Spain – the Withdrawal Agreement and citizens’ rights

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The UK’s left the EU took place on 31 January 2020 and the terms of its exit are set out in the Withdrawal Agreement negotiated by the EU and the UK. The Withdrawal Agreement contains a number of provisions to ensure that the uncoupling takes place in an orderly manner and was facilitated by the transition period which ended on 31 December 2020.

An important issue covered in Title II of the Withdrawal Agreement is that Residence rights are regulated.

For the Spanish Government, the issue of citizens’ rights was a major priority throughout the negotiations. Spain is the country of residence of the largest community of UK nationals in Europe and a significant number of Spaniards reside in the UK.

The Spanish Government has sought to offer maximum legal certainty to UK nationals residing in Spain who, after Brexit, wish to continue to do so.

Likewise, it has established a specific procedure for the documentation of British border workers in Spain from 31 December 2020, also protected by the Withdrawal Agreement.

Conditions for British nationals who want to enter Spain

UK nationals can currently be considered as third country nationals covered by the general immigration rules or as beneficiaries of the Withdrawal Agreement.

The latter are covered by the regime set out in the Withdrawal Agreement, provided that they meet the conditions it establishes. The importance of distinguishing one citizen from another obliged EU Member States to establish a documentation procedure on the basis of Article 18 of the Withdrawal Agreement which could be constitutive or declaratory in nature. The UK has opted for the former approach while Spain has opted for the latter.

The constitutive procedure requires applications to be made for a new residence status from scratch and within a certain period of time. At the end of this period, those who have not been able to prove their status as such are deemed not to meet the requirements of the Withdrawal Agreement and are therefore not beneficiaries. This is the “settlement” system.

In contrast, the declaratory procedure does not require proof of the existence of a right from scratch, but rather that the right is recognised for those who fulfil the conditions of the Agreement. In practice, this means that any citizen can prove, at any time by any legally valid means of proof, that he or she is a beneficiary of the Withdrawal Agreement and that, consequently, its provisions apply to him or her. Moreover, in the Spanish case, it’s understood that this implies that all individuals who were documented under EU law with a registration certificate or EU family member card do not need to start a new documentation procedure from scratch, but can request the exchange of one card for another whenever they wish.

However, despite the arrangements outlined above, Spain has repeatedly recommended that UK nationals make this change, as the new card accrediting beneficiary status follows a model established at European level and, as it’s a physical card containing biometric elements, it has numerous advantages.

On the other hand, a group of citizens did not comply at the time with the obligation to apply to be documented as EU citizens and, for evidentiary purposes, may encounter greater complications in exercising their right as a consequence. Whilst they will continue to be able to prove their status in any legally valid way, equally, proving that all the requirements of the Withdrawal Agreement have been met is not a simple task, nor one that can be easily demonstrated by any administrative authority.

These formalities are carried out by the Immigration Offices, as established in the joint Instruction of the Directorate General of Migration and the Directorate General of the Police, which determines the procedure for issuing the residence document provided for in Article 18.4 of the Withdrawal Agreement.

This, in the context of the global pandemic and difficulties in crossing international borders, could pose a problem for some British citizens who could not physically submit the application to obtain this recognition of beneficiaries that would allow them the effective and automatic exercise of their right. However, since the documentation procedure was established, the possibility of submitting these applications online and through a representative has been made available, so that no British citizen can be disadvantaged by this exceptional situation that we have experienced. More information can be found here.

Therefore, the following updated information documents that serve to more easily prove the status of beneficiary of the Withdrawal Agreement at the border have also been incorporated with the favourable decision of the OEX:

  • The TIE
  • The certificate of registration as an EU citizen (green resident card)
  • EU citizen’s family member card
  • Resolución favorable de solicitud de reconocimiento como beneficiario del Acuerdo de Extranjería emitida por las Oficinas de Extranjería.
  • Receipt of the application for the exchange of the certificate or card for the new EIT.