Here we discuss how the supreme court stops residence termination for prolonged absences in Spain.
In a landmark decision, the Spanish Supreme Court has declared null the rule that allowed for the termination of temporary residence authorizations when holders spent more than six months outside Spain within a single year. This ruling has now been published in the Official State Gazette (BOE) and is officially in effect.
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Supreme court ruling that nullifies the termination of temporary residence due to absences in Spain:
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- Termination of the temporary residence card »
- Supreme court ruling »
- What this means for temporary residents »
- Other types of residency available in spain »
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1) Termination of the temporary residence card:
To understand the significance of this ruling, we must first look at the previous regulations. Article 162 of the Immigration Regulations (Royal Decree 557/2011) established that temporary residence authorizations could be terminated for the following reasons:
- a) When the foreign national changes or loses their nationality, without prejudice to the possibility of obtaining another residence authorization based on the new circumstances.
- b) When the circumstances that served as the basis for its granting disappear.
- c) When it is found that there are serious inaccuracies in the claims made or in the documentation provided by the holder to obtain the residence authorization.
- d) When the holder no longer possesses a valid and in-force passport, analogous document, or, if applicable, a registration card, unless they can justify that they have taken the necessary steps to renew or recover the passport or analogous document.
- e) When the holder remains outside Spain for more than six months within a one-year period.
As you can see, paragraph (e) meant that anyone holding a temporary residence permit would automatically risk termination if they spent more than six months abroad in any given year. This created a significant limitation for residents who needed to travel for personal, family, or professional reasons.
The Supreme Court has now declared this specific paragraph—Article 162.2.e)—null and void. As a result, temporary residence authorizations can no longer be terminated solely on the basis of exceeding this six-month absence limit.
2) Supreme court ruling – supreme court stops residence termination for prolonged absences:
The Supreme Court’s decision to nullify this article was based on a fundamental principle of Spanish law: the hierarchy of norms.
The court determined that Article 162.2.e) of RD 557/2011 improperly restricted the fundamental right to free movement, which is recognized for foreign citizens with temporary residence in Spain under Article 19 of the Spanish Constitution.
The key points of the ruling are as follows:
- Conflict with Higher Law: The court found that the restriction imposed by the regulation (Royal Decree 557/2011) was not supported by the higher-ranking Organic Law 4/2000 (the Immigration Law). Article 31 of this Organic Law does not establish any limitation or cause for termination of temporary residence cards due to absences of more than six months.
- Hierarchy of Norms: Because the right to free movement is a fundamental right, any limitation on it must be established through an Organic Law, which requires parliamentary approval. It cannot be imposed through a regulation, which is developed and enacted by the executive branch (the government).
- The Verdict: For these reasons, the Supreme Court declared the provision unconstitutional in its application and nullified Article 162.2.e) of the Immigration Regulations.
In plain language: The government cannot use a regulation to take away a right that is protected by a higher law. Since the main Immigration Law does not mention this six-month rule, the regulation that created it is invalid.
You can download the full Supreme Court ruling here:
[Download Supreme Court ruling on the Immigration Law Regulatione]
3) What this means for temporary residents:
This ruling is a significant victory for the rights of non-EU residents in Spain. If you hold a temporary residence card, you no longer need to worry about losing your status solely because you spend more than six months outside the country in a given year.
Important Note: While this specific cause for termination has been eliminated, you must still comply with all other renewal requirements for your specific type of residence permit, and you must not exceed the absence limits that apply to Long-Term Residence or Permanent Community Residence cards, which remain in effect.
4) Other types of residency available in spain:
- Digital-Nomad visa Spain (Remote worker in Spain)
- Non-Lucrative Visa Spain (Spanish visa non lucrative)
- Student-Visa Permit (Student-Visa & up-to 30 hours work per week)
- Self-Employed Visa Spain (Self employed expats in Spain)
- Visa-Categories in Spain (Arraigo, Special Cases, etc.)
Immigration procedures and immigration regulations change regularly, and it is crucial to stay updated with the most recent information from a reliable source. If you have any questions or concerns about your situation, we advise to consult an immigration authority or legal professional who specializes in immigration matters.
We offer Spanish Residence Services and can assist you with most Spanish legal processes.
Permanent residency is permitted after 5 years of Temporary Spanish Residency through Digital-Nomad, Non-Lucrative, Student-Visa or Self-Employed. This followed by 5 years of permanent residency in Spain and permits Spanish Citizenship applications to obtain a Spanish Passport.
