The Spanish 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.

Written for Expat Network by Mª Eugenia Blasco Rodellar,  Immigration  Partner, AGM Abogados

Without going into depth on the legal arguments, 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 to be considered in the different 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 regulations on the cancellation due to absences is subject to a new regulation with the appropriate legal rank. Also, to be able to renew a temporary residence, it will be necessary to prove that you meet the requirements that are demanded in each case other than 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 is 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 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 take up Spanish nationality by residence, currently the criterion of the “effective residence” is followed, which according to the Supreme Court “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.”. The situation of each applicant for nationality who has remained outside the country for relevant periods will need to be reviewed individually in order to assess whether, despite these absences, he or she can prove effective residence in Spain or not and will not therefore be granted nationality even if he or she has legal, continuous, and continuous residence prior to the application.