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Spain scraps six-month absence rule for losing temporary residency

The Local Spain
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Spain scraps six-month absence rule for losing temporary residency
Spain overturns decision to remove temporary residence for those who have been outside the country for six months. Photo: JOSEP LAGO / AFP

Spain's Supreme Court has ruled that temporary residency permits will not be withdrawn from those who have been outside the country for six months or more.

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The Spanish Supreme Court on June 20th announced they had annulled the clause of the country's immigration rulebook that allows migration authorities to remove temporary residence permits from those who spend six months or more outside of Spain within a one-year period.

The court concluded that the article is null and void because it limits the fundamental right of free movement of foreign citizens with temporary residence in Spain.  

READ ALSO: Can I live in another EU country with a Spanish residency permit? 

This means that temporary residency can only be removed by force of law, not because of how long you’ve been out of the country, as has been the case for years.   

One of the reasons for the ruling was the case of an Iranian citizen who appealed when her temporary residence and work permit in Spain were declared void in 2019 in Girona (Catalonia) for having remained outside the country for more than six months, according to the report issued by Barcelona-El Prat Airport.  

The woman left Spain in July 2018 and remained outside the country for a period of more than six months, until July 2019, which she claimed was due to the fact she had to undergo surgery in Turkey and was waiting for another operation.  

READ ALSO: Can you use your Spanish residency card rather than your passport to travel?

The woman initially appealed to the Superior Court of Justice of Catalonia, which dismissed her claims, saying the cause was not justified.

Four years later, Spain's Supreme Court has overturned the original decision of the government's subdelegate office of Girona, setting a precedent for future cases.

Judge Wenceslao Olea stressed that any removal of temporary residency permits due to a six-month absence can only be executed if an organic law states so, and not if it's according to a rule in the Reglamento de Extranjería (Migration Regulations).

According to the courts, the article limits the fundamental right of free movement of foreign citizens with temporary residency in Spain.  

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Francisco Solans, lawyer and president of Extranjeristas en Red, told Spanish left-wing news site Público that the decision was a blow for the "rigid" migration laws applied in Spain.

"If the Spanish government wants this rule to continue to be valid, it must reform the immigration law". 

Organic laws require an absolute majority in the Spanish Parliament to be modified.  

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This particular article “causes many people to find themselves trapped in situations of enormous anguish, often due to simple ignorance," Solans explained.

"It has affected thousands of people for years…. that became especially clear during the pandemic," he added about the fact that many residency permits were cancelled during this time of border closures, international restrictions and lack of transport. 

The ruling and subsequent annulment of the rule now means that anyone who has temporary residence in Spain, which is up to five years, can now leave the country for more than six months in a year if necessary and will not have to worry about losing their permit when they return. 

After having lived in Spain for five years, non-EU nationals are able to apply for a long-term residency card. 

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Comments (2)

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Tamsin 2023/07/11 21:01
"After having lived in Spain for five years, non-EU nationals are able to apply for a long-term residency card" - do you know when the five years starts, is it when you arrived, or when you got your NIE / TIE? And... if I leave for more than 6 months within my first 5 years... do I have to wait longer to apply for Permanent Residency, or it doesn't matter?! Thanks!
Kevin Donnelly 2023/06/23 03:11
From this article, the immediate question seems to be how this will affect the NLV, limiting residents to 10 months total during their five years prior to eligibility for permanent residency. If I understand that constraint and this ruling, that limit is also likely abolished until/unless law is created to handle that circumstance.

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