Possibility of Acquiring Spanish Nationality if Born Outside of Spain to Father/Mother/Grandfather/Grandmother Who Had Been Spanish

. General Provisions

Law 20/2022, of October 19, on Democratic Memory (BOE of October 20) establishes, in its eighth additional provision, the possibility of acquiring Spanish nationality for those born outside of Spain to a father or mother, grandfather or grandmother , who originally had been Spanish, and who, as a result of having suffered exile for political, ideological or belief reasons or sexual orientation and identity, had lost or renounced Spanish nationality; for the sons and daughters born abroad of Spanish women who lost their nationality for marrying foreigners before the entry into force of the 1978 Constitution;

The entry into force of the aforementioned additional provision has led this Board of Directors, in use of the powers attributed to it, to dictate, by means of this Instruction, the following guidelines on the exercise and scope of this right, as well as the rules of precise procedure to expedite the processing of applications in the Civil Registry Offices.

The possible doubts that arise to those in charge of the Spanish Civil Registry Offices regarding the scope and interpretation of the scope of application of the aforementioned eighth additional provision, on the assumptions included or excluded from it, or on the requirements that must be met. applicants, will be resolved in accordance with the body of doctrine contained in the following guidelines:

First.
In accordance with the eighth additional provision of Law 20/2022, the following may apply for Spanish nationality:

a) Those born outside of Spain to a father or mother, grandfather or grandmother, who had originally been Spanish, and who, as a result of having suffered exile for political, ideological or belief reasons or sexual orientation and identity, had lost or renounced to Spanish nationality.

b) The sons and daughters born abroad of Spanish women who lost their nationality for marrying foreigners before the entry into force of the 1978 Constitution.

c) The sons and daughters of legal age of those Spaniards whose nationality of origin was recognized by virtue of the right of option in accordance with the provisions of this law or in the seventh additional provision of Law 52/2007, of December 26.

In all the cases indicated, it will be necessary for the interested parties to formalize the declaration of option within two years from the entry into force of the eighth additional provision of the Democratic Memory Law, without prejudice to the possibility of extending said term, for one more year, by Agreement of the Council of Ministers.

Second.
The request-declaration of option will be submitted by the interested parties adjusted to the official models provided for in annexes I, II, III and IV of this Instruction, together with the supporting documentation of the legal requirements demanded in each case.

Third.
The request-declaration will be submitted to the person in charge of the corresponding General or Consular Office of the Civil Registry, in accordance with the rules of competence for the exercise of the option contained in criterion III of the seventh guideline of this Instruction.

Quarter.
The minutes and proceedings models are approved in the terms that appear in annexes I to VII of this Instruction. The registration entries of birth and nationality will be issued subject to the registration regulations.

Fifth.
Except in their special term, these options are subject to the conditions required by articles 20 and 23 of the Civil Code, except for the renunciation of the previous nationality.

In everything related to the option for a common or regional civil neighborhood, promise or oath of fidelity to the King and obedience to the Constitution and the laws, those in charge of the Civil Registry Offices who formalize the act of option must take into account account the criteria and legal considerations contained in this Instruction.

Sixth.
People who, being children of a father or mother originally Spanish and born in Spain, had opted for Spanish nationality not of origin by virtue of article 20.1.b) of the Civil Code, in its wording given by Law 36/2002, of October 8 and minor children, of those who acquired Spanish nationality, by application of Law 52/2007, who opted, in turn, for Spanish nationality not of origin, by virtue of the exercise of the right of option, provided for in article 20.1.a) of the Civil Code, as they are under the parental authority of a Spaniard, they may now also avail themselves of the option contemplated in the eighth additional provision of Law 20/2022, in order to obtain the Spanish nationality of supervening origin, provided they meet the established requirements,formalizing for this a new declaration of option during the term of validity of the aforementioned additional provision.

These interested parties will be exempt from providing the documentation already presented that served as the basis for obtaining non-native Spanish nationality.

The request for Spanish nationality of origin, which these interested parties must formulate, will be adjusted to the model incorporated as Annex IV of this Instruction.

Seventh.
The application of the above guidelines will be subject to the following criteria:

I. Nature and characteristics of the right of option to Spanish nationality.

The option is a way of acquiring Spanish nationality that requires the express will of the person concerned, formulated before the body or public employee designated by law, in this case the Managers of the Spanish Civil Registry Offices.

Article 20 of the Civil Code configures the right to opt for Spanish nationality as a derivative mode of acquisition. Notwithstanding the legislator, in the regulation contained in the seventh additional provision of Law 52/2007, of December 26, which recognizes and expands rights and establishes measures in favor of those who suffered persecution or violence during the civil war and the dictatorship, dispensed a more beneficial legal treatment, by attributing the quality of Spanish of origin to those who acquired Spanish nationality by virtue of the provisions of the aforementioned provision, said interpretation being included in the first criterion of the Instruction of November 4, 2008, of the General Directorate of Registries and Notaries (current General Directorate of Legal Security and Public Faith),

However, it should be clarified that these people acquired, by virtue of the exercise of the right of option provided for in the seventh additional provision of Law 52/2007, Spanish nationality “of origin” but acquired unexpectedly, that is, a nationality whose acquisition occurs at a time after birth, supposing that the condition of Spanish of origin is held and, consequently, it produces effects from its acquisition.

In this same sense, the Third Section of the Contentious-Administrative Chamber of the National High Court has ruled in its judgment, dated July 19, 2022 (appeal number 0001298/2018), providing in its legal basis second that «… From the moment he opted for Spanish nationality under the seventh additional provision of Law 52/2007, the appellant’s parent holds Spanish nationality “of origin” but the title of his acquisition was not original (in the sense of contemporary at birth), but supervened. Therefore, despite being Spanish by origin, he cannot be considered originally Spanish,

For all of the above and taking into account the historical precedents of the regulation contained in the eighth additional provision of Law 20/2022 on Democratic Memory and the spirit and purpose that inspire it, in addition to the terms in which it appears drafted, as a result of its parliamentary processing, this Directive Center considers that the same interpretation should be applied to those who acquire Spanish nationality, by virtue of what is established in this law, that is, it must be considered that they acquire Spanish nationality of origin, but acquired in a supervening, producing effects from its acquisition.

Consequently, the option regulated in the eighth additional provision of this law presents notable differences with respect to the option regulated in article 20.1.b) of the Civil Code that can be summarized as follows:

a) The right of option regulated in the eighth additional provision of Law 20/2022 confers the quality of Spanish of origin, although acquired in a supervening way, that is, with effects from its acquisition, without retroactive character.

b) Article 20.1.b) limits the possibility of applying for Spanish nationality, by excluding descendants of originally Spanish parents who cannot prove their birth in Spain, which does not happen in this regulation.

c) The cases contemplated in the eighth additional provision contain a period of two years counted from the entry into force of the aforementioned law, which will take place the day after its publication in the «Official State Gazette». Said period may be extended by Agreement of the Council of Ministers.

d) The right of option regulated in Law 20/2022 will not require the renunciation of the previous nationality in the terms established in article 23 of the Civil Code.

On the other hand, it should be noted that the option regulated in the eighth additional provision of Law 20/2022 presents the following common notes with the one regulated in article 20.1.b) of the Civil Code:

a) In neither of the two modalities is an age limit required for its exercise.

b) For the exercise of the option regulated in article 20.1.b) of the Civil Code and the one regulated in the cases related to the eighth additional provision analyzed, the interested parties of legal age must meet the conditions required in articles 20 and 23 of the Civil Code, except for the renunciation of the previous nationality.

II. People who can exercise the right of option to Spanish nationality recognized by the eighth additional provision of Law 20/2022.

1st paragraph of section 1 of the eighth additional provision of Law 20/2022.

It is established that “Those born outside of Spain of a father or mother, grandfather or grandmother, who originally would have been Spanish, and who, as a consequence of having suffered exile for political, ideological or belief reasons or sexual orientation and identity, would have lost or renounced Spanish nationality, may opt for Spanish nationality, for the purposes of article 20 of the Civil Code».

Despite the fact that this paragraph seems to address only the sons, daughters, grandsons and granddaughters of exiles who were born after their fathers/mothers and/or grandfathers/grandmothers lost their Spanish nationality, it is possible to find an interpretation more in line with the true will of the legislator and the spirit of the law, an interpretation that can be reached through the joint and integrating analysis of the previous Law 52/2007 and the present one.

Thus, the seventh additional provision of Law 52/2007 of December 26 established two different assumptions of option, and said:

“1. People whose father or mother was originally Spanish may opt for Spanish nationality of origin.

2. This right will also be recognized for the grandchildren of those who lost or had to renounce their Spanish nationality as a result of exile.»

If this law in its additional provision 8 had the purpose of expanding the assumptions of option compared to those contemplated in Law 52/2007 (it now includes the possibility of option of children of legal age and children of women who lost their nationality by reason of marriage, assumptions not contemplated in the previous law), it seems logical to understand that the legislator did not want to exclude from the scope of application of this law those who were in the situation described in the first point of the seventh additional provision of Law 52/2007, but rather has consolidated in a single paragraph the two cases of the previous 7th additional provision of Law 52/2007.

Thus, this first paragraph would collect two different assumptions of option, that of:

“Those born outside of Spain of a father or mother, grandfather or grandmother, who originally would have been Spanish.”

and, in addition, (“and that”) that of:

“Those born outside of Spain of a father or mother, grandfather or grandmother, who had originally been Spanish, and who, as a result of having suffered exile for political, ideological or belief reasons or sexual orientation and identity, had lost or renounced their Spanish nationality.”

Thus, both those born outside of Spain of originally Spanish parents or grandparents, as well as those born outside of Spain of parents or grandparents who lost or renounced Spanish nationality due to exile, may exercise the option provided for in this paragraph.

2nd Section 1.a) of the eighth additional provision of Law 20/2022.

It is established that, likewise, “the sons and daughters born abroad of Spanish women who lost their nationality by marrying foreigners before the entry into force of the 1978 Constitution” may acquire Spanish nationality.

This section repairs the discrimination suffered by Spanish women married to foreigners who, due to the application of Spanish legislation on nationality prior to the Spanish Constitution of 1978, could not transmit said nationality to their children.

Thus, the loss of Spanish nationality due to marriage with a foreigner was established in article 22 of the Civil Code in its original wording, “the married woman follows the condition and nationality of her husband” and in article 23.3 of the Civil Code in the wording by Law of July 15, 1954, establishing that “the Spaniard who marries a foreigner, if she acquires the nationality of her husband” will lose her nationality, thus leaving clear the general rule of transmission of Spanish nationality only through of the father. Only after the reform of the Civil Code of 1982 –anticipated by its own direct normative effectiveness by the Constitution of 1978– did the children of a Spanish father or mother begin to be considered Spanish, indistinctly.

3rd Section 1.b) of the eighth additional provision of Law 20/2022.

It is established that, likewise, they may acquire Spanish nationality “Sons and daughters of legal age whose nationality of origin was recognized by virtue of the right of option in accordance with the provisions of this law or in the seventh additional provision of Law 52/2007, of December 26».

This section 1.b) of the eighth additional provision of Law 20/2022, eliminates the limitation established in the previous regulation, allowing the exercise of the right of option to Spanish nationality to the sons and daughters of legal age of those who The option to Spanish nationality of origin was recognized by virtue of Law 52/2007 and also to the sons and daughters of legal age of those who opt for Spanish nationality of origin by virtue of Law 20/2022.

III. Competition rules for the exercise of the option.

The declaration of option to Spanish nationality, as well as the oath or promise and, where appropriate, the required waiver, will be formulated before the Person in Charge of the Civil Registry Office of the applicant’s domicile, who will proceed to qualify it and, in its case, to practice the corresponding registration.

If the applicant was born in the territory corresponding to the demarcation of another Civil Registry Office, the application and the documentation presented will be sent to the Civil Registry Office corresponding to the birth.

However, in the Civil Registry Offices in which Law 20/2011, of July 21, of the Civil Registry is applicable, the provisions of the distribution of powers established in the «Instruction of September 16, 2021 , of the General Directorate of Legal Security and Public Faith, by which the guidelines and criteria are agreed to support the effective entry into service of the Dicireg computer application, from the entry into operation of the first office in accordance with the provisions contained in Law 20/2011, of July 21, on the Civil Registry» (BOE of September 23, 2021).

IV. Rules of procedure and documentation that must be provided.

1. Request to exercise the right of option.

a) The request will be made using the standardized models that are attached as annexes I, II, III and IV of this Instruction.

Interested parties may obtain the applications included in annexes I, II, III and IV electronically on the websites of the Ministry of Justice and the Ministry of Foreign Affairs, European Union and Cooperation, as well as in person at the Registry Offices. Civil.

b) The request must be presented in person at the civil registry of the interested party’s address, together with a photocopy of said request, which will be stamped in the civil registry and returned to the interested party so that it serves as justification for having submitted the application on time.

c) If when presenting the declaration of option the required requirements are not accredited, the applicant will be obliged to complete the test within thirty calendar days, counted from the request that, for this purpose, is made to the interested party by the Manager. of the corresponding Civil Registry Office, according to annex VII of this instruction.

d) Those in charge of the General or Consular Office of the Civil Registry who receive said requests will give the value of the official form of application-declaration as a record by incorporating an authentication diligence, in accordance with the model that appears in Annex V, without the need for that the interested party is present.

This diligence may be carried out within the two-year period of validity of the eighth additional provision of Law 20/2022, extendable for one more year by virtue of the Agreement of the Council of Ministers, or, even, at a time after the expiration of the aforementioned term and its eventual extension, provided that the request-declaration in the standardized model has been submitted within said term or extension.

e) If the person in charge of the Civil Registry denies the option to Spanish nationality for not meeting the requirements established by Law 20/2022, the interested party will be formally notified, so that they can file the corresponding appeal before the General Directorate of Legal Security and Public Faith of the Ministry of Justice.

2. Documentation that the interested parties must provide accompanying the application.

2.1 Common documentation for the three sections of the eighth additional provision:

a) Document proving the identity of the applicant.

b) Literal birth certificate of the applicant, issued by the local Civil Registry in which it is registered.

2.2 Additional documentation for the assumptions of the first paragraph of section 1 of the eighth additional provision of Law 20/2022.

a) Literal birth certificate of the father, mother, grandfather or grandmother of the applicant, who were originally Spanish.

b) If the application is made as a grandchild of a originally Spanish grandparent, a literal birth certificate of the father or mother – the one corresponding to the line of the Spanish grandfather or grandmother – of the applicant will also be provided.

c) Documentation proving the exile status of the father, mother, grandfather or grandmother referred to in section 3 (proof of exile status).

The Spanish registration certificates referred to in this section may be requested, as of the date of entry into force of the eighth additional provision, by means of the standard model for the request for a literal birth certificate (Annex VI) addressed to the person in charge of the Office. of the corresponding Civil Registry, or electronically through the website of the Ministry of Justice www.mjusticia.es, expressly stating that the certification is requested for the purposes of exercising the right of option provided for in Law 20/2022.

In cases where there is no birth registration of the parents or grandparents, the interested party may provide the baptism certificate from the parish or diocesan archive, together with the negative certificate of birth registration issued by the corresponding Registry. In the same way, he will be able to promote the birth registration file after the deadline established in the registration legislation.

2.3 Additional documentation for the cases of section 1.a) of the eighth additional provision of Law 20/2022.

a) Literal birth certificate of the Spanish mother of the applicant.

b) Literal certificate of marriage of the mother with a foreigner contracted before December 29, 1978, issued by the Civil Registry in which it is registered.

c) For marriages formalized between August 5, 1954 and December 28, 1978, both included, documentation must also be provided proving the acquisition by the mother of the husband’s nationality and a document accrediting foreign legislation on the matter. of acquisition of nationality by marriage in force on the date on which it took place. These two documents will not be necessary in the case of marriages formalized before August 5, 1954, since the provisions of article 22 of the Civil Code in its original wording will apply to them, that is, “the married woman follows the condition and her husband’s nationality.

2.4 Additional documentation for the cases of section 1.b) of the eighth additional provision of Law 20/2022.

a) Spanish literal certification of birth of the father or mother of the applicants of legal age who opt for Spanish nationality, since their parents have been recognized as having Spanish nationality of origin by virtue of the right of option in accordance with the provisions of the eighth additional provision of Law 20/2022 or in the seventh additional provision of Law 52/2007, of December 26, when the application is submitted in a Civil Registry other than the one in which the birth of the father or of the mother.

3. Proof of exile status.

Those interested in opting for Spanish nationality according to the first paragraph of section 1 of the eighth additional provision may prove the exile status of their father, mother, grandfather or grandmother by providing any of the following documents:

a) Documentation that proves having been a beneficiary of the pensions granted by the Spanish Administration to exiles that proves exile directly and by itself.

b) Documentation from the International Office for Refugees of the United Nations and the Refugee Offices of the host States that assisted the Spanish refugees and their families.

c) Certifications or reports issued by political parties, unions or any other entities or institutions, public or private, duly recognized by the Spanish authorities or those of the host State of the exiles, which are related to exile, either because their members, or for having stood out in the defense and protection of Spanish exiles, or for currently working on moral reparation and the recovery of the personal and family memory of the victims of the Civil War and the Dictatorship.

The documents numbered in sections b) and c) above will constitute proof of exile if they are presented together with any of the following documents:

1. Passport or travel document with entry stamp in the host country.

2. Registration registration certificate from the Spanish Consulate.

3. Certifications from the Consular Civil Registry that prove residence in the host country, such as marriage registration, birth registration of children, death registration, among others.

4. Certification from the local Civil Registry of the host country that proves having acquired the nationality of that country.

5. Documentation of the time of the host country stating the year of arrival in that country or arrival there by any means of transport.

d) For the purposes of exercising the right of option recognized in the first paragraph of section 1 of the eighth additional provision of Law 20/2022:

Exiled status will be presumed with respect to all Spaniards who left Spain between July 18, 1936 and December 31, 1955. In these cases, the exit from Spanish territory must be accredited by means of any of the documents listed in this document. point.

If you left Spain between January 1, 1956 and December 28, 1978, you must prove your exile status.

Finally, except for the provisions of international treaties, foreign registration certificates, submitted together with the request-declaration of option of any of the cases contemplated in the eighth additional provision of Law 20/2022, must be delivered duly legalized and/or or apostilled. Likewise, an official translation made by a competent body or official must be provided in the case of documents not written in Spanish.

Eighth.
This instruction shall enter into force the day following its publication in the “Official State Gazette”.

Madrid, October 25, 2022.–The General Director of Legal Security and Public Faith, Sofía Puente Santiago.

Application forms and full Royal Decree.

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.