What is a swallow?

Swallows & Brexit

A swallow, a beautiful migrating bird that spends the winter in one country and summer in another. These are pretty birds, with blingy, colourful plumage and voracious consumers of pesky insects, from moths to mosquitos. 

“Swallow” is also a term used for people, those who migrate south for a warmer winter and return home with the arrival of the summer heat.

Most human swallows are holiday homeowners or long-term renters in Spain, and have no desire to live here full time and become residents. 

Up until Brexit, that was absolutely no problem at all.

Swallows, third country nationals and Schengen rules
Unfortunately for UK passport holder “swallows”, Brexit has put an end to their annual migration. British citizens are now third country nationals, and therefore bound by Schengen travel rules as to how long they can spend in Spain.

With this in mind, thousands of British “swallows” decided to take the leap; bringing their retirement plans forward and becoming residents under the terms of the Withdrawal Agreement (WA). 

Sadly, many left it too late, believing a deal would be made before 31st Dec 2020. This didn’t happen, and they can no longer apply within the WA. 

But were swallows ever legal? 
Swallows generally used to spend 4 or 5 months in Spain; enough time to enjoy the benefits of an extended stay, but not become fiscal residents (fiscal residency is not the same as physical residency). As EU citizens, there was no control or passport stamps to monitor how long they had been in (or out) of Spain. 

But EU immigration law (which relates to the Spanish law Real Decreto  240/2007), states that citizens of the EU, if they intend to spend a period of more than 90 days in a different EU country, must register as residents and meet the criteria to do so. Staying less than 90 days means you are a tourist.

So you could argue that all swallows (whatever their EU passport) were/are living in Spain illegally. To follow the letter of the law, they should register after 3 months living here and de-register when leaving. 

In practice, in Spain, the legal residency requirement for EU citizens has never been strictly enforced; registration was more a personal choice – although highly recommended. Whether this will continue to be the case in future is up to the Spanish government.

While this may or may not be a problem for EU swallows from countries like Germany and Holland in future, UK swallows are now in a completely different position and must abide by much stricter rules – it’s no longer possible for them to migrate back and forth as they wish. 

The UK swallow – mass extinction event?
As third country nationals, UK “swallows” now come under General Immigration Rules, just like everyone else who doesn’t hold an EU passport, and must have a visa to spend more than 90 days in any 180 days in Spain (or any other Schengen country).

Better to be a Golden Eagle than a Swallow ?
The only visa that meets the requirements to continue the swallow lifestyle is the Golden Visa (also known as the Investor Visa) which requires a minimum of a €500k purchase of property, or a substantial investment in either a business or public debt in Spain. 

The non-lucrative visa (also known as the retirement visa), has certain conditions that don’t suit the swallow lifestyle. With this visa, you can’t leave Spain for more than 10 months in the first 5 years (after 5 years, you gain permanent residency) and you must spend more than 6 months a year in Spain, meaning automatic tax residence. If you don’t follow these rules, you’ll be in breach of your visas conditions.

Also, while permanent residency does allow you a bit more flexibility to be out of the country, the amount of time you can spend outside Spain as both a temporary and permanent resident is different for UK citizens protected under the Withdrawal Agreement than for those who come into Spain on a visa.

Adapt or die?
Although, being a swallow was not strictly following the rules, thousands of Brits a year enjoyed the flexibility of spending the time they wanted in Spain without committing to the fiscal or legal obligations of official residency. 

With Brexit this is no longer possible, and unless you’re willing to invest over half a million euros in property, or bite the bullet and go for full blown legal residency in Spain, UK swallows will be restricted by the strict Schengen rules of 90 days in any 180 day period. 

FAQs

Can you pop over to a non-EU country (e.g. Gibraltar, UK) for a couple of days/weeks and come back?
No – if you’ve spent your 90 days in Spain already, you’d have to ‘pop over’ to a non-Schengen country for 90 days and THEN come back to Spain. Use this visa calculator to work out your timings.

How can they find out if you overstay – how is migration controlled?
The EU is very protective of its borders and has invested millions in sophisticated technology to guard them. In today’s digital world, it is much easier to keep track of people and the security authorities across Europe are fully interconnected. From mobile phone signals, to bank transactions to ANPR for vehicles, it’s pretty difficult to stay completely under the radar. 

With the advent of the new ETIAS tracking system in 2022, UK passport holders will have to register on the system before entering the Schengen area, making it even easier to keep track of overstayers.

What are the penalties for overstaying?
Each EU country has the right to interpret the general EU rules on over stayers as they see fit, which means consequences vary. These are the most common:

  • Deportation – you’ll be sent back to your home country, at your own cost
  • Ban – not allowed to enter ANY Schengen area country for a set period of time
  • Fine – one of the more common consequences, costs vary between countries €500 minimum in Greece, €3750 minimum in France for example
  • Black mark on your Immigration record – this could cause problems in the future when you want to enter the Schengen area again. You’ll run the risk of being stopped and/or questioned at border control, with the constant worry of being refused entry.

Will Spain create a special visa for “swallows”? 
Can’t be ruled out, but highly unlikely. Spain is a Schengen country, and the visa rules are Schengen rules, not national ones. While countries can implement visas for themselves, these have to abide by EU Freedom of Movement law – and this is 90 days in 180 days unless legally resident.

I own a home in Spain, does this make any difference to the rules?
ONLY if you come under the auspices of the Golden Visa as described above. What’s worse, not only have the swallows had their wings clipped, for those who own second homes in Spain their non-resident tax will be higher because non-EU citizens pay a higher tax rate than EU citizens. 

Are there any exceptions to these rules?
The only real exception to the rules are the newbie “reverse swallows”. Permanent residents in Spain (lived in Spain for over 5 years) with UK passports can divide their time between the UK and Spain in the same way as pre-Brexit. 

So for now, there’s no way around the 90/180 day rule and the blame lies with Brexit – the UK leaving the EU and the loss of Freedom of Movement.

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