British driving licence and Residence in Spain

 Tamara, the licence will be then in order, and having been verified as such, it will be exchangable for a Spanish one without any problem, Best of luck Doug!

 Spam post or abuse? Please let us know

Tamara, the Statutory Residency Test is issued by HMRC, because it relates to fiscal residence.

 Spam post or abuse? Please let us know

Ah yes, that's right Kathyslad, thanks. Well, they were extremely helpful when I spoke to them, and I'm sure Doug will find them helpful too, though proving residency in 2003 may be a little more complex, though I'm sure possible :-)

Is Doug still reading this thread, by the way? Lol!

 Spam post or abuse? Please let us know

 

 

 Spam post or abuse? Please let us know

 As far as I can see its pretty clear. Under EU directive 91/439 (which was the one in force at the time, and was the one which spanish law is based on) it says in Article 7

1. Driving licences shall, moreover, be issued only to those applicants:

(a)who have passed a test of skills and behaviour and a theoretical test and who meet medical standards, in accordance with the provisions of Annexes II and III;

(b)who have their normal residence in the territory of the Member State issuing the licence, or can produce evidence that they have been studying there for at least six month

and Article 9 defines "normal residence" as

 

Article 9

For the purpose of this Directive, 'normal' residence means the place where a person usually lives, that is for at least 185 days in each calender year, because of personal and occupational ties, or, in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he is living.

However, the normal residence of a person whose occupational ties are in a different place from his personal ties and who consequently lives in turn in different places situated in two or more Member States shall be regarded as being the place of his personal ties, provided that such person returns there regularly. This last condition need not be met where the person is living in a Member State in order to carry out a task of a definite duration. Attendance at a university or school shall not imply transfer of normal residence.

 

I'm not a 100% clear from Dougs post of his situation in terms of the directive, although it would appear he worked in spain, but his family lived in the UK, and he went back there regularly. However once he is clear which applies in terms of the definition of the directive, then he will either have to provide the evidence of "normal residence" in the UK, and consequently the licence is valid, or he was resident in Spain (in terms of the directive) and it is not, unless my understanding of the directive is wrong.

 

Only Doug can confirm his situation. If he was a resident in the UK, then I would speak to the DVLA, and providing he can prove to them that the licence was valid, then they may issue something to satisfy the spanish authorities.

 

 

This message was last edited by kathyslad on 18/04/2013.

 Spam post or abuse? Please let us know

Thanks so much for all this information and sorry for starting "world war II" 

 

I should maybe point out that I moved straight to Spain after university graduation and that in 2001 I was just 22 and had no idea of notion of "residency" and still to be honest dont have it clear now.  I got a short term TEFL job and accordingly applied to get my NIE (a card then) in order to have my contract.  I did not however empadronarme until 2006: which document to people's knowledge really counts as being a resident, the NIE or the empadronamiento?   I thought the empadronamiento was just for local residence in a specific place in a town, so Im guessing the NIE is the document that proves my "residency" is this right?  The first few years in Spain i worked on 9 or 11 month contracts and travelled a lot back to the UK, sometimes for work (non contracted Im afraid) and mainly to visit friends and family.  I kept up my paperwork in the UK at my parents address (the same one today) and decided in 2003, having no knowledge of "residency", to do my test in the UK for reasons stated that I didnt speak Spanish that well and didnt think at that time that my long term life plan was likely to be Spain.

 

So in short I guess if the NIE, is the key residency document, then in 2003 when i got my license i was definitely legally a resident in Spain, also practically i definitely spent 4/5th of the year in Spain in rented accommodation.  At the same time in the UK as said I had kept up my paperwork (as I understand this) but hadnt paid any "taxes" (as I hadnt had contracted work) but the beginning of that period at least i think my parents were still registering me for "electoral poll".

 

So in short the keys things I guess are:

- is the NIE the residency document for Spain?  If so i was a resident in Spain when i did my driving license but I dont understand how my UK residency was "taken away" from me when that happened?

- As I was allowed to sit my test in the UK as I kept up a UK address, why cant this in itself prove i was a resident of the UK at that time?  Also, and I guess this is part coming from emotional feeling Im saying this, but why does it even matter where I did my test when it was in another EU country when the whole point of EU licenses, as I understand it, is to have a standard for tests throughout the union.  Especially this point seems pertinent when I did it in country for which I am a national.

 

From what I can understand from most people's comments and the official information from trafico, my situation for changing to a Spanish license doesnt look good and seems pretty impossible as I cant see it easy getting UK papers nor Spain accepting them :(.

Anyway thank you to everyone for all the help, much appreciated.  Thanks Robert for the person msg, I appreciate the info.

Saludos, Douglas.

 Spam post or abuse? Please let us know

 Kathyslad quotes Article 9 of   EU directive 91/439 and this shows that it would be possible to be resident in two member states at the same time, and as such this would mean, as has been said by more than one of us, Doug would need to prove to the Spanish Trafico that his principal country of residence was the UK at the time of taking his English driving test. This would quite probably be an arduous task , as we all know how awkward officials in Spanish offices can be, and may be quite something to make a Spanish official agree to, best of luck Doug! Maybe Doug could let us know how he fares, as it would be an interesting situation that others may benefit from knowing about.

The only thing is, Doug, you say you would prefer a Spanish registered licence, but it it really necessary? (just a thought!)

 Spam post or abuse? Please let us know

 

 

 

 Spam post or abuse? Please let us know

Having read Dougs last post, I think he needs professional advice, for these reasons.

1. I would be of the view that he would find it difficult to argue that his personal ties made him a UK resident in terms of the EU directive. His occupational ties, would, in my view make him a Spanish resident. Personal ties are not defined in the Directive, but if you look at them in the SRT, they clearly relate to partners and children, as opposed to parents. If they are considered to be the same in the Directive, then in my view ( but I could be wrong) he would definitely be a Spanish resident.

2. Having put his head over the parapet by visiting Trafico, and following the subsequent discussions on the thread, if, and I say if ( which is why he needs professional advice) my view in point 1 is correct, then it must follow that his licence is not valid ( because it cannot be legally issued), and consequently his insurance may not be valid. Johnzx will have a more informed view of this aspect.

 Spam post or abuse? Please let us know

Unfortunately I can't edit when I post from an IPad, but Johnzx posted whilst I was writing, so our posts on a similar theme crossed

 Spam post or abuse? Please let us know

I tend to agree with Kathylad's analysis.

Certainly now, the new DL Directive has a pretty clear definition of 'residence; for DL purposes. However, it is not retrospective, and in any event, given the personal situation of the OP at the time the licence was obtained, it would not help much anyway.

 

 

 

 Spam post or abuse? Please let us know

 

 

 

This message was last edited by johnzx on 18/04/2013.

 Spam post or abuse? Please let us know

 The following as been copied from www.dft.gov.uk/dvla/~/media/pdf/leaflets/D100.ashx

You can only get a GB driving licence if you are normally resident in Great Britain

To be normally resident you must usually live in the United Kingdom for 185 days in each calendar year.

Applicants who are not UK citizens or nationals of another EU or EEA country will not be considered normally resident if they:

• do not have leave to remain in the UK, or

• are in the country on a temporary basis without leave to remain either while awaiting a decision to stay in the UK or following a decision refusing such an application.

 

 Spam post or abuse? Please let us know

I know exactly what would happen. Nothing - because the EU Citizens Registration is based on a 90 day period, and under the new EU Driving Licences Directive 'Residence' for DL purposes is based on 163 days or more. The two are expressly unconnected in any way. In short, the Spanish definition of 'residence' is out of step with the EU Directive as far as driving licenses are involved, and furthermore, the 90 day period has no effect whatever on actual 'residence' status. It is merely a 'registration'. There is a critical difference.

It would also fail to overcome the problem that the license was obtained originally while not a UK resident...

 

 

 

 Spam post or abuse? Please let us know

 Spam post or abuse? Please let us know

 The last few postings have shed a new angle to Dougs problem, that he may have obtained a UK licence while he should actually taken a test in Spain.

Johnzx says in the last posting, " The problem Doug has is that the DL he obtained in UK is almost certainly invalid and was obtained fraudulently." Unfortunately, as fine detail has emerged, Johnzx is almost certainly correct.

This raises even more problems for Doug, as if any UK official realises this, it is almost certain in my experience that  the DVLA wil invalidate this licence by revoking it. This would leave Doug with no driving licence whatsoever, and also quite possibly driving anywhere illegally, with disastorous possibilities.

The best advice for Doug is to approach the DVLA and explain the circumstances under which he applied and attained a UK licence, and it is quite conceivable that they will validate its issue, and take no further action. This is preferable to them finding that the licence is not correctly issued and taking legal action against Doug.

The next thing for Doug to do, is determine which country he now feels that he spends most time in, which makes him a resident there, and if it is Spain, and a Spanish licence is desired, maybe bite the bullet and take a new driving test in Spain to attain a Spanish licence. The UK licence could then be returned to the DVLA, and if there is any subsequent change of resident country, exchange that licence for the new country's licence.

This all may seem a long winded remedy, but at least the situation would be resolved to the satisfaction of both the UK and Spain. Good Luck Doug!

 Spam post or abuse? Please let us know

 

Err.. yes. That is precisely why I pointed out nothing done in terms of residence now would be of any help. See my final paragraph.

 Spam post or abuse? Please let us know

 66d35, you obviously didnt read and digest my post properly, nowhere does it say anything about doing anything with his terms of residence, i have advised him what to do with the current situation to ensure that the DVLA is aware of what has happened, and hopefully will honour his test taken in the UK , and keep the licence subsequently issued.

 Doug's residence problem would still not be resolved, and would of course be a separate issue. On that subject i have found this page on the internet, http://www.hmrc.gov.uk/cnr/hmrc6.pdf  , and this gives information on holding residency in more than one country at the same time. Paragraph 6 states.

"Even if you are resident (or ordinarily resident) in another country you may also be resident (or ordinarily resident) in the UK. This is sometimes referred toas dual residence."

The next paragraph states,

 Spam post or abuse? Please let us know

Robert

                       http://www.hmrc.gov.uk/cnr/hmrc6.pdf

 

Does that not just refer to tax matters?  I would not be surprised if residency as per Trafico is different from the (UK) HMRC's definition, and as has been stated here, for a UK DL it does mean where you actually live.

 

 I am taxed at source in UK on a government pension,(so tax resident for that pension)  but I am in no way actually  resident in the UK.

 Spam post or abuse? Please let us know

I tried to explain this earlier but was told off for being irrelevant. Although the Statutory Residence Test for the UK is organised through HMRC it leads to a position of UK residency that is wider than for tax. With other factors, INCLUDING (importantly for Doug) the number of nights spent in the UK for the three years prior to the year in question, the number of nights required in the UK can be significantly less than 183. Someone can be resident in Spain due to spending more than 183 nights here yet still be counted as NORMALLY resident in the UK and STATUTORILY resident in the UK if they spend approx 60-70 nights there, depending on other factors.

If Doug meets the OTHER factors, such as access to somewhere to sleep (doesn't have to be a UK property he owns) and if he had spent the majority of the previous three years in the UK, he may have met the statutory residence test for the UK and therefore NOT have obtained his DL incorrectly, even while at the same time spending more than 183 nights inSpain.

By the way, my personal non-legal point of view is that he may have obtained his DL in error, we do not yet know, but surely to call it fraudulent implies knowledge that he was not entitled? And he clearly was not aware of that. Therefore I agree with Robert that a sensible conversation with the DVLA, with a strong leaning towards being resident in the UK at that stage, will get it sorted.

 Spam post or abuse? Please let us know