EXCLUSIVE: British child born in Spain before Brexit denied residency

A British child born in Spain is appealing his right to residency after his application was denied due to financial requirements not enforceable in the case, his lawyer tells The Local.

On June 16th, an Alicante court will hold a hearing to examine the case of a seven-year-old British child born in Spain who has lived in the country his entire life but whose residency was refused by Alicante immigration officials on the grounds that his mother does not have sufficient financial means to support them in the country.

They live in l'Alfàs del Pi in the Valencia region, where the child attends school and requires special care as he is autistic.

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The family's lawyer, however, says the decision is invalid as it applies irrelevant post-Brexit rules to his British client, someone protected by the UK-EU Withdrawal Agreement and therefore covered by pre-Brexit residency rights.

"The withdrawal agreement does not demand financial means," Álvaro Vico Cortés, the family's lawyer, told The Local.

"It's an automatic right. The child has a derived right of residency because his mother has residency".

According to the defence, the child’s legal status in Spain comes directly from that of his mother, a beneficiary of the Withdrawal Agreement as she's lived in Spain since 2019, and therefore should not be subject to the same financial requirements as a British national applying after the Brexit transition period.

"That's what is stated in Article 10 of the Withdrawal Agreement between the European Union and the United Kingdom," Cortes says, adding: "What we’re asking for is a declaration of a right that already exists".

The residency card would be the boy's first in Spain given that the mother, unaware of the specifics of Spanish legislation, believed he would automatically be considered a resident along with her.

When the mother realised, her son's residency application was made, the lawyer explains.

But being in an irregular situation does not necessarily mean you lose residency rights in Spain, Vico argues: "Your status becomes irregular, but this does not invalidate your right, which is automatic and derived from the mother’s residence permit," he says.

In this case, European law - in other words, the boy's rights via his mother enshrined under the Withdrawal Agreement - supersedes any internal Spanish residency rules that say otherwise or make more stringent financial demands on non-EU applicants, the immigration lawyer argues.

There are no set minimum financial income requirements "as such" for EU nationals or Britons living in Spain protected under the Withdrawal Agreement, Vico notes.

He adds that sometimes immigration authorities look to Spain's minimum income thresholds as an "estimation" but that they function as a general assessment of the situation among other factors.

It's also irrelevant in his client's case anyway, he argues.

"The mother also has the financial means... even though she's a single mother, she pays rent, pays for school... she pays for a private clinic which is extremely expensive.

"She has a tenancy agreement, she has health insurance... she’s been paying for the paediatric neurologist’s centre for seven years," he adds. "So it doesn’t make much sense to say this person doesn't have the financial means".

Asked if this could therefore be a simple case of a mistake or administrative error, Cortes agrees: "I think so," he says, adding that it looks to be a mistake "because they are applying a regulation that shouldn’t be applied."

It's also the first case of this kind he's come across, he told The Local, explaining that the Withdrawal Agreement has on the whole been effective in managing British legal rights in Spain in the post-Brexit period.

"No, normally there’s no problem... The only one we’ve had to appeal against, at least, is this one," he says.

EXPLAINED: What happens if you overstay your 90 day limit in Spain?

UK nationals who have moved to Spain since Brexit came into force have been subject to the same visas requirements as other non-EU nationals, including strict financial requirements.

For example, Spain's non-lucrative visa, which doesn't allow holders to work and is aimed at retirees and those with passive income, requires applicants to show proof of €28,800 per year in available funds.

There's also Spain's digital nomad visa for remote workers, which has a minimum income threshold of €2,849 gross per month.