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Introduction

On July 22, 2023, the ISM/835/2023 Order was published in the Official State Gazette (BOE), marking a significant development in the regulation of Social Security enrollment for workers posted abroad in service of companies operating within Spanish territory.

The Changing Business Landscape

In a rapidly evolving global business landscape, the 1982 regulations of the Ministry of Labor no longer adequately address the demands of today. The internationalization of companies, enhanced global communication, and increased labor mobility have reshaped the business world. Companies now operate globally, establish branches in various countries, and relocate employees, necessitating a reevaluation of labor regulations to accommodate the complexities of expatriation.

Objectives of the Order

The primary objective of Order ISM/835/2023 is to establish a clear and comprehensive regulatory framework that precisely defines the scope and conditions under which a situation equivalent to Social Security registration is considered. This is particularly relevant for workers posted in the service of their respective companies outside national borders.

Protecting Workers’ Rights

The significance of this regulation lies in its role in safeguarding and guaranteeing the rights of workers who are compelled to work temporarily abroad for various employment reasons. This protection covers essential aspects, including social security coverage, medical care, retirement, and other benefits crucial for the welfare and economic security of both workers and their families.

Key Assumptions

The Order defines specific assumptions that are equivalent to the situation of registration in the social security system. These assumptions, according to Article 3 of the Order, encompass scenarios such as:

• Dispatch of workers to a country where international instruments for coordinating Social Security systems do not apply.
• Dispatch of workers to a country where, despite the application of international instruments, they are not included within its subjective scope.
• Dispatch of workers to a country where international instruments for coordinating Social Security systems apply, allowing the application of the home country’s Social Security legislation during the dispatch.
• Dispatch of workers to a country where international instruments do not allow the dispatch of workers by their companies to the territory of the other party.

Implementation and Transition

The introduction of this new Order represents a significant departure from traditional approaches, opening doors to innovative opportunities in crafting expatriation strategies. Set to commence on November 1, 2023, this Order brings substantive changes and includes a transitional regime to facilitate a smooth transition period.

Expert Guidance

At ExpatFeliu, we are prepared to offer expert guidance on navigating this new regulation. We conduct individual assessments for each expatriate based on this Order, striving to create the most optimal expatriation strategy for new assignments. Please don’t hesitate to reach out to us for assistance and support.

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On May 8, 2023, the transposition of Directive (EU) 2021/1883 concerning the migration of highly qualified individuals was officially published in the Official State Gazette (BOE).

This transposition brings about significant changes related to the entry and residence conditions for third-country nationals seeking highly qualified employment within the European Union. Notable changes include:

1. Inclusive Entry Criteria: This Directive introduces two types of authorizations for highly qualified personnel, removing the previous requirement for a university degree. Applicants with higher education qualifications are now eligible. This includes a residence authorization for EU Blue Card holders.
2. Wider EU Blue Card Eligibility: The EU Blue Card, originally for highly qualified workers, can now be granted to their spouses, partners, minor and adult children who are economically dependent, and dependent ascendants, subject to specific legal requirements.
3. Simplified Employer Requirements: Size and turnover requirements for employers have been eliminated, extending the scope to include small and medium-sized enterprises.

These changes offer greater flexibility and opportunities for highly qualified professionals and their families. For more information, please don’t hesitate to contact us.

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Article 162-2-e) of the Foreign Regulation has long been the basis for terminating temporary residence permits in Spain, citing the absence of periods lasting six months or more per year. However, a momentous shift occurred on June 5, 2023, when the contentious-administrative chamber of the Spanish Supreme Court issued its ruling 731/2023. In this groundbreaking decision, the Supreme Court declared article 162-2-e) of the Aliens Regulation null and void, asserting that it encroached upon the fundamental right to free movement of foreign citizens residing in Spain, as stipulated in Organic Law 4/2000.

This watershed ruling brings sweeping changes to the landscape of Spanish immigration law. As of June 5, 2023, individuals holding temporary residence permits are now free to remain absent for extended periods beyond six months without risking the revocation or extension of their temporary residence permits in Spain. Moreover, the Supreme Court’s declaration of nullity for this particular article underscores the principle that no regulatory norm should ever impose limitations or contradictions to laws of higher rank, such as the Organic Law 4/2000.

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Webinar of Impatriation, new developments in Immigration, Start up Law, EU Directives and the importance of expatriates complying with their tax obligations in Spain. The creation of multinational teams is strategic for the internationalisation of companies and we must be aware of the opportunities that corporate immigration offers us.

Thank you Amec and all the companies attending!

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The purpose of the regulation is to establish a specific regulatory framework to support the creation and growth of emerging companies in Spain, aimed at promoting their relocation to Spain, attracting talent and international capital, as well as stimulating public and private investment in them, among other objectives.

On many occasions, workers in start-up companies can carry out their work remotely, as long as they have a computer and internet connection. Among other novelties, to regulate the residence of this profile of itinerant professionals and of many others who may choose Spain as a more stable place of remote working, a new category of visa and residence permit has been created.

The international telecommuting visa allows you to enter and reside in Spain for a maximum of one year – unless the work period is shorter – while its holders work for themselves or for employers anywhere in the world. The international telecommuting visa is a sufficient title to reside and work remotely in Spain during its validity. Within sixty calendar days before the expiration of the visa, international teleworkers who are interested in continuing to reside in Spain may request residence permit for international teleworking, as long as the conditions that generated the validity of the visa are maintained.

In addition, the residence permit for international remote working allows foreigners who are already regularly in Spain to request an authorization for a maximum period of three years -unless it is requested for a shorter period of work-, renewable for a period of two years -when the conditions that generated the validity of the permit are maintained-, being able to obtain permanent residence after five years.

The national of a third State is authorized to remain in Spain to carry out a work or professional activity remotely for companies located outside the national territory, through the exclusive use of means and computer systems, telematics and telecommunications;

• In the case of carrying out a work activity, the holder of the permit for international teleworking may only work for companies located outside the national territory.
• In the case of exercising a professional activity, the holder of the permit for international teleworking will be allowed to work for a company located in Spain, as long as the percentage of that work does not exceed 20% of the total of their professional activity.
• Qualified professionals who can prove that they are graduates or postgraduates from prestigious universities, professional training centers and business schools of recognized prestige or with a minimum of three years of professional experience may apply for a visa or residence permit for telecommuting.

This assumption of “international teleworkers” is added to those provided for in Law 14/2013, of September 27^th, on support for entrepreneurs and their internationalization, to benefit from all the advantages granted by that Law, not only in terms of the tight processing times, with positive silence at the end, but also because of the possibility of family reunification from an initial moment.

On 17 May, the Minister of Inclusion, Social Security and Migration, José Luis Escrivá, confirmed in Congress that his department has drawn up a new instruction on training requirements for foreigners to join the labour market, which reduces the requirements initially envisaged in the first instruction issued six months ago.

Specifically, the new regulations concern the figure of “family roots”, which was included in the reform of the regulations on foreigners last July.

According to the regulations, foreigners who can prove they have lived in Spain for at least two years and have no criminal record will be granted a one-year residence permit, extendable for another year, as long as they undertake to “undertake regulated employment training or obtain official accreditation of professional qualifications” in sectors that need labour.

In the six months that have passed between the first and second instruction, 22,000 requests have been registered from foreign applicants who, after spending two years in our country, want to train in order to enter the labour market.

What the Ministry wants to do is to soften the requirements established by the first institution, defined by the Minister himself as “too rigid” and to deepen this figure from a point of view of social sensitivity and including, above all, those people (especially women) whose family situation prevents them from participating in long classroom courses and who, for this reason, have asked to include, through the voice of associations in the sector, the possibility of taking distance courses, during weekends or reducing the number of hours necessary for completion.

Such long periods of training can encourage the black economy because of the impossibility of not being able to earn an income for a long period of time.

If you would like more information, please do not hesitate to contact us!

Natural persons considered as Non-Residents of Spain for tax purposes (not present in Spain for more than 183 days in any one tax year and not maintaining the main base or centre of their activities or economic interests in Spain, as per the provisions of Article 9 of the LIRPF (Income Tax Act)), may be obliged to submit tax declarations in Spain if they receive income from any of the following sources, in accordance with Article 13 of the IRNR (Non-Residents Tax Act):

1. Income from employment, providing such income derives directly or indirectly from a personal activity carried out in Spain.

2. Income from capital, providing it concerns:

• • Dividends and returns on investment in entities resident in Spain and deriving from the sale to third parties of own capital

• • Royalties paid by persons resident in Spain, including rights to artistic works, patents, plans, models, software programs, etc.

3. Returns on real estate assets (income from the leasing or renting out of properties), providing the assets concerned are located in Spain.

4. Income attributed to properties located in Spain for the periods in which they are not leased or rented out.

5. Capital gains on securities issued by persons or entities resident in Spain and on movable assets other than securities or that come from real estate assets located in Spain; in particular, capital gains on equity interests in an entity, whether resident or not, the assets of which consist mainly of real estate assets located in Spain are considered to be included.

If income is obtained from any of the above, the circumstances must first be analysed to determine whether the status of Non-Resident for tax purposes applies, and then each type of income obtained must be analysed to establish whether there is an obligation to declare it for Non-Resident Income Tax purposes.

At Expatfeliu we are at your disposal to offer advice and analysis and to help you draw up and present Non-Resident Income Tax (IRNR) Declarations in cases where it is necessary.

What is the non-lucrative residence visa?

The non-lucrative residence visa allows non-EU citizens to live in Spain without engaging in any economic activity.

Key Features:

• Duration: Initially, it permits a one-year stay, renewable for two-year periods.
• Eligibility: Applicants should prove they won’t work in Spain and possess sufficient financial means.
• Renewal: It offers the chance to obtain permanent residency or nationality over time.

Who can apply for this visa?

Anyone with adequate financial resources and no intention to work in Spain.

Benefits of non-lucrative residence:

• Family Inclusion: Entire families can apply together.
• Long-Term Options: Possibility to obtain long-term residency or citizenship.
• No Work, But Investment Allowed: Prohibits employment but permits investment.
• Educational Opportunities: Allows for studies and internships.
• Schengen Travel: Grants access to Schengen Area for non-profit stays up to 90 days.

Requirements for Application:

• Financial Stability: Demonstrated ability to cover expenses.
• Health Insurance: Full medical coverage in Spain.
• Clean Record: No criminal history in Spain or country of origin.
• Legal Status: No irregular status in the country of origin.
• Schengen Eligibility: No entry ban to Schengen territory.

DO YOU WANT TO FIND OUT IF YOU MEET ALL THE REQUIREMENTS TO APPLY FOR NON-LUCRATIVE RESIDENCE IN SPAIN?

Application Process, Documentation, and Waiting Time

First and foremost, it’s important to note that the application for this visa must be made from the applicant’s country of origin or the country where the applicant is currently residing at the time of application.

Next, prepare the necessary documentation that our specialized Immigration advisors will require for your non-lucrative residence visa application.

Finally, keep in mind that the resolution period is typically 3 months.

GET YOUR NON-LUCRATIVE RESIDENCE VISA WITH EXPATFELIU!

If you want more information on how to obtain the non-lucrative residence visa, our specialized immigration advisors will be delighted to analyze your situation in a personalized manner.

Interested in learning more? Contact us

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