The landscape of Spanish immigration law has seen significant developments, particularly with the reform of the Royal Decree 629/2022 in July 2022. This change brought into sharp focus two primary pathways for the family members of Spanish citizens seeking residency – “Arraigo Familiar” and the “EU Family Card” (Tarjeta Familiar Comunitaria, TFC).
Understanding the nuances of these options is crucial for those navigating this complex legal terrain. This article aims to elucidate the differences, requirements, and implications of choosing between “Arraigo Familiar” and an “EU Family Card,” providing a comprehensive guide for potential applicants.
The Essence of “Arraigo Familiar” and “EU Family Card”
At their core, both “Arraigo Familiar” and the “EU Family Card” aim to grant residency rights to family members of Spanish citizens. The introduction of these options was not about creating a hierarchy of choices but rather about offering alternatives that cater to different circumstances of family reunification in Spain.
Key Legal Changes and Differences
The reform of the Royal Decree 629/2022, amending the Regulation of the Organic Law 4/2000, has led to an updated framework for these residency options. The amended Article 124.3 b clarified the rights of Spanish citizens’ family members to apply for a Temporary Residence Permit under “Arraigo Familiar.” However, the “EU Family Card,” governed by RD 240/2007, which regulates the free movement of EU citizens and their families, remains a viable and unchanged option.
Eligibility and Requirements
“Arraigo Familiar”
- Eligibility: Specifically for family members of Spanish citizens, whether by origin or naturalization.
- Economic Means: No need to demonstrate financial resources for partners, children, and dependent ascendants over 65.
- Health Insurance: No requirement for health insurance coverage.
- Criminal Records: Must provide apostilled criminal records from the country of origin and countries resided in the last 5 years.
“EU Family Card” (Tarjeta de Familiar Comunitario or TFC)
- Eligibility: Open to family members of EU citizens, including Spaniards.
- Economic Means: The EU citizen must be employed, self-employed in Spain, or have sufficient resources for the family. Ascendants must demonstrate dependency.
- Health Insurance: Mandatory to have health insurance.
- Criminal Records: No requirement for criminal records.
News about the Economic means of the EU Family Card” (Tarjeta de Familiar Comunitario or TFC)
The Supreme Court of Spain has ruled on the 18th of December of 2023 that a Community Card (Tarjeta Comunitaria) cannot be denied solely due to the lack of economic means, based only on the income of a family unit. This decision emphasizes the need to consider other circumstances such as personal and family situations, including whether there are children between the Spanish or European citizen and their non-EU family member.
The sentence explains that the Community Card, which allows certain family members of Spanish or other EU citizens to reside in Spain for more than three months, does not specify a fixed amount of economic resources required. Instead, it outlines various scenarios under which an individual can qualify for the card:
- Employed Workers: There is no specific salary requirement, nor is the type of contract considered. What matters is that the individual is registered and working in Spain.
- Self-Employed Workers: Similar to employed workers, there’s no need to demonstrate a specific income level from self-employment activities.
- Students: Must be enrolled in recognized educational institutions and have comprehensive health insurance. They must also declare that they have sufficient resources for themselves and their family members without specifying an exact amount.
- Individuals with Sufficient Resources: Must prove they have enough resources to support themselves and their family members without becoming a burden on Spain’s social assistance. The amount is not specified but is generally analogous to the requirements for family reunification in the general regime.
The Supreme Court’s decision highlights the proactive role the Spanish Administration must take, not solely relying on the applicant to provide evidence of economic means. This ruling is significant for those applying for the Community Card, ensuring that their applications are assessed fairly and comprehensively, considering various factors beyond just economic resources.
Practical Benefits and Implications
Both cards offer similar practical benefits, including the ability to live and work in Spain, enjoying rights comparable to Spanish and EU citizens. However, the choice between them is not merely a matter of preference but of legal appropriateness. An incorrect choice can lead to application refusal for not meeting specific criteria or applying for a card that doesn’t pertain to one’s circumstances.
Long-Term Residency Status
An important aspect to consider is the long-term residency status post these permits:
- Arraigo Familiar: Eligible for a Long-Term Residence Permit valid for 5 years after the initial 5 years.
- TFC: After 5 years, the holder can apply for a Permanent Residence Permit for 10 years under the Community Regime.
Decision-Making: Suitability Over Superiority
The decision between “Arraigo Familiar” and an “EU Family Card” should be based on individual circumstances and needs. It’s essential for applicants to understand their situation and choose the option that aligns with their legal standing and future aspirations in Spain. The choice is less about one being better than the other and more about which one is more suitable for the applicant’s unique scenario.
Case Study 1: “Arraigo Familiar”
Scenario:
María, a Spanish national, has recently married John, a non-EU citizen from Canada. John moved to Spain to live with María after their marriage. John is not employed in Spain and does not have any significant savings or a private health insurance plan. María, a school teacher in Madrid, supports the household with her income.
Why “Arraigo Familiar” is Applicable:
- Residency Status: John is already in Spain, having moved after the marriage. He is not exercising his right to free movement within the EU as he is a non-EU citizen.
- Economic Dependency: John is economically dependent on María. He does not have a job in Spain nor does he have sufficient savings to support himself.
- Health Insurance: There is no requirement for John to have private health insurance under “Arraigo Familiar,” which aligns with his current lack of coverage.
- Criminal Records: John can provide apostilled criminal records from Canada and any other country he has lived in during the past five years, as required for “Arraigo Familiar.”
Conclusion:
In this case, “Arraigo Familiar” is the most suitable option for John. His status as the spouse of a Spanish citizen, his economic dependency on María, and his current lack of employment and health insurance in Spain make him an ideal candidate for “Arraigo Familiar.”
Case Studies to Understand the Differences Between ‘Arraigo Familiar’ and ‘EU Family Card
Case Study 1: “Arraigo Familiar”
Scenario:
María, a Spanish national, has recently married John, a non-EU citizen from Canada. John moved to Spain to live with María after their marriage. John is not employed in Spain and does not have any significant savings or a private health insurance plan. María, a school teacher in Madrid, supports the household with her income.
Why “Arraigo Familiar” is Applicable:
- Residency Status: John is already in Spain, having moved after the marriage. He is not exercising his right to free movement within the EU as he is a non-EU citizen.
- Economic Dependency: John is economically dependent on María. He does not have a job in Spain nor does he have sufficient savings to support himself.
- Health Insurance: There is no requirement for John to have private health insurance under “Arraigo Familiar,” which aligns with his current lack of coverage.
- Criminal Records: John can provide apostilled criminal records from Canada and any other country he has lived in during the past five years, as required for “Arraigo Familiar.”
Conclusion for case study 1:
In this case, “Arraigo Familiar” is the most suitable option for John. His status as the spouse of a Spanish citizen, his economic dependency on María, and his current lack of employment and health insurance in Spain make him an ideal candidate for “Arraigo Familiar.”
Case Study 2: “EU Family Card” (TFC)
Scenario:
Laura, a Spanish national, has been living and working in Germany for the past five years. She has recently decided to return to Spain with her husband, Alex, who is a non-EU citizen from Australia. Alex has been a homemaker, while Laura has been the sole breadwinner. They plan to move to Spain together, with Laura securing a job there before their move.
Why “EU Family Card” (TFC) is Applicable:
- Exercising Free Movement Rights: As a Spanish citizen returning to Spain from another EU country with her non-EU spouse, Laura is exercising her right to free movement.
- Economic Means: Upon securing employment in Spain, Laura will meet the economic requirements to sponsor Alex’s residency as an EU citizen’s family member.
- Health Insurance Requirement: As a working individual in Spain, Laura will have access to the Spanish public health system, which extends to Alex as her spouse, satisfying the TFC’s health insurance requirement.
- Criminal Records: For the “EU Family Card,” there is no requirement for Alex to provide criminal records, which simplifies the application process in their case.
Conclusion for case study 2:
The “EU Family Card” is the appropriate choice for Alex. The couple’s movement from an EU country to Spain, Laura’s employment status in Spain, and their access to the Spanish healthcare system make the TFC the most fitting option for their situation.
If Laura was unemployed, obtaining an “EU Family Card” for Alex becomes more challenging but not impossible. They must provide substantial proof of financial stability and health insurance coverage. It’s crucial for them to prepare and present a robust application that demonstrates their financial self-sufficiency and access to healthcare to ensure compliance with TFC requirements.
Conclusion
Navigating the complexities of Spanish immigration law, especially in the context of family reunification, requires a thorough understanding of the available options. “Arraigo Familiar” and the “EU Family Card” each have their specific criteria, benefits, and long-term implications. Applicants must assess their situation carefully, considering factors like economic means, health insurance, and criminal records, along with their long-term residency goals in Spain.
This decision is a pivotal step in the journey towards a stable and legally compliant life in Spain for family members of Spanish citizens. The choice is not merely about legal compliance but also about securing a future that aligns with personal and familial goals within the Spanish legal framework.
