The temporary residence authorization for exceptional circumstances, known as ARRAIGO FAMILIAR, may be granted to foreign citizens who are in Spain and are either the father or mother of a minor of Spanish nationality, or the children of a father or mother who were originally Spanish.
On this occasion we would like to address the pronouncement of the Supreme Court (judgment of May 2, 2019 ) which resolves the appeal filed against a judgment issued by the Fifth Section of the Contentious-Administrative Chamber of the High Court of Justice of the Valencian Community, on the denial of an application for the extension of a temporary residence permit.
The legally relevant facts are the following:
- The Government Subdelegation in Alicante denied the request for the extension of the temporary residence authorization for exceptional circumstances - family roots.
- When the resolution was appealed before the Subdelegation of the Government, the content of the resolution issued by the same authority was confirmed in all its parts.
- Abbreviated proceedings were filed - processed by the Administrative Court No. 4, denying the plaintiff's requests and confirming the decision denying the request for extension of the work and temporary residence authorization.
- Likewise, the appeal was dismissed, in a decision adopted by the Administrative Chamber of the Superior Court of Justice of the Valencian Community, Fifth Section.
- A writ of cassation appeal was filed and admitted by the Supreme Court, Contentious-Administrative Chamber.
It is specified that the question of interest for the formation of jurisprudence consists in determining whether the residence authorizations for exceptional reasons of family roots (art. 124.3 of the Aliens Regulation) are subject to extension, or, on the contrary, the holder of this type of authorization must apply directly - at the end of its validity - for the temporary residence and work authorization (art. 130.4 in relation to art. 202.1.2 of the aforementioned Regulation).
It is necessary to mention at this point that the administration understood that accessing this temporary residence authorization - exceptional circumstances, being conditioned to the validity of 1 year, at the end of this temporary period, it was necessary to access a permit of the general regime, which could be a residence and work permit (employed person, self-employed person, or demonstrating sufficient economic means to live in Spain without having to develop labor or economic activity, i.e. as a non-lucrative residence, This could be a residence and work permit (self-employed, self-employed), or demonstrating sufficient economic means to live in Spain without having to develop labor or economic activity, that is to say, as a non-profit residence, with which, it was not viable to grant an extension if the situation of granting the exceptional permit was maintained and not a general situation to be maintained over time.
We consider completely viable that the cases will have to be analyzed concretely to determine if the exceptional situation continues, if the foreigners have tried to develop themselves in Spain, and have managed to integrate themselves effectively, accessing in principle to a job under the same conditions as nationals or foreign residents, since, if we think a little further, in case the parents of a minor of Spanish nationality had acquired their residence by this means and upon expiration do not have a job, it immediately entails the impossibility of renewing, thus, they would be in an irregular situation, creating a greater problem.
It is also true that the exceptionality cannot be established as permanent in time, obviously there would be abuses to this rule, which is why the Administration must be very aware of the case they have on their desk.
The legal arguments that stand out from the judgment are:
- The constitutional body, Supreme Court, begins its intervention by stating that Article 130 R. 557/2011, is an obscure rule that makes it difficult to give a safe answer when it comes to its application:
By virtue of its exceptional nature, the authorizations granted based on the preceding articles, as well as their extensions, will be valid for one year, without prejudice to the provisions of this article and the regulations on international protection.
- This is why, for the Supreme Court, the exceptional nature of the cases in which these residence permits can be granted does not allow them to be granted for a maximum of one year; on the contrary, it states that there cannot be a time limitation, with the possibility that they can be extended without limiting the number of extensions.
- Likewise, the Supreme Court understands that the exceptionality must be understood as temporary, that is to say, the ideal is that the people who access this type of residence is a means to be able to access any type of work, even to start an economic activity, therefore, it is assumed that the foreigner has the possibility of accessing the general regime.
- Now, in relation to the Spanish parent, it does not make any sense that at the moment that the validity of the residence authorization ends, he/she returns to the irregularity, since the family relationship - kinship - is maintained. In addition, in the case of minors, legal protection must be given to the minor, which, to a certain extent, will allow his father, mother, or both, to remain without inconvenience in Spain, until he can modify his residence to the general regime.
As conclusions we have:
- Definitely, the extension of the residence permit for exceptional circumstances - family ties is possible, as long as the circumstances that gave rise to its concession are maintained.
- We understand that there can be several extensions, i.e., there is not a certain number of extensions, however, our recommendation will always be directed to modify the general residence and work regime.
If you wish to obtain more information about the requirements for the residence authorization for family ties (exceptional circumstances), you can contact us through our free web consultation service:
