Spain’s Supreme Court has made significant changes to immigration and residency rules in the country just two weeks after the mass migrant amnesty, covering family reunification, residency of relatives of Spanish citizens, criminal records and more.
The Supreme Court has issued a ruling on the new Immigration Regulations, approved by Royal Decree 1155/2024 of November 19th, partially granting the appeal filed by several human rights organisations.
The ruling upholds its general structure, but annuls several new aspects.
The legislation now addresses particular issues in Spain’s migration policy such as the protection of foreign minors, family reunification, the residence of relatives of Spanish citizens, the recognition of family ties established abroad and the rights of applicants for international protection.
This comes just two weeks after the deadline for Spain’s mass regularisation of migrants, which saw over a million undocumented migrants apply for residency in the country.
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Therefore, the changes apply to standard migration and residency rules in Spain, not just those under the migrant amnesty that’s now ended.
Protection of foreign minors
One of the most important changes is the protection of foreign children.
The Supreme Court now considers it contrary to the best interests of the child to prevent access to certain residence permits simply because the minor is married.
This could potentially harm victims of forced marriages or those in other vulnerable situations. It also annuls restrictions that could affect minors born in Spain who had left the country.
It is now also illegal for public authorities to not provide immediate aid to unaccompanied foreign minors.
Recognition of guardianships and family ties established abroad
The new ruling also annuls the requirement that certain guardianship or child protection relationships must have been established in accordance with Spanish law.
The Supreme Court says that Spain is now obligated to recognise child protection measures agreed upon by the authorities of other countries when international conventions are in place.
Limitations on residency for applications for international protection
The Court upholds the government’s decision to prevent applicants for international protection from applying for residency permits while their asylum application is also in process.
It has, however, declared the issue moot regarding the six-month irregular stay requirement outlined in the regulation.
It also confirms that the time spent in Spain as an asylum seeker cannot be counted towards the period required for certain types of residency.
End of the ban on temporary employment agencies hiring foreign workers
The Supreme Court has overturned the ban that prevented temporary employment agencies from hiring foreign workers for seasonal jobs.
The ruling states that the government introduced this limitation without sufficient legal basis or adequate justification as to the reasons for it.
Residency permits cannot be automatically denied because of a criminal record
The Court has also annulled the rules which result in the automatic denial of certain permits based solely on the existence of a criminal record.
This means that from now on, authorities must analyse each case individually and consider the severity of the crime and the circumstances, as well as how long ago it was, the family situation of the applicant etc. They will not automatically be denied just because they have a criminal record.
New residence rules for family members of Spanish citizens
El Tribunal Supremo (The Supreme Court) also endorses the new residency rules for family members of Spanish citizens. The Supreme Court considers that there is no obligation to fully equate this system with that established for family members of European Union citizens who have the right to freedom of movement.
This means that there is still a visa requirement for certain family members residing abroad and other conditions for obtaining residency.
Applicants are not obliged to use electronic means to communicate with authorities
Lastly, the court has annulled the general obligation for certain foreigners to exclusively interact with the authorities via electronic means. It states that not everyone has the necessary resources and capabilities to use electronic procedures.
