Spain: Foreign Nationals Outside Spain for over Six Months Now Eligible for Residence Status

• Royal decree invalid. Spain’s top court declared void a royal decree rule that terminated foreign nationals’ temporary residence status if they had remained outside Spain for more than six months in any one-year period.
• Parliament can limit freedom of movement. Noting that the relevant royal decree rule limited a fundamental right (namely, freedom of movement), the Court found that only parliamentary legislation (as opposed to a royal decree) or a European regulation could validly create such a restriction.
• Door still open for such limits. The ruling leaves the door open for the Spanish parliament to create such restrictions in the future.

As the relevant royal decree rule is now invalid, foreign nationals whose temporary residence status was at risk of termination because they had been outside of Spain for more than six months within a one-year period, may now be able to renew their temporary residence status without issue. That said, each situation must be assessed on a case-by-case basis, and affected individuals (including individuals whose residence status was terminated for being outside Spain for more than six months in any one-year period) should contact their immigration professional to discuss their options. Furthermore, given the legal landscape may again change, affected individuals are advised to avoid being outside Spain for more than six months in any one-year period.

The now-invalid royal decree had been in place since 2011. This ruling came about following the appeal of an Iranian citizen whose Spanish temporary residence and work permit was voided in 2019 because she had been outside Spain for more than six months in a one-year period. Royal decrees, meanwhile, are legal rules enacted by the executive wing of the government, and are inferior to parliamentary laws.

Importantly, the Court did not find that restrictions on movement per se are fundamentally illegal or unconstitutional. Rather, it concluded that such limitations could only be created by parliamentary legislation or European regulation, and not royal decree. This leaves the door open for the Spanish parliament to create such restrictions – which currently appears a likely outcome at some point in the future. We will report on related developments.