The 25 March 2019 Ruling sets out the instructions determining the procedure in the event of withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union without the agreement provided for in European Union Article 50  Treaty having been reached, for documentation of United Kingdom nationals and their family members, residing in Spain before the date of withdrawal as well as for documentation of United Kingdom nationals who meet the condition of frontier workers before the date of withdrawal.

Given the possible withdrawal of the United Kingdom from the European Union, without finally reaching an exit agreement, in accordance with the provisions of Article 50 of the Treaty on European Union, and in development of the measures contemplated in Section 1 of Chapter II of RDL 5/2019 1 March - validated by the Permanent Congress Council, on 3 April 2019, concerning the creation and development of a specific framework for documentation as third-country nationals of United Kingdom nationals and their family members residing in Spain, by agreement of the Council of Ministers of 22 March 2019, the instructions determining this documentation procedure were approved.

We must start from the premise that, if an agreement is not reached within the period initially set, and then extended -in principle- until next April 12, for an agreed exit from the United Kingdom, British nationals and members of their families would automatically be considered citizens of third countries, framed for all purposes in the Foreign Legal Status.

With the aim of mitigating the negative effects and legal insecurity for UK nationals that could result from such a situation, RDL 5/2019 of 1 March, in view of the special circumstances of a qualitative and quantitative nature that are incumbent on nationals of that country residing in Spain (Spain is the European Union country where the largest number of UK nationals reside), provided for the creation of a specific regime for documentation as third-country nationals, which must be obtained within twenty-one months of the withdrawal without the agreement of the United Kingdom.

Thus, by means of the instructions approved by the Council of Ministers held on 22 March 2019, the manner, requirements and deadlines for obtaining temporary residence and work permits for those United Kingdom nationals and members of their families who, before the date of withdrawal without agreement, were already residing and, where appropriate, working or studying legally in Spain, exercising their right to free movement as Union citizens.

Among the approved instructions, it should be noted that United Kingdom citizens and their family members will have a period of 21 months from the date of withdrawal without agreement, to apply for the procedure of requesting documentation corresponding to the authorization of temporary residence and work. This procedure varies depending on whether or not the UK national holds a temporary registration certificate.

In any case, at the time of applying for temporary residence and work authorization, a valid passport must be provided, as well as any proof of residence in Spain before the date of withdrawal.

Regarding the documentation that must be provided by citizens of British nationality, who on the date of withdrawal from the United Kingdom of the European Union perform a work activity in Spain, is distinguished:

a.- Employed persons: they must provide a declaration of employment from the employer or a certificate of employment. These documents must include at least the name and address of the company, tax identification and contribution account code. In any case, the presentation of the employment contract registered with the corresponding Public Employment Service or any document accrediting registration, or a situation similar to registration, in the corresponding Social Security regime will be admitted, which may be replaced, if the interested party gives his consent, by a consultation of data in the files of the Social Security General Treasury.

b.- Self-employed persons: they must provide proof that they are, in fact, self-employed. In any event, the registration in the Census of Economic Activities or the justification of its establishment by means of the inscription in the Mercantile Registry or any document that accredits the registration or situation assimilated to the inscription in the corresponding regime of the Social Security, being able to substitute also the accreditation of this extreme, to authorize the interested party the consultation of data in the files of the General Treasury of the Social Security, or of the State Agency of the Tax Administration.

The validity period of the temporary residence and work permit for nationals of the United Kingdom shall be up to five years.

As for family members of UK citizens, if they also hold UK nationality, they must prove that they accompanied the UK national before the date of withdrawal. If the family members are nationals of a third country, in order to obtain a temporary residence and work permit, they must comply with the requirements expressly provided for in Chapter III of the Agreement, varying depending on whether they hold a temporary EU citizen's family card or not.

With regard to cross-border workers, defined in the Agreement itself as those workers who carry out lucrative, labour or professional activities, both self-employed and employed, in Spanish territory, residing in another State or territory to which they return, at least weekly, must apply for a work permit for frontier workers, at the Aliens Office of the province in which they work, before the end of the aforementioned period of 21 months from the date of withdrawal.

The period of validity of the work permit for cross-border workers of nationals of the United Kingdom shall coincide with the duration of the contract of employment or planned activity, with a maximum limit of one year, and may be extended annually after its expiry, if the activity is maintained as self-employed or employed.

The entry into force of the instructions would be subject to the United Kingdom leaving the European Union without a withdrawal agreement signed in accordance with the provisions of Article 50.2 of the Treaty on European Union, in accordance with the provisions of RDL 5/2019 of 1 March. In this case, the instruction shall enter into force on the day on which the Treaties of the European Union cease to apply to the United Kingdom, in accordance with Article 50.3 of the Treaty on European Union.

For more information, please contact:

Alfredo Aspra

alfredo.aspra@AndersenTaxLegal.es

José Antonio Sanfulgencio

jose.sanfulgencio@AndersenTaxLegal.es