Introduction
The Spanish Supreme Court, through its ruling number 731/2023, has declared that article 162.2.e), of Royal Decree 557/2011 of the 20th of April, is null and void as it limits the fundamental rights contained in the Spanish Constitution to circulate and reside of foreign nationals in possession of a temporary residence permit for Spain.
Impact:
Medium
What has changed?
Holders of Temporary Residence Permits obtained under the General Immigration Law 4/2000 can no longer have their permits terminated on grounds of absences from Spanish soil of more than 6 months.
Who is affected?
The annulment affects legal residents with a temporary residence permit issued under the General Immigration Law 4/2000.
As for foreign holders of work and residence permits issued under the Entrepreneurs Law 14/2013, applicable to intra company transferees (ICTs), highly qualified professionals, investors, entrepreneurs, researchers, and their family members, among others, confirmation has not yet been received on whether this annulment will also be applicable to permits obtained under this specific law.
Even though the Entrepreneurs Law 14/2013 establishes that all matters not directly regulated by it will be regulated by the provisions contained in the General Immigration Law 4/2000, the Supreme Court ruling strictly refers to the General Immigration Law 4/2000.
What to expect/impact
Legal residents with permits issued under the General Immigration Law 4/2000 can remain for more than 6 months in a one-year period outside of Spanish soil without fear of having their residence cancelled.
What you need to do
As the annulment currently only refers directly to the General Immigration Law 4/2000, holders of permits under the Entrepreneurs Law 14/2013 should use caution and not exceed six month absences until official confirmation issued that the annulment is also applicable to permits obtained under the Entrepreneurs Law 14/2013.
We will keep monitoring the situation for any future changes or confirmation on whether the annulment is extended to other immigration regulations.
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