FOR MEMBERS

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

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)
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?

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

Become a Member to leave a comment.Or login here.