The Directorate General of Migration, attached to the Secretariat of State for Migration of the Spanish Ministry of Inclusion, Social Security and Migration, has issued Instruction DGM 5/2020 with the aim of preventing foreigners, who reside and work in Spain, from being placed in an irregular situation by not complying with the requirements for renewal of their residence and work permits, due to circumstances arising from the COVID-19.

The COVID-19 pandemic is inevitably causing an earthquake with negative consequences for the Spanish economy, the extent of which is still unknown due to the high level of uncertainty.

The Government in Spain, like many others in the rest of the world, has set itself the goal, on the one hand, of ensuring that the negative effects of COVID-19 on the economy are transitory and, ultimately, of avoiding any permanent or structural effects due to the fall in demand for goods and services which, and I quote: "[...] as in the 2008-2009 crisis, will lead to a massive outflow of workers into unemployment and a particularly acute adjustment for temporary workers and the self-employed. The aim is to ensure that no one is left behind.

The COVID-19 pandemic has been a huge global health crisis, which to date has resulted in the voracious spread of the disease, with more than 11.457.993 people infected and nearly 534.460 deaths worldwide. In Spain, in particular, more than 250.545 cases have already been diagnosed and 28.385 people have died.

Therefore, this health crisis situation has undoubtedly also led, at great speed, to an economic and social crisis, affecting both productive activities and the demand for goods or services and the general welfare of the population.

The average affiliation data for foreigners showed that in April there was a drop of 101,377 employed persons compared to the average for March (-4.89%), to 1,972,552. The General Social Security System (RGSS) reduced the average number of foreign affiliates by 5.49% during the month. All economic sectors lost foreign affiliates, with the exception of Health Activities (3.12%) and the Special Agricultural System (1.45%).

So, what is going to happen with the authorizations of foreign people living in Spain and working on their own account, in the context of the COVID-19?

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

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.

However, an automatic extension, such as the one decreed in Order SND/421/2020, despite its importance, seems insufficient, so it is essential to address a relaxation of the conditions under which a foreigner can renew his or her residence and/or work permit in Spain.

Instruction DGM 5/2020

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

A summary of the Minister's speech can be found in the press release from the Ministry of Labor, Migration and Social Security, entitled: "Escriva: Minimum Living Income will lift more than a million people out of extreme poverty".

And for the more curious, here you will find the full text of the parliamentary debate.

DGM Instruction 5/2020 is one of the Spanish Government's solutions to avoid the irregularity of foreigners who are fully integrated into Spanish society, and who have also been affected by the COVID-19 crisis.

Therefore, it is very understandable and evident the satisfaction of the people, who within the framework of the social dialogue with the Directorate General of Migration (DGM), have participated in the discussion of the drafts and proposals. In particular, the Confederación Sindical de Comisiones Obreras (CCOO), which has expressed, in a press release, its satisfaction with the approval of Instructions DGM 4/2020, DGM 5/2020 and DGM 6/2020 "for understanding that they are necessary for the maintenance of the legal situation of foreigners who are already in Spain, and who could be affected by the economic consequences of the pandemic".

In order to facilitate your better understanding of the scope of Instruction DGM 5/2020, we offer you below a comparative summary of the requirements demanded by the current Immigration Law (Organic Law 4/2000 of 11 January and Royal Decree 557/2011) when renewing residence and work permits, against the indications indicated in Instruction DGM 5/2020 and its real practical implication for each of the cases contemplated.

Comparative summary of requirements

CURRENT REGULATION

NEW INSTRUCTION COVID-19

WHAT DOES IT MEAN IN PRACTICE?

Royal Decree 557/2011

Art. 109.1.

The authorization for residence and self-employment may be renewed upon its expiration:

(a) When the continuity of the activity which gave rise to the authorisation being renewed is established, after ex officio verification of compliance with tax and social security obligations.

Overdrafts in social security contributions shall not prevent renewal of the authorisation, provided that it is shown that the activity is normally carried on. The competent body will inform the Labour and Social Security Inspectorate of the contribution overdraft situation, so that the appropriate actions can be taken.

That it will be understood that there is continuity in the activity that gave rise to the authorisation that is being renewed, without the possible interruptions/suspensions of the same being relevant for the purposes of the renewal, on the occasion of the declaration of the state of alarm and, specifically, those interruptions produced as a consequence of the impossibility of returning to Spain before the closing of the borders, in the cases in which the foreigner, holder of the authorisation, was outside Spain and could not return. It is also recalled that for these cases, article 7 of ORDER SND/421/2020, of 18 May, provides that these absences do not affect the continuity of the residence.

The continuity of the activity will be understood to be accredited, in any case:

  1. if the foreigner applying for renewal has received the extraordinary allowance for cessation of activity, but at the time of this application has already resumed his activity.
  2. It will also be deemed to have been complied with if, at the time of the request, he was receiving the extraordinary benefit for cessation of activity.

You will be meeting the "business continuity" requirement to renew your permit, if, as a result of COVID 19

  • There are periods when your activity has been interrupted or suspended as a consequence of the declaration of the Alarm Status (i.e. these periods will not negatively affect the renewal).
  • If there are periods in which your activity has been interrupted or suspended specifically because you were unable to return to Spain during the State of Alarm, due to the closure of borders (article 7 of Order SND/421/2020 states that these absences do not affect the continuity of residence).
  • If you have received the extraordinary benefit for cessation of activity, but at the time of applying for renewal, you have already resumed your activity, you will obtain the renewal of your authorisation.
  • If, at the moment of presenting the renewal, you are receiving the extraordinary benefit for the cessation of activity, you will obtain the renewal of your authorisation.

Art. 109.1.

b) When the spouse fulfils the economic requirements for regrouping the worker. The requirement shall also be renewed when it is met by the person with whom the foreigner has a relationship of similar affectivity to that of the spouse under the terms provided for family reunification.

There is no mention of this in the Instruction.

If your spouse or partner has sufficient financial means, you can apply for renewal by providing documentation proving the family relationship and the corresponding financial means.

109.1.

(c) When the competent management body, in accordance with the regulations on the subject, has recognised that the foreigner is a self-employed person and has been granted protection by cessation of activity.

It is recalled that this path exists in the Instruction.

If you are receiving the cessation of activity benefit when you apply for renewal, you will get your residence and work permit renewed.

Conclusions

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 have been adopted to avoid the irregularity of these persons, insofar as the regular status of these foreign persons is associated with the continuity of their employment relationship or the possession of sufficient resources.

The flexibility set out in DGM Instruction 5/2020 is justified, as stated above, not only by the extraordinary situation in which we find ourselves but also by the extraordinary measures adopted by the Government to maintain employment. Therefore, it was necessary to transfer to the current legal framework all the novelties adopted in the framework of the COVID 19 crisis in the field of law.

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