The Brexit post

The Brexit post

Updated 11 April: The FCO held a live Q&A session on Facebook today as I posted HERE, and in essence, FCO Consular Director Julia Longbottom reiterated all I’ve said below on this post, namely that everything of concern to British residents or property owners here will be the subject of negotiations which will take place over the next two years. No-one’s situation changes in that period, and there will be no new information until negotiations start, and it will then be a matter of policy as to what details the Government will release about those negotiations. When there is any clear information I will publish it here.

Updated 29 March: And so, today is B-Day, starting the two-year process of negotiation for the UK’s departure from the EU. From what the UK’s Exiting the EU Department says, together with comments from EU diplomats, particularly chief negotiator Michel Barnier from France, there is a clear agenda for discussion. First will be the €60bn “divorce bill”, and providing agreement is reached on that, second on the list is the residence rights of EU nationals living in the UK, and by extension, those of Britons living in the EU. At least this should provide an early clarification of our residence status and rights to remain in Spain. Today, then, is when it actually starts to get real.

Updated 20 March: The British Government has announced that Theresa May will trigger Article 50 to start the Brexit process on Wednesday next week, 29 March.

As I said below last month, the official position is that the residence situation of British nationals currently remains the same as before the referendum, and there is no additional requirement for a work permit or extra documentation, nor anything else to enable British nationals to continue living and working in Spain. The current requirements HERE remain valid until further notice.

Having said that, triggering Article 50 sets a clear start date for the two-year Brexit procedure, and since everything will then be a matter of negotiation, today’s announcement makes the next nine days a very good time for anyone who needs to formalise their legal position in Spain to do so. If you are living here and have not registered with the police, or are not on your local Ayuntamiento’s padrón, I would urge you to do so before Wednesday 29 March in case that date becomes significant in any determination of a right to remain in Spain.

Original post 7 February: The UK’s Foreign & Commonwealth Office has reminded British residents in Spain that their residence situation currently remains the same as before the referendum. The FCO’s page is HERE for general advice on residency requirements.

I myself am frequently asked about the situation of Brits in Tenerife now that the UK “has left the EU”, but the UK has not left the EU yet, just voted to do so. As of this moment, and until two years after article 50 has been triggered, the UK is still in the EU. The decision reached in the referendum is currently being taken through Parliament, and it seems that Theresa May intends to trigger Article 50 (a power that Parliament has now given her) by 9 March, which would then become the starting point of the two year negotiating period.

In the meantime, there is no additional requirement for a work permit or additional documentation, nor anything else to enable British nationals to continue living and working in Spain. The current requirements HERE remain valid until further notice.

Beyond that, absolutely everything else will have to wait for the two-year process of negotiations, and I will post any firm information as and when it becomes available throughout this period. In the meantime, I would urge anyone living here who is not registered with the police (and with a Certificado de Registro), or not on a council padrón, to do so immediately.

In this respect, it is worth clarifying one question I’m repeatedly asked by people who have or had plans to move over in the next few years, namely whether “following Brexit, would it be wise to apply for permanent residency now?” The answer is, of course, that as is clear from the link to the current requirements linked to above, those living here do not have a choice to “apply for residency” but are under a “requirement to register”. Anyone living here should already be registered with the police, and anyone who is planning to move over cannot guarantee anything by pre-emptively getting a Certificado de Registro now, which in any case would mean making a false declaration of residence in Spain.

In any case, everyone should bear in mind that the Certificado de Registro is a certificate for EU nationals, and so might be replaced by some other requirements once the Brexit procedure is complete and the immigration conditions for Brits as non-EU nationals are confirmed.

So to reiterate, the current situation will remain the case while Brexit negotiations continue, and everything will have to be determined by negotiations yet to come. Nothing firm can be said until those negotiations are completed. For my more general thoughts, please see below for the post I originally made before the referendum took place, and for the UK Government’s advice for British nationals travelling and living in Europe in the wake of the Leave vote, please see HERE.

The following is what I originally posted in June 2015:

Maybe because it’s been in the news a lot lately, or because David Cameron is in Brussels right now telling the EU what it must do if the UK is to stay in Europe when the referendum is held at some point over the next two and a half years (link), but I’ve had a few emails lately asking what the implications would be for expats in Tenerife if the UK opted to leave. Obviously, to quite a large extent, this is a matter of opinion, perspective, and judgment, but there are one or two firm facts that we can at least use to help form views. The main questions I’m asked concern medical arrangements, pensions, and residential status, and so to cover these in turn:

First, medical arrangements. Clearly the reciprocal arrangements for EU member states could stop if the UK left the EU. This would leave pensioners without an S1 system whereby their cover in Spain is funded by the UK.  There is a safety net in Spain, so it’s not inevitable that pensioners would be without health cover, but there are criteria: anyone who was first registered as a legal resident in Spain (with a Certificado de Registro) before 24 April 2012, and who has remained legally resident throughout, and who has an annual income of under €100,000, and who has no other healthcare cover, can apply to be registered for free healthcare in Spain as a resident. Whether UK nationals would be deemed to have “no right to any other healthcare cover” given that the NHS would cover them if they returned to the UK is another matter. It also seems likely that any rights under the reciprocal European healthcare system which provides British travellers with EHICs for emergency care and cover while out of the UK would be lost. These matters are among many which will form part of the negotiations to be undertaken during the Brexit procedure.

As far as pensions are concerned, the UK will pay these to whichever account an entitled pensioner requests, but David Cameron has said that if the UK leaves the EU, there will be no increases of British pensions for those living in the EU, just as pensioners living in, say, Australia, find their UK pensions frozen at the rate applicable at the point they left the UK. The Government has made noises following Cameron’s statement that suggest this may be negotiable, but the only firm statement made at present is that pensions of British pensioners within the EU will be frozen if the UK leaves the EU. The date at which the pension rate would be frozen is a matter of complete conjecture.

With regard to residence status, Spanish and European law gives residents of an EU nation state the right to reside permanently in another EU nation once they have been legally resident for five years. Once the UK leaves the EU, however, British citizens cease to become “residents of an EU nation” and so their right to remain cannot be taken for granted. That right also extends, though, to member states of the EEA (European Economic Area) and so unless there’s a “hard brexit”, the UK should remain in that group, thus preserving its citizens’ right to remain in Spain if they have been here legally for five years (again, this implies being in possession of a Certificado de Registro and being able to prove essentially continuous residence, presumably by means of an additional Certificate of Empadronamiento from an Ayuntamiento).

Assuming there is some right to remain for those who have been here legally for five years, it is not clear to me what the position would be for those who had not been here for five years, but under EU law I cannot see how Spain could just expel people who had arrived here legally and who had been officially processed. Regardless of length of residence, however, the status of anyone who had not registered with the police and acquired their Certificado de Registro would be “irregular”, rather than “illegal” – just as it is at present.

When it comes to the inheritance and gift tax reductions of 99.9% newly introduced in the Canaries from January 2016, and which apply to tax residents and non-residents alike, one of the few criteria that apply to receiving the reduction is that it applies to non-residents providing they are resident in another EU member state. This is because the non-discrimination requirements are based on EU regulations, and if the UK were to leave the EU, then the discount for inheritance and gift tax would no longer be available, as it is presently not available for those resident outside of the EU.

Incidental questions I’m also asked relate to driving licences – the UK’s involvement in the EU’s photocard licence scheme would be questionable; the effect on the exchange rate – this is a money expert’s question and even if I were one, which I’m not, I doubt I’d be prepared to guess! One thing is clear, howeer, and that is that anyone given the right to remain would retain their right to resident discount on travel within Spain because it is a subsidy given to Canarian residents, regardless of origin.

Obviously the above isn’t “factual” in the normal sense, and some things which are “facts” could change because policy or decisions can be altered, or there might be residual agreements put in place were the UK to leave. But that’s my best attempt given what is known at present to address the concerns I’m increasingly finding people have. I hope it helps, and I’m more than happy for this to be discussed however you like below.

 

15 Comments

  1. I realise you can’t comment on the future situation Janet, but in respect to “anyone resident legally in Spain for more than five years cannot have their rights of permanent residence removed”, would that currently sill hold for someone who has spent time away from Spain, but, for example, had previously held two 5 year residencias with a total of 15 years legal residency in Tenerife? What rights does this infer? TIA

  2. Author

    EU law (ironically) says that EU citizens (as we are at present) and their family members are entitled to permanent residence if they have lived legally in another EU country for a continuous period of 5 years. Spanish law itself (RD 240/07) then says that permanent residence can be lost if the person leaves Spain for more than two consecutive years.

    All I can say for certain right now is that anyone here for 5 years, demonstrably legally resident, and who has not left for more than 2 years, should be entitled under existing EU and Spanish law to the right to remain regardless of Brexit or any negotations. It is those who have not been demonstrably legal, or here for 5 years, who will, I imagine, be the main focus of the negotiations. Anyone else, I presume, will be subject to the final negotiated procedures for new residents.

  3. Having got our NIE numbers some 11 years ago as UK citizens we attended the police station yesterday to apply for our “residence certificates” as Irish citizens. Despite having filed the forms out correctly we initially received the certificates naming us as UK citizens. We explained our situation and pointed to our Irish Passports. We then were told that we must produce our UK passports which we said we no longer had, then we were told it was not possible to change your nationality and finally the passports drew close scrutiny. I think the real problem was the software which when written perhaps did not envision Brexit. But the moral of the story is that we stuck to our guns and eventually left with certificates as Irish citizens. (Sorry to those behind us in the queue). This situation will probably be repeated for a lot of UK citizens who have rights to other European Nationalities and wish to change their certificates. It can be achieved with a little persistence and may get easier as the volume of similar applicants increase.

  4. BillyD, that’s an interesting side to the story – where are you based? What borough?

  5. We are from County Down but now resident in Tenerife but I think our situation will be mirrored by many others – not just those with double nationality with Ireland but also other EU countries.

  6. In the Island connections paper edition 9 to 22 feb, the Free Advice Centre Tenerife are suggesting that anyone with a registro over 5 yrs old, and especially if its a paper one should renew to avoid any problems. Mine doesn’t have an expiry date butwas issued in sept 2008 and even if I renew it it would still be invalid 2 yrs after triggering article 50.
    Any comments on this welcomed

  7. Author

    With regard to whether “one should renew to avoid any problems”, the UK Government’s Foreign Office itself above says it “has reminded British residents in Spain that their residence situation currently remains the same as before the referendum.” I think that answers the question fully as to whether anything needs to be done right now.

    As to registros, renewal is entirely optional and unnecessary because once a permanent residence has been registered EU law requires Spain never to demand a resident re-registers (see HERE where I explain the specific and confirmed legal situation). Those Registros without an expiry date should have “de carácter permanente” or similar in the text of the Registro itself, and once they have a certificate with that wording it is permanent and never needs to be renewed.

    Many people choose to renew because they have an old A4 Registro and want the “card” (though I think it is flimsy and fades too easily). They have the right to renew, but in my opinion to renew because of Brexit is completely pointless. Indeed any further actions at all right now are unnecessary because we cannot know what is going to happen in the negotiations over the next two years, and whether we will need a Registro at all given that it is a certificate for registration of EU nationals.

    The best thing right now would be to attend the free FOCUS/Blevins Franks meeting this Wednesday in Adeje about what we can best do in this period to secure ourselves for whatever might be coming. See HERE for information about the meeting.

  8. Thanks Janet , we missed the meeting in Adeje last week , do you have any further meetings planned , many thanks Mike

  9. Author

    I’m not aware of any, but it’s quite possible once there is some firmer information to go on.

  10. Hi i am looking to move from the uk to tenerife in 2018 at the moment we are just looking at where is the best place is to buy a home . Now with all what is going on would that be a right move still to take coming out of the EU , thank you

  11. Author

    well I really don’t know what I can say other than what I said above.. What more can I say than “triggering Article 50 sets a clear start date for the two-year Brexit procedure, and since everything will then be a matter of negotiation”? Please do also read THIS post which I linked to above.

  12. Many residents here in the UK are unwilling to continue paying for the healthcare of those who choose to live abroad.
    Our NHS cannot continue to pay the medical bills for those wealthy enough to live abroad.
    Those who live abroad would be wise to consider obtaining medical insurance.
    Take this as the ‘Gipsy’s warning’.

  13. Ohhh J.Jones, just imagine how the NHS will deal with 3 million of us returning to the UK en masse if Brexit makes living abroad no longer possible or affordable.

    And for future reference, stating an (entirely unfounded and false) assumption that all we British citizens who live abroad are “wealthy” actually says more about you than it says about us…

    You might also consider the fact that those who live here whose healthcare is funded by the NHS are those past retirement age who have been contributing to the UK system their whole working lives. Why shouldn’t they finally see some return on that? I imagine you expect all your years of NI contributions to eventually benefit you.

  14. Well said Nova – many of us still pay income tax to the UK so J Jones can enjoy healthcare free at the point of delivery.

  15. J.jones we have a reciprocal heath agreement with Spain. Qualifying UK people living in Spain can use the Spanish health service (normally pensioners who have made National Insurance contributions all their lives in the UK), the same holds true for Spaniards living in the UK. We have paid our contributions to the UK and oaid taxes there. The fact that we choose to live in another part of Europe whilst enjoying the service that we paid for in the UK is neither here nor there. In fact we probably make fewer demands than UK pensioners given that the climate here helps with a lot of conditions brought about by the climate in the UK. I don’t need, and I don’t get the cold weather payments, I rarely need to see a doctor. We are probably easing the pressure on the NHS not being a drain on it.

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