Informative Note regarding current rights and duties in Spain of British nationals with regards to Residency and Health Cover
In response to previous Facebook threads requesting advice on residency and healthcare I have produced this note which is for information purposes only and is general in nature and not to be regarded as a substitute for specific legal advice.
The UK government and the European Union have as a priority to deal with the rights of UK nationals in Europe and those European nationals living in the UK. Negotiations are set to start on the 19th June 2017.
This note considers the absolute worst case scenario if the UK leaves the EU with no deal with the either the EU or Spain.
Current residency requirements in Spain
According to Royal Decree 240/07 it is a legal requirement to register at your local police station if you intend to stay more than 3 months in Spain. Many of you will have the green card or paper which is a certificate of registration as a citizen of the European Union showing a date of residence. The first card is classed as temporary although there is no expiry date. However, you are expected to apply for permanent residency after 5 years of being resident in Spain. After permanent residency is obtained this is the equivalent to indefinite leave to remain, you are not obliged to renew thereafter.
An application for an NIE number (Numero Identidad Extranjero) does not require you to be resident in Spain. Most transactions require you to have an NIE number from opening bank accounts to buying a car etc.
Prior to April 2012 to obtain residency in Spain you did not need to show proof of income or health cover and were automatically given the right to access the Spanish public healthcare. Now you need to prove sufficient financial means and health cover in the form of public or private.
Please note that registration at the police station is not the same as tax residency. You will be considered tax resident if you spend 183 days or more a year in Spain whether you are registered as resident at the police station or not.
Residency post Brexit
What will happen to my residence status post Brexit if the UK leaves the EU with no deal with the EU or bilateral agreement with Spain?
In the above circumstances we would need to look at Spain’s national laws regarding immigration.
The very worst case scenario is that British nationals no longer being EU citizens will have to modify their status from being on the register as an EU nationals to that of the General Register for third nationals.
There are already mechanisms in place whereby those third country nationals on the EU register via marriage are able to modify their status after divorce. These nationals are not always required to change their status and one condition is if they have been married for 3 years to the EU national and lived in Spain for at least a year.
Although the above circumstances are different from Brexit as we are talking about a divorce from the European Union not an individual EU national, it might be that Spain in the worst case scenario will adapt and use these rules already in place.
If British nationals were required to modify their status they would be given a transitional time to do this in. Therefore even with a hard Brexit, British nationals in Spain will not become illegal immigrants overnight.
State pensioners currently receive their healthcare in Spain via reciprocal agreements and production of their S1 forms. Workers in Spain paying into the Spanish Social Security System have a right to Spanish healthcare via their contributions.
Many British pensioners are quite rightly very concerned about the effect whereby the UK leaves the European Union without the reciprocal health agreement being in place. It is worth noting that Spain has other reciprocal agreements with other countries outside the EU.
If the reciprocal agreement ceased to apply then we would need to consider private health cover and the Convenio Especial. Many pensioners with pre-existing conditions would not have the right to access private health insurance. The Convenio Especial is a means whereby you can pay into the Spanish health service and does not take into account pre-existing conditions. The cost is €60 per month unless you are over the age of 65 whereby increases to €157 per month. However for those living off the basic state pension and unable to afford the Convenio Especial there could implications with regards to continued access to healthcare in Spain. It is highly unlikely that British pensioners in Spain will find themselves on the day after Brexit turned away from their doctor’s surgery. Further it would not be in the interests of the British Government to cease to pay for their pensioner’s health care in Spain as it would be a far cheaper option to continue to pay for their healthcare than risk the return of British pensioners to the UK.
The European Health Insurance Card (EHIC) proves the entitlement to necessary healthcare during a temporary stay in a Member State. After Brexit British nationals could lose this right and have to obtain travel insurance when visiting the European Union. For those British workers paying into Spanish Social Security they should be entitled to an TSE Card (Tarjeta Sanitaria Europea) which would enable holders of the card to receive medical care in other member states when travelling outside of Spain however this is unlikely to cover the UK.
Unfortunately the uncertainty will continue until citizens’ rights in both the EU and the UK are secured through negotiations. Brexpats will be keeping a close eye on the negotiations as they unfold and will continue to communicate concerns to British, European and Spanish politicians.
Victoria Westhead (legal adviser)
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