Spain: Permanent residence status, including requirements, whether it expires and procedures for renewal; rights for permanent residents, including rights to enter and remain, employment rights, education rights, and access to social services (2014-August 2015)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

This Response replaces ESP105299 in order to incorporate new information related to the legislative framework on the rights of permanent residents in Spain and correspondence received by a professor of law at the National University of Distance Education (Universidad Nacional de Educación a Distancia, UNED).

1. Family Sponsorship

In correspondence with the Research Directorate, an official at the embassy of Spain in Ottawa indicated that Spain grants to its citizens the same rights that EU legislation grants to EU citizens and members of their family on freedom of movement and residence within EU member states (Spain 16 Sept. 2015). The website of the Ministry of the Interior (Ministerio del Interior) provides the following information on residency for family members of EU citizens that are not citizens of EU countries or Schengen zone countries:

Family members must apply for and receive a Residence Card for Relatives of European Union Citizens (Tarjeta de residencia de familiar de ciudadano de la Unión Europea) if they wish to reside in Spain for more than three months.

The family member must apply for the card within three months of entering Spain at the provincial immigration office of the province where they plan to reside or, if unavailable, at the corresponding police station (Comisaría de Policía).

A receipt of the application will be provided immediately upon submission of application to indicate legal status (Spain n.d.a).

The application for family sponsorship of a foreign-born spouse and his or her foreign-born children must be submitted with the following documents (including the original and a copy):

valid passport;

evidence of marriage or common law relationship. For the latter, both spouses must provide evidence of their marital status;

copy of the certificate of registration of the EU citizen, along with his or her passport or identity document, or, in cases of Spanish citizens, the National Identity Document (Documento Nacional de Identidad, DNI) [1];

three photographs;

the established fee;

letter of employment (for those who are employed), or evidence of business registration (for those who are self-employed), or proof of health insurance and evidence of availability of funds such as property titles, certified cheques, and evidence of income from investments (if unemployed);

if the foreign-born spouse is a student, he or she must provide evidence of registration at an educational institution, health insurance, and a declaration that he or she has enough financial resources to support their stay in Spain; and

the birth certificates of foreign-born children, and evidence of full custody by the foreign spouse of those children (Spain n.d.a).

The website of the Ministry of the Interior indicates that the Residence Card for Relatives of European Union Citizens is valid for five years and it can be renewed (ibid.). In order to renew the residence card, the foreign-born spouse must meet the same requirements indicated above (ibid.). To renew the residence card of foreign-born children, the foreign-born spouse must also meet the above requirements with the exception of the evidence of marriage, the birth certificate, and evidence of custody (ibid.).

1.1 Validity of the Residence Card for Relatives of European Union Citizens upon Divorce

The website of the Ministry of the Interior indicates that in cases of divorce, annulment or termination of common-law registration, the foreign-born spouse must report it to the "competent authorities" (Spain n.d.a). The website also indicates that the foreign-born spouse may keep their right to residence provided that he or she produces evidence of the existence of one of the following circumstances:

the marriage lasted at least three years until the beginning of court proceedings for annulment of marriage, divorce or cancellation of the common law relationship, and that at least one of the three years elapsed in Spain;

the foreign-born spouse has full custody of the children born to the couple through either a mutual agreement between the parties or a judicial decision;

the existence of "especially difficult circumstances" such as:

having been a victim of domestic violence during the marriage or common law relationship, in which case the foreign-born spouse must possess a protective order in his or her favor or a report from the Public Prosecutor's Office (Ministerio Fiscal) that indicates evidence of gender violence, or

having been subjected to human trafficking by their spouse or partner during the marriage or common law relationship, in which case a judicial process must be underway to this effect; or,

a valid court decision or agreement between the parties grants the foreign-born spouse parental access rights to minor children living in Spain (ibid.).

The website also indicates that the foreign born-spouse must apply for authorization to reside in Spain within six months of the occurrence of one these circumstances (ibid.). If the application is based on the existence of "especially difficult circumstances," the six-month period can be extended until a judicial decision is reached and declares that the alleged circumstances took place (ibid.). Title V of Royal Decree 557/2011 (Real Decreto 557/2011) outlines the requirements to apply for a residence permit under these circumstances (Spain 2011). A translation of relevant excerpts of Royal Decree 557/2011 is attached to this Response (Attachment 1).

2. Permanent Residence (Residencia de larga duración)

The website of the General Secretariat for Immigration and Emigration (Secretaría General de Inmigración y Emigración) of the Ministry of Employment and Social Security (Ministerio de Empleo y Seguridad Social) indicates that a person is eligible to apply for permanent residence status (Residencia de larga duración) after he or she spends five years with legal immigration status in Spain (Spain n.d.b). According to the embassy official, an application for permanent residence must be submitted one month before or within three months after the current residence status expires (ibid. 16 Sept. 2015). The same source stated that a permanent resident card is valid for 10 years and is renewed automatically (ibid.). Absences from Spain should not be longer than six months at a given time, and they should not total more than 10 months within the previous five years (ibid. n.d.b). For employment-related absences from Spain, the maximum allowed time is one year within the previous five years before an application is made (ibid.).

Royal Decree 557/2011 indicates that a person who receives permanent resident status must apply for a Foreigner's Identity Card (Tarjeta de Identidad de Extranjero, TIE), which is renewable every five years (ibid. 2011, Art. 150). Details on the procedures to obtain permanent resident status and the TIE, as well as information on the grounds for losing permanent resident status (Article 166) and the requirements for re-acquiring that status (Article 159), are included in the translated excerpts of Royal Decree 557/2011 attached to this Response. Royal Decree 557/2011 indicates that an application to re-acquire permanent resident status can be made in Spain or at a diplomatic office abroad (Spain 2011, Art. 159). In contrast, the embassy official stated that this procedure must be made within Spain (ibid. 16 Sept. 2015).

Article 22 of the Spanish Civil Code (Código Civil) states that a foreign-born spouse of a Spanish citizen can apply for Spanish citizenship after one year of marriage, if that individual has legal residence in Spain and is not divorced or separated from their citizen spouse (ibid. 1889, Art. 22).

3. Rights of Permanent Residents

Law 4/2000 on the rights and freedoms of foreign nationals in Spain and their social integration outlines the rights afforded to permanent residents (ibid. 2000). A translation of relevant excerpts of Law 4/2000 is attached to this Response (Attachment 2). In correspondence with the Research Directorate, a professor of law at the UNED who has written extensively on the Spanish legal system, including the rights of immigrants in Spain, provided the following information (Professor 28 Sept. 2015).

Law 4/2000 is applied throughout Spain. Regarding the right to education, Spanish law does not make any distinction on legal status as it is a fundamental right enshrined in the Constitution. Therefore, all foreigners under the age of 18, whether or not they have legal status, have the same access to compulsory education as Spanish citizens. Permanent residents have access to university education as long as they can pay for it, as tertiary education is not a fundamental right. Regarding employment rights, under the law, differences can be established between foreigners and Spanish citizens to grant special permits to permanent residents for jobs that cannot be filled by Spanish citizens, or to demand additional requirements to fill certain positions. Regarding access to healthcare and social services, if permanent residents are employed or were employed in the past, they have the same access as Spanish citizens since they paid contributions to the health system. If the permanent resident has never been employed, he or she has access to regular medical services and emergency care. The children of foreigners, whether or not they are employed, have full access to health care. Regarding housing, since it is not a "fundamental right," not even Spanish citizens have the right to it. Housing is under the jurisdiction of the Comunidades Autónomas (Autonomous Communities), therefore its regulation varies from province to province. Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

4. Spanish Passport for Permanent Residents

The embassy official indicated that Spain issues passports only to Spanish citizens (ibid. 16 Sept. 2015). The website of the National Police (Policía Nacional) indicates that in order to obtain a Spanish passport, applicants must present their DNI and a photograph (Spain n.d.c). If the applicant is 14 years old or older, and is outside Spain, he or she can present a current Spanish passport or a certified copy of a birth certificate in lieu of the DNI (ibid.). Applications for those who are under 14 years old can include, in lieu of the DNI, a certified copy of a birth certificate no older than six months, with an annotation indicating that the birth certificate has been issued in order to obtain a Spanish passport (ibid.). Applications for minors who are 14 years old or younger must include the DNI of those who have custody of the minor and evidence of the relationship between the parents or legal guardian(s) and the child (ibid.). In the case that those persons who have custody are not Spanish citizens, they must present their Foreigner's Identification Number (Número de Identificación de Extranjeros, NIE) [2] or [translation] "any other identification document issued by authorities" (ibid.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes

[1] The DNI is the national document that shows proof of Spanish citizenship (Spain n.d.d).

[2] The NIE is a number assigned to a foreigner for identification purposes (ibid. n.d.e).

References

Professor of law, Universidad Nacional de Educación a Distancia (UNED). 28 September 2015. Correspondence with the Research Directorate.

Spain. 16 September 2015. Embassy in Ottawa. Correspondence from an official to the Research Directorate.

_____. 2011 (amended 2013). Real Decreto 557/2011, de 20 de Abril, por el que se aprueba el Reglamento de la Ley Orgánica 4/2000, sobre Derechos y Libertades de los Extranjeros en España y su Integración Social, tras su Reforma por Ley Orgánica 2/2009 (Royal Decree 557/2011 of April 20, Approving the Regulations Pursuant to Law 4/2000 on the Rights and Freedoms of Foreigners in Spain and Their Social Integration, Following Their Amendment by Law 2/2009). Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. [Accessed 27 Aug. 2015]

_____. 2000 (amended 2015). Ley Orgánica 4/2000, de 11 de Enero, sobre Derechos y Libertades de los Extranjeros en España y su Integración Social. [Accessed 25 Sept. 2015]

_____. 1889 (amended 2015). Real Decreto de 24 de julio de 1889, por el que se publica el Código Civil. [Accessed 16 Sept. 2015]

_____. N.d.a. Ministerio del Interior. "Estancia y residencia." [Accessed 4 Sept. 2015]

_____. N.d.b. Ministerio de Empleo y Seguridad Social, Secretaría General de Inmigración y Emigración. "Residencia de larga duración." [Accessed 25 Aug. 2015]

_____. N.d.c. Dirección General de la Policía. "Pasaporte ordinario." [Accessed 8 Sept. 2015]

_____. N.d.d. Dirección General de la Policía. "DNI electrónico." [Accessed 8 Sept. 2015]

_____. N.d.e. Dirección General de la Policía. "Documentación - extranjeros." [Accessed 8 Sept. 2015]

Additional Sources Consulted

Oral sources: Burgos Acoge; Comisión Española de Ayuda al Refugiado.

Internet sites, including: ABC; Amnesty International; ecoi.net; El País; European Union - Council of the European Union; Europa.eu; Factiva; Spain - Boletín Oficial del Estado, Embassy in Bogotá, Embassy in London, Embassy in Ottawa, Embassy in Washington, Ministerio Fiscal; United Nations - RefWorld; United States - Department of State, Embassy in Madrid.

Attachments

1. Spain. 2011 (amended in 2013). Real Decreto 557/2011, de 20 de Abril, por el que se aprueba el Reglamento de la Ley Orgánica 4/2000, sobre Derechos y Libertades de los Extranjeros en España y su Integración Social, tras su Reforma por Ley Orgánica 2/2009 (Royal Decree 557/2011 of April 20, Approving the Regulations Pursuant to Organic Law 4/2000 on the Rights and Freedoms of Foreigners in Spain and Their Social Integration, Following Their Amendment by Law 2/2009). Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. [Accessed 27 Aug. 2015]

2. Spain. 2000 (amended 2015). Ley Orgánica 4/2000, de 11 de Enero, sobre Derechos y Libertades de los Extranjeros en España y su Integración Social (Law 4/2000 of January 11 on the Rights and Freedoms of Foreign Nationals in Spain and Their Social Integration). Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. [Accessed 25 Sept. 2015]