The Supreme Court invalidates the article that terminates temporary residence permits in Spain for being outside of the country for more than six months
17 Mayo, 2024
The Immigration Regulation in its article 162 establishes that temporary residence permits will be terminated for the following reason, among others: (…) 2. The temporary residence permit will be terminated by resolution of the competent body for its granting, in accordance with the procedures provided for in the current regulations for the granting, modification, and termination of permits, when any of the following circumstances is verified:
e) When staying outside of Spain for more than six months in a one-year period.
The Administrative Litigation Chamber of the Supreme Court has ruled that this article of the Immigration Law Regulation, which allowed the Government to cancel the temporary residence and work permits of foreigners, is absolutely invalid.
This article posed a significant difficulty for many people who, for various reasons, needed to temporarily leave the country where they lived and worked. Any mishap or lack of knowledge of the regulation could result in the loss of residence documents, employment, and exposure to an irregular administrative situation.
What prompted this change?
The Supreme Court, in a ruling dated June 5, sided with an Iranian citizen whose temporary residence and work permit was terminated by the Government Subdelegation in Girona in 2019 for being out of the country for a year.
The woman underwent surgery in Turkey and had another one scheduled, with a corresponding recovery period, which forced her to stay outside of Spain. She did not justify it as a force majeure cause, and the Government suspended her permits and required her to leave the country within 15 days.
Although she appealed this decision, both the Administrative Litigation Court 3 of Girona in the first instance and the High Court of Justice of Catalonia in the second instance agreed with the Government Subdelegation on this point.
However, four years later, the Supreme Court has overturned the decision of the Government Subdelegation. In this case, the High Court does not consider whether the woman's reason for leaving the country is legitimate or not. What the Supreme Court finds contrary to the law is article 162-2º-e) of the Regulation of Organic Law 4/2000, which deals with the rights and freedoms of foreigners in Spain and their social integration.
According to this ruling, the article restricts the fundamental right of free movement of foreign citizens with temporary residence in Spain. The Court understands that this limitation can only be applied through a norm with the rank of law, and not through a regulation, as has been the case for years.
