# Careful with the six month rule.



## Roy C (Sep 29, 2012)

I was told that for residencia you had to remain in the country for six months a year or you could lose your residencia. In fact it turns out it is a bit more complicated than that. My wife is hoping to go back five months a year to the UK so as to help with her elderly parents but we were told that on the first five years of residency, the accumalative figure is only eight months over the first five years and if you do more time away, you will then lose your residencia.


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## snikpoh (Nov 19, 2007)

I think it's much simpler for that.


Whilst you have temporary residency (first 5 years), you can only leave for a maximum of 6 months per year before the possibility of losing it.

After 5 years, once permanently resident, you can leave for up to 5 years without the risk of losing it.


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## yevlondon (Jul 8, 2020)

snikpoh said:


> I think it's much simpler for that.
> 
> 
> Whilst you have temporary residency (first 5 years), you can only leave for a maximum of 6 months per year before the possibility of losing it.
> ...


true. but there is an extra requirement when you apply for permanent residency - you cannot be more than 10 months total out of country in the past 5 years.


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## Roy C (Sep 29, 2012)

yevlondon said:


> true. but there is an extra requirement when you apply for permanent residency - you cannot be more than 10 months total out of country in the past 5 years.


This is what we were told hence the the original post, that's why when people post you can stay away for up to six months in any one year, although that bit is true the consequences are you won't get permanant residency .
Would you be allowed to keep a temporary residency or would that then be the end of your residency after the five year period?


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## yevlondon (Jul 8, 2020)

just to add the source of 10 months within first 5 years it is https://www.boe.es/buscar/act.php?id=BOE-A-2011-7703 

"La continuidad a que se refiere el apartado anterior no quedará afectada por ausencias del territorio español de hasta seis meses continuados, siempre que la suma de éstas no supere el total de diez meses dentro de los cinco años referidos en el apartado 1, salvo que las correspondientes salidas se hubieran efectuado de manera irregular"
BOE-A-2011-7703


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## Joppa (Sep 7, 2009)

yevlondon said:


> just to add the source of 10 months within first 5 years it is https://www.boe.es/buscar/act.php?id=BOE-A-2011-7703
> 
> "La continuidad a que se refiere el apartado anterior no quedará afectada por ausencias del territorio español de hasta seis meses continuados, siempre que la suma de éstas no supere el total de diez meses dentro de los cinco años referidos en el apartado 1, salvo que las correspondientes salidas se hubieran efectuado de manera irregular"
> BOE-A-2011-7703


You are quoting from Spanish domestic law of 2011, which doesn't apply to those who are beneficiaries of the Withdrawal Agreement. 
Article 15 of WA about the Right of permanent residence says that Article 16(3) and Article 21 of Directive 2004/38/EC apply, which in turn only talks about 6 months in a year.


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## yevlondon (Jul 8, 2020)

good to know. i thought WA might take precedence.

funny to note however that 2011 spanish law technically contradicts Article 16 of Directive 2004/38/EC


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## MataMata (Nov 30, 2008)

yevlondon said:


> funny to note however that 2011 spanish law technically contradicts Article 16 of Directive 2004/38/EC


Wouldn't be the first time!


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## Joppa (Sep 7, 2009)

yevlondon said:


> funny to note however that 2011 spanish law technically contradicts Article 16 of Directive 2004/38/EC


I haven't checked, but I assume 2011 law refers to permanent residence for non-EU nationals. EU state is free to enact any law binding on third country nationals who aren't family members of EU nationals, just as UK has done.


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## yevlondon (Jul 8, 2020)

Joppa said:


> I haven't checked, but I assume 2011 law refers to permanent residence for non-EU nationals. EU state is free to enact any law binding on third country nationals who aren't family members of EU nationals, just as UK has done.


i checked. it specifically has that rule for EU nationals as well. same wording.


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## Roy C (Sep 29, 2012)

So can people travel out of spain for say 5 months of the year each year and still keep their residencia or not?
This is starting to get a bit technical and confusing.


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## Joppa (Sep 7, 2009)

yevlondon said:


> i checked. it specifically has that rule for EU nationals as well. same wording.


I too have checked, and the limit of 10-month absence in total during the 5 years only applies to family members of EU citizens who are themselves third country nationals. Otherwise Spain is contravening EU law on free movement for EU citizens. For British citizens who are beneficiaries of the withdrawal agreement, it's still up to 6 months in a year.


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## Overandout (Nov 10, 2012)

The law quoted by yevlondon is correct and applicable to all EU residents in Spain, including the British as at today. It does not contradict EU Directives.

As of 31st December this will no longer to apply to British citizens in Spain and the terms of the WA will apply instead.


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## Turtles (Jan 9, 2011)

To be counted as a permanent resident for this purpose do you need to have the permanent resident's document, or will a temporary resident's document that is more than five years old count?


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## snikpoh (Nov 19, 2007)

Turtles said:


> To be counted as a permanent resident for this purpose do you need to have the permanent resident's document, or will a temporary resident's document that is more than five years old count?


A temporary document of more than 5 years standing is just fine - it is considered 'permanent' and does not have to state it explicitly.


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