Author: Gisella Alvarado

Firm: Sagardoy Abogados

The Spanish Government has approved legislation regulating the legal rights of UK citizens to live, work and access social security and public health services in Spain in the event of a no-deal Brexit.

The UK’s membership of the EU currently guarantees the application of free movement of individuals and employees. Just for your reference, more than 300,000 registered UK nationals reside in Spain, while at least 150,000 Spaniards reside in UK.

Brexit may have different consequences because its terms are open for negotiation. Regardless of the different options that can be adopted to handle this exceptional EU situation (these include the application of the model used with the countries belonging to the European Economic Area –Iceland, Liechtenstein and Norway- where their employees are treated as any other EU citizens, or the UK concluding bilateral or multilateral agreements to guarantee the free movement of their citizens and employees), the Spanish government has approved Royal Decree Law 5/2019 of 1 March 2019 to adapt Spanish legislation to a Brexit scenario where no agreement, under section 50 of the Treaty on European Union, is reached between the UK and the EU: a ‘no-deal Brexit’.

The measures included in Royal Decree Law 5/2019 will only be valid in the event of a no-deal Brexit. Some of the most relevant measures included in such Royal Decree Law are detailed below:

1.UK employees living and working in Spain before Brexit

UK employees and their family members (regardless of their nationality), who live and/or work in Spain before Brexit will have to apply for specific residence documentation within 21 months after Brexit takes place, which will allow them to get valid residence status in Spain. Please note that they will continue to have valid residence status in Spain until a final decision on their applications is issued by the competent immigration authorities.

They could also apply for a long-term residence authorisation if they have been living in Spain for at least five consecutive years.

2.Employees posted by Spanish entities in UK

Spanish companies that have employees seconded in the UK at the Brexit date will have to continue applying the UK legislation in force before Brexit for as long as the secondment continues. This provision will only apply if the British authorities grant reciprocal treatment to employees seconded by UK companies to Spain.

3.Social security rules applicable to UK employees posted in Spain or to Spanish employees seconded to the UK

Specific rules on social security are included in Royal Decree Law 5/2019 and shall apply as long as no bilateral or multilateral agreement on social security is reached between UK and Spain and for a 21-month period. For example, for employees posted to Spain by UK organisations and subject to Spanish social security legislation, the same rules will apply as currently. However, for employees posted by UK organisations to Spain and whose social security contributions are paid in the UK, these contributions can still be made to the UK social security authorities for no more than 21 months after Brexit. After that, Spanish social security legislation will apply and contributions must be paid in Spain.

4.European Works Councils (EWCs)

EWCs composition will not be affected as a result of Brexit. The composition of EWCs set up prior to Brexit and any alternative procedures agreed to inform and consult employees in Community-scale undertakings and groups of undertakings in which employees or undertakings from the UK participate which have their central management in Spain, will remain in force unless any modification is agreed in accordance with applicable legislation.

5.Public health care

Specific rules on access to public health services are included in Royal Decree Law 5/2019 and shall apply as long as no bilateral or multilateral agreement on public health care is reached between UK and Spain and for a 21-month period. For example, individuals entitled to public health care in the UK will be also entitled to receive health care from the Spanish public health care system under same terms that applied before Brexit, provided that the UK grants the same protection to Spanish individuals in the UK as before Brexit.

The Spanish health care system will cover British citizens living in Spain as long as Spanish citizens living in the UK have the same UK health care coverage as before Brexit.

Finally, please note that some of the measures established by Royal Decree Law 5/2019 will be suspended if after two months in effect the British authorities do not grant reciprocal treatment to Spanish individuals and legal entities.