The Spanish Supreme Court revoked an immigration resolution from the Immigration office that denies a foreigner’s temporary residence permit for being 6 months outside from Spain in a year.
The reason cited for nullifying this regulation is that it infringes upon the fundamental right of free circulation for foreign citizens holding a Temporary Residency Permit in Spain. Only a law can limit such a right, meaning a regulation, having a lower rank as a norm, cannot do so.
This decision is a result of the efforts of an Iranian woman who lost her Residency and Work Permit in 2019. The Supreme Court’s decision aims to protect the fundamental rights of foreign citizens in Spain. After being hospitalized in Turkey for more than 6 months, the Spanish Administration revoked her Residency Permit based on the Regulation approved in the Royal Decree 55/2011, of the Organic Law 4/2000, on Foreigners’ Rights and Liberties in Spain and their social integration.
Despite providing all the supporting documents regarding her hospitalization in Turkey, both the Contentious Court and the Superior Court of Justice of Catalonia rejected her appeals. They argued that she did not justify any force majeure event and that the reasons for the extinction of the temporary residency authorization, as established in Article 162 of the Regulation, are of an objective nature and do not consider the personal circumstances of each residency permit holder.
However, the Spanish Supreme Court revoked the regulation because no article in the Organic Law 4/2000 provides any basis for its enactment in her case. Therefore, it seems that the woman’s rights were finally recognized. Nevertheless, the Supreme Court’s judgment did not assess the specific circumstances of the case, such as whether it is justified to revoke a residency permit for an absence over 6 months even with documents proving hospitalization. Instead, the Supreme Court evaluated the regulation itself, which was implemented without legal support. Only a law can limit a fundamental right such as the free circulation of foreigners holding a Residence Permit in Spain, not a regulation.
In summary, as of now, if you are a foreigner with a Residence Permit in Spain, your residency should not be denied solely for being away from the Spanish territory for more than 6 months in a year. However, this ruling does not guarantee a permanent protection, as the Supreme Court emphasized that it is not its role to act as the legislator in determining the appropriateness of such limitations and update the immigration law in this regard. Instead, decisions regarding limitations on fundamental rights should be made through an Organic Law and not through a Regulation.
