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BREXIT

Can non-resident Brits in Spain get an extension on the 90-day rule and what happens if they overstay?

Travel has been heavily restricted around most of the globe for the past year, so has this led to any relaxation of the rules in Spain in terms of length of stay for non-EU nationals such as for unregistered Britons? And what are the penalties for overstaying?

Can non-resident Brits in Spain get an extension on the 90-day rule and what happens if they overstay?
Photos: Gabriel Bouys/AFP

Reader question: We are British and travelled to our second home in Spain before Christmas. Since then travel restrictions have been tightened and several of our flights have been cancelled so we have holed up in our home in rural Spain. But now the 90-day rule is in force will we have to leave by the end of March or has the rule been waived because of the difficulties in travelling?

Many people’s travel plans have been thrown into disarray over the last year, for many that has made trips to Spain impossible, while others have ended up staying much longer than they planned.

But however topsy-turvy the world has become, there are still limits on how long certain groups can stay in the country.

For people who are not EU citizens – which since January 1st 2021 includes UK nationals – the 90-day rule comes into play.

You can find a full explanation of how it works HERE, but essentially it limits trips into the Schengen zone (which Spain is a part of) to 90 days out of every 180. People who want to stay longer than 90 days in every 180 must either get a visa or apply for residency.

READ MORE:

So have these limits been waived during the Covid crisis in Spain?

The EU has issued some general advice on this, encouraging member states to grant visa extensions where necessary and to waive sanctions on people who have overstayed due to travel restrictions.

As ever though, decisions on border issues remain with national governments within the EU.

Spain did issue a state bulletin in May 2020 in which it addressed the matter of overstays for all non-EU nationals during the early months of the state of alarm. In the document the Spanish government explained how those people who were in Spain, with permission to stay for a period not exceeding 90 days, that has expired during the validity of the state of alarm, would see their stay automatically extended for a period of three months.

However, according to British Embassy sources, this grace period is no longer valid.

“The BOE legislation from May 2020 related to the first state of alarm is no longer in force,” a source from the UK Embassy in Madrid told The Local Spain.

ANALYSIS: ‘I’m sad to be leaving Spain’ – Despite the efforts many Britons have not registered

“The 90/180 day rule applies to any UK nationals who are visiting Spain for leisure purposes since 1 January 2021. Any stays beyond the 90 days in any 180-day period will be dependent on the applicable visas and immigration rules for Spain. This may require applying for a visa and/or permit.

“The FCDO is not able to comment on Spanish immigration policy. We would therefore advise UK nationals to direct any queries to the relevant Spanish authority. If you are currently in Spain, you should direct queries on possible extensions to your length of stay to your local ‘extranjería’ office, details of which can be found here or by calling 060.

“Anyone who was living in Spain before 1 January 2021, but does not yet have their residency documentation, should take steps to register as soon as possible. For more information visit: https://www.gov.uk/guidance/residency-requirements-in-spain

Other non-EU nationals in a similar situation should therefore also contact Spanish immigration authorities.

When Spain went into full lockdown in March 2020 and it allowed thousands of third-country nationals who were unable to return home due to international travel bans to remain in Spain, it did force those who spent more than 183 days in Spain to become fiscal residents and to start paying taxes here.

Travel restrictions are not as severe now as they were then but there are still comments on forums by Britons in Spain or Spanish homeowners in the UK saying their flights between both countries for February and March have been cancelled.

According to Spanish lawyer Romulo Parra, Spain only generally offers visa extensions to third-country nationals in the event of illness or an accident, but these are unusual times. 

What are the consequences of overstaying 90 days in Spain?

Spain’s foreign ministry doesn’t mention what the consequences of overstaying 90 in 180 days in Spain are in its FAQ or its state bulletin but fines and temporary bans from the Schengen Area are widely mentioned online, without any specifics usually given.

We’ve done some digging and found that according to article 53.1.a of Spain’s Immigration Bill, surpassing the 90 days could be considered a serious violation in the eyes of the law, with fines going from €501 to €10,000, a possible expulsion from Spain as well as a potential ban from the Schengen area for six months to five years. 

We reiterate that this is for a serious offence. Minor wrongdoings can result in fines under €501. Very serious breaches can lead to penalties of €10,000 to €100,000.

But as last year’s Spanish state bulletin dealing with overstays of third-country nationals did give them a further three months’ grace period during the state of alarm in 2020, there is less reason to think that any of these penalties should be applicable if reasonable and justified reasons are given for not sticking to the deadline ie. flights cancelled due to coronavirus restrictions.

For non-EU nationals like Americans and Australians, Spain has earned itself a reputation for being not too fussy about the exact exit date of people who aren’t working or claiming benefits in Spain as long as it’s fairly close. It’s also true that there is likely to be a ‘bedding in period’ for the new rules.

The obvious advice however is that if you’re not planning on applying for residency in Spain, you should book your flight out long before the end of your 90-day stay, to give yourself some leeway in case your flight is cancelled.

It’s highly unlikely Spanish police will be deployed to hunt out overstayers and deport them, as claims made in some UK newspapers have suggested.

A spokesman for Spain’s Interior Ministry told The Local that those British nationals who do not apply for residency will be “advised of the situation”.

“We will act with proportionality,” he said.

READ ALSO: OPINION – Neither Spain nor the EU are to blame for some Britons having to leave

I am worried I will exceed the 90-day permitted limit while awaiting residency in Spain. Should I be?

During a recent Q&A the British Embassy in Spain conducted on Facebook, Fiona in the Canary Islands said she had submitted her application for residency in December, ahead of the Withdrawal Agreement deadline, but was worried that as the process can take a while, she might exceed the permitted 90-day period that Britons are allowed to stay in the EU without being residents.

Marc Garcia Palma from Age in Spain, an organisation which is providing assistance to Brits in Catalonia, Balearic Islands, Canary Islands and North of Spain, said: “While you are on waiting period to receive resolution of your application you are allowed to stay in Spain even if you surpass the 90 days-period that third country nationals have, so while you are waiting for the resolution you have nothing to worry about.”

READ ALSO: When is the deadline for Brits to apply for residency in Spain?

My application was rejected. Can I legally stay in Spain while appeal is being processed?

Legal Advisor Alicia Gárate from IOM sought to reassure Karen in Burgos who was worried that she might break the 90-day rule after her application was rejected.

“You can live in Spain while your application is being process but also while you appeal the rejection of that application and while that appeal is being processed,” she said. 

Q&A: Everything you need to know about residency in Spain post-Brexit

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For members

BREXIT

What is the latest on Gibraltar’s Brexit status?

With 2023 approaching and negotiations between Gibraltar, the UK, EU and Spain dragging on for yet another year, what is the latest on Gibraltar and Brexit? Will they reach a deal before New Year and how could it affect life in Gibraltar and Spain?

What is the latest on Gibraltar's Brexit status?

As British politics tries to move on from Brexit, the tiny British territory at the southern tip of Spain, Gibraltar, has been stuck in political limbo since the referendum all the way back in 2016.

Gibraltar, which voted in favour of Remain during the referendum by a whopping 96 percent, was not included in the Brexit deal and has instead relied on a framework agreement made between the UK and Spain on New Year’s Eve in 2020.

After that framework was laid out, it was hoped that the various parties – that is, the Gibraltarian government, Spain, the EU, and the UK – would build on it and quickly find a wider treaty agreement establishing Gibraltar’s place on the European mainland in the post-Brexit world.

It was thought that Gibraltar could enter into a common travel area with the Schengen zone, limiting border controls and essentially creating a custom-made customs arrangement with the EU.

But since then, the negotiation process has stopped and started, with no deal being made and uncertainty dragging on through 2021.

Despite all parties still being relatively optimistic in the spring of 2022, no resolution has been found and 2023 is approaching.

Relying on the framework agreement alone, uncertainty about what exactly the rules are and how they should be implemented have caused confusion and long delays on the border.

The roadblocks

Progress in the multi-faceted negotiations to bash out a treaty and determine Gibraltar’s place in the post-Brexit world have repeatedly stumbled over the same roadblocks.

The main one is the issue of the border. Known in Spain and Gibraltar as La Línea – meaning ‘the line’ in reference to the Spanish town directly across the border, La Línea de la Concepción – the subject of the border and who exactly will patrol it (and on which side) has been a constant sticking point in negotiations.

Madrid and Brussels have approached the British government with a proposal for removing the border fence between Spain and Gibraltar in order to ease freedom of movement, Spain’s Foreign Minister José Manuel Albares said in late November 2022. There has been no immediate response from London.

The Gibraltarians refuse to accept Spanish boots on the ground and would prefer the European-wide Frontex border force. The British government feel this would be an impingement on British sovereignty. There’s also been the persistent issues of VAT and corporation tax considerations, as well as the British Navy base and how to police the waters around it.

Though there had been reports that the ongoing British driving license in Spain fiasco had been one of the reasons negotiations had stalled, the British ambassador to Spain Hugh Elliot categorically denied any connection between the issue of Gibraltar’s Brexit deal and British driving licence recognition earlier in November.

READ ALSO: CONFIRMED: Deal on UK licences in Spain agreed but still no exchange date

On different pages?

Not only do the long-standing sticking points remain, but it also seems that the various negotiating parties are on slightly different pages with regards to how exactly each seems to think the negotiations are going.

Judging by reports in the Spanish press in recent weeks, it appears that many in Spain may believe the negotiations are wrapping up and a conclusion could be found by New Year. This perception comes largely from comments made by Pascual Navarro, Spain’s State Secretary to the EU. Speaking to reporters in Brussels, Navarro claimed that negotiations have advanced so well that they were now only working ‘on the commas’ of the text – that is to say, tidying it up.

According to Gibraltar’s Chief Minister Fabian Picardo, though negotiations are ongoing, “we’re not there yet”. (Photo: JORGE GUERRERO/AFP)

“No issue that is blocked,” he said. “All of the text is on the table.” A full treaty, he suggested, could be signed “before the end of the year.”

Yet it seems the Gibraltarians don’t quite see the progress as positively as their neighbours. Last week the Gibraltar government, known as No.6, acknowledged Navarro’s optimism.

According to Gibraltar’s Chief Minister Fabian Picardo however, though negotiations are ongoing, “we’re not there yet”.

No.6 remains positive and hopes for a deal, but in recent weeks has also published technical contingency plans for businesses to prepare for what they are calling a ‘Non-Negotiated Outcome’ – effectively a ‘no-deal’ in normal Brexit jargon.

The UK, however, seem to be somewhere in the middle. Like Navarro, the British Foreign Secretary James Cleverly recently suggested at a House of Commons select committee that only “a relatively small number” of issues remain to be resolved.

However, he also acknowledged the possibility of a non-negotiated outcome. “I think it’s legitimate to look at that [planning for a non-negotiated outcome] as part of our thinking,” Mr Cleverly said. “But obviously we are trying to avoid an NNO.”

Election year

If no deal is found by New Year, that would mean that negotiations drag into 2023 – election years for both Picardo and Pedro Sánchez, Spain’s Prime Minister.

Gibraltar is expected to have elections sometime in the second-half of the year, and Sánchez has to call an election by the end of 2023.

In many ways, Spanish domestic politics has the potential to play a far greater role in Gibraltar’s fate than British politics. In fact, the shadow of Spanish politics looms over these negotiations and the future relationship between Spain and Gibraltar, the UK and Spain, and the UK and EU.

If Sánchez’s PSOE were to lose the election, which according to the latest polling data is the most probable outcome, then it would be likely that Spain’s centre-right party PP would seek to renegotiate, if not outright reject, any deal made.

READ ALSO: Who will win Spain’s 2023 election – Sánchez or Feijóo?

If PP are unable to secure a ruling majority, however, they may well be forced to rely on the far-right party Vox, who have often used nationalist anti-Gibraltar rhetoric as a political weapon. If Vox were to enter into government, which is unlikely but a possibility, it’s safe to say any agreement – if one is even reached before then – would be torn up and the Spanish government would take a much harder line in negotiations.

As the consequences of Brexit churn on in Britain, in Gibraltar uncertainty looms.

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