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Spain – Brexit: Immigration Procedures for British Citizens

Spain – Brexit: Immig. Procedures for British Citizens

This GMS Flash Alert provides an update on the current Spanish immigration procedures for British citizens in relation to Brexit and its effect in Spain, and includes such matters, as rights of stay/entry (and under what conditions), how to request new resident status, and if there are new documentation processes, all with a view to increasing certitude around the status of British travellers to Spain and those staying in Spain during the transition period and after.

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This GMS Flash Alert provides an update on the current Spanish immigration procedures for British citizens in relation to Brexit and its effect in Spain1.

On 31 January 2020, the United Kingdom ceased to be a member state of the European Union (EU) and its exit is regulated by the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (hereinafter "Withdrawal Agreement" or "Agreement") negotiated and ratified by both parties.2  This Agreement entered into force on 1 February 2020.

However, this Agreement establishes a transitional period that will last, in principle, until 31 December 2020.  During the transitional period, EU legislation on free movement will continue to apply.  Consequently, as determined in the second part of the Agreement (relating to the rights of citizens), all rights will remain in place until 31 December 2020, as if the United Kingdom were still a member of the European Union.  This implies that U.K. nationals will be able to enjoy their right of free movement in Spain until the end of 2020.

WHY THIS MATTERS

The new procedures for British citizens can affect employers and their globally-mobile employees – especially business travellers – doing business in Spain.

Assignments to Spain by British nationals and hiring new personnel with British citizenship, until 31 December 2020, are not expected to experience delays due to the new rules and procedures, however, there could be some administrative barriers due to delays at the immigration offices, mainly in Madrid and Barcelona, which are related to the difficulties of securing appointments at local police stations for ID-cards (and where ID-cards may be obtained, there may be errors on some of these cards that need to be corrected).

Assignments to Spain by British nationals and hiring new personnel with British citizenship, from 1 January 2021, are

the next challenge, because until the negotiations between the U.K. and the EU are completed, it is impossible to determine whether Britons will be considered the same way new Swiss nationals are, or, on the contrary, they will be considered as third-country nationals, similar to citizens of Australia, the People’s Republic of China, Israel, Mexico, Nigeria, Russia, Serbia, etc.

New Immigration Procedures for Britons

Once the Withdrawal Agreement has come into force, the following regimes are as indicated below:

-         Europeans3: The regime for citizens of the EU, provided for in Royal Decree 240/2007, of 16 February on entry, free movement, and residence in Spain of citizens of the member states of the EU and of other States party to the Agreement on the European Economic Area;

-         U.K. nationals until 31 December 20204: The regime applicable to nationals of the United Kingdom, their family members, and any other persons included in the scope of application of the Withdrawal Agreement, who will be subject to its provisions (that is, the application of EU law in matters of free movement);

-         Third-country nationals to whom the so-called general immigration regime will apply and which includes U.K. nationals who are not beneficiaries of the Withdrawal Agreement.

Therefore, those who have exercised their right to reside or work in accordance with EU law before the end of the transitional period and continue to do so after that period, will have exactly the same rights under the Withdrawal Agreement as people who have arrived before Brexit, and are also subject to the same restrictions and limitations.

British Nationals Who Are Beneficiaries of the Withdrawal Agreement: New ID-Card

Nationals of the United Kingdom, the members of their families, and any other persons residing in Spain in accordance with the conditions established in the Agreement, will not have the obligation to request new resident status or submit, therefore, to a new documentation process, but they will have the right to receive, in accordance with the provisions of Directive 2004/38, a residence document expressly stating their status as a beneficiary of the Withdrawal Agreement.

In addition, in accordance with Article 19 of the Withdrawal Agreement, this residence document can be requested, voluntarily, during the transitional period.  Based on this and to avoid double petitions, a system has been set up in which requests for registration certificates or residence cards of a relative of an EU citizen that are made during the transitional period by those nationals of the United Kingdom, the members of their families, and any other people residing in Spain in accordance with the conditions established in Title II of the Agreement, will be understood and processed as requests for this residence document of Article 18.4 of the Agreement.

Within this group there is an important difference between those U.K. nationals (i) with a registration certificate (U.K. nationals with the Certificate of Registration of European Union: Green document (DIN-A4 format of ID-card shaped)) with their Number of Identification as Foreigner on it (NIE- numero de identificacion de extranjeros)); and (ii) without a registration certificate (U.K. nationals without that document).

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U.K. Nationals Who Are Not Beneficiaries of the Withdrawal Agreement

Those who arrive after the end of the transitional period will not benefit from the same rights provided by the Withdrawal Agreement, being then considered third-country nationals and, without prejudice to the application of a special future mobility regime, will be subject to the provisions of the foreigners general regime (Regimen General, ley 4/2000).

KPMG NOTE

Any questions or concerns should be directed to your qualified professional adviser or a member of the GMS/People Services team with the KPMG International member firm in Spain.

FOOTNOTES

1  For information, in Spanish and English, on measures taken and policies implemented regarding Brexit, please visit: http://www.interior.gob.es/web/servicios-al-ciudadano/brexit#Residencia.

2  For related coverage of Brexit and the Withdrawal Agreement and immigration matters for U.K. nationals, see our other Brexit reports in GMS Flash Alert, at: https://home.kpmg/xx/en/home/insights/2015/09/flash-alert-brexit.html.

For more on the EU-U.K. Withdrawal Agreement, see: https://ec.europa.eu/info/european-union-and-united-kingdom-forging-new-partnership/eu-uk-withdrawal-agreement_en.

3  For information, in Spanish, on EU citizens’ procedures, please visit: http://extranjeros.inclusion.gob.es/es/InformacionInteres/InformacionProcedimientos/CiudadanosComunitarios/index.htm.

4  For the original in Spanish of the Resolución de 2 de julio de 2020, de la Subsecretaría, por la que se publica la Instrucción conjunta de la Dirección General de Migraciones y de la Dirección General de la Policía, por la que se determina el procedimiento para la expedición del documento de residencia previsto en el artículo 18.4 del Acuerdo de Retirada del Reino Unido de Gran Bretaña e Irlanda del Norte de la Unión Europea y de la Comunidad Europea de la Energía Atómica, please visit: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2020-7276.

*  Please note that KPMG LLP (U.S.) does not provide any immigration services.  However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.   

 

The information contained in this newsletter was submitted by the KPMG International member firm in Spain.

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