The Directorate General of Migration, attached to the Secretariat of State for Migration of the Spanish Ministry of Inclusion, Social Security and Migration, has recently issued Instruction DGM 5/2020 with the aim of preventing foreigners who reside and work in Spain from being led into a situation of irregularity by failing to comply with the requirements for renewal of their residence and work permits, due to circumstances arising from the COVID-19.

The COVID-19 pandemic has meant a tremendous health crisis at a global level, which to date, due to its voracious spread, has caused more than 11.457.993 people to be infected and close to 534.460 deaths worldwide. In Spain, in particular, more than 250.545 cases have already been diagnosed and 28.385 people have died. Without a doubt, this gigantic health crisis has been transmitted, at great speed, to the economy and society in general, affecting both productive activities and the demand for goods and services, as well as the general welfare of the population.

The inexorable and devastating impact of the COVID-19 pandemic on the Spanish economy, which has yet to be assessed due to the current high level of uncertainty, meant that the authorities took exceptional measures. The average affiliation data for foreigners showed that in April there was a drop of 101,377 occupied people compared to the average for March (-4.89%), to 1,972,552. The General System reduced, on average in the month, 5.49% of foreign affiliates. All economic sectors lost foreign affiliates, with the exception of Health Activities (3.12%) and the Special Agricultural System (1.45%).

The sectors that lost the most foreign workers were: Construction (-14.61%) and Public Administration (-10.04%).

Since the approval of Royal Decree 463/2020 of 14 March, which declared the state of alarm in Spain, the Spanish Government has approved a series of preventive measures to limit the mobility of people, social and economic activities.

According to the Government, all the measures decreed have sought the following objectives:

  1. To strengthen the fight against the impact of the disease;
  2. To strengthen the protection of working people, families and vulnerable groups
  3. To support the continuity of productive activity and the maintenance of employment.

However, a central issue is that the measures adopted, both by Spain and by other countries to contain and/or mitigate the spread of the pandemic, are having a high impact on the economy, and are therefore affecting, with special emphasis, certain companies, economic areas and sectors of the population.

So, what is happening to foreigners who live and work in Spain as employees?

Perhaps you might also be interested: COVID-19 | Renewal of residence and self-employment permits.  In addition, COVID-19 | Renewal of residence and work permits for highly qualified professionals.

Instruction DGM 5/2020

Due to the measures to combat COVID-19, it has been practically impossible to comply with the requirements for renewing stay and work permits. In addition, the demand for goods and services has stopped with the consequent impact on recruitment and employment.

The Spanish government explained that its aim is to ensure that the negative effects of COVID-19 are transitory and avoid, I quote: "ultimately, a more permanent or structural impact due to a vicious circle of falling demand that leads, as in the 2008-2009 crisis, to a massive outflow of workers into unemployment and a particularly acute adjustment for temporary workers and the self-employed. It is a question of ensuring that no one is left behind."

Therefore, foreigners, nationals of third countries, who reside in Spain for work purposes (self-employed or employed, Blue Card holders, among others) are part of the group of workers affected by the fall in demand for goods and services resulting from the measures of confinement and cessation of non-essential activities.

But how is the government going to implement the above?

Minister José Luís Escrivá, in his appearance before the Congress' Commission on Labour, Inclusion, Social Security and Migration on 8 June, in the last part of his speech referred to Instruction DGM 5/2020 presented by the General Directorate of Migration, headed by Santiago Yerga, as the solution.

The following is a comparative summary of the requirements demanded by the current regulations on foreigners (Organic Law 4/2000 of 11 January and Royal Decree 557/2011) when renewing authorisations for residence and work for others, based on the new specifications of Instruction DGM 5/2020 and its practical implications for each of the cases envisaged.

CURRENT REGULATION

NUEVA INSTRUCCIÓN COVID-19

WHAT DOES IT MEAN IN PRACTICE?

Royal Decree 557/2011

Art. 71.2. Authorisation to reside and work for others shall be renewed on expiry in the following cases:

(a) Where it is established that the employment relationship which gave rise to the granting of the authorization for which renewal is sought continues.

That it will be understood that continuity in the employment relationship is maintained in those cases in which the foreigner is affected, at the time of filing the application, by a procedure of suspension of contract due to force majeure or for economic, technical, organizational or production reasons, in accordance with the specialties introduced by Royal Decree Law 8/2020, of 17 March, as well as in those cases in which the foreigner is registered in the Special System of Household Employees and there has been a total or partial reduction in his working day.

You will be meeting the "continuity in the employment relationship" requirement in order to renew your authorization, if, at the time of application and as a result of the COVID-19:

  • You are in ERTE (Temporary Employment Regulation) in your company.
  • If you have had your working hours reduced for economic, technical, organisational or production reasons.
  • If you work as a domestic employee and have had your working hours reduced.
  • If you work as a domestic employee and have been asked to stop providing services temporarily.

Art. 71.2. ... RD 557/2011

(b) where it is shown that the work for which the authorisation was granted has been carried out on a regular basis for at least six months of the year

It will be taken into account for the purpose of calculating that minimum of six months per year:

  • The period of time during which the worker has been affected by a procedure of suspension of contract.
  • The period of time during which the worker, who is registered in the Special System for Domestic Employees..., has had his working hours reduced, totally or partially.
  • The period of time during which the worker receives the exceptional unemployment benefit at the end of the temporary contract and the extraordinary benefit due to lack of activity for those persons integrated in the System of Household Employees in cases of extinction, as well as others that may be introduced as a result of the COVID-19.

It is also mentioned that the minimum periods of activity per year required by Article 71(2) of the Regulation to proceed with renewal will not be increased by virtue of the automatic extension granted by Order SND/41/2020 of 18 May.

Within those 6 months per year of minimum contribution required by law to renew, periods may be counted as a consequence of the COVID-19:

  • You've been to ERTE.
  • You've been on a reduced work schedule.
  • If you are a household employee, the periods in which you have had your working hours reduced will be included.
  • If you are a domestic employee, periods in which you have not provided services because the employers have asked you to do so will be included.
  • You have received the exceptional unemployment benefit at the end of your temporary contract.
  • You have received the extraordinary subsidy due to lack of activity in the case of household employees.
  • You have received other benefits that may be introduced as a result of COVID-19.

If you have taken advantage of the automatic extension, the minimum contribution times established by law for renewal will not be increased. This means that if, for example, you had a 2-year residence permit, which expired on 30 March (during the period of the alarm state), and you take advantage of the automatic extension, which extends to 6 months after the alarm state (until December 2020), you will end up with an authorisation that is valid for 2 years and 9 months, but this does not mean that the periods considered as "minimum contribution for renewal" will have to be increased in proportion to the new period of validity of the card.

Art. 71.2. ... RD 557/2011

c) When the worker has had a period of work activity of at least three months per year .

It will be taken into account for the purpose of calculating that minimum of three months per year:

  • The period of time during which the worker has been affected by a procedure of suspension of contract.
  • The period of time during which the worker, who is registered in the Special System for Domestic Employees..., has had his working hours reduced, totally or partially.
  • The period of time during which the worker receives the exceptional unemployment benefit at the end of the temporary contract and the extraordinary benefit due to lack of activity for those persons integrated in the System of Household Employees in cases of extinction, as well as others that may be introduced as a result of the COVID-19.

It is also mentioned that the minimum periods of activity per year required by Article 71(2) of the Regulation to proceed with renewal will not be increased by virtue of the automatic extension granted by Order SND/41/2020 of 18 May.

Within those 3 months per year of minimum contribution required by law to renew, periods may be counted as a consequence of the COVID-19:

  • You've been to ERTE.
  • You've been on a reduced work schedule.
  • If you are a household employee, the periods in which you have had your working hours reduced will be included.
  • If you are a domestic employee, periods in which you have not provided services because the employers have asked you to do so will be included.
  • You have received exceptional unemployment benefit at the end of your temporary contract.
  • You have received the extraordinary subsidy for lack of activity in the case of household employees.
    You have received other benefits that may be introduced as a result of COVID-19.

If you have taken advantage of the automatic extension, the minimum contribution times established by law for renewal will not be increased. This means that if, for example, you had a two-year residence permit, which expired on 30 March (during the period of the alarm state), and you take advantage of the automatic extension, which extends to 6 months after the alarm state (until December 2020), you end up with an authorisation that is valid for 2 years and 9 months, but this does not mean that the periods considered as "minimum contribution for renewal" will have to be increased in proportion to the new period of validity of the card.

Art. 71.2. RD 557/2011

d) When the worker is in any of the situations provided for in Article 38.6 b) and c) of Organic Law 4/2000, of 11 January.

Art. 38.6. LO 4/2000

(b) Where the competent authority, in accordance with social security regulations, has granted a contributory unemployment benefit.

(c) When the foreigner is the beneficiary of a public financial assistance benefit intended to achieve social or labour integration.

The following benefits will be considered when complying with Article 38.6 b) and c) of Organic Law 4/2000:

i. contributory unemployment benefit;

ii. public economic assistance benefit aimed at achieving social or labor integration.

Among others that may be implemented, the following shall be considered: minimum living income, unemployment benefit at the end of a temporary contract, and extraordinary benefit due to lack of activity for persons integrated in the Special System for Household Employees.

If you are receiving any of the following benefits when you renew, you will be meeting the renewal requirements as outlined in the above items:

  • Unemployment (Unemployment) Contributory Benefit.
  • Economic assistance benefit of public character destined to achieve the social or labor insertion.
  • Minimum living income.
  • Unemployment subsidy at the end of a temporary contract.
  • Extraordinary subsidy for lack of activity of the household workers.

Art. 71.2.f)1 RD 557/2011

f) Likewise, [the residence and work permit for employees may be renewed] in accordance with Article 38.6.d) of Organic Law 4/2000, of 11 January, when

The worker proves that he has been working and registered with the corresponding Social Security system for a minimum of nine months in a period of twelve, or eighteen months in a period of twenty-four, provided that his last employment relationship was interrupted for reasons beyond his control, and that he has actively sought employment.

The same periods are included in the six and three months mentioned above.

It is mentioned that this case does not require having a new contract as long as "his last employment relationship was interrupted for reasons beyond his control, and he actively sought employment".

This requirement will be understood to have been met when the employment relationship is terminated due to the economic consequences of the COVID-19. Such extinctions will be understood as those that occurred two weeks before the declaration of the state of alarm, during its validity, as well as those that occurred until June 30, without prejudice to the fact that a later date may be considered, for these purposes, if the duration of the ERTEs is extended.

It is also mentioned that the minimum periods of activity per year required by Article 71.2 of the Regulation to proceed with the renewal will not be increased by virtue of the automatic extension granted by Order SND/41/2020, of 18 May.

The same is true for the 6 and 3 month time periods.

It also means that if you have paid 9 months of contributions in a 12-month period, or have paid 18 months of contributions in a 24-month period, and your last employment was interrupted for reasons beyond your control (e.g. dismissal, end of contract that is not renewed, termination of the employment relationship as a result of COVID-19) and you have also actively sought employment and can prove it, you are fulfilling the requirement to renew your temporary permit.

It is understood that the employment relationship was terminated as a result of the COVID-19, when this termination would have occurred from February 29, 2020 until June 30 (or even after this date if the ERTEs are extended).

If you have taken advantage of the automatic extension, the minimum contribution times established by law for renewal will not be increased. This means that if, for example, you had a two-year residence permit, which expired on 30 March (during the period of the alarm state), and you take advantage of the automatic extension, which extends to 6 months after the alarm state (until December 2020), you end up with an authorisation that is valid for 2 years and 9 months, but this does not mean that the periods considered as "minimum contribution for renewal" will have to be increased in proportion to the new period of validity of the card.

Conclusions

Order SND/421/2020, of 18 May, which adopts measures relating to the extension of residence and work permits and other situations of foreigners in Spain, in application of Royal Decree 463/2020, of 14 March, where a state of alarm was declared, has given legal security to foreigners who, during the state of alarm and in the 90 calendar days prior to its declaration, had seen their permits lose validity.

Beyond the fact that foreign nationals from third countries who are resident in Spain can access the various economic and protection measures adopted by the Spanish Government for its citizens as a whole, it is very important and necessary that a series of regulations be adopted to avoid the irregularity of these persons, insofar as the regular status of these foreign nationals is associated with the continuity of their employment relationship or the possession of sufficient resources.

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