The Supreme Court has nullified the article that allows the revocation of temporary residency (E.g. non lucrative Spain visa) for immigrants who stay outside of Spain for more than six months. The court ruling states that no provision in the Organic Law on Immigration or any European directive supports such a provision in the Regulation (Reglamento de la Ley de Extranjería).
The court ruled in favor of an Iranian citizen who had her temporary residence and work permit in Spain terminated by the Government Subdelegation in Girona (Cataluña) in 2019. The termination was based on her absence from the country for more than six months, as reported by the Border Post at Barcelona-El Prat Airport. The woman, who held a temporary residence permit, had left Spain on July 3, 2018, and stayed abroad for more than six months until July 13, 2019.
The administration applied the termination clause of the residence permit as stated in Article 162-2nd-e) of the Immigration Regulation.
Disagreeing with the decision, the woman appealed to the administrative court, which confirmed the facts as she admitted to being outside Spain for more than six months in a one-year period. She explained that she had undergone surgery in Turkey on May 30, 2019, but did not provide justification for the period she was absent from Spanish territory, as the medical procedure took place after the six-month deadline specified in the Regulation.
When her appeal was rejected by the court, the woman took her case to the Catalonia High Court of Justice (TSJ), which also dismissed her appeal, although one judge dissented.
The judges argued, among other things, that she had not justified any force majeure cause and that the reasons for the termination of the temporary residence permit, as established in the Regulation, are objective.
Finally, the woman appealed to the Supreme Court to annul the decision of the Government Subdelegation in Girona and to recognize her right to renew the requested residence permit. The Supreme Court has accepted her appeal.
In a 42-page ruling, the judges explained that if the condition for revoking temporary residence is leaving the national territory for the mentioned periods, it should be noted that the provision imposes the obligation that those with the permit cannot leave Spanish territory during that time. However, no provision in the Immigration Law imposes such an obligation or declares the termination of the temporary residence permit due to an absence from the national territory for the mentioned period within the annual calculation.
The ruling, with Justice Wenceslao Olea as the rapporteur, emphasized that it is not the court’s role to determine whether such a limitation is appropriate, but it should be established by an Organic Law rather than a regulatory provision (Reglamento de la Ley de Extranjería).
How does the recent ruling by Spain’s Supreme Court affect individuals holding temporary residency, such as those on the non lucrative Spain visa/Residence?
The ruling has two important implications:
Visa renewals: Ad per the mentioned Supreme Court ruling, Immigration authorities cannot reject the renewal of temporary residency based solely on the applicant’s absence from Spain for more than six months within the previous 12 months.
Tax Residency: The ruling allows individuals to maintain their temporary residency without acquiring tax residency status, at least in theory. Tax residency is typically obtained after residing in the country for more than six months. However, the tax residency is acquired according to various factors, and not only the time period spent in Spain. It is therefore recommended to seek legal advice from tax experts to understand the potential implications and benefits of this ruling.
It is important to note that the Supreme Court ruling only affects one article that regulates the temporary residence renewal conditions. Therefore, the ruling does not affect the requirements for obtaining permanent residency. To qualify for permanent residency after five years on a temporary residency, individuals must still demonstrate that they have not been absent from Spain for longer than ten months in the last five years. Also, if you are planning to apply for Spanish citizenship, extended periods outside of Spain may impact an individual’s eligibility for citizenship, although such cases are assessed on a more individual basis.
While the Supreme Court ruling has invalidated the six-month requirement, it is still advisable to comply with it for the time being. The regulation itself has not been officially revised, and some immigration departments might not be aware of the recent ruling, potentially leading to complications during the renewal process if the six-month rule is not followed.
Furthermore, it is possible that the Spanish government may introduce new legislation that overturns the Supreme Court’s ruling. Therefore, it is essential to proceed with caution and seek legal advice from immigration experts and tax experts if necessary.
