The Supreme Court declares null and void the article that extinguishes the temporary residence permit in Spain for being abroad for more than six months.
The Supreme Court has now made a decision that will ensure that people who live in Spain with a temporary residence permit will have more freedom. Until recently, people who only had a temporary residence permit were threatened with losing it if they stayed too long abroad.
But now the Administrative Chamber of the Supreme Court has annulled Article 162, paragraph 2 of the Regulation of the Law on Foreigners (Reglamento de la Ley de Extranjería), according to which the stay outside Spain of more than six months within one year was a reason for the termination of the temporary residence permit for foreigners in Spain.
Why is the article null and void ?
The Court considers that the article is void because it restricts the fundamental right of free movement of foreigners with temporary residence in Spain, which can only be done by a law, not by a regulation as in the present case. The Chamber recalls that no article of Organic Law 4/2000 on the rights and freedoms of foreigners in Spain and their social integration covers this provision of the regulation approved by Royal Decree 557/2011, nor does any European directive. This makes it clear that only the Aliens Act can limit this right and not the Aliens Regulation.
But why did it come to the Court's attention to the article in question in the first place? The background is as follows:
An Iranian citizen sued because her temporary permit to stay and work in Spain was declared expired by the government delegation in Girona for 2019 because she had stayed outside the national territory for more than six months, according to the report of the border control center of Barcelona-El Prat airport. The administration considered that the condition of the residence permit could be legitimised by the article 162. Subsequently, the woman appealed, but lost this case again.
The court upheld the facts, as the absence from Spain had been admitted by the plaintiff herself. The court was of the opinion that the duration of her absence was not justified. The woman then appealed again to the Supreme Court of Catalonia, which also dismissed her appeal (albeit with one dissenting vote), reasoning, among other things, that the appellant had not alleged grounds of force majeure. However, according to Article 162, there should have been reasons which were not the responsibility of the appellant.
However, the Supreme Court subsequently reconsidered the decision of the government delegation and declared it null and void. The Court did not even consider whether the woman's motive to stay abroad was legitimate or not. What the Supreme Court considers not to be in conformity with the law is Article 162, and according to the judgment, this article is "tainted with nullity."
Thus, the Supreme Court now grants the appeal of the Iranian citizen after all, concluding that the absence of a foreigner with a temporary residence permit in Spain for a six month period within the one-year period to which the current Article 162 refers cannot cause that permit to expire.
The SC states that "[i]f the condition for the revocation of the temporary residence permit is the departure from the national territory during the said period, it should be noted that the provision stipulates that the holders of this permit may not leave the Spanish territory during the said period, whereas no provision of the Aliens Act imposes this obligation, and that the temporary residence permit must be declared extinguished in the annual calculation because they have left the national territory during the said period."
In any case, the Court makes it clear that it is not for it to put itself in the position of the legislature and determine whether such a limitation is appropriate, but stresses that in any
case this should be done by an organic law and not by a regulation.
The new regulation is a great relief for many migrants, who now no longer have to fear for their residence title in special situations. Also recently, the pandemic and the associated border closures brought great uncertainty for many migrants. Such persons, who were abroad and could not return, had to fear for their residence permit. Some of them were not able to return to Spain as planned due to the pandemic. The reason for this was that it was not immediately clear whether the pandemic was a case of force majeure or not. Many Spanish residence permits were lost during this period of the pandemic because there was no control and the decision of the administration was automatic. An appeal to court costs more effort and time than starting a new legalisation procedure, so it is not surprising that this issue has not reached the Supreme Court in more than a decade.
Fortunately, the legal situation regarding the article has now been clarified, which means that migrants can also fully participate in the freedom of movement.
What does this mean for those whose residence permits have been revoked on the basis of Article 162?
Some people who have had their residence permits revoked on the basis of Article 162 will now wonder whether they can appeal on the basis of this nullity. In other words, whether they can benefit from this new amendment.
According to the ruling of the Administrative Chamber of the Supreme Court of December 4, 2007, the grounds for nullity have a restrictive character due to their exceptional nature.
This means that this legal act is considered non-existent, as if it had never existed. In the judgment of June 28, 2017 of the Administrative Disputes Chamber of the Supreme Court of Madrid, Appeal No. 531/2014, it is stated: "As is well known, according to the traditional doctrine of nullity, the complete nullity has effects "ex tunc", so that the effects of the nullity do not occur only with its declaration, but retroactively to the date of the enactment of the provision declared null, so that, in principle, the consequences derived from the null provision cease to exist.
Thus, the annulment has the effect that the contested act is treated as if it had never existed, but it does not interfere with final acts, i.e. those for which all legal remedies have been exhausted.
While this all sounds great and for the moment, the 6-months rule is not applicable, we do not know when it may be reinstated. All the government has to do is include the rule in the Organic Law 4/2000 in order for the Supreme Court to be appeased. In general, and also in light of the rules regarding applying for permanent residency after five years, we recommend that you try not to stay outside of Spain for more than 6 months per year and 10 months in total during the five years of temporary residency.