Earlier this year, the Spanish Supreme Court declared null, the article of law that allowed temporary residence permits to be terminated when there had been absences from Spain for more than 6 months in the year. The Supreme Court ruling on termination of temporary residence due to absence from Spain, dismisses article 162 – 2.e) of Real Decreto 557/2011 stating that this should be regulated in the higher ranking immigration law, the ‘Ley Orgánica 4/2000’ and not in a regulation written in law of lower rank. It therefore considers that the article limits the fundamental right of free movement of foreign citizens who have temporary residence in Spain as established in the Spanish Constitution.
Supreme Court Ruling on Termination of Temporary Residence Due to Absence From Spain
On June 5th the Supreme Court in Spain, ruled in favor of an Iranian citizen whose temporary residency permission was terminated in 2019 by the provincial Government Sub-delegation in Girona, for having been outside the country for a year.
The individual went to Turkey for surgeries and the corresponding convalescence period meant they couldn’t return to Spain. As they did not justify it as a cause of force majeure the Government in Girona suspended the residency permit and ordered the individual to leave the country within 15 days of the suspension.
They appealed this decision in firstly through the Administrative Litigation Court in Girona, and then at the Superior Court of Justice of Catalonia, however both courts agreed with the Government Sub-delegation decision.
Four years later, the Spain’s highest Court has annulled the decision of the Government Sub-delegation. In the ruling, it doesn’t even begin to assess whether the woman’s reason for staying outside the country is legitimate or not
According to the ruling the relevant ‘Ley Orgánica 4/2000’ article 31 does not establish any limitation or cause for the extinction of temporary residence for departures of more than six months from Spain. Therefore due to the hierarchy of norms, the Supreme Court considers that the regulation of this right of free movement through a regulation is not admissible so this provision of the immigration regulations is null and void.
What Impact Does The Supreme Court Ruling Have On Temporary Residence?
The ruling has quite profound implications that must now be considered in the different types of temporary residence authorisations that are available.
First and foremost, the ruling means that people who have a temporary residence can legally renew it even if they have been out of Spain for 6 months or more within a period of 1 year. This does not however mean that the immigration authorities will automatically apply the ruling when accessing renewal applications for individuals in this situation. Indeed we have already experienced post this ruling, an application being declined because the assessing authority did not deem there to have been sufficient proof that the applicant had been in Spain for more than 6 months.
With the exception of investor residency, or the ‘Golden Visa’ as it’s commonly referred, the residency is intended for people who want to live in Spain for 6 months of more per year. Hence why the regulation (albeit flawed) exists. While for the time being this rule no longer has legal legs, this will change if the Organic Law is amended to introduce the requirement at the correct legislative level.
In other words, if you are planning now to take advantage of the ruling and not spend 6 months in Spain, be aware when you come to renew, that you may still be challenged, or indeed that the law could have been changed by that time.
Something else to consider, is that the ruling does not apply to the periods of absence allowed to qualify for long-term residence in Spain. The requirement to be eligible for long-term residence, is that there cannot be absences of more than 10 months in total through the 5 years prior to the application. This remains unaffected.
If you have temporary residency and need to be absent from Spain for any extended periods, it’s important that you consider the possible consequences that these absences may have on your residence, your ability renew it, or to secure permanent long term resident status.
We offer clear guidance and advice on matters relating to obtaining and maintaining residency in Spain. Feel free to get in touch for a free initial discussion if you think you may need our services.