2 major questions resulting from changes in Residency requirements and Healthcare

Firstly, I live in Alicante province, and as a fluent Spanish speaker and politically linked to my local Town Hall, I have been helping people solve local issues/difficulties for several years. As a result of the TWO major recent changes, a couple of interesting topics have arisen. Whilst the problems themselves are distincly different, they are linked by the changes to residency requirements and healthcare. These 2 cases were sparked by the announcement that as of 1st September ALL EU residents, permanently residing in Spain are to be entitled to a permanent SIP card, Retired or of  WORKING AGE, regardless. Wow! I simply couldn't believe it, at last the EU had put its foot down! That was until you realise the phrase, "permanently resident" and the NEW criteria for the "Foreigners Registration Certificate. The new rules state that NEW arrivals without state agreements must fulfil certain requirements including, if necessary, adequate private medical insurance. Great move Spain!  The new rules have been adequately explained in other threads, but here comes the 2 cases from concerned British citizens:

CASE 1: "I live here approximately 5 months of the year, as in all winter. As such I was obliged to register as Resident in Spain. When returning to the UK in Spring I was denied non emergency treatment in the UK, as I was deemed resident in Spain, and only emergency treatment is covered".  

Sadly, having delved into this as much as I can, it would appear that this is indeed correct. Not only that, but of course reading into it, this would appear to be the same, as a mirror image throughout Europe.

Has anyone any legal knowledge, contacts that may confirm this 100%?

CASE 2: "I am of working age, and have lived in Spain permanently for over 8 years. When I arrived I started a business and it ran well for nearly 4 years when circumstances forced closure. I was told by my gestor that I did not, at that time need "residencia" as I was paying into the Social Security sytem and was thus automatically resident. When the law changed in 2007 requiring anyone resident over 3 months to "register" as cards were no longer issued, I was again told that I was RESIDENT. I worked for 1 year during 2009/10, and since then I have been supported by my partner as I spent over a year renovating a property she bought. I would now like my residency certificate, as I believe I am now entitled to free healthcare IF I can produce the said certificate. As a permanent resident for over 5 years the EU states I am entitled to permanent residency without conditions. How do I prove this? I can find no information that constitutes what "proof" entails, other than old residencia or certificate. I have been permanently registered on the Padron during this time, and have been permanently known to local dignatories but there have been times, especially the last 2 years where I simply "don't exist" on paper. 

Well this is a good one, and indeed I have researched as much as I can. One of the criteria laid down by the EU states that as much as 1 year can be missing from recorded data, but I can get no further than that. I HAVE heard about one friend of mine whose "residencia card" expired and they asked him for health insurance, which having been here more than 5 years is 100% illegal. But that, is it.

Again, has anyone any specialist knowledge, or access to?

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 Case 2 I have no idea of as I have never encountered it.

Having worked in the NHS in UK for some time, Case 1 would never happen.  Unless the couple transferred their health cover to Spain by means of the S1 (which they should only do if living in Spain for more than 6 months and taking out fiscal residency) then their health cover would still be in UK.  Also, UK NHS cover is residency based, not contribution based.  Anyone with a home in UK, whether owned or rented, and paying utility bills are classed as resident in UK and will not be charged for medical care, emergency or otherwise.  

Turning up at a GP in UK for any reason and you will be treated.  You may be asked for proof of address (by showing rental agreement, utility bill, council tax bill or whatever) and you will be registered and treated on the NHS.  

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Re case 1

I have a friend who registered as she intended to stay in Spain for 4 months.  She later found that her Non Resident bank account was frozen as she was considered to be tax resident in Spain

I contacted Hacienda (and spoke to friend who is in a senior position in Hacienda) and yes that is how they interpret it.  

 I now suggest that people should not stay for longer than 183 days in a year, or do not stay PERMANENTLY in Spain for 3 months, unless they want to become resident.

 

RE case 2. 

I will be interested what 66d35 says about that case. 

 

 

This message was last edited by johnzx on 12/09/2012.

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Case 1   It would have been easier for them  to pop out of spain before 90 days , so resetting the clock & enabling them to use the UK  ehic card for healthcare.

 

Case2.    Anything will do. Your registration on the social security from many years ago is enough on its own. Your yearly tax declarations also will suffice. Many people are/were in this position & it is more or less automatic & a nod-through.

Obviously in some areas were they don't understand the EU rules it could be a problem .

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Case 1

There is confusion here. It is critical to note that the "registration" on the police-maintained register for EU Citizens that Spain insists on is absolutely, categorically, not a declaration of "residence". It is a registration that you have been here for 91 days... that's it. It does not 'grant' residence or remove it.  People can take longer vacations than that. It has no meaning in any sense for 'actual' residence. That is determined by other factors. Tax residency, for example, requires more than 183 days in a country. In very simple terms, if you are spending 7 months of the year in the UK you are resident there (despite this rubbish about registration here). Other tests can be applied... your sources of income, your domicile, links with the UK, but the mere fact you are there for 7 months really seals it. That is your residence. Period (as our American friends are fond of saying). You were clearly unfairly denied treatment in the UK. Appeal. If necessary, involve SOLVIT. That is what they are there for. You could also get a UK solititor with a good working knowledge of immigation issues on the case. You'll win.

Case 2

Agree with Gus-Lopez. The precise "means of proof" are nowhere specified, but the 'operations manuals' for implementng 38/2004 makes it crystal clear that all such cases must be independently judged on their own merits. A 'blanket' set of rules would be unlawful. Hence, paying into the Social Security system here is concrete evidence, as are employment records, padron registrations, etc. The Spanish themselves accept Padron certificates as evidence for major transactions, for goodness' sake! Do they now deny it for this purpose? That would be clearly discriminatory, and hence, unlawful. Again, SOLVIT is a good avenue to bring such complaints to attention. You can also petition the EU directly.

 

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 i posted a very similar scenario to case 2 on another thread here so would be interested to hear, mainly regarding obtaining a spanish driving licence which trafico insist on a "residencia" or certificate of residence but this cannot be produced in  a situation like case 2 if the person cannot meet the criteria ie proving funds or private health care.

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Well... if you have been here for 5+ years there is no obligation to even have a certificate of any kind. 38/2004 makes it very clear that this is entirely voluntary. Further, after 5+ years your residency is unconditional - not subject to income or health care provision, etc.

See my previous reply regarding apparent conflict between Traffico requesting such a certificate and Article 25.

This is a matter you should raise with SOLVIT.

 

 

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Brief comment about the NHS, partly to Bobaol but also to everyone.  Sadly he is not STRICTLY accurate that case one would never happen, though in practice for white people they are rarely challenged. 

I was a Non-Exec Director of first a London Health Authority then a south-west England Health Authority.  In around 2005 I asked the Director of Public Health about British ex-pats using the NHS, and she had to go off and research it!  Mainly because in reality, if you speak English and sound like you are born and bred British, and you have a white skin, there is no hospital or GP surgery etc that would even think of querying where you live.  So you could be resident in Spain for 11 months per year, or even full-time, but go back and be a "health tourist" in the UK without being challenged.

However, my brother has lived in Cameroon for about ten years.  He is fiscally-resident in Cameroon, even though he also has a house in London.  According to the law, he is NOT entitled to NHS care free at the point of use.  Technically he should have either health insurance or travel insurance which includes healthcare, and use that.  In practice, as a white man, he is never asked about his residency.

In the past ten years the NHS has been required to attempt to cut down on "health tourism".  Many older British people wholly resident in Spain are guilty of it, as well as other categories of people.  The Director of Public Health said that if there is "any question" over a patient's residency, they should be asked to prove UK residency.  NOT before emergency treatment, of course!  But before booking a planned operation etc.  But, as previously noted, there has to be something that triggers that "question".  And the vast majority of Brits with residency in all the other countries of the works, would not trigger the question being asked in an NHS setting.

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 Slight difference to living in Spain for 5 months and living in Cameroon for 10 years. 

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 Yes, totally agree Bob!  It was just the bit where you said it would "never" happen.  And I agree with that too, in practice.  However it does appear to have happened to the OP's acquaintance :-(

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Indeed... and I wonder why? Did they perhaps mistakenly declare they were "resident in Spain", believing that this was the effect of signing the EU Citizens register?

Very odd.

 

 

 

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I am afraid that the first question asked when you pitch up at A&E is the name and practice of your GP. If you are not registered then they will investigate further.

This exposes further anomalies if you are a full time resident in Spain lets say more than 7 months and you have used the S1 route to register for medical care in Spain then Spain receives around £3000 from UK each year to take care of you. If you are registered with a GP in UK at the same time they also receive around £3000 each year from the NHS so even if you don't visit the doctor anywhere from one year to the next you cost the NHS £6000!

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 The point in case 1 was that the couple only lived in Spain for 5 months a year.  Unless they had completed an S1 to transfer their medical care across to Spain then they would still be on the NHS books in UK.  Even if not, a simple proof of residency would put them back on it.

And JohnKath, I wish we'd been getting £3,000 a year per patient.  A GP in UK is actually paid £64.75 a year for each patient on the books.  

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Firstly, thanks to all who have replied here, especially to 66d35 and Guslopez.

With Case 1, I see that indeed major questions are being asked, and the S1 transfer seems to be the key. Would I be right in thinking, in that whatever decison people take as to transfer of rights from UK to Spain via S1, the fact is that legally, (and I say this as we know there are probably huge numbers still registered in both countries) you can only be be registered for FULL healthcare in ONE country or the other? We know many using EHIC cards in Spain, many double registered, but the fact remains that you cannot "have your cake and eat it"?

 

With Case 2, it does not seem to have been picked up on, and I invite 66d35's comments here, that I am told that with FULL healthcare (Permanent SIP) now available to ALL EU citizens resident in Spain from 1st September, which helps a lot of early retirees here, or people simply living off savings etc., that they appear to be using the "registration certificate" as a prerequisite, as opposed to the NIE, and thus in my original post, there is a corrulation between the 2 new laws.

Also on point 2, the partner of the person referred to, IS registered on the "foreigners register" and has been for 3 years, although their income comes from the UK. Is that another point of automatic right to receive the certificate?

Thanks everyone

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If you are retired & in receipt of a pension

Healthcare coverage in the country where you used to work

You are entitled to complete healthcare coverage in both the country which pays your pension  and the country where you now live (if these are different).

from here; http://europa.eu/youreurope/citizens/work/retire/healthcare/index_en.htm

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Thanks for the post Gus,

But having now read the link 3 times, I cannot concur with your statement:

The europa site appears to clearly state the following:

"In principle, you and your family are only fully entitled to medical treatment in the country where you live. However, some countries (see list below) offer pensioners who live abroad — but belong to their social security system — complete healthcare coverage on their territory too. "

The UK DOES NOT appear in that list.

Therefore, I would conclude that the S1 is not an extension, but a transfer of your rights, as far as the UK is concerned.

 

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I agree. The NHS is a residence-based healthcare system. Therefore, once you have moved permanently away from the UK you are no longer entitled to medical treatment under normal NHS rules.

The issue here, in case 1, though, still appears to be why on earth someone only here for 5 months is regarded as "losing residency" for NHS purposes? That cannot be so. You cannot lose UK residency merely by going abroad for 5 months!!  People can take longer hollidays than that....The test is that you must relocate PERMANENTLY.

Dealing with this point raised about the registration certificate being used as a "prerequisite" for healthcare in Spain. We return to the terms of Article 25 (paragraph 1) of 38/2004, wherein it states:

 Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.

Hence, demanding such a certificate for the purposes of healthcare provision, appears, on th face of it, exactly the same as Traffico demanding it for the issue of driving licences. Incompatible with the treaty.

I believe that again, what we see here is the Spanish authorities, having been forced (under duress) to give up the old 'Residencia' trying to simply carry on as before, regardless of the fact that the new certificate is not a 'Residencia'.

There is clearly a grey area here at present over Spanish compliance.

 

 

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My husband and I are both UK pensioners and redient in Spain.  Can anyone tell me how we apply for a Europen Health Card as we are hoping to go to the UK early next year?  We have lived here for nearly 5 years.

Thanks

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As UK citizens you get from the DWP Overseas Section, Newcastle

 

Try +441912187777

When they issued mine some years ago they made a mistake re my wife's card (she is resident in Spain but non european)  They accepted the info on the phone and sent the card.

 

This message was last edited by johnzx on 15/09/2012.

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Hi, I have a question regarding this new issuance/non issuance by Spain.

My wife and I moved to Mallorca to live permanently on February 20th 2012. We have residencia. We have S1 form which is only valid until January 2014. We are of working age but I have retired early taking a work's pension. We therefore do not receive a state pension yet from the UK. Mine becomes payable when I am 66, currently I am just short of my 58th birthday. Currently also, we do not as yet have private health care cover as we are covered until January 2014 with the S1. As we are permanently resident in Mallorca we therefore do not have anything but emergency cover in the UK. We knew we did not have cover here when we initially moved over except for the S1 conditions. When we heard about the 1st September occurrence we asked about it through a relocation company and they were told cards would be issued shortly. Since then the social security office has backtracked and we are now currently being denied the healthcare cover card with which we could register at a doctor here. So, it seems we are still denied healthcare (apart from emergency) in the UK (correctly) and we are denied healthcare here after January 2014 unless the Spanish Government do issue these cards from the social security that would allow us healthcare here being registered at a doctor's. My income is clearly below the huge amount that would prevent us from having a doctor here as a resident (the income was something like euro 100,000 a year). Can anyone tell me whether we should be granted this medical care card in Spain because if we were it would take a lot of worry off my mind as to paying for medical insurance in 2014? I know life's not fair (believe me, I know) but as we no longer have UK entitlement, to be told you will be getting Spanish entitlement and then to be told whoahhh, hold your horses, it seems we are still between the devil and the deep blue sea! Does anyone know whether this Spanish entitlement will come to fruition?

Brian

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