Long term visa - Page 4

This is the response to my question 



Dear Sir/Madam, 

Please find below the reply to your enquiry. Please note that the advice given by Your Europe Advice is an independent advice and cannot be considered to be the opinion of the European Commission, of any other EU institution or its staff nor will this advice be binding upon the European Commission, any other EU or national institution. 

Dear Sir, 

Thank you for getting in touch with Your Europe Advice. 

You have a query relating to your and your wife's entitlements to live/travel to/in France/Spain, under EU law. 

You are a UK citizen, and your wife is a dual Irish/UK citizen. 

You wonder to what extent you will continue to be able to invoke EU law in the future, after the transitional period laid down under the Withdrawal Agreement between the EU and the UK. The transitional period ends on the 31st December 2020. 

Thus, you wonder whether you may still rely on EU law for your travels into France and Spain after the 31st December 2020. 

Given that your spouse is an Irish citizen, she will continue to qualify as an EU citizen. Given that you are her family member as her spouse, you will also continue to qualify as a beneficiary of EU law; This is because the Republic of Ireland continues to be a member of the European Union. The rest of this post will focus on your and your wife´s rights of residence in Spain or France, on the premise of your query, which refers to the fact that you may soon retire to your properties in France or Spain. 

Accordingly, the Withdrawal agreement between the EU and the UK is not necessarily relevant to your situation. In other words, you may still rely on your wife's EU citizenship (as an Irish citizen) in order to claim that you are vested with rights of free movement under EU law, as the family member of an EU citizen. 

We will therefore focus on your question, on the basis that your wife will continue to be an EU citizen (ie. as a citizen from the Irish Republic). However, also note that the answer would be the same if the answer were to be given to you on the basis that you are a UK citizen and the rights of residence in France or Spain are to be invoked before the end of 2020, by virtue of the Withdrawal Agreement (signed and ratified by the EU and the UK). 

This is because, notwithstanding Brexit occurring on the 31st January 2020, UK citizens and their family member still benefit from EU free movement rules by virtue of the Withdrawal Agreement, which laid down a transitional period which will last until the end of 2020. 

Your question relates to the entitlements you and your spouse/close family member may benefit from in France/Spain. 

Your wife is an Irish citizen and you are her family member (on the basis that you are married to her). Where both of you reside in France/Spain, inasmuch as you live there for periods of over 3 months a year, you will continue to enjoy the right to reside in both member states, subject to the conditions that are explained below. 

You wonder what documents are required for the process of registration as residents in France/Spain. 

EU citizens are entitled to remain in France/Spain, subject to a number of conditions. 

Where EU citizens remain in Spain for more than 90 days, they must submit a residence application to the relevant office in the locality of residence (Oficina de extranjeros in Spain, Préfecture in France). The matter is regulated under Directive 2004/38, as implemented under Spanish law by virtue of Real Decreto 240/07 and article R121-1 Code d Entrée et de Séjour des Étrangers 
et du Droit d Asile (Ceseda). 

The basis for the application will be as follows: 

That your wife is an Irish citizen, 

And 

That your wife is either working, self-employed or self sufficient in France/Spain, the latter category meaning that she has sufficient means to maintain herself (and dependents) in France/Spain, AND that she has comprehensive sickness insurance covering herself (and her dependents), against all health risks. The requirement for comprehensive sickness insurance can also be satisfied with a private insurance policy. 

In relations to a private health insurance cover, and inasmuch as it does indeed cover against all medical risks, it would meet the requirements set under Article 7 Directive 2004/38. The matter is regulated under article 8 9 and 10 of Directive 2004/38; and Real Decreto 240/07 by virtue of Spanish law. 

The following proof will be required: 

Proof that your wife is an Irish citizen: (Irish passport) 
Proof that your wife is a worker, a self-employed person or a self-sufficient person, (proof of financial means and proof of comprehensive sickness insurance); 
For you, your UK passport; and your marriage certificate (note that Spain and France may require the marriage certificate to be legalized and translated). 

Note that the requirement for financial means does not require proof of a French/Spanish bank account. So long as proof of sufficient financial means is produced, it matters not if the proof of funds is adduced in the form of UK bank statements (it may however require you to have to translate the same, thus, having to under the extra expense of using a sworn translator for that purpose). 

Throughout the processing of your applications, you and your family member enjoy a right of residence in France/Spain by virtue of being able to prove the above conditions. 

In Spain, you are urged to contact a Spanish immigration adviser. For more on this, you are urged to contact the local Law Society ("Colegio de Abogados"). 
https://www.abogacia.es/conozcanos/la-institucion/colegios-y-consejos/ 

In France: 

https://www.cnb.avocat.fr/fr/annuaire-des-avocats-de-france 


For more information about the current restrictions in both France and Spain, you are referred to the following website: 
https://ec.europa.eu/info/live-work-travel-eu/health/coronavirus-response/travel-and-transportation-during-coronavirus-pandemic_en#traveladviceandbordermeasures 


Best regards, 

Your Europe - Advice 

To submit another enquiry, please visit Your Europe Advice, but do not reply to this e-mail. 

Your original enquiry was:
I am a U.K. citizen and my wife has dual UK and Irish citizenship . After Dec 2020 am I permitted to travel within the EU with her as the spouse of a EU citizen free of any visa requirements and is my stay limited ? We own properties in both France and Spain And travel often .we may soon retire to our properties 

Yours sincerely, 

Your Europe Advice

Hi Alan,

Many thanks for that detailed response.  I think the advisers have done a very good job of answering a lot more questions than you asked; however, I don't believe they have said that you will be able to spend more than 3 months in Spain and/or France without the benefit of residency or a long-term visa.

Your wife, as an EU (Irish) citizen, retains Freedom of Movement and this would allow her to spend 3 months in Spain, before she would need to legally register as a foreigner living here.  In practice, that's what should have been happening long before Brexit was on the horizon, but because we were all European citizens, Spain turned a blind-eye to those who didn't register, so long as they didn't stay more than 182 days when, legally registered or not, you become a fiscal resident and have to submit tax returns here.  It may well be that Spain will continue to ignore non-registration by members of other EU member states, and your wife will be able to continue staying in Spain for up to 182 days without attracting the attention of the Spanish authorities.  Personally, I think the Spanish (and French) authorities are going to have enough on their hands with the new regulations and processes which they will have to apply to UK citizens to care about whether citizens from other EU member states have registered in the required timeframe.

For completeness, although it is not relevant in terms of EU Treaty Rights, but for UK citizens post-Brexit, they will also have to comply with Schengen travel zone regulations, which mean that when we become TCNs (Third Country Nationals) from 1 January 2021, you can travel to Schengen countries (most of Europe) for only 90 days in a 180 rolling days period.  I only mention this because many people seem to confuse Spain's registration/fiscal residency (3 months/183 days or more) with the EU's Schengen rules (90 days in a rolling 180 days), although they are entirely different regulations.

Kind regards, 

Kim

I have an Irish passport and my husband and English but we are both residents of ireland We bought a property in Moraira ten years ago and in the process got our NIE number. Does this mean we can stay in Spain for longer than the 3 months at a time? It's very confusing as some sites say183 days some 90/180 and some 3 months. Tia jacqui

You are Irish so still an EU citizen.  The rule in Spain has ALWAYS been that everyone needs to apply for residency if staying longer than 90 continuous days.  They legal way for an EU citizens to get around this for longer stays is to leave Spain for a weekend towards the end of the 90 days and when they arrive back in Spain the clock resets back to day one.  However, there is a Spanish law that says stay 183+ days in any year and regardless of your status, (ie resident or not), you are required to file a tax return and pay due tax on worldwide assets.

As the spouse of an EU citizen your husband has the same rights as you when travelling with you.  The 90 day rule has not been enforced for EU citizens but the introduction of ETIAS next year has the potential for that to change.

So, in conclusion, no, you are not bound by the 90/180 day rules, you are still bound by 90 days max per stay and the 183 day tax rule.

Thank you so much, that is much clearer. Jacqui

Like Jacqui l hold an Irish passport and my wife has a UK passport. I have a new role that may require travel for work to EU excluding Spain. Would the time spent working count against my 90 days in 183 allowance or not. The main place of work is UK. Thanks Peter