British tourists and second-home owners cannot exceed the 90-day limit outside of the UK post-Brexit, but Spain has dismissed reports that those breaking the law will be immediately deported.
Although the latest visitor rules do not apply to British nationals who are lawfully settled in the EU, a large number of unregistered British citizens in Spain are likely to be affected by regulations, writes Leon Fernando Del Canto, international tax barrister and founder of Del Canto Chambers.
Many British expats living in Spain have not registered their residence and those who cannot prove they were resident before 31 December 2020 face a 90-day deadline to leave the country.
While legally those who do not have a visa could face deportation – as well as fines and challenges in returning to the country – Spain has been the first to deny UK reports that they will be quick to deport those breaking the rules, including 500 Britons over the next few days.
This is a real cause of stress for those who now find themselves having to decide which country to choose as their formal place of residency.
Can they do it?
Bearing this in mind, over half a million British citizens who spend a great deal of time in EU Schengen countries own a holiday home which they purchased before 31 December 2020.
These individuals in question should look into their legal rights as they may find that they have grounds on which to challenge these restrictions.
We are already starting to see Brits who own property in mainland Europe looking at the options they may have in the European country where they own the home, including potential litigation. That may imply citing infringement of their human rights by the EU for preventing these property owners from peacefully enjoying their possession.
Immigration rules of stay for non-EU citizens in the Schengen area stipulate that someone can visit visa-free for no more than 90 out of the last 180 days.
This rule is a rigid one and there will be very little leniency by authorities towards those failing to abide by it. There will be no mitigating circumstances, even for family emergencies, that will allow for the relaxation of these rules.
Prolonged illegal stay in the Schengen area could mean not being allowed to return for over three years. Information on anyone who overstays in one of these countries will be logged into the immigration database and will therefore be easily noticed.
What the law says
The legal grounds on which those who own property in the EU Schengen countries may be able to challenge these rules are as per the European Convention on Human Rights (ECHR), which contains three distinct rules:
- The general principle of peaceful enjoyment of property;
- The rule that a deprivation of possessions should be subject to certain conditions; and,
- The rule that states are entitled to control the use of property in accordance with the general interest by enforcing such laws as they deem necessary for this purpose.
Irrespective of whether the country in question is a person’s main residence, restricting them from peacefully enjoying their property would appear to directly contravene the right enshrined in Article 1.
Not only is the UK still a signatory to the ECHR, but an individual doesn’t need to be a national of one of the states bound by the convention if the violation has been committed by one of those states within its ‘jurisdiction’.
Before taking action, one must seek expert legal advice because considerations must be taken into account, such as whether the person has directly and personally been victim to the alleged violation.
That is to say, one may not make a general complaint about the rules but rather have had to experience the unfairness relating to them, demonstrating how it has negatively affected them. Similarly, one may not make an official complaint on behalf of someone else, unless they are acting as their official representative, which would need to be clearly stated.
It is worth noting that the most fundamental procedural rule is that the person must have used all the remedies in the country concerned that could provide redress for the alleged violation. In Spain, this usually means having exhausted the appeals up to the supreme court or the constitutional court.
While it can be a time-consuming process to ensure that the specific grounds upon which a legal challenge is made are strong enough, something that could take several years, we believe that it is worth exploring for anybody who has been negatively impacted by this situation.
This article was written for International Adviser by Leon Fernando Del Canto, international tax barrister and founder of Del Canto Chambers, an international tax law firm based in London with a focus on Spain.
