You may assume that moving to Spain with a criminal record would be impossible, or that foreigners who commit a crime while living in Spain will automatically lose their residency.
Though it’s certainly true that criminal records are one of the main reasons that foreigners’ residency applications (or renewals) are denied, it is not necessarily always the case.
In certain situations it may be possible to gain or retain such residency rights, although it depends on your individual circumstances and being able to ‘cancel’ your criminal record (more on that below).
‘Cancelling’ a criminal record
It may sound counterintuitive but in Spain you can actually remove your criminal record. In Spanish this is called cancelar los antecedentes penales, which we can translate to something more like ‘expunge’ your criminal record rather than outright cancelling it.
Going through the expungement process does not wipe your record or remove you from police databases.
The possibility of expunging a criminal record in Spain has existed for almost 30 years, as has the option of a foreigner with a criminal record being able to obtain Spanish nationality.
Article 136 of Spain’s Penal Code allows people with a criminal record to cancel it once a certain period of time has elapsed and if they have not committed any other felony since the initial sentence.
Spain’s Ministry of Justice caused headlines in 2022 when it accidentally sent out a tweet explaining how foreign nationals can cancel their criminal record online themselves in order to gain Spanish citizenship.
READ ALSO: Shock as Spain tells foreigners how to cancel their criminal record
Spanish law establishes specific criteria for this process, including the time elapsed since serving the sentence (if you did time in prison), the type of crime committed and subsequent conduct since the offence – in other words, did you reoffend or reintegrate.
Generally speaking, certain periods of time must have elapsed since the crime was committed depending on the severity of the offence:
- For minor offences, the period is six months.
- For less serious offences, the time required can be from two to six years.
- For serious offences, a waiting period of up to ten years is required.
READ ALSO: What's the statute of limitations in Spain?
Expungement procedure
The application must be submitted to the Ministry of Justice and will likely be taken to court. It is highly recommended to hire an immigration lawyer with experience of applying for or renewing residency with a criminal record.
You’ll also need to provide all the necessary documents to prove that you meet requirements established by Spanish law and give yourself the best chance before the judge.
This could include:
- Work or education documents proving employment and social integration.
- Evidence of family ties in Spain, such as marriage to a Spanish citizen or having children born in the country.
- Favourable conduct reports issued by local authorities.
- Any documentation proving participation in rehabilitation or volunteer programmes.
- If you’re applying from abroad, you’ll likely need to provide translated legal documents from your home country, as well as references. This is why hiring a lawyer is so important.
Interpreting the law
Once you’ve made your application and got your court date, the decision is taken out of your hands. Then it’s up to the judge.
As is often the case with Spanish law, the real answer to this question is: it depends. The key to obtaining Spanish residency with a criminal record lies firstly in the interpretation of the rules, and, secondly, in the circumstances of each individual case.
Spanish case law has set a precedent establishing that the existence of a criminal record should not be an insurmountable obstacle to the granting of residence by default. Here's where the type of offence, the seriousness, the time elapsed and family or employment ties in Spain all come into play again.
Individual judges also play an important role here as they have the responsibility to assess each situation on an individual basis.
Of course, not all criminal records carry the same weight (someone with a short prison sentence for a minor crime would not be seen equally as an applicant who served time for major drug trafficking, for example) and factors such as the individual's social reintegration, family roots and contribution to the community can tip the balance in your favour.
READ MORE: What are the penalties for drug possession in Spain?
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