The Congress of Deputies of the Government of Spain publishes the Proposed Law on the granting of Spanish nationality to descendants born abroad of Spanish parents, which includes the Proposed Law, better known as the "Law of Grandchildren", "Law of Descendants", or "Law of Grandchildren and Great-grandchildren", which in other words, will be the law that will regulate the granting of Spanish nationality to those born abroad but of Spanish parents. In this article we will try to summarise, in a simple way, its main characteristics.
On 20 July 2021, the Council of Ministers of the Spanish Government approved the Draft Law on Democratic Memory. This is an important step forward but it does not mean that the Bill has become law. It still needs to be sent to the Spanish Parliament for debate, final approval and publication in the Official State Gazette (BOE).
On 15 September 2020, the Council of Ministers approved the draft bill of the Law of Democratic Memory. Undoubtedly, this is another step towards having a new "Law of Grandchildren and Great-grandchildren". It is a text with 66 articles grouped in 5 titles and several transitory, derogatory and final provisions. The text will now be submitted to the General Council of the Judiciary and the Public Prosecutor's Council.
As stated in the reasons for the Law, many Spanish citizens were forced to emigrate during the 20th century, whether for political or economic reasons. And this uprooting, no matter how much satisfaction they found in their destinations, has forever marked the lives of the emigrant collective and their descendants.
The 2007 Law on Historical Memory already allowed certain children and grandchildren of those who had originally been Spanish to acquire Spanish nationality, even though they had lost their Spanish citizenship for various reasons under Spanish law. The Law was intended to last two years, but was eventually extended for a further year.
Therefore, the new Law on Grandchildren and Great-grandchildren aims to modify four articles of the Civil Code, and with four cases that we will detail below, it aims to cover all possible situations and overcome all the obstacles that the different legislative modifications that have existed throughout history have established. Some of which not even the 2007 Law on Historical Memory could avoid.
Specifically, with this Act, the following realities are to be addressed, and I quote
- The vast majority of the grandchildren of those Spanish women of origin, born in Spain and married to a non-Spanish man before the Spanish Constitution of 1978 came into force. Before the approval of the Magna Carta, most of those Spanish women lost their nationality when they married a non-Spanish. During the validity of the Seventh Additional Provision of Law 52/2007, only the grandchildren of single or emigrant women between 1936 and 1955 had access to nationality. Although successive legislative reforms have made it possible for emigrant women to recover their nationality, on many occasions the recovery was made after the birth of their descendants and did not make the transmission of nationality possible.
- The children of those who obtained their original nationality through Law 52/2007 who, at the time of the entry into force of Additional Provision Seven, were already of age. Today, there are still divisions within families as some children —those who were then minors— do have it and others —those who were then of legal age— do not.
- The grandchildren of economic migrants who obtained the nationality of the host country and lost their Spanish nationality before the birth of their son or daughter.
- The grandchildren of Spanish nationals who, having held the nationality, have lost it because they did not ratify their desire to keep it when they came of age. Some of them were able to recover their nationality and others not due to the lack of a specific Instruction for this particular case that left that possibility to the interpretation of each consular register.
Therefore, with the introduction of this new law, the cases in which Spanish nationality will be granted are the following:
A) The grandchildren of the male Spanish emigrant who maintained his nationality until the birth of his descendants may obtain Spanish nationality...
Therefore, if the grandfather who emigrated loses his Spanish nationality after his son A is born, the son A is born Spanish. The latter may acquire the original Spanish nationality by means of a declaration of option. There is no major problem here.
We also knew that even if the child was born Spanish, if his father lost his Spanish nationality when the child was a minor, the minor child also lost his Spanish nationality because he was under his parental authority. He could recover it, however, by using the Civil Code route of opting for Spanish nationality until he was 20 years old or recovering it by living in Spain for a year when he was already over 20 years old. And now, the Law of Grandchildren contributes here for this child of the emigrant the possibility of requesting the nationality without having to be less than 20 years old or to spend a year in Spain, supposing that we will already explain of the section C).
Other aspects in which the grandchild may request Spanish nationality in spite of not having been born to a father with Spanish nationality are the following:
- If the grandfather lost his Spanish nationality for economic reasons.
- If the grandfather lost his Spanish nationality because he did his military service under the arms of another country
(continued here) ...and the grandchildren of those Spanish migrant women regardless of whether the Spanish migrant maintained, lost or regained her nationality before the birth of her descendants.
In the case of the grandchildren of female immigrants, therefore, they may acquire the Spanish nationality of origin by declaration of option under any circumstances. In other words, it does not matter if that grandmother kept, lost or recovered the Spanish nationality before the birth of her descendants.
B) Children of Spaniards whose nationality of origin has been recognized by virtue of the right of option may acquire Spanish nationality of origin through the option.
Therefore, they are also entitled to apply for Spanish nationality:
- Persons who are or have been subject to the parental authority of a Spaniard.
- Children of parents who have acquired Spanish nationality by one of the above-mentioned means or by the Law on Historical Memory. And since the beneficiaries here are usually grandchildren and great-grandchildren, hence the name of this law.
C) The recovery of the Spanish nationality for those persons who, being Spaniards of origin, have not ratified it on reaching their majority, in accordance with the provisions of Article 24.1 and 24.3 of the Civil Code.
This route includes the persons mentioned at the end of article A), that is, those born to a Spanish father/mother but who have not expressed their desire to retain their nationality before reaching the age of majority and until they are 20 years old.
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