Legal migration to a new country is a constant search for opportunities and freedoms. In Spain, the Immigration Law establishes the terms and conditions for the temporary residence of foreigners. However, recently, the Supreme Court has issued a crucial ruling that impacts on this dynamic, highlighting the importance of free movement and fundamental rights.
In short: foreigners holding temporary residence permits in Spain will no longer be subject to the rigorous requirements that existed before.
Supreme Court ruling: freedom of movement in the spotlight
In an important ruling, the Contentious-Administrative Chamber of the Supreme Court has declared null and void an article of the Regulation of the Law on Foreigners that establishes that the temporary residence authorization in Spain may be terminated if a foreign citizen remains outside the country for more than six months in a year.
This implies that, with this new precedent, anyone with a Spanish temporary residence permit will be able to go abroad for more than six months in a year without worrying about the validity of their permit.
According to the Ministry of Territorial Policy, Spain registered in 2022 more than 866,790 applications for residence and work permits for foreigners, reaching the record number of applications per year in the 2012/2021 historical series. This figure represents an increase of 28.57% compared to 2020 and 11.60% compared to 2019. According to EUROSTAT, during 2019, across the EU, almost 3 million residence permits have been granted. During 2019, across the EU, almost 3 million residence permits have been granted.
This ruling highlights the primacy of the free movement of foreign citizens with temporary residence in Spain. The court argues that the limitation of this fundamental right can only be imposed by means of a rule with the rank of an organic law, not through a regulatory rule as had been done in this case.
This approach reflects the importance of safeguarding the rights of persons who have chosen Spain as their temporary residence.
Rights and regulations
The Supreme Court ruling highlights that none of the articles of Organic Law 4/2000, which addresses the rights and freedoms of foreigners in Spain, supports the provision of the Regulation. Furthermore, this judgment aligns with European directives, which stress the need to maintain a balance between regulation and individual rights in the context of migration.
This judgment originates from an appeal filed by a citizen of Iran.
The Government Subdelegation in Gerona had revoked his temporary residence and work authorization due to his absence from Spain for more than six months, following the provisions of the Regulation. The initial decision was based on a report from the Border Post at Barcelona-El Prat Airport.
A decision that empowers immigrants
The Supreme Court's ruling not only represents a step forward in the protection of fundamental rights, but also has a direct impact on those who have undertaken the migratory journey. The court has reiterated that temporary departure from Spanish territory during the six-month period cannot result in the termination of the temporary residence permit.
The judgment is based on a precise interpretation of the cause for revocation of temporary residence. It focuses on the obligation to remain in Spanish territory for the specified period, rather than imposing a mandatory travel restriction. The Court acknowledges that the Ley de Extranjería does not establish such an obligation and stresses that any such limitation must be contemplated through an Organic Law, not a regulatory rule.
However, the Spanish authorities have stressed that, notwithstanding such a decision by the country, they will be able to reinstate their previous rules if necessary.
The temporary residence permit can last up to 5 years, and once a foreigner has lived in Spain for that period, he/she can apply for a long-term residence permit.
The current rule that does not allow a foreigner to stay outside the country for more than 10 months in a 5-year period before applying for a permanent residence permit remains in force.
Looking to the future
This Supreme Court ruling marks a milestone in the field of legal migration in Spain.
In essence, it underlines the need to strike a balance between regulation and the protection of fundamental rights. Furthermore, it reinforces the principle of free movement and grants a greater degree of security to those seeking a new start in Spain.
But we must not forget that this ruling does not affect family members of European citizens, since the regime of stays outside Europe is regulated in its own regulations.
The Supreme Court's decision to declare the article of the Reglamento de Extranjería null and void is a reminder that migration is a journey of opportunities, challenges and fundamental rights. Immigrants who choose Spain as their temporary home deserve protection and respect in equal measure.
This ruling is a step forward in building a system that reflects the values of freedom and justice in the context of migration.
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