On May 7, Grupo Aristeo, has organized an Online Meeting on Spanish Nationality, where we had the pleasure to share with great specialists such as the Professor of Private International Law of the University of León, Aurelia Álvarez Rodríguez, and Ms. María del Mar López Álvarez (Assistant Director General of Nationality and Civil Status), who have lectured on Spanish nationality: files and contentious resources.
The first virtual conference on Spanish nationality was structured around the presentations of Guillermo Morales Catá, Director of the Legalteam office, Guadalupe Milagros Lucio, Legal Director of Legalteam, Philippe Robertet Montesinos and Victoria Rubini García, both from the Cervantes Institute, Aurelia Álvarez, Professor of Private International Law at the University of León and María del Mar López Álvarez, Assistant Director General of Nationality and Civil Status.
Professor Aurelia Álvarez has given us a brilliant presentation on the loss and recovery of Spanish nationality; as well as on the controversy, which has existed for years, regarding the application of article 24 of the Civil Code to Spaniards who are not "of origin".
El artículo 24 del Código Civil señala:
- Emancipated persons who, habitually residing abroad, voluntarily acquire another nationality or use exclusively the foreign nationality they had attributed prior to emancipation, lose their Spanish nationality. The loss will occur once three years have elapsed, counting, respectively, from the acquisition of the foreign nationality or from emancipation. However, the interested parties may avoid the loss if within the indicated period they declare their willingness to keep the Spanish nationality to the person in charge of the Civil Registry. The acquisition of the nationality of Latin American countries, Andorra, the Philippines, Equatorial Guinea or Portugal is not enough to produce, according to this section, the loss of the Spanish nationality of origin.
- In any case, emancipated Spaniards who expressly renounce their Spanish nationality, if they have another nationality and habitually reside abroad, lose their Spanish nationality.
- Those who, having been born and residing abroad, hold Spanish nationality because they are the children of a Spanish father or mother, also born abroad, when the laws of the country in which they reside attribute to them the nationality of the same, shall lose, in any case, Spanish nationality if they do not declare their willingness to retain it before the person in charge of the Civil Register within a period of three years, counting from their coming of age or emancipation.
- Spanish nationality is not lost, by virtue of the provisions of this precept, if Spain is at war.
The doubt that arose was whether this article also applied to Spaniards "not of origin", bearing in mind that Article 25 of the Civil Code states that it applies to Spaniards who are not of origin, as if there were two different provisions on loss, with some causes of loss applying to Spaniards of origin and others to those who are not.
However, the controversy was clarified thanks to the result of a consultation, which from Consular Affairs, was made to the Directorate General of Records in January 2019. In this case, the Directorate General of Registries clarified that the said article 24 also applies to Spaniards not of origin, therefore they must also declare their willingness to retain Spanish nationality, when they live outside Spain or are going to live outside the country, for a period of more than 3 years.
Processing of files
In this area, the intervention of the Assistant Director General for Nationality, María del Mar López Álvarez, was very exclusive. The following is a summary of that intervention, where there are some important new features:
- When a person applies for Spanish nationality and has minor children, it is not necessary to provide the birth certificates of their children with their application, but it is necessary to mention the existence of those children, providing the data of the latter: name and surname, date and place of birth.
- It is also not necessary to provide a marriage certificate when the person applying is married, unless he/she is using the reduced route of 1 year of continuous legal residence for access to Spanish nationality, that is, the route known as "by marriage".
- If the person applying for nationality, once they have submitted their application, goes to live in another country, this fact should not negatively affect their application for nationality, since the requirement of legal and continuous residence must be fulfilled prior to the application for nationality and not during the processing of the same. However, he points out that attention should be paid to the notification of the decision when it is made by mail to the applicant's address. If the application has been made by electronic means, and it has been accepted to receive the decision by this means, this will be done. However, it must be taken into account that once the decision is received, the person must travel to Spain to carry out the procedures subsequent to the acquisition of Spanish nationality.
- They are not taking into account the police records (we are talking about police, not criminal records) that happened more than four years ago from the moment the application is evaluated.
- There is no time limit to carry out the notarial acts required in the procedures of nationality for Sephardics.
- Applications for exemption on the grounds of illiteracy are still pending, but they indicate that they will ask, in order to prove this condition, for a document from a literacy centre, indicating that the person is illiterate. They are also going to give an authorization for adapted tests to the Cervantes Institute, in cases where this is possible.
- Dispensations for having completed the ESO are being resolved in a favourable manner. It is not necessary to present these dispensations separately from the application for nationality. It is sufficient to provide the ESO certificate along with the rest of the documentation in the nationality application.
- The Resolution of 27 March 2020 recalls that the time limits for submitting administrative appeals and contentious appeals are suspended, but the work of processing nationality files is resumed.
- The problem of postal notifications (i.e. those persons who have requested to be notified at home instead of being notified telematically) has now been resolved. They have signed an agreement with the Tax Office to do so, and they are giving them access to their enveloping and printing centre.
- They have made an order so that all applications submitted via administrative records, will be processed up to date and will be digitized and dumped for processing quickly.
- The new nationality procedure (as of November 8, 2015) has everything digitized.
- From the old procedure (files submitted before November 8, 2015) the files of the year 2017 are being resolved. By October 2020 they hope to have everything digitized, as a new crash plan is planned (which was halted due to the state of alarm that began on March 14, 2020). It is expected to resume soon.
- About 35 people are working on resolving nationality applications.
- There are about 200,000 files pending.
- Period of validity of the certificate of criminal record: if an application for nationality is submitted with a certificate of criminal record that expired during the state of alert, it will not be considered expired and will be admitted as valid.
- When a file is at the 'report' stage, it does not take the same time to obtain these reports in all cases, as there are certain nationalities that require manual reports, as opposed to others that allow automated reports to be issued.
- It can happen that a file is in the "qualification" phase and already has the required reports, but that there are many reports for that person, and therefore it will take time to review them, which is why in some cases that are in "qualification" status it takes a long time, and in others it takes little time to resolve them.
- A "resource" tab will be added to the Nationalities telematic application platform, so that the corresponding administrative resources can be submitted within each file.
- There have been cases of "expired requirements", i.e. documentation has been required, but the person has not received this requirement, and after a period of time, the file passes to the qualification of "expired requirement". The system automatically considers a request as "expired" once three months have passed since the documentation was requested, and without it having been presented. However, if the documentation is presented, even if it is out of date, the expiration is removed and the process continues. In other words, the status of "expired" is not definitive. There may have been an error in notification or in the presentation of the documentation. Sometimes the expirations occur due to changes in the applicant's address, when these are not communicated to the Ministry, or changes in lawyers are not communicated either.
- If an application is initiated but not completed, it is called a "draft" application. If a new application is attempted, an error will appear and it will not be allowed to be submitted, because the first draft is still in force. In these cases, you must contact the Ministry to remove the first draft, in case we cannot do it ourselves.
- After four months of initiating a "draft" application, if it is not submitted, it will be definitively erased.
- A bidding process has been carried out for a company to handle the files that are going to be appealed to the National Court. There are going to be seven people working on the replies to these appeals, providing files to the Audiencia, etc. He mentioned that sending the files required by the Audiencia is not easy.
- In the case of Europeans who request Spanish nationality, a Spanish criminal record certificate can be provided, including European records, in order to comply with the requirement to provide a criminal record certificate.
- The validity of the certificate of criminal records is 6 months, unless the certificate itself indicates otherwise, in which case it will be necessary to comply with the certificate.
- He does not believe that there will be a regulation implementing the provisions of the rules on dispensations.
- They will allow the presentation of applications for Venezuelan nationality to Venezuelans when they have expired passports, as long as they bring the expired passport.
- They do not mention a period of validity for birth certificates, but say that they are not strict about that.
- If the application for nationality is submitted for a reduced period of 1 year, because the applicant is married to a Spaniard, a current marriage certificate must be submitted.
- When an application is made for a waiver of the nationality examinations for having taken the ESO (Obligatory Secondary Education), the presentation of a qualification obtained abroad that has been validated in Spain is not valid. It must be an ESO study carried out in an Educational Institution in Spain.
- When the oath of nationality is taken, once it has been obtained, it is not necessary to provide a valid NIE. In the resolutions of concession of nationality it is indicated the documentation that must be contributed in the Civil Registry to carry out the oath. Any extra documentation that may be requested is not relevant. He recommends that in these cases we comment on the situation with the General Management and file a complaint.
- A person who presents a request for nationality when he or she is of legal age, must provide a certificate of criminal record from his or her country of origin, even though he or she has never left Spain since arriving in the country as a minor.
- Certificates of migratory movements will not be requested when there is a permanent residence of the applicant. If documents are requested to prove effective residence in Spain, because there is doubt about it, all types of documents may be provided: working life, children's schooling certificate, home ownership, etc.
On the other hand, the Assistant Director-General for Nationality highlighted the possible implementation of a new procedure to speed up the processing of appeals. In this sense, an open contract has been tendered with different companies that have presented themselves to process the referral of files to the National Court.
Statistics of interest
The Deputy Director General for Nationality, María del Mar López Álvarez, also showed us very interesting statistics on the processing and current state of the files of Spanish nationality.
He also pointed out that:
- The average monthly entry of applications in 2020: 7,319 files.
- The monthly average of incoming applications in 2019: 7,704 files.
- Monthly average of resolutions in 2020: 10,588.
- Monthly average of decisions 2019: 13,725.
- Monthly average of concessions 2020: 10,192.
- Monthly average of concessions 2019: 13,282.
- More than 35,000 applications were resolved in December 2019.
- Monthly average of concessions 2019: 13,282.
- More than 35,000 applications were resolved in December 2019.
- In 2019, 92,451 applications were made and 159,387 files were resolved.
The Assistant Director General clarified that, despite the current state of alarm, the procedures for applications of Spanish nationality continue to be resolved except for appeals for reversal and contentious proceedings, until further notice.
The presentation of the Assistant Director General for Nationality allowed us to enter into the current state of the processing of nationality files. Her intervention was an important space of knowledge and learning that gave answer to many questions about the day by day in the processing of Spanish nationality by residence.
If you wish, you can see the complete presentation of the General Assistant Director of Nationality Maria del Mar in the following link: https://youtu.be/5fKCiekebOw
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