 557/2011: The Pivotal Framework

Integral to understanding the Spanish residency landscape is the Real Decreto 557/2011. Its main stipulations include:

  • An absence limitation during the initial 5-year temporary residency, where an individual should not leave Spain for more than six months in any twelve-month period.
  • Once permanent residency is achieved (after the first 5 years), the individual shouldn’t be absent from Spain for more than two consecutive years to retain this status.

The Supreme Court’s Clarity on Residency

In a landmark decision, Spain’s Supreme Court rendered specific absence requirements null and void, specifically, the six-month absence stipulation during the temporary residency. This ruling doesn’t solely affect traditional residency applicants but extends to UK nationals shielded by the Withdrawal Agreement. As the Agreement directs to RD 557/2011 for matters not distinctly covered, the court’s verdict grants UK nationals in Spain greater travel flexibility without risking their residency status.

Absence Requirements as Defined by RD 557/2011 and impact of Recent Supreme Court ruling:

Temporary Residency (First 5 Years):

  • Original Rule: During the initial 5-year temporary residency period, a resident should not leave Spain for more than six continuous months in any twelve-month period.
  • Effect of Supreme Court Ruling: This six-month absence stipulation during the temporary residency has been declared null by the Supreme Court. As a result, the strict six-month requirement no longer applies, offering residents greater flexibility in their travels.

Permanent Residency (After the First 5 Years):

  • Rule: Once a resident has achieved permanent residency status after the first 5 years, they should not be absent from Spain for more than two consecutive years to retain this status. This rule remains unchanged.

Implications for UK Nationals Protected by the Brexit Withdrawal Agreement:

The Brexit Withdrawal Agreement does not explicitly lay out absence requirements for UK nationals residing in Spain. Instead, it refers to Spain’s existing laws on foreign residency and immigration, like RD 557/2011, for issues not expressly addressed in the Agreement.

As such, the Supreme Court’s decision to nullify the six-month absence requirement during temporary residency also applies to UK nationals protected by the Withdrawal Agreement. It means that these UK nationals now have more leeway in terms of their absences from Spain during their initial 5-year temporary residency period without jeopardizing their residency renewal prospects.

However, it’s crucial to highlight that the two consecutive year absence rule for permanent residency remains intact and applicable to both regular residents and UK nationals under the Withdrawal Agreement

The Way Forward for British Residents

For UK nationals in Spain under the Withdrawal Agreement’s purview, this ruling has tangible benefits. They can now enjoy a wider travel margin without the constant worry of jeopardizing their renewal prospects, as long as they don’t exceed an absence of a continuous five-year span.

Wrapping Up: Navigating Residency in a Post-Brexit Spain

Brexit, along with Spain’s immigration laws and recent court decisions, has reshaped the residency narrative for UK citizens in Spain. The current legal scene offers a more straightforward path for UK nationals keen on understanding and securing their Spanish residency rights. In this evolving landscape, it remains essential for British residents to stay updated and seek specialized counsel.

For bespoke advice tailored to your circumstances as a British citizen in Spain, reach out to us for a personalized consultation.

2 thoughts on “Brexit, Spanish residency, and the supreme court: A detailed overview”

  1. Hi Maria. I’m curious if the supreme court ruling extends to all residency visas? I have a 5 year temporary visa granted under Familiar Ciudando Union…..
    Interesting times

    1. Maria Luisa Castro

      Dear Colin:

      The Supreme Court decision pertains to the General Foreign Law in Spain and is applicable to non-EU citizens who hold residence rights in Spain. To clarify, the above-mentioned article is considered null and void because it restricts the fundamental right of free movement for foreign citizens with temporary residence in Spain. Such limitations can only be imposed by a regulation with the status of a law, not by a regulatory regulation as in this case.

      This does not apply to non-EU family members of EU residents. In your situation, due to the freedom of movement within the European Union, you can freely move within the European area without restrictions on the minimum number of days you must stay in Spain. However, if you aim to obtain permanent residence after five years, you should consider the following:

      Absences from Spanish territory for up to six continuous months will not impact the continuity of your residence, provided that the total absence does not exceed ten months within five years. For absences due to work reasons, the total absence must not exceed one year within the required five-year period.

      To illustrate, imagine you have lived in Spain for four and a half years and needed to leave the country for three months to visit your family. This absence is acceptable, as it falls within the six-month continuous absence limit. However, if in the last year you had to travel frequently for work, totaling nine months outside Spain, you would exceed the one-year limit for work-related absences within the required five-year period, potentially affecting your legal residence status.

      In summary, your residency status in Spain will not be affected by absences of up to six continuous months, as long as the combined length of all absences does not exceed ten months over a five-year period. However, if these absences are for work-related reasons, their total duration cannot exceed one year within the required five-year timeframe.

      Hope the above clarifies

      Best wishes,

      Maria

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