Spain will remove rights for British residents post-Brexit if the UK does not reciprocate

The Spanish government has already passed a royal decree that covers nearly all areas of daily life for the more than 300,000 Britons officially registered in the country, but wants to see London respond in kind

Lucía Abellán
British residents of Spain protest in the southern city of Málaga on Sunday over the uncertainty of Brexit.
British residents of Spain protest in the southern city of Málaga on Sunday over the uncertainty of Brexit.JORGE GUERRERO (AFP)

Spain is demanding reciprocity from the United Kingdom in one of the most sensitive aspects of Brexit: treatment of its migrants. The Spanish government has urgently passed legislation in order to protect the rights of the 365,967 Britons who are officially resident in the country, but is yet to see similar mechanisms put in place in the United Kingdom for the Spaniards who have made that country their home. The caretaker foreign minister, Josep Borrell, has already conveyed this concern to the British government of Prime Minister Boris Johnson, and has warned that, if there is no equivalent move from the UK as the country leaves the European Union, the Spanish framework for British residents will decline.

Reciprocity is necessary. And reciprocity cannot be guaranteed in half-measures – it is either there, or it isn’t

Luis Marco Aguiriano, Spain’s secretary of state for the EU

The future of more than half a million people – the 365,967 Britons who officially live in Spain and the 180,000 Spaniards who reside in the United Kingdom – will depend on the way that the divorce between London and Brussels is consummated. Both the governments of caretaker Prime Minister Pedro Sánchez of the Socialist Party (PSOE) and of Boris Johnson of the Conservative Party have said that they want to preserve the rights of this collective, but the formulas used to do so differ. The United Kingdom has put in place a general scheme for all European Union citizens – Spaniards among them – that, with some nuances, freezes the range of rights that they currently enjoy under the rules of the European Union. The mechanism consists of two categories: “settled status,” with very generous conditions, and so-called “pre-settled status,” which carries with it fewer rights. The official figures from the UK show a fall in the proportion of citizens who fall into the former category. In April of this year, when the system officially began, 66% of applicants received settled status. Today the percentage has fallen to 57%.

Spain has opted for a different route. In March, the government approved a law by royal decree that went into great detail to cover a potential “hard Brexit” – i.e. the UK crashing out of the bloc without a deal. This legislation covers nearly all of the facets of daily life for citizens, including the recognition of university degrees and driving licenses, as well as healthcare coverage and work permits. It also guarantees, with some limitations, the continuance of the activity of British companies that are operating in Spain.

The UK’s current Brexit minister, Steve Barclay, met last week in Madrid with Spain’s caretaker Foreign Minister Josep Borrell. The rights of citizens, one of the most symbolic elements of Brexit, were a key part of the debate. Barclay expressed his gratitude for the law that had been approved by Spain, which is the country of choice for the majority of Britons who opt to live in the EU. But Borrell warned the minister that these advantageous conditions will only be maintained if they are reciprocal, a standpoint about which the British delegation requested clarifications.

“We have told them that our royal decree will ensure that everything remains the same in the case of a no-deal Brexit,” said Luis Marco Aguiriano, Spain’s secretary of state for the EU, and who took part in the meeting with the British minister last Thursday. Speaking to EL PAÍS via telephone, he added: “But for that, reciprocity is necessary. And reciprocity cannot be guaranteed in half-measures – it is either there, or it isn’t.”

In order to clarify all of the small print, both sides will be meeting again in the first week of October

From the start, the royal decree includes that conditionality. Article two of the legislation stipulates that if, within two months, the British authorities do not grant “reciprocal treatment” to Spanish citizens and companies, “the measures covered [by the legal text] will be suspended.” Aguiriano pointed to this requirement and warned that the UK has not currently covered it in law.

In response, the British authorities have said that their scheme to extend the rights of EU citizens who are already living in the country guarantees the conditions that are covered by the Spanish decree. The plan from London includes the right to work, to use the healthcare system, to have access to education, to receive benefits such as pensions and to spend time outside of the UK, albeit with a limit of five years, after which “settled status” would be lost. Diplomatic sources argue that exact matches cannot be sought between the two texts, but they add that the requisites required by the Spanish government have been met. “Although there may be some elements that will require further development, for our part we consider it to have been met,” British sources argue.

In order to clarify all of the small print, both sides will be meeting again in the first week of October. On this occasion, political representatives will not attend, but rather the heads of more technical levels. The aim is to clear up as much as possible the uncertainty over Brexit, which is currently due to take place on October 31. For now there are no guarantees that the exit will take place with a deal between London and Brussels.

Aside from the coverage that it offers, the British scheme to obtain permanent residency after Brexit is not automatic. A total of 86,400 Spaniards have applied for this protected status since August 31, according to data from the British government. That accounts for nearly 7% of all the European requests, which makes Spanish residents the fifth-most-numerous collective. The Foreign Affairs Ministry calculates that of this group, around 70,000 have already secured settled status, a high percentage (81%), but not exhaustive.

Gibraltar after Brexit

Spain, the United Kingdom and the authorities of Gibraltar say that they count on a safety net that will protect citizens who cross the border every day between Spain and the British Overseas Territory after Brexit. But the legal means to guarantee this freedom of movement are loose and, in some cases, of uncertain application. The main guarantee for continuity in the lives of cross-border workers – approximately 9,000 Spaniards – is the memorandum of understanding signed by the United Kingdom and Spain in November 2018. The text presents an unavoidable weak point: it includes rights contained in the Agreement on the Withdrawal of the United Kingdom from the European Union, which has been rejected by the British parliament on a series of occasions and by the government of Boris Johnson.

The memorandum is limited to guaranteeing the "correct application of the provisions" contained in the protocol on Gibraltar included in that withdrawal agreement agreed on by EU governments with former Prime Minister Theresa May, but that was later rejected by members of parliament in the House of Commons. The EU protocol expressly covers the rights of "cross-border workers who reside in Gibraltar or in Spain, in particular in the territory of the municipalities that constitute the Association of Municipalities in Campo de Gibraltar."

But the options for the survival of the general withdrawal text within which that Gibraltar protocol is contained are very scarce, although in recent days the European Commission has been more optimistic with respect to a deal with London. Spanish, British and Gibraltarian sources consulted by EL PAÍS have played down the importance of that legal obstacle and insist on the will to preserve the content of what has been agreed, beyond the formula that needs to be employed.

The third text that regulates flows with Gibraltar after Brexit is the Spanish royal decree covering a hard Brexit. The legislation provides for rights such as access to healthcare and education for Gibraltarians who could need them in Spain. It also guarantees financial and transport services. This framework will only come into force should the UK crash out of the EU with no deal.

English version by Simon Hunter.

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