NON-EUROPEAN UNION CITIZENS

Things are more complicated for non-EU residents. Non-EU foreigners need a visa to enter Spain, except if an agreement exists between Spain and the foreigner’s home country to enter on a normal tourist basis, which is the normal situation. Application for a visa is made to a Spanish Consulate located in the home country before leaving. Visas are handled by the Spanish Ministry of Foreign Affairs through its consulate abroad.

There are different types of visas. They are issued according to the purpose for entering Spain: studying, working, tourism, investment, etc. An application should be made according to individual needs. It is not possible to enter Spain on a tourist visa and then apply to stay as something else without returning home to obtain the appropriate visa. In general terms three types of visas exist:

• Transit visa. This is given to individuals or groups of foreigners passing through Spanish ports or airports without entering Spanish territory. This visa also allows foreigners to pass through Spanish territory for a maximum of five days.
• Temporary stay visa. This is issued for foreigners who wish to stay in Spain for up to three months within a six-month time period. There are different categories such as group visas for short stays, visas for diplomatic personnel or similar and visas to study in Spain.
• Residence visa. This should not be confused with the residence permit, which is also necessary in most cases. This is initially granted for one year, and it may be renewed for an additional two-year period, once it has expired. It is also possible to apply for a permanent residency visa, which must be renewed every five years. There are three specific categories:

• 1For reuniting a family. It could be given to the spouse provided that the marriage is valid; or to the descendants provided that they are not married and are under 18 years of age.
• 2For working in Spain when the foreigner needs a work permit; when professionals or scientists are hired by a Spanish university or the Spanish government.
• 3For asylum. This is issued to foreigners with refugee status.

A visa is stamped in the passport. Documentary evidence to obtain a visa is stringent and depends on the reason for entry. Proof of financial resources, pre-arranged medical health cover and no criminal record are basic requirements. A reference, an employment contract, or proof of admission to a Spanish educational establishment, or a letter from a family if an au pair, are additional requirements. Except for some professional occupations a work permit, secured by a prospective employer from the Delagacion Provincial del Ministerio de Trabajo, is also required. A Consulate will judge each case separately but the key is sufficient means of financial support within Spain.

Once a visa is obtained it is relatively straightforward to obtain a Residencia. This requires a letter showing registration with the Spanish Consulate back home, passport and copies, photos, marriage and birth certificates, a statement from a Spanish bank showing proof of financial means and lastly the completed form with an appropriate fee.

The majority of non-EU citizens entering Spain, legally or illegally, are Moroccans. However non-EU also means Swiss, American, Canadian and people from the Southern Hemisphere including those from Spain’s former colonies. While entering Spain may be more difficult for those with non-EU status, regrettably separate identification due to place of origin continues to rear its head once in Spain – see Chapter 15 On the Road.

TOURIST OR RESIDENT?

It is well known that the British population, and for that matter foreigners from Northern Europe living in various Mediterranean locations, are not clearly defined by their own social perception of tourist, seasonal resident, temporary resident or permanent resident. The law is quite clear irrespective of property ownership and taxation. For up to six months’ stay a person is a non-resident. For over six months’ stay a person is a resident. Spain has a problem with illegal Moroccan immigrants but many Northern Europeans live permanently in Spain without a Residencia and without paying taxes – they too are illegal immigrants with only their passports protecting them from greater legal penalties. Why do they do it?

Perhaps the answer lies in a reluctance to grapple with red tape in changing status, or perhaps they are reluctant to break the ties with home. Are they seeking to vanish from various authorities or hoping to escape taxation? Are they ignorant of the facts? There are no benefits in maintaining a tourist status if you are resident more than 183 days in Spain – only the risk of a fine.

A person who lives in Spain for more than 183 days, whether or not holding a Residencia, becomes liable to pay Spanish income tax.

In fact the Spanish tax system is geared to provide greater tax relief to residents than to non-residents by reducing capital gains tax, not having five per cent of the price withheld when selling a property pending a review of capital gains liabilities, and a reduction in inheritance tax, renta tax and income tax. (See Chapter 14 on Understanding Personal Taxation and Chapter 17 on Wills and Inheritance Tax.)

DOMICILE

Where a person is domiciled is a feature of UK law. Only UK law! An individual’s domicile is not necessarily the same as either their country of residence or nationality. Domicile is a totally different matter. The basic rule is a person is domiciled in the country in which they have their home permanently or indefinitely. This is often described as the country which the person regards as their ‘homeland’, and frequently as the place where a person intends to die. A place of domicile does not have to be the country in which a person has the closest personal association. A person can live in a country for many years and still remain domiciled elsewhere. It’s a little bit confusing.

Domicile of origin

At birth, an individual acquires a domicile of origin which is the same as the father’s domicile at the time of the child’s birth. This is not necessarily the same as the country in which the child was born. It is possible for someone to have a domicile of origin in a country which they have never visited. The domicile of origin never changes and it revives automatically if there is any doubt about an individual’s ‘domicile of choice’.

Domicile of choice

The domicile of origin can be altered to become another country; this is called the ‘domicile of choice’. This change is not easy as there is a strong tendency to favour retention of the domicile of origin. Furthermore, if a person loses a domicile of choice, by leaving an adopted country and moving to a third country, they are likely to reacquire their domicile of origin. There are two main elements for a domicile of choice to replace a domicile of origin:

• First, the individual must be physically present in the new country and be a tax resident.
• Second, they must intend to reside permanently in the new country.

But for most people permanently retiring to Spain, taking out a Residencia and paying tax to Spain, it is normal to assume they will continue to retain UK domicile status. In other words the individual is not domiciled in Spain. Equally a person visiting Spain for a few months each year, owning a holiday home and paying tax to the UK, is domiciled in the UK. This slightly unusual position is readily accepted by authorities in both countries, giving a basis for planning inheritance tax.

While the domiciliation of a person retiring to Spain is clear, this is not the situation with a wealthy person, still earning, living in Spain and paying income tax to Spain (in other words, a tax exile). Unless they can prove otherwise, they are domiciled in Spain. There are a number of ways in which domicile status can be satisfactorily tested but in practice the Inland Revenue will not consider this until it becomes relevant for some tax purpose. A wealthy individual in this position should consider if it is more advantageous to retain UK domicile and face UK inheritance tax liabilities or pay income tax and become liable for death duties in Spain.

NATIONALITY

If a person moves to Spain, takes out a Residencia, earns a salary, pays taxes in Spain, marries a Spaniard and raises a family it still does not make them a Spaniard. They remain British, or Irish, or whatever their passport states, until they choose to formally renounce their nationality in order to become Spanish.

Some countries permit dual nationality and do not mind if one of their citizens takes on another nationality. A British citizen, for example, can take another nationality without renouncing their British citizenship, but Spain does not recognise dual nationality. Therefore British citizens who take Spanish nationality are regarded by the British as British and Spanish, and by the Spanish as solely Spanish. Marriage to a foreigner does not change the nationality of a partner. A British person who marries a Spaniard remains British unless they apply for Spanish nationality.

The basic requirement for applying for Spanish nationality is a residence period in Spain of ten years although this is substantially reduced in the case of marriage. The paperwork required comprises birth certificate, parents’ birth certificates, marriage certificate, all authenticated by the Consulate and translated into Spanish by official translators, plus proof of holding a Residencia for ten years.

A new citizen to Spain will be required to renounce a former nationality, swear an oath of allegiance to the Spanish Crown. If they are wise they will make out a last will and testament according to Spanish law.

ESTADO CIVIL

The Family Book is a document of great importance to Spaniards. So too is a person’s civil state (Estado Civil). Together, this is a full set of information about a person required by various legal authorities, particularly a notary dealing with wills and property purchase, and civil authorities dealing with births, marriage and deaths. They will ask for full name and address; occupation; nationality and passport number; maiden name; names of parents; date and place of birth; date and place of marriage and if appropriate date and place of divorce. Authorities are entitled to ask for proof and some may require an official translation of certificates into Spanish, but often an official will accept a verbal confirmation. The notary dealing with public documents will treat an Estado Civil with reverence.

There is also the issue of matrimonial ‘regime’ (regimen matrimonial), something that has to be specified in Spain when you marry as it will apply to the relationship. No such arrangement applies in the UK. There are two options:

• a regime of common ownership of assets (comunidad de bienes) where all assets acquired after the marriage belong to both;
• or a regime of separate ownership of assets (separacion de bienes) where each spouse is entitled to own assets in their own name, upon which the other spouse has no automatic claim.

If a comparison has to be made, then marriage under UK law is the second option. If asked in Spain for a matrimonial regime simply state that no formal regime exists but it is similar to separacion de bienes.