Royal Decree-Law to face the consequences of the withdrawal of the United Kingdom without agreement
The Royal Decree-Law 5/2019, of March 1st, establishes the transition to the general immigration regime of British nationals and their families.
The purpose of the Royal Decree-Law is to adopt measures to adapt the Spanish legal system in order to face the consequences of a withdrawal from the United Kingdom of the European Union without an agreement concluded in accordance with the provisions of Article 50.2 of the Treaty. of the European Union.
The measures contemplated in this Royal Decree-Law are aimed at two objectives: Preserve the interests of citizens, Spanish and British, who exercised their right to free movement before the date of withdrawal and preserve the normal development of trade flows and the economic interests of Spain.
These are aimed at counteracting, as far as possible, the undesired effects derived from a withdrawal from the United Kingdom without agreement in those areas of state competence that are deemed essential to favour an adequate transition to the new situation.
The Government has approved, as have other Member States of the European Union, national regulatory measures, which complement those adopted by the European Union.
These are measures of a temporary nature, aimed at facilitating the movement towards the new situation derived from the consideration of the United Kingdom as a third state. In this way, they do not intend to establish the future relationship with the United Kingdom and its validity will cease when the period specified in each case expires, or before, if adopted, bilaterally and internationally as appropriate, the instruments called to regulate the relations with the United Kingdom on a lasting basis.
The maintenance of the measures is conditioned to equivalent treatment by the United Kingdom, which will be verified through the mechanisms specially authorised for this purpose.
In terms of content, it is structured fundamentally around two concepts: citizenship and economic activities. Although it also provides for rules of police and judicial cooperation in relation to proceedings initiated before the date of withdrawal.
In citizenship, contingency measures are taken regarding residency, cross-border workers, access and exercise of professions and public employment, displaced workers, social security, health care and access to the university.
In the area of economic activities, measures are taken in the areas of financial services, customs, public procurement, authorisations and licenses: driving licenses, defense and dual use material, weapons and explosives, and ground transportation.
In general, the measures also apply to British nationals and economic operators established in Gibraltar. The contingency measures in this area seek to protect Spanish interests and, in particular, those of Campo de Gibraltar. These are contingency measures: unilateral and temporary, since the future relationship will be defined once the UK exits, bearing in mind that any action at European level must have the approval of the Spanish authorities.
Spain is the Member State of the European Union in which a greater number of nationals of the United Kingdom reside, more than 300,000 registered, and an undetermined number of non-registered. In the United Kingdom there are at least 150,000 Spaniards.
The Royal Decree-Law establishes the transition to the general immigration regime of British nationals and their families.
In this way, in order to prove the legal residence of British nationals and their families, in Spain, transitory certificates of registration as a community resident issued prior to the date of withdrawal will be temporarily valid, in accordance with Directive 2004 / 38. With regard to those British nationals who have not been able to obtain the registration certificates before the date of withdrawal, their legal residence is maintained until their situation is definitively resolved.
British nationals and their family members must request, before December 31, 2020, the Foreigner Identity Card, a document that will definitively prove their legal residence in Spain.
The Government will approve some instructions that articulate the procedure to transit to its definitive situation, within the general regime of residence of nationals of a third state.
If they already had permanent residence as European citizens, the process will be almost automatic. In another case they will be granted temporary residence, depending on the residence time accredited, in accordance with the general legislation.
The issuance of new residence documents is a complex process since it is estimated that it will affect around 400,000 people, which requires a relatively long period that has been set at 21 months from the date of withdrawal.
The procedure for the issuance of a work authorisation is regulated to the nationals of the United Kingdom who meet the condition of border workers in Spain. This is conditioned to a reciprocal treatment to the Spanish nationals by the British authorities that guarantees the maintenance of the labor activity especially in Gibraltar, where 9,000 Spanish workers are daily transferred to work.
Exercise of profession and public employment
Measures are included to guarantee Spaniards or nationals of member states the continuity of their professional activity in Spain, when they obtained the recognition of their professional qualifications in the United Kingdom, so that they do not have to regain recognition.
It also addresses the situation of nationals of the United Kingdom who, at the time of effective withdrawal from the United Kingdom, are permanently exercising in Spain a profession or professional activity for which they have obtained recognition of their qualifications professionals, allowing them to continue exercising this profession or professional activity, even for those professions for whose access and exercise it is required to be a national of a member state.
On the other hand, the application of the current legal regime for applications for the recognition of professional qualifications submitted by (i) by Spaniards or by nationals of another member state when the qualifications – qualifications – in the United Kingdom have been obtained; (ii) or by nationals of the United Kingdom when they have been obtained in the United Kingdom or in any other member state, prior to the entry into force of this Royal Decree-law or within the following five years, provided that the studies or activities that lead to its obtaining had begun prior to the withdrawal without agreement.
It also regulates the regime applicable to automatic recognition training diplomas for those who are practicing in Spain a profession or professional activity on a temporary or occasional basis, to professional societies and auditors of accounts and audit societies registered in the Official Registry of Audit of Accounts.
In the field of public employment, the maintenance of the status of civil servant of the Spanish public function of British nationals who hold such status at the time of withdrawal is expected. It is also envisaged that the persons who meet the personal circumstances set forth in article 57.2 of the rewritten text of the Basic Public Employees’ Statute Act: the spouse of a national of the United Kingdom, provided that they are not separated from the law, as well as their descendants and those of their spouse, provided they are not separated by law, are under the age of twenty-one or older of that dependent age.
In the case of British nationals who have submitted their candidacy for selection processes prior to the effective date of departure from the United Kingdom of the EU, they must meet the requirements for admission to the public service on the date of termination of the deadline for submission of the requests to participate in them.
Displaced workers and company committees
It clarifies what will be the transitional regime applicable to companies established in Spain that, at the date of withdrawal, have workers temporarily posted to the United Kingdom; and the maintenance of the European Works Councils in companies or groups of companies with a Community dimension with the United Kingdom that have been set up or agreed before the date of withdrawal from the United Kingdom.
Protection of social security rights
The Royal Decree-Law establishes the necessary measures to protect workers and pensioners covered by the British and Spanish social security systems that exercised the freedom of residence and movement in the European Union. These measures will be applicable until a specific period and only in default or until an international agreement is signed (between the EU and the United Kingdom or, bilaterally, between Spain and the United Kingdom) that regulates the coordination of both systems on a permanent basis.
The measures included in the Royal Decree-Law cover those issues that are considered most relevant and that require urgent action, such as the export of pensions, the totalization of contributions made up to the date of withdrawal from the United Kingdom for access and calculation of pensions, temporary disability (IT) and benefits for maternity, paternity and unemployment, so that:
Spain will continue to pay the contributory pensions and their corresponding revaluations, even if the beneficiary resides in the United Kingdom.
The payment of the supplements by minimums of the Spanish beneficiaries resident in the United Kingdom will not be suspended, although the United Kingdom will become a third state after its withdrawal from the European Union.
The accumulation of periods of insurance accredited in Spain and the United Kingdom will be guaranteed prior to the date of withdrawal in order to cause the right and the calculation of pensions and benefits, provided that there is reciprocity.
They will be computed in the recognition of unemployment benefits, paid by Spain, the periods quoted in the United Kingdom before the withdrawal date, provided that the latest contributions have been made in Spain and while maintaining residence in Spain.
In addition, to protect the 14,000 residents in the Campo de Gibraltar (9,000 Spaniards) who commute to Gibraltar every day, these cross-border workers will be able to access the unemployment benefits recognised by Spain for the periods quoted in Gibraltar before and after the withdrawal date, without being required to have contributed to the Spanish social security system due to this contingency.
Healthcare of the nationals of the United Kingdom in Spain
In relation to access to healthcare, the Royal Decree-Law establishes that Spain will continue to provide United Kingdom nationals with healthcare in Spain on the same terms and under the same conditions established prior to the withdrawal of the United Kingdom from the Union. European Union, provided that the United Kingdom complies with the following:
That guarantees these same conditions to those people who have the right to receive healthcare in the United Kingdom from Spain, reciprocity that will be subject to verification within 2 months of entry into force of the Royal Decree-Law.
That guarantees the reimbursement of expenses for health care provided in Spain by health services in the same terms as currently.
Therefore, workers, pensioners, tourists and students who are entitled to British healthcare will continue to receive this assistance in Spain for a specific period of time, unless an international agreement (between the EU and the United Kingdom or, bilaterally, between Spain and the United Kingdom) that regulates this matter.
Likewise, in order to ensure the correct provision of health care, the health cards issued in favour of the nationals of the United Kingdom will remain in force, and for the temporary displacements and programmed treatments the document accrediting the health coverage in charge will be valid. of British entities.
Finally, the characteristics of the billing and reimbursement procedure are established and the National Institute of Social Security (INSS) is responsible for the management of the aforementioned procedures.
It is expected that students from the education systems of the United Kingdom or Gibraltar can continue to follow the access procedures to the Spanish University that were applicable before the date of withdrawal during the 2019-2020 and 2020-2021 academic years.
In this way, students who started the last stage of their school education are protected, trusting that when they finish their studies they could access a Spanish University without problems or administrative obstacles.
International police and judicial cooperation
With the withdrawal of the United Kingdom, the regulations applicable in European police and judicial cooperation proceedings no longer apply.
Therefore, it is necessary to clarify the transitory regime of application to police and judicial cooperation procedures, distinguishing whether they were initiated prior to the entry into force of this Royal Decree-law or later.
The loss of the EU passport implies that British financial institutions will have to adapt to the regimes of third countries to continue providing services in Spain, including those services resulting from previously subscribed contracts, but with expiration after the withdrawal from the United Kingdom. With the aim of strengthening legal security, protecting the client and avoiding any risk to financial stability, the Royal Decree-Law notes that the validity of the contracts is not affected by the withdrawal of the United Kingdom, a fact that the Commission European Union has already shown in its communications. Further, a temporary regime is established to guarantee that the adaptation to the regimes of third countries does not imply a disruption in the provision of services associated with said contracts or, alternatively, facilitate the relocation or termination of the contracts if the entity does not wish to continue with its activity in Spain. The temporary regime is enabled for activities subject to authorisation. The activities related to the management of contracts that do not require authorisation may continue to be carried out without having to take advantage of the temporary regime.
It introduces the possibility of advancing certain requests required by the customs regime with third states before the withdrawal date to avoid their concentration in the days following the departure from the United Kingdom of the European Union.
The transitory situation in which the economic operators of the United Kingdom or Gibraltar are concerned with regard to public procurement procedures is regulated. The purpose of this regulation is to provide legal certainty and not to harm those economic operators that relied on the European project and participated in public procurement procedures initiated prior to the withdrawal of the United Kingdom from the European Union, thus protecting the interests of the economic operators that exercised their rights of free movement under the freedoms conferred by the Treaties in the field of public procurement. In these cases, the British economic operators will have the same consideration as the companies belonging to the Member States of the European Union.
It is also foreseen that in public procurement, where appropriate, should be held for the application of the measures contemplated in the Royal Decree-law, the procurement files may be subject to urgent processing or emergency processing, in accordance with established Law 9/2017, of November 8, on Contracts of the Public Sector.
Authorisations and licenses
The validity of driving licenses issued by British authorities during a period of a transitional period of nine months is recognised. In this period you can exchange your driving license for another Spanish permit, which will allow them to continue driving in our country, despite the withdrawal of the United Kingdom from the European Union.
After that period of nine months, the driving licenses issued by the British authorities would be subject to the Spanish regulations for driving licenses issued by third countries, and the exchange for another Spanish will no longer be possible until, in the future, , a bilateral agreement of exchange of driving license with the United Kingdom is signed.
Likewise, the authorisations granted in application of article 2 of the Regulation of foreign trade control of defense material, of other material and dual-use products and technologies, approved by Royal Decree 679/2014, of August 1, are declared valid. whose country of destination or country of origin is the United Kingdom, and which are in force.
Finally, given that prior authorisations and consents of transfers of arms, explosives, pyrotechnic articles and cartridges, issued prior to the date of withdrawal from the United Kingdom of the European Union, comply with the requirements and safety conditions to have been verified suppliers and recipients, their maintenance is allowed until their expiration. It is also specified that any explosive or pyrotechnic article in whose conformity assessment procedure a United Kingdom Notified Body has participated, as of the date of withdrawal from the United Kingdom of the European Union, may not be placed on the market.
Measures are adopted to enable the transport of goods made by transport companies established in the United Kingdom with origin or destination in our country, provided that these companies are authorised to carry out transport in that country, with the exception of transport currently liberalised in Community legislation. .
It is established, as a framework of application to the discretional transports of passengers in bus made in Spanish territory by companies established in the United Kingdom, the one foreseen in the international treaties of which both the United Kingdom and Spain or the European Union are a part , or that provided for in the standards of international organisations of which the United Kingdom, Spain or the European Union are members, since from April 1 the United Kingdom will be integrated as a full member of the Interbus Agreement.
On the other hand, the validity, until its expiration date, of the authorisations of international regular passenger transport currently valid between the territory of the United Kingdom and the territory of Spain is included.
With regard to airport services, the departure of the United Kingdom from the European Union would mean that the boarding and public catering services provided for flights within the European Economic Area would no longer apply.
Therefore, the maintenance of these rates for flights to the United Kingdom is expected until February 28, 2020.