After several questions about 90 day rights, part-time residents’/swallows’ rights, what can be done to “get around the rules”, whether NIEs or rental contracts are enough (answer is no) … I am reproducing here what is already in the Swallows section of THIS page because some are clearly finding it difficult to find. Following, then, is the information again with relevant links, for those who are neither residents nor <90-day holidaymakers. Please note that if there is a link to an external source, it is there that any further questions about its contents should be directed.
Those who consider themselves part-time residents, a category we know as swallows, are in something of a difficult position now that the Brexit Transition Period is over. Anyone coming to live here for more than three months must register but, in a second rule that is less widely known and even less complied with, must deregister (request a “baja” of their registration) when they leave to live somewhere else. Even if they do not, however, their registration will lapse after a certain period of time: Spanish law (articulo 162.2e of Real Decreto 557/2011) provides for temporary residents to lose their residence status after six months in a year while those with permanencia can be outside of Spain for five years before losing theirs thanks to rights guaranteed in Article 15.3 of the Brexit Withdrawal Agreement. This has not been an issue previously because as nationals of an EU member state, British visitors have come and gone without passports being checked or stamped: that easy pass through border control points, or even using the EU channels in airports, has now stopped.
Swallows, indeed, have not been able to visit for more than six months a year anyway because beyond that they automatically become fiscally resident in Spain, the very thing many wish to avoid: please see HERE and HERE for fuller explanations from tax specialists on tax residence. Many swallows, however, typically visit Tenerife for four or five months at a time, and so although the six month rule is not an issue for them, they will only be able to continue to visit as they like if they apply for and are granted a visa. In 2020, the FCDO confirmed that the British and Spanish authorities were aware of “the swallow issue”, and there were hopes that some sort of arrangement would be put in place for them. Nonetheless, the Transition Period has passed and British temporary visitors remain without any special rules. Instead, the UK has referred enquiries to the Spanish authorities – please see HERE for information about visas that can allow temporary residence in Spain beyond 90 days.
In a nutshell, swallows now face three problems:
- since the Transition Period ended, non-residents are restricted by Schengen Area rules to 90 days visa-free travel in any 180 day period as are all other 3rd-country nationals. For those here before the start of 2021, this clock started counting on 1 January so calculations only need to include the part of the visit from then. For more details on the 90/180 limit, please see the Brexit post HERE, and there is also a Schengen Calculator HERE to work out permitted timings;
- anyone who is caught staying longer than 90 days without either registering with the police or having a valid visa no longer has the protection previously enjoyed of being an EU national in an EU country. This could mean, ultimately, that they are prohibited from returning to Spain or even, the FCDO has confirmed, be deported from Spain, because British nationals have lost the effective immunity to real sanctions that EU nationals have;
- the criteria for registering as a resident are more stringent and yet registration, or a visa that wasn’t previously required, is very much more important in order to be legal in the EU as a non-EU national.
It’s pretty undeniable that in the past many swallows registered with the police specifically to get a Registro to enable them to enjoy the rights of EU nationals and the benefits of residency, including discounts on regional travel and venue entries, while leaving the country for months on end without deregistering with the police and then returning to Spain as though they lived here. Their main motive was to retain British tax residence status which required them actually to be resident in the UK and physically there for at least six months of a year. They wanted the best of both worlds, in short. The word cakeism has been thrown about quite a bit through the Brexit negotiations, but there are no more cherries to pick from this one now that the UK has chosen to leave the EU which provided those benefits.