The Supreme Court has ruled that the provision in the Immigration Law regarding the cancellation of temporary residence permits based on absences exceeding six months in one year is no longer valid. As this article was not included in an Organic Law – which has higher legal authority – it can possibly be reintroduced at some point in the future. Detailed legal argumentation can be found in the linked text.
This issue has important implications that must be considered in the different types of residence authorizations that are available:
- Individuals with valid temporary residence permits can extend
them without issue, regardless of how long they have been out of
Spain during a single-year span. However, that could change if a
law puts an upper limit on absences. One must also meet criteria in
accordance with their residence permit, such as working at least 3
months a year if they have a residence and work permit, or having
adequate financial means and private health care insurance for
non-lucrative residence.
- The Spanish government recently amended the law to allow
titleholders of non-profit residences to keep their permits, even
if they are absent from Spain for over 183 days. Previously, this
was not possible and investors of non-profit residences had to
spend at least six months in Spain in order to retain their
residence status. Now, therein lies the important implication that
one can remain a non-residence tax citizen in Spain if they are not
in the country for more than 183 days.
- To apply for a long-term residence permit in Spain, the law
states that absences away from the country cannot exceed 10 total
months in the 5 years leading up to the application. This rule has
not changed, meaning that if a person has been outside of the
country for 6 or more months in one year, they may be able to renew
a temporary residence permit, but they will not be able to obtain a
long-term residence authorization.
- Regarding applications for nationality by residence, some aspects need to be considered. Currently, the concept of "effective residence" is used to grant Spanish nationality. This means that applicants must prove their link to the Spanish territory and demonstrate that they have been living in the country regularly without any prolonged absences. Each applicant must be evaluated to ascertain whether they have effectively resided in Spain regardless of any absences, or whether they should not be granted nationality even if they have shown legal and continuous residence before the application.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
