International remote working from Spain

Ana Garicano Solé
Sagardoy Legal Expat, Madrid 
ags@sagardoylegalexpat.com

Mounia Jrabi
Sagardoy Legal Expat, Madrid
mj@sagardoylegalexpat.com

At present, Spanish immigration law has no specific migration category addressing international remote working from Spain. This is a serious drawback as the migration regulations are clear: foreign nationals not covered under the scope of the Community Regime regulated by RD 240/2007 (European Union, European Economic Area and Swiss nationals and their dependants) must be authorised and/or hold a visa allowing them to work in the country prior to starting the work or professional activity. The authorisation/visa requirement is determined by the type of work/professional activity to be undertaken, independent from the duration of the employment or the country in which the employer is located.

Within this legal framework, foreign nationals not included in the EU regime who intend to work from Spain for a foreign employer (even if the employer does not have an entity in Spain) must obtain the corresponding permit/visa prior to starting the activity.

Due to the lack of a specific category applicable to remote working, people are working remotely from Spain under residence permits that do not allow the permit holder to work, or under permits that allow the permit holder to work under conditions other than international remote working, such as the residence permit for intracompany transfers. This malpractice entails risks for both workers and companies.

Since 2020 the Spanish government has been expressing its ‘intention to work for the promotion of Spain as a destination for remote working’, indicating that this includes analysing the ‘new migration formula’. This intention has been stipulated in the preliminary draft of a bill to promote the start-up ecosystem, known as the ‘Startup Law’ (Act 14/2013).

The preliminary draft Bill, in its third and final provision – ‘Modification of Act 14/2013, of 27 September, on support for Entrepreneurs and their internationalisation’ – introduces the regulation of a new residence and visa authorisation covering third-country nationals working remotely from Spain for foreign companies.

It is of note that the International Mobility Section of Act 14/2013 regulates the favourable Migratory Regime in Spain, which is for third-country nationals classed as highly qualified professionals, entrepreneurs and researchers, workers subject to intracompany mobility, and investors whose entry into Spain is considered beneficial to the Spanish economy (insofar as it attracts investment talent). If the draft bill is approved, remote workers would be added to this list of foreign nationals who may apply for the international mobility scheme.

Under the preliminary draft Bill, third-country nationals authorised to remain in Spain to undertake remote work for companies located outside of Spanish territory, and exclusively using computer, telematic and telecommunication means to do so, are defined as holding residency status.

The holder of the authorisation for international remote working may only work for companies located outside of the national territory.

In case of a professional activity, the holder of the international remote working authorisation may work for an undertaking located in Spain provided that the percentage of the work shall not exceed 20 per cent of their total professional activity. This visa is reserved for highly qualified professionals who can prove that they are graduates or postgraduates from universities, vocational training institutions and business schools, or who have, where appropriate, at least three years' professional experience.

The main requirements for access to the authorisation/visa are:

• the existence of a professional or employment relationship of at least three months prior to the application with the company/companies for which the activity is to be carried out from Spain; and
• that these companies or, where appropriate, the group to which they belong, have been carrying out their business activity for at least one year.

The foreign national must apply for a visa at the Spanish Consulate, to be processed within ten working days for a duration of one year. Applicants who hold legal status in Spain may apply for a residence permit for international remote working, to be processed within 20 working days. The residence authorisation for international remote working is valid for up to two years and may be renewed as long as the conditions that generated the original right are maintained.

Family dependants will also be issued authorisations and visas with the same validity as the principal permit holder and are permitted to work.

We value this initiative and are confident that the regulation will be approved and enter into force in 2022.