In order to prevent foreigners who reside and work in Spain from finding themselves in an irregular situation due to the impossibility of renewing their residence and work permits, as a result of the measures approved by the COVID-19 crisis, 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.

The COVID-19 pandemic is an unprecedented global health crisis, which to date, thanks to its voracious spread, has caused more than 11,457,993 infections and nearly 534,460 deaths worldwide.

Spain is the seventh country in the world with the most cases detected, behind the United States, Brazil, Russia, India, the United Kingdom and Peru.

On January 31st the first positive result was confirmed in Spain, but it was from March onwards that the diagnoses began to increase exponentially. Today, more than 250,545 cases have been detected and 28,385 people have died. On the other hand, as the new SARS-CoV-2 coronavirus has been spreading rapidly, it has also generated an unmitigated crisis in the Spanish economy and society, affecting both productive activities and the demand for goods, development of services and general welfare of the population.

Since the approval of Royal Decree 463/2020 of 14 March, through which the state of alarm was declared in Spain, the Spanish Government has been approving different preventive measures to reduce the spread of COVID-19 by reducing the mobility of people and non-essential socio-economic activities.

According to the Government, the measures launched in the context of the state of alert have had the following objectives:

  1. 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.

On the other hand, the Government explained that its main objective 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 which, 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."

However, what happens to foreigners in Spain who have residence and/or work permits for Highly Qualified Professionals (HQP)?

Instruction DGM 5/2020

Measures to combat COVID-19 have made it virtually impossible to comply with the requirements for renewing the residence and/or work permits of many third-country nationals.

The inexorable impact of the COVID-19 on the Spanish economy, the evaluation of which is still pending due to the current high level of uncertainty, implies a complicated situation for many foreign HQPs.

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 good news is that the Government has said that "no one will be left behind", and this statement includes foreigners who live and work in Spain. In other words, "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".

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Now, how does the government intend to prevent a situation of irregularity from arising for foreigners?

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 Instruction DGM 5/2020, which was presented by the General Direction of Migration at the hands of Santiago Yerga, as a solution.

It is important to note that, for the HQPs, Article 93.2 of Royal Decree 557/2011 refers to the requirements needed to renew residence and work, but links them to the requirement of "continuity" in the employment relationship. However, DGM Instruction 5/2020 specifies that persons will not be affected by not meeting the requirement of "continuity in the employment relationship" because they are in a procedure of suspension of contract due to force majeure or for economic, technical, organizational or production reasons.

Therefore, if you are a foreign person who has a residence and work permit as a HQP, and at the time of applying for your renewal there is a Temporary Employment Regulation Record (ERTE) in the company where you work or your contract has been suspended for economic, technical, organisational or production reasons, you will not be affected in the renewal of your residence.

With the objective of going deeper, below we offer you 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 new specifications indicated in the DGM Instruction 5/2020; as well as, its practical implication for each one of the cases contemplated.

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 benefit 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

Order SND/421/2020, of 18 May, adopting 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 their 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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