Supreme Court Ruling 731/2023, issued on June 5, 2023, annulled the article of the Immigration Regulation that terminates the temporary residence permit due to absences of six months (180 days) in a one-year period.
Based on this ruling, and with the aim of remaining up to date to provide the best possible service to our clients, this post includes the knowledge and information we received from the Immigration Office in Zaragoza.
This is undoubtedly crucial information that may have a significant impact on the way other national offices proceed.
What is the application criteria of the Directorate General for Migration?
1. Regarding the termination of temporary residence permits
Termination of a temporary residence permit is not applicable in the event of absences from Spanish territory for over six months in a one-year period.
The aforementioned Supreme Court ruling declares Article 162.2.e) of the Regulation of the Organic Law on Immigration null and void (termination of temporary residence permits due to absences from Spanish territory for over six months in one year), considering that the termination of a right must be included in a legally-binding rule. Therefore, since the publication of the sentence, no procedure for termination of the temporary residence permit will be initiated for this reason.
In the case of long-term residence permits, as expressly included in Organic Law 4/2000, the case of termination due to absence from Spanish territory, the termination proceedings will continue to apply as it has been to date.
Renewal of Temporary Residence Permits and Access to Long-Term Residence
Although they are no longer a cause for termination of the temporary residence permit, absences from the territory must be assessed for access to the long-term residence permit, since this permit requires ongoing, legal residence.
When the requirements for obtaining a long-term residence permit are not met and five years of temporary residence have been reached, the renewal of the temporary residence permit does not apply. Therefore, applications for extraordinary renewals of residence and work permits, residence permits for family reunification and non-profit residence permits must be rejected.
Retroactive application of the ruling
The aforementioned Supreme Court ruling applies to all procedures and cases for which there is no final resolution. In other words, it is not possible to review everything that has been resolved up to the date of publication of the ruling.
However, it will affect the procedures for termination of temporary residence permits due to absences that were pending resolution, which must be archived. Extraordinary residency renewal proceedings that are underway will be denied for this reason.
Implementation of Directive 2003/109/EC concerning the status of long-term resident third-country nationals
Where an applicant for long-term residence has a criminal record, reasons must be given for denial for this reason, with an express assessment of the applicant's personal situation and of said record. This assessment will also apply to temporary residence permits.
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