SHARE
COPY LINK
For members

VISAS

BREXIT: Can Spain legally offer more than 90 days to Britons?

Does Spain have to abide by the Schengen Area’s 90-day rule for third countries or can a deal be struck between Spanish and UK authorities which extends the current time limit?

BREXIT: Can Spain legally offer more than 90 days to Britons?
Could the visa waiver for Britons in Spain be changed from 90 to 180 days? (Photo by JORGE GUERRERO / AFP)

Since the start of 2021, Britons who are not in possession of a residency document from Spain or another EU/Schengen country can only stay 90 days in any 180-day period within the Schengen Area, including in Spain.

This end to freedom of movement for non-resident Britons is a big concern for those who before Brexit could spend extended periods in their favourite spots in Spain and Europe. 

Hundreds of thousands of UK nationals enjoyed up to six months a year in Spain (sometimes all in one go) in properties they owned or rented out, but now they must plan their time carefully to not fall foul of the law.

READ MORE: How Brits can properly plan their 90 out of 180 days in Spain and Schengen Area

It’s also a worry for authorities in Spanish towns such as Benidorm that cater for these long-term British visitors, as they play a vital role in many local economies, and since Brexit and the pandemic UK visitor numbers have dwindled. 

In fact, Valencian authorities have been actively calling for UK nationals to not have their time on Spain’s Costa Blanca limited or determined by the Schengen rules that now apply to them.

Valencian regional president Ximo Puig has said he wants “Brexit to be as Brexit-less as possible” and has asked Spain’s Tourism Minister to “facilitate the visa situation” and “correct the restrictions” Brits now face.

READ MORE: Valencia region pushes to give Brits more than 90 days in Spain

But can this actually happen? Can Spain or a region of Spain reach a deal with UK authorities which allows Britons to spend up to six months in Spain in one go or in a year? 

Can Spain be a member of the Schengen Area but have its own bilateral agreements with third countries?

First, some background

Spain joined the EU in 1986 and the Schengen Area in 1992. The UK joined the European Communities (precursor to the EU) in 1973 and never formed part of the Schengen Zone.

Before joining the free movement scheme, Spain signed a number of bilateral agreements with third countries in the 1960s or earlier.

According to the official journal of the European Union, this allows countries that had these deals in place before joining Schengen to “extend beyond three months an alien’s stay in its territory in exceptional circumstances or in accordance with a bilateral agreement concluded before the entry into force of this Convention”.

Before joining Schengen, Spain had bilateral agreements with most Latin American nations, Canada, the US, Israel, Japan, Singapore, South Korea and New Zealand among others, but not the United Kingdom.

Prior to Schengen membership, Spain did not waive the visa for any of these non-EU countries for a period longer than three months. 

Ninety days was the limit of pretty much all bilateral agreements between European nations and third countries, with the exception of those with diplomatic passports in some cases. 

So to recap, Spain didn’t have a bilateral agreement with the UK prior to joining Schengen and if it had it wouldn’t necessarily mean Brits could easily extend their stay in Spain past 90 days. 

Is it possible for Brits in Spain to get an extension past 90 days?

There is no evidence that Spain currently gives preferential treatment to the 19 non-EU countries which it did sign bilateral agreements with before joining Schengen.

Third country nationals who don’t currently need a Schengen visa to enter Spain – including Britons – are pretty much the same across all Schengen countries. 

In essence, Spain is sticking to the framework of free movement and a common visa policy between the Schengen members, not playing by its own rules.

Is an extension of the 90-day rule possible? Yes, it ‘s called a prórroga deestancia de corta duración sin visado (extension of short-stay without visa).

But Spanish law states the same as EU law – it has to be due to “exceptional circumstances”, and no mention is made of pre-existing bilateral agreements.

Exceptional circumstances include situations involving humanitarian causes, gender violence, human trafficking and other grave matters.

It’s notoriously difficult to have this extension approved and the applicant has to show proof of financial means and health care as well as offer guarantees they will leave Spain, among other documentation, in order for a short extension to be allowed.

UK nationals don’t require a visa to visit Spain post-Brexit but have to abide by the 90-day rule. Photo: JAIME REINA/AFP
 

Could the visa waiver for Britons in Spain be changed from 90 to 180 days?

The UK currently offers Spanish nationals six months of continuous visa-free travel in the United Kingdom, so for many non-resident Britons a reciprocal deal with Spain would be ideal, even if it applied to just Spain and not the whole Schengen Area. 

British authorities offer the same to other EU/EEA and Swiss nationals post-Brexit, but for UK nationals the 90 out of 180 days rule applies, even if it does add up to six months within a year.

The EU is currently preparing to launch its ETIAS (European Travel Information and Authorisation System) system at the end of 2022. 

This doesn’t change the 90-day rule but it does mean citizens of visa-free countries including the UK will have to apply for authorisation every three years at a cost of €7.

According to the European Commission, ETIAS is “affordable, simple and fast”, it “will cross-check data provided by visa-exempt travellers” and offer clear rules for refusals. The introduction of the new Entry and Exit System (EES) will also see passports scanned and leave less room for error.

READ MORE:

As the EU is currently overhauling and modernising its system, this may offer Spain and the United Kingdom the opportunity to reach a special entry and exit agreement which could be incorporated into this more advanced EU system due to come into force late next year. 

But the legality of Spain signing its own deal with the UK whilst forming part of the EU and Schengen Zone remains a grey area as there’s no recent precedent to this.

On the one hand the EC states that “Member States may make specific arrangements in bilateral agreements. General exceptions provided for by national law and bilateral agreements shall be notified to the Commission”.

But on the other hand, “common measures on the crossing of internal borders by persons and border control at external borders should reflect the Schengen acquis incorporated in the Union framework”.

All things considered, rather than a readiness on behalf of Spanish and British authorities to strike a deal on extended and flexible entry and exit conditions, it seems more likely that the EU’s stance will be the deciding factor. 

Everything from the fallout of Brexit on Spain’s tourism industry, to the UK’s treatment of EU migrants and visitors could play a part in Brussels’s willingness to bend. 

Member comments

  1. Covid, having masked some of the Brexit fallout regarding the 180 – 90 day rule will, it seems affect a lot of local Spanish businesses. Having spoke to a few restaurant owners and a manager of a golf course all in the Estepona area reported they will have to substantially scale back “normal” plans due to the lack of Brits coming out for the whole of the winter and spending their money in all the local economies. I was in the Estepona area for 5 weeks in September/October and it did see seem many local workers were spooked by a severe lack of regular and normally expected booking not happening due to Brits not arriving for the winter. Indeed, after talking to property owners like myself I was shocked to hear how many would be selling there homes and buying in areas like northern Cypress where such restrictions do not apply. It would be a shame to see this happen as businesses that have built up over the years are liable to close. If somehow the ruling could be changed to 180- 360 it would probably save the day. We will have to wait and see.

    Simon.

Log in here to leave a comment.
Become a Member to leave a comment.
For members

RESIDENCY PERMITS

Spain vs Portugal: Which Golden Visa is better for you?

Iberian neighbours Spain and Portugal both offer the highly sought-after 'golden visa' for non-EU nationals who want to move to Europe. But what are the differences between them and which one is best suited to you?

Spain vs Portugal: Which Golden Visa is better for you?

Getting a visa or residency in a European country can feel near impossible if you’re a third-party national.

The EU’s ‘golden visa’ – sometimes known as as an investor visa – gives non-EU citizens the right to live in Europe, enjoy borderless travel within the Schengen zone, and even begin the process to gaining European citizenship if they meet several criteria.

This special visa is of particular interest to Britons searching for a way to move to the EU in the aftermath of Brexit, and has also proven popular with Americans, Russians, Chinese and Indian citizens who can afford it.

READ MORE: What foreigners should be aware of before applying for Spain’s Golden Visa 

What is a ‘Golden Visa?’

The golden visa is an EU immigration programme that awards residence permits in foreign countries in return for investment. It varies between countries (not all EU nations offer it), but often it involves purchasing a property of a certain value, creating a company or job opportunities, or in some instances contributing to a national development fund or investing in stocks and shares.

Two of the most popular European countries for golden visas (and for tourists and retirees in general) are Spain and Portugal. 

Since the scheme was launched back in 2013, the number of third country nationals applying has risen every year. In 2019, Spain issued this visa to a record 8,000 non-EU nationals.

Both countries are famed for their temperate climate, beaches, culture and relaxed lifestyle, but which of the golden visas is better: Spain’s or Portugal’s?

See below for the minimum investment needed; the type of investments you can make; how long it takes to get citizenship; whether the golden visa gives you free travel around the Schengen area; how long the application takes; the rules on residency, and how long you must spend in the country; and whether family members are included.

The facts

  Spain Portugal
Minimum investment required €500,000 €250,000
Type of investment Property over €500,000; €1 million in a Spanish company; €1 million in a Spanish bank account; at least €2 million in Spanish public debt securities. Property over €500,000 or urban renovation of €350,000; business startup creating at least 10 jobs; capital transfer of €1.5 million; research and development investment of €500,000; €250,000 contribution in the arts. 
Citizenship timeline 10 years 5 years
Schengen Travel? Yes Yes
Application time 20 business days processing once documentation is received; 2/3 months in total. 3-6 months
Residency rules Must visit Spain once a year. 1 week for the first year; 14 days every 2 years after.
Family included? Partner, dependents and children (under 18). Partner, dependents, children, parents of the main applicant if over the age of 65 years old (under 18 or dependent and unmarried children who are under 26 and in full-time education).

Changes to Portuguese Golden Visa

New visa rules came into effect in Portugal from January 1st 2022. These have mainly increased some of the minimum investment thresholds (but not the arts investment, which at €250,000 remains the cheapest route to a golden visa for either Portugal or Spain) and have changed some of the geographic requirements for property investment.

Keen to stimulate investment in the less touristy parts of Portugal, buying a residential property in big urban centres such as Lisbon or Porto or in the popular coastal regions such as the Algarve are no longer sufficient to qualify for a golden visa.

As of 2022, property investments must be in Madeira, Azores, or Portuguese inland regions and rural or low-density areas. In such areas, a 20 percent discount on the investment is offered.

You can find the full geographical breakdown of investment areas here, although be warned the text is in Portuguese. 

In Spain you can buy several properties which add up to €500,000

One option for the visa is to buy a property for €500,000 or more, but you are not required to spend it all on one property. You will still be eligible for the visa if you buy multiple properties, as long as the total amount adds up to more than €500,000.

The extra costs

Besides parting ways with half a million Euros to get a visa, both Spain and Portugal require some hefty application fees for the scheme.

Fee Spain Portugal
Application €70 per applicant €80 per applicant
Approval €5,000 per applicant €5,857 per applicant
Renewals €3,000 per visa holder €3,195 per visa holder
     

Tax benefits

One advantage of the Portuguese Golden Visa scheme is its tax rules.

Portugal’s Golden Visa program offers the ultimate tax advantage. Golden Visa holders are eligible for Portugal’s NHR Tax Scheme, a system that grants tax-exemptions for up to ten years.

Exemptions include income obtained from pensions, capital, income from property and capital gains, intellectual property and industrial property. The property tax transfer system means that Golden Visa holders pay the same rates as local residents.

In Spain, all foreign residents are taxed on their ‘worldwide income’ if they are in Spain for more than 183 days a year. For non-residents, tax is charged at 24.75 percent on income earned in Spain.

Getting the golden visa, however, doesn’t mean you have to reside in Spain or spend a certain amount of time here in order to renew it. This means that you don’t have become a tax resident. The only requirement is to visit once a year to renew your permit.

READ MORE: Property in Spain: Is now a good time to buy a home? 

The golden visa is retroactive in Spain

This means that if you already bought a property in Spain worth over €500,000 after 2014, but didn’t apply for a golden visa at the time, it’s still possible to do it now.

The property can be sold once you have obtained permanent residency in Spain. Once you have lived in Spain for more than five years and have obtained permanent residency, you are able to sell the property without forfeiting your right to reside in Spain.

You cannot, however, use a mortgage loan or financing for your investments. This cannot be done through a mortgage company or a loan, and must be from your own pocket.

Conclusion

Portugal and Spain’s golden visa schemes offer fantastic opportunities to relocate to an EU member state.

Both offer you the chance to enjoy borderless travel in EU member states, but they both also require you to have a significant amount of money saved up in order to invest it in property, renovation, shares, capital transfers, or debit securities.

If you’re concerned about taxes, perhaps the benefits of the Portuguese visa might entice you. It is worth remembering, though, that the recent changes to the Portuguese system now mean there are geographical limits on property investments meaning you can’t buy in popular areas. 

If you’re overly concerned about location, the Spanish golden visa gives you more freedom to choose where you live.

The sums for property investment are broadly similar, sitting at €500,000 in both countries, although in Portugal there are discounts for taking on renovation projects and purchasing property in sparsely populated areas which could reduce the amount of your investment quite significantly.

In Spain, the property threshold, regardless of where it is or what type of property it is, is a flat €500,000.

Both golden visas have very little in terms of residency requirements, although in Portugal the time to gaining citizenship is just 5 years, half of Spain’s 10-year wait. With the golden visa, in Spain you can obtain permanent residency after five years.

If you’re still undecided, the article below may help you pick between Portugal and Spain.

READ MORE: Portugal vs Spain – Which country is better to move to?

SHOW COMMENTS