The recent ruling of the Supreme Court of March 25, 2021 (STS 1184/2021), which expands the cases in which to apply for residency based on labor roots, has been a breath of fresh air that we have been waiting for some time: a new range of possibilities opens up for those foreigners who have been continuously in Spain for at least two years and who, having worked legally in the country for more than six months, have become irregular.
The novelty of the ruling lies in the fact that the means of proof admitted to accredit an employment relationship, which, as we have said, must be of at least six months' duration, have been extended. Until now, in order to obtain the residence authorization for exceptional circumstances due to labor roots, the Administration only gave validity to those means of proof specifically provided for in the regulations: the judicial resolution recognizing the labor activity or the infraction report of the Labor and Social Security Inspection.
This was so because such means of proof were foreseen for cases in which the foreigner who is irregularly present in Spain works "clandestinely", without having a work authorization that enables him to do so.
However, reality is always richer and more varied than the norm, and we often find that a person, having worked legally for more than six months in Spain, comes back in an irregular situation afterwards.
For example, let's put ourselves in the shoes of asylum seekers: While in regularization proceedings, the applicant is authorized to work, but if the asylum application is unsuccessful, the foreigner ends up staying in an irregular situation. Despite having worked legally in Spain for more than six months - assuming that the requirement of continuous residence of more than two years in the country has been met - until now they have not been recognized as having a de facto employment status that already existed, regardless of how the employment relationship was proven.
Ajustándose a una realidad que lleva existiendo mucho tiempo, el alto tribunal ha terminado por dar una respuesta contundente a la controversia, estableciendo su firme criterio al respecto: que dicho arraigo laboral pueda ser acreditado por cualquier medio de prueba válido en derecho, incluido, por tanto, los certificados de vida laboral que acrediten una relación laboral que pueda haber derivado de una anterior autorización de residencia que hubiera perdido vigencia.
Adjusting to a reality that has existed for a long time, the high court has finally given a forceful response to the controversy, establishing its firm criterion in this regard: that such labor roots can be accredited by any means of proof valid in law, including, therefore, the certificates of employment that accredit an employment relationship that may have derived from a previous residence authorization that had lost its validity.
So, in what cases is it possible to apply for a residence permit based on labor roots?
This open-mindedness with regard to the ways of proving labor roots represents a real paradigm shift that will benefit not only asylum seekers, but also all those who have had a previous residence authorization that they have lost for various reasons, so that as long as it can be demonstrated that the foreigner in an irregular situation has remained continuously in Spain for more than two years and has worked for the minimum period of six months required, it would be possible to apply for residence due to exceptional circumstances for labor roots.
There are many people who have been unable to renew their residence and work permits due to the complications derived from the COVID-19, either because they have not been able to comply with the periods of registration and contribution required by the regulations, due to the lack of face-to-face appointments in some Alien offices or due to the lack of economic means on the part of the employer to take care of their salary obligations, among many other reasons.
As we said at the beginning, it seems that a wide range of possibilities has opened up that should not be wasted, so... let's get to work!
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