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Country Update 2021: SPAIN

Contributed by: Andrés de Ceballos Cabrillo & Cristina García Escudero

June 2019 to May 2021

1. Country Overview

The main theme of migration in Spain during this period has been the humanitarian crisis due to the arrivals of migrants in the south border, particularly in Ceuta in May 2021. In addition, the Supreme Court has corrected case law in various areas, mainly by application of the doctrine of the ECJ.

2. Legislative Changes

The period June 2020 – June 2021 can be defined by a total absence of new regulations in both legislative and administrative levels as has been the norm in previous years

The only administrative rulings are instructions from the General Direction of Migrations, some of which are due to the situation derived from COVID-19 and cover the following areas:

  • Flexibility of the requirement of sufficient means in the processing of residence permits for regrouping family.

  • Renewal of residence and/or work authorisations in the context of COVID-19.

  • Procedures initiated regarding social rooting in the context of COVD-19.

  • Displacement of foreign minors for schooling purposes.

  • Procedure for issuance of the residence document provided for in art. 18.4 of the Brexit Agreement.

  • Residence in Spain of parents, nationals of third countries, of minors who are citizens of the Union, including Spaniards.

  • Regime applicable to young people, third-country nationals, who are in a regular situation between the ages of 18 and 21 who have been employed in the agricultural sector.

3. Business Immigration

No major changes in this area.

4. Family based immigration.

There have been no legislative changes in this area, but some interesting cases have arisen in relation to family reunification.

Firstly, the effects of case RH, C-836/18, of 27 February 2021, in relation to requirements for family reunification, where traditionally the Supreme Court decided by automatic proceedings, the administration is now required to study each application on a case by case basis, particularly regarding the economic means.

In another case it was determined that the economic means is not restricted to only what can be provided by the applicant.

Finally, due to the case law of the ECHR and the ECJ, foreign parents of Spanish children with criminal records can be granted residence,.

5. Asylum

The Asylum Office is still collapsed, and its rationale is increasingly political and less legally grounded. Protection continues to be granted on humanitarian grounds to every Venezuelan national with no criminal record, while applications from Colombian nationals who are not social leaders are all denied.

Both Administration and Courts do not allow asylum seekers to work while appealing the rejection at first instance, in contravention of the European Directive 2013/33/EU and the ECJ ruling C-181/16.

6. Deportation

The main issue of deportation in Spain is still the consequences of the called Zaizoune case law of the ECJ (C-38/14). The interpretation of the case law by Spanish administration and Spanish Court established the incompatibility of an economic penalty with the EU deportation system. Deportation was the only answer to the illegal residence.

This interpretation has been rejected by the ECJ case C-568/19 MO, of 8 October 2020 in which the Court established the non-direct effect of Directive 2008/115 CE when contrary to the interest of a citizen.

This last sentence has created a new doctrine by Courts (STS 17th March 2021) in which an economic penalty is not accepted, and the deportation is only possible in some cases when there is an aggravating cause.

In any case there is still another case pending before the ECJ C-409/2020 UN. It will decide about the compatibility of Spanish legislation regarding deportation with EU law.

7. Citizenship

No major changes except the development of an online system for applying for nationalities. The system, which is centralised in the Ministry of Justice in Madrid, is still collapsed. There have been instances where the Spanish nationality of citizens of the former provinces of Sahara and Equatorial Guinea have not been recognised.

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