How two different changes might allow certain UK nationals to override the 90-day rule in France and Spain.
The Schengen area enables over 420 million people across 27 member states to cross internal borders without having to produce passports or identity documents. Around 3.5 million people cross internal borders every day, 50% whom reside in one Schengen country and work in another. A total of 1.25 billion journeys every year are a boon to Europe’s tourism and cultural sector.
But these internal freedoms are only available because of a common EU policy that facilitates the entry of visitors into the EU while maintaining security. The EU has a visa-free regime in place for 61 non-EU countries, including the UK, enabling those people from these states with biometric passports to enter the Schengen area for short stays – no more than 90 days in any rolling 180-day period – without needing a visa.
The Schengen rules are separate from each state’s sovereign right to introduce different types of visas and residency permits, which is why you see significant variety across member states in the different kinds of visas and permits each state might offer.
France has a variety of visas ranging from 4-12 months, while Spain does not have similar ‘shorter’ term options. Recently, some member states have been keen to develop ‘digital nomad’ visas, while others have ‘golden’ visas for those wealthy enough to make a significant investment in the country concerned.
The EU generally does not get involved unless the visa or permit falls foul of one of the four basic EU principles when a case can be brought before the European Court of Justice. This long-winded solution can take 8-12 years to resolve.
Both France and Spain have been vocal recently on the social and economic costs of Brexit on their countries. The immigration rules that now apply to UK nationals with property in these countries restricts them from visiting and staying as often as they may have done previously.
What’s been happening in France?
In November 2023, Martine Berthet, an MP representing the Savoie area in the French Alps, put forward an amendment to a new French Immigration Bill, suggesting special arrangements should be enacted to support UK nationals who own second homes in France.
The initial, rather thin, detail suggests France would allow UK nationals with second homes to either come and go as they please or give them freedom in how they utilise a 180-day allowance in France in a year (reflecting the UK’s own rule for Europeans visiting Britain).
The original aim was to convert the 90 days out of 180 rule to 180 days out of 360, but this would have required a vote of the 27 Schengen member states, where the agreement could have taken years to reach.
Visas on the other hand are within the purview of individual member states and can be introduced or amended quickly. Whilst both the Senate and National Assembly voted in favour of the change, the French Constitutional Council (effectively the French Supreme Court) rejected this particular amendment.
They deemed it contrary to the constitution, which requires any amendment to be directly related to the original aims of the bill. The main bill was seeking to tighten controls on immigrants and the benefits they could receive – a long way removed from flexible visas for UK nationals with second homes in France.
Though unconstitutional, the court did not rule out the automatic visa idea itself. As a result, Mme Berthet will look for other ways “to present it again” in the future.
To learn more about French visas or tax planning, download our free guides now.
What’s been happening in Spain?
Spain on the other hand, has not progressed this issue as far as France, but there have been discussions between Madrid and London over how things can be made easier for British tourists in Spain.
Reports have circulated of Spain lobbying the EU, but there is no actual evidence this has occurred. Previous efforts in 2022 came up against the barriers to change in the 90 out of 180 day Schengen rule discussed previously. But a recent immigration case involving an Iranian citizen who was unable to return to Spain might offer UK nationals a different kind of solution.
This case was heard by the Spanish Supreme Court. The judgment in favour of the individual nullified a clause in the Spanish immigration rules, which permitted the immigration authorities to cancel or deny a residence permit, on the basis the individual had not spent more than 183 days in the year in Spain.
The six-month requirement had been introduced into law as a royal decree. The Supreme Court decided this law contradicted the Spanish Constitution which encourages freedom of movement. A royal decree is deemed only a regulation and, as such, the Supreme Court has the power to set this aside if it wishes. As a result, any future Spanish government could reintroduce the rule as an ‘organic’ law (a higher law than a regulation) via Parliament in Spain.
But as things stand now, the result of this case means it is now possible to apply for a Spanish Non-Lucrative visa and visit Spain as and when you wish. When you apply for a renewal, there should be no fear the Spanish immigration authorities could deny the renewal, on the basis you have not been present in Spain for 183 days in the previous year.
Whilst it appears you will have the freedom to come and go as you please, you must be aware that more than 183 days in a year will mean you have become a Spanish tax resident for that year.
To learn more about Spanish visas or tax planning, download our free guides now.
Get further advice on the 90-day rule in France and Spain
If you may become a tax resident in Spain or France, seek personalised advice early to understand how the local tax regime could impact you and your heirs in the future. At Blevins Franks, our cross-border wealth management specialists can carefully plan your move to make it as tax-efficient as possible and help you structure your assets to take advantage of compliant tax planning opportunities in your country of residence.
Contact Blevins Franks today.
