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EU citizen’s residency in Spain and European Parliament Directive 2004/38/EC

by | Oct 10, 2012 | Civil Law

The European Parliament directive 2004/38/EC clearly set the conditions under which a citizen from one of the countries of the European Economic Area (EEA) and Switzerland can reside in a different member state (EEA is the European Union plus Iceland, Liechtenstein and Norway). EEA citizens and family members have the right to move freely and reside in different EEA countries, nevertheless for stays over three months there are several conditions that have to be met. In particular Article 7 states that the foreign EEA resident has to work and pay taxes in the host country or has to enroll in a private medical insurance that will cover his medical expenses.

Spanish Royal decree nº 240/2007 put in force partially Parliament Directive 2004/38/EC in Spain. In practice that meant that foreign UE residents could become residents in Spain and benefit from Spanish social security without any conditions.

The amount of foreign EU residents in Spain and the impelling need to cut expenses on the already overstretched Spanish finances, forced the Spanish administration to take actions and the government published order PRE/1490/2012.

Order PRE/1490/2012 is in practice properly integrating article 7 of Directive 2004/38/EC in the Spanish residency laws for EEA or Swiss citizens.

General rules for residency periods over 3 months

In practice EEA or Swiss citizens staying in Spain for more than 3 months will have to ask to get registered in Spain, accrediting several pieces of information and documents. A part from passport or national ID card, you need to fill in  form EX-18, a provide a number of documents depending on the different cases and according to the following rules:

  1. Be legally working in Spain either as self-employed or employed by a third party. They will have to be registered into the Spanish social security system and give the related documentation, either by employment contract registered in the INEM, or forms related to the economic activity registration for self-employed/inscription of the company in the commercial registry, plus the social security details which can be avoid by allowing a search into the social security database. In the context of this directive if they were previously working in Spain, they can continue to be considered “workers” if:
    1. They are temporarily unemployed because of accident or sickness.
    2. They have been working in Spain for a year or more, are presently unemployed and registered at the unemployment office.
    3. They are under a training program related to their employment.
    4. In cases where they have been working in Spain for less than a year, being presently unemployed and registered at the unemployment office, their “worker” status will be maintained for an extra 6 months after the last day of work.
  2. Not being working. They will have to demonstrate that:
    1. They have a medical insurance (public or private) that will cover them during their stay in Spain. The insurance coverage level will have to be equivalent or better than the Spanish social security system. Retired citizens can show certificates from their national social security that evidence that they are covered in Spain.
    2. They have to establish to have enough resources to support themselves and their families. This can be evince by showing property deeds in conjunction with income certificates, bank statements, tax declarations and so on. The minimum level requested will be equivalent to the standard non-contributory pension.
  3. They are students. They will have to show that:
    1. They are registered into a recognized academic institution.
    2. They have a medical insurance that will cover them during their stay in Spain. In this case a European Health Insurance card will be sufficient.
    3. They declare that they possess enough resources to live in Spain.
    4. Enrolment in a European education program (ERASMUS for example) is considered a sufficient requirement.
  4. They are family members of an EEA or Swiss citizen residing in Spain complying with the conditions above.Family member is intended as:
  5. Spouse or registered partner (common law marriage).
  6. Minor supported children.
  7. Supported citizens of age (demonstrating that they have been supported for several years).
  8. Supported parents (demonstrating that they have been supported for several years).

Permanent residency

Order PRE/1490/2012 doesn’t affect or change any rules related to permanent residency. In other words permanent residency will be granted to legal EEA and Swiss residents in Spain for more than 5 continuous years.