The Supreme Court has declared null the article of the Immigration Law that allowed the termination of temporary residence permits when there had been absences from Spain for more than 6 months within a period of 1 year. Without going into depth on the legal argumentation, which can be read at this link, it is necessary to indicate that this requirement could reappear in the future if it is introduced in an Organic Law, since the Supreme Court has indicated that this should be regulated in the Immigration Law and not in a Regulation which is a lower legal rank.
This issue has important implications that must be considered in the different types of residence authorizations that are available:
- Those who have a temporary residence permit may renew it without any problem, even if they have been outside Spain for more than 6 months within a period of 1 year. However, this could change if the extinction for absences is regulated again in a norm with the appropriate legal rank. Also, to be able to renew a temporary residence, it will be necessary to prove the requirements that are demanded in each case beyond permanence, for example, in the case of residence and work, to have worked at least 3 months per year, or in the case of non-lucrative residence, to have sufficient economic resources and private medical insurance.
- Regarding the titleholders of non-profit residences, there is also an important implication: if they are no longer required to spend more than 6 months a year in Spain, they could keep their permit by being absent for more than 183 days and therefore not be tax residents in Spain. This did not happen until now, and it was only possible in the< case of having a residence as an investor, which does not require a minimum time in Spain as it was the case with the non-profit residences.
- Another issue to consider are the periods of absence allowed to apply for long-term residence in Spain. The regulation indicates that to obtain long-term residence, there cannot be absences of more than 10 months in total in the period of 5 years prior to the application, which has not changed. This implies that if there have been absences of more than 6 months per year, it will still be possible to renew a temporary residence authorization but not to obtain a long-term residence.
- Finally, in relation to the applications for nationality by residence, there are also aspects to be clarified. Despite being able to maintain the temporary residence even if there are important absences, in order to concede the Spanish nationality by residence, currently the criterion of the “effective residence” is followed, which according to the Supreme Court understands: “refers to the non-interruption of the term and with respect to this point, this Court has been understanding that the effectiveness and continuity of the residence comes from the real fixation of domicile in Spain and the link to the territory in terms of livelihood, development of personal, family, social, administrative and other relationships that make up the regime of life of the interested party, which is not distorted by the fact that, without disassociating himself from such relationship with the territory, he has to exceptionally remain abroad for reasons of work or studies.”. This issue involves analyzing the situation of each applicant for nationality who has remained outside the country for relevant periods in order to assess whether, despite these absences, he or she can prove effective residence in Spain or not and therefore will not be granted nationality even if he or she has legal, continuous, and continuous residence prior to the application.
If you need to be absent from Spain for a relevant period, AGM Abogados advises you to inform yourself about the consequences that these absences may have on your residence and your future options to obtain Spanish nationality. AGM Abogados is at your disposal to advise you properly. Contact AGM Abogados for help.
Mª Eugenia Blasco Rodellar
Partner of the Immigration Area