Hello everyone,

I made it back to Spain a couple of months ago, and finally got an appointment with the Policia Nacional last week to try exchanging my Permanent Resident Certificate for a TIE. Maybe not unsurprisingly this was knocked back (no explanation) and I was referred to the Extranjeria in Valencia. I´ve submitted an application online using the Ex20 form, and downloaded a receipt (Resguardo de Justicante). I am now very close to my 90 limit but want to see the process through to a conclusion. Please could anyone confirm whether I can legally stay over the 90 days while awaiting a decision?

Thank you for the pointer on the 5 year absence rule. For anyone else considering this route, the following blog discusses it in detail;

https://www.franssenadvocaten.nl/eng...-short-visits/

Time for this again I think.

I very much doubt you can stay over 90 days to wait for a decision unless you could prove that the whole process has taken more than 90 days. If you could it would mean anyone could keep making residency applications and appealing them etc so as to stay longer. Just go home and await your decision seems the more prudent action.

Was your passport stamped when you entered Spain?

Yes, it was.

In that case - IMO - I do not think you have any option but to leave - unfortunately your residence has expired via the absense rule and you are now subject to the 90 day rule and if you exceed it there are consequences - what these are exactly is unclear to me as a search has thrown up varying answers:

'Simply put, the 90 day rule states that short-term visitors to Spain without residency permits should not exceed the permissible 90-day stay. This is regardless if they hold a tourist visa or not. When your 90 days are over, you are required to leave the country or apply for permanent residency status.Feb 14, 2024'

'Overstaying your welcome in Spain or any Schengen country can lead to several unpleasant consequences. You might face questioning, fines, deportation, or even a ban from re-entering. It's crucial to adhere strictly to the 90/180 rule to avoid these penalties.'

'Are Spain enforcing the 90 day rule?
90 day rule. Stay over 90 days in Spain if you are a non-resident Briton and you could be banned from entry for three years. Spain and the European Union are certainly taking the 180 day law for non-resident, non-European Union residents seriously and there are a series of stiff penalities.Mar 11, 2024'

I suggest taking urgent legal advice you could try:

https://www.pellicerheredia.com/en/

depending on where you are, they have several offices and speak excellent English and have experience in this area.

A long time ago I lived in Spain, then I returned to the UK, then I returned to Spain two years later. I explained that I'd lost my blue card (which I had, also this was before the green certificate, as I said it was a long time ago) and they started a new residency period for me but they reused my NIE. They will probably do the same for you if you are given residency.

However that's if you are given residency, they could say that your previous residency period is over and now post-Brexit you are supposed to apply for a visa first from the embassy in the UK. That seems to me to be the main reason that they could say no.

It is possible to extend your stay:

Ciudadanos Extranjeros then click on "Estancia y prórroga de estancia" in red.

But if they allow that depends whether or not waiting for a reply on a residency decision counts as "exceptional".

Did you have proof of health insurance, it's a requirement for 'legal residency' without which you will be knocked back.

Frankly in the circumstances I can't see you succeeding.

What are you calling a 'Permanent Residency Certificate'?

Hello,

Thank you all for the comment and suggestions although it did not sound too promising. I took some legal advice and decided it´s probably safest to deport myself (it´s cheaper than if someone does it for you) for 3 months then have another go. A little while ago I wrote to the EU Commission (as party to the Withdrawal Agreement) setting out my own circumstances and asking for some clarification and possible guidance. In return I got 3 pages of detailed legal analysis from the Head of UE Citizens Rights concluding;

"On the basis of the information you provided, we would understand that your right of permanent resident in Spain under the EU Free Movement Directive has been
grandfathered by the Withdrawal Agreement, meaning that you have become a Withdrawal Agreement beneficiary on 1 January 2021.
Basically, Article 15(3) of the Withdrawal Agreement says that Permanent Residency can only be lost after an absence of 5 consecutive years, the European Supreme Court ruled a couple of years ago that tht the 5 year clock is reset with each visit.

The sting in the tail is the next sentence;

"However, it is for the Spanish authorities to make this assessment."

The problem seems to be there is no "tramite" for anyone leaving and wanting to return after a period of time No Modelo EX? then no right of return.

Spot on - thank you for the laugh, I needed it!

If you could provide flight booking information for all your visits, your passport numbers over the past 10 years so Spain could look up visits, and that quote from the EU, translated into Spanish, and perhaps get an immigration lawyer to handle your case, who knows, you might be lucky.

That sounds quite promising.

I don't know if this is any help and obviously it's a different country but I know of someone in Portugal who took residency before the withdrawal agreement but they had to return to the UK to look after a terminally ill relative. They had to give up their rental property meaning they no longer had an address in Portugal which caused difficulties with the Portuguese equivalent of the TIE card. They pleaded with SEF and were invited to fly over to Portugal for an interview to make their case. This poor person was so utterly broken after everything they have been through the Portuguese authorities immediately gave it the rubber stamp and told them to come back to Portugal again in a couple of weeks to collect their Brexit card which is valid for 5 years. That was one very happy moment for them!

This all happened last year but I think you might be able to swing it if you plead your case.

In your original post you say that you still have a property in Spain. Did you start to pay non resident tax on the property when you moved back to the UK? Or did you continue paying your Spanish resident tax as if you had never left? I'm assuming that you were intitially paying Spanish tax while resident in Spain.

Although immigration and AEAT are separate entities in Spain they do share information. Were you still on the padron when you returned to the UK? This could help your case if your tax situation is correct.

Unless you have documentation stating that you've been given temporary residence, while waiting the outcome of your application, I would stick to the 90 day rule. I vaguely remember that when we applied we were given a temporary residence document until we picked up our TIE. However, I would have been tempted to show the residence card that you have on entering Spain initially. That way you could be more certain that you can get back without risking the 90 day rule.

Good luck

Yes, I was on the Tax System when I lived here and submitted the Renta annually. I deregistered from the Padron when I went back to the UK. I also paid the Non-Residents tax each year in person at the bank showing my passport as part of the process. I still have the originals with the wet stamp and the first page records it as an in person payment (and hopefully recorded as such in the AEAT). So I can evidence regular visits to Spain. The problem was that the funcionario would not allow me to present my application, he just told me to go to to Sub Delegacion del Gobierno in Valencia. I´ve since been and they have absolutely no idea why I have been sent to them (nor has the lawyer I spoke to). From your answer I think I should have been allowed to present my application and receive a TIE to cover me while I awaited an outcome. When I come back in 3 months I´ll try again at the the main office in Patraix, Valencia and see what they say.