HEALTHPLAN MAGAZINE

In a groundbreaking decision, the Spanish Supreme Court has declared that temporary residency permits will no longer be revoked based on a six-month absence from the country.

The court announced on June 20th that it had nullified a clause in Spain's immigration rulebook, which allowed authorities to withdraw temporary residence permits from individuals who spent six months or more outside the country within a one-year period.

The court's ruling was based on the argument that the article restricting residency violated the fundamental right of free movement for foreign citizens with temporary residence in Spain. By deeming the article null and void, the court established that temporary residency can only be revoked through legislative means, rather than solely based on the length of absence, as had been the practice for many years.

The ruling was influenced by the case of an Iranian citizen who challenged the annulment of her temporary residence and work permit in Girona (Catalonia) in 2019. The revocation was triggered by her stay outside Spain for over six months, as reported by Barcelona-El Prat Airport. The woman had left Spain in July 2018 and remained abroad for more than six months until July 2019, during which time she underwent surgery in Turkey and awaited another operation.

Initially, the woman appealed to the Superior Court of Justice of Catalonia, but her claims were dismissed on the grounds of insufficient justification. However, four years later, Spain's Supreme Court overturned the original decision of the government's sub-delegate office in Girona, establishing a precedent for similar cases in the future.

Judge Wenceslao Olea emphasised that the revocation of temporary residency permits due to a six-month absence could only be implemented if mandated by an organic law, rather than a provision within the Migration Regulations (Reglamento de Extranjería).

The court concluded that the article impeded the fundamental right of free movement for foreign citizens with temporary residency in Spain. Francisco Solans, a lawyer and president of Extranjeristas en Red, commented that the ruling dealt a blow to the "rigid" migration laws applied in Spain and suggested that if the government wished to maintain this rule, it would need to reform the immigration law through an organic law.

Modifying organic laws in Spain requires an absolute majority in the Spanish Parliament. Solans explained that this particular article had caused considerable distress and often trapped individuals in precarious situations due to their unawareness of the rule. He also highlighted the impact of the rule during the pandemic, with many residency permits being cancelled amid border closures, international restrictions, and limited transportation options.

The Supreme Court's ruling and the subsequent annulment of the rule signify that individuals holding temporary residency in Spain, up to a maximum of five years, can now spend more than six months outside the country in a single year without the fear of losing their permits upon their return.

It is worth noting that after living in Spain for five years, non-EU nationals are eligible to apply for a long-term residency card.

Source

https://www.thelocal.es/20230622/spain-scraps-six-month-absence-rule-for-losing-temporary-residency
https://confilegal.com/20230620-el-ts-declara-nulo-el-articulo-del-reglamento-de-extranjeria-que-extingue-el-permiso-residencia-temporal-en-espana-por-ausencia-de-6-meses/