Over Six-Month Absence Residency Loss: What the Law Really Says!

Supreme Tribunal Declares as Null the Article that Extinguishes the Right of Residency

Article from 2023

In a landmark decision, the Spanish Supreme Court declared null the article that sought to extinguish the residency rights of individuals with temporary residence permits who left Spain for more than six months. The ruling challenged the application of a regulatory provision based on an incorrect interpretation of Spanish immigration law, stressing that such an important limitation on residency rights should only be imposed through Organic Law — not by a regulatory norm.

Legal Context and Framework:

Under Royal Decree 240/2007, which implements EU Directive 2004/38/EC in Spain, individuals with residency permits are generally allowed to leave Spain for certain periods without risking their legal status. The government, however, applied the incorrect Royal Decree to revoke residency status for those who had been absent for more than six months, even though no such provision exists within the immigration law itself.

The Court emphasised that Organic Law (requiring parliamentary approval) should be the means through which any such limitation is applied, rather than administrative rules or regulations. This decision highlights the overreach of the government’s interpretation and reinforces the legal protections for individuals under Spanish law.

Precedent for Challenging Residency Revocation:

The ruling sets a crucial legal precedent, opening the door for residents whose status was wrongfully revoked based on prolonged absence to challenge these decisions in court. This offers a path forward for those whose residency rights were affected by the government’s improper use of the incorrect Royal Decree.

The Need for Government Action:

Despite the court’s clear ruling, the Spanish government has not yet amended its approach or rectified the error, leaving affected residents in a state of legal uncertainty. This is a critical moment for expatriates and those with temporary residency status in Spain to be aware of their rights and the options available for challenging such revocations.

What You Can Do:

If you are facing or have faced residency revocation due to prolonged absence, it’s important to seek professional legal advice. The ruling by the Supreme Court offers a clear avenue for contesting such decisions, but each case is unique and requires careful attention.

Supreme and the evaluation of the status quo

Inertia is often a significant factor in governance, especially in countries where legal and bureaucratic processes can be slow-moving. If the Spanish government perceives that the issue isn’t widely affecting people or that there isn’t much public pressure to change, they might be inclined to delay taking action.

Why the Government Might Not Address It:

Lack of Immediate Challenges:  If there aren’t many (or any) residents challenging the ruling, the government might think that the issue doesn’t need urgent attention. Without visible cases, there may be a sense that there isn’t a pressing need to amend the law.

Low Public Awareness or Concern: Unless this issue is making headlines or impacting a significant number of people, the government might underestimate its importance. The reality of the situation may not fully reach the policymakers, especially if it doesn’t cause widespread unrest or legal disputes.

Avoiding Legal Complexity: Changing an Organic Law can be a complicated and time-consuming process. The government might feel it’s not worth the effort unless there’s significant public demand or political will to do so. In the absence of widespread challenges, they may feel the matter can be put on the back burner.

Potential for Political Implications: Any legal amendment, particularly one that relates to fundamental rights such as residency, can have political implications. The government might be cautious about making such a move without careful consideration of the political landscape.

Possible Reasons for Delayed Action:

Other Legislative Priorities: The government may be focusing on other reforms or issues they see as more urgent, such as economic matters, healthcare, or foreign policy.

Strategic Silence: Sometimes, governments choose not to address legal issues in the hope that they will be forgotten or resolved without their intervention. This is especially common when the issue seems to be affecting a relatively small number of people, like the temporary residents affected by the six-month absence rule.

If, however, challenging cases start to arise, or if there’s greater awareness in the expatriate community, it could lead to more pressure on the government to act. This might happen if advocacy groups or legal experts highlight the problem, or if the public starts pushing for clearer protections for their residency rights.

In the meantime, it’s valuable to keep an eye on how this issue evolves. Should challenges to the ruling begin to gain traction or if it starts being widely discussed in legal circles, the government may be forced to take action more swiftly.

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.