Supreme Court annuls six-month temporary residence clause

The Contentious-Administrative Chamber of the Supreme Court has declared null and void the article of the Regulations of the Immigration Law that establishes as a cause for cancelling the authorisation of temporary residence in Spain of foreign citizens the permanence outside of Spain for more than six months in a period of one year.

The court points out that the article is null and void because it limits the fundamental right of free movement of foreign citizens with temporary residence in Spain, which can only be done by a norm with the force of law, but not by a regulatory norm as in this case. The Chamber recalls that no article of the Organic Law 4/2000, on the rights and freedoms of foreigners in Spain and their social integration, covers this provision of its Regulations, approved by Royal Decree 557/2011, nor does any European directive.

The Supreme Court therefore upholds the appeal of a citizen of Iran, whose temporary residence and work authorisation in Spain was declared extinguished in 2019 by the Government Sub-delegation in Girona, for having remained outside national territory for a period of more than six months, according to the report issued by the Barcelona-El Prat Airport Border Post.

In view of such facts, the Administration considered that the cause for extinction of the temporary residence authorisation established in article 162-2º-e) of the Regulation of Organic Law 4/2000, on Rights and Freedoms of Foreigners in Spain and their Social Integration.

The woman appealed to the courts, and the judgment of the Contentious Court considered the facts accredited since the absence of Spain had been admitted by the appellant herself. It also accepted that the woman had undergone surgery in Turkey on May 30, 2019, but added that she had not justified the period of time absent from Spain, given that on the date of the medical service the deadline had already passed, the six months indicated in the Regulation.

The woman then appealed to the Superior Court of Justice of Catalonia, which also dismissed her appeal (although with a dissenting vote), arguing, among other things, that the appellant had not adjudicated any cause of force majeure, and that in any case the reasons of expiration of the temporary residence authorisation established in article 162 of the Regulation are objective in nature, so that they operate from their mere concurrence regardless of the possible subjective imputability of the situation to the interested party or the possible incidence of force majeure.

The Supreme Court now considers her appeal and concludes that the absence from the national territory of a foreigner with temporary residence authorisation in Spain, during the period of six months, in the period of one year, referred to in the current article 162-2º- e) the RLOEX, cannot suppose the extinction of said authorisation.

It explains that if the reason for the revocation of temporary residence is the departure from the national territory at the times mentioned, it should be noted that what the precept imposes is that those who have said permit cannot leave Spanish territory during said period, when no precept of the Immigration Law imposes this obligation nor does it state that, for having left the national territory for the aforementioned period, in the annual computation, the temporary residence permit must be declared extinct.

In any case, the court makes it clear that it is not up to it to put itself in the situation of the legislator and determine if a limitation of this type is appropriate, but stresses that in any case it should be done by Organic Law and not by regulatory norm.

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