How to Regularize My Situation in Spain?
Many foreign citizens find themselves in irregular situations in Spain and wonder how to become legal residents. The reasons for being in this situation vary. One of the most common cases is that of foreigners who enter Spain as tourists and, once the maximum 90-day period allowed in this situation has elapsed, do not return to their country of origin.
There are also cases of people who have enjoyed legal residency for a certain period and later lost it, becoming irregular residents.
Being irregular means that the foreigner cannot work legally, which in turn means they cannot contribute to social security and receive unemployment benefits while in this situation. Moreover, logically, there is the risk of being detected, leading to administrative expulsion proceedings. Therefore, it is best to regularize one’s situation in Spain, and at esabogadoextranjeria.com, we can help with that.
When a foreigner is in an irregular situation, the first thing to do is to learn about the different ways to regularize their status. There are several avenues that may allow one to exit this situation, and although they require strict requirements, many foreigners meet them.
How to Regularize an Immigrant’s Situation in Spain?
Next, we will explain the residency authorizations that an irregular foreigner in Spain could apply for, that is, the requirements to become legal residents in Spain and regularize their situation. The ways to become legal residents in Spain are as follows:
Social Rooting
Residence and Work Permit for Social Rooting
Through social rooting, many foreigners have been able to regularize their situation in Spain, that is, to become legal residents in Spain. However, it has a clear disadvantage, as it requires 3 years of residency.
Believe it or not, there are many people who accumulate all this time in Spain without a residency permit, either because they have worked «under the table» (that is, without a contract and without contributing to Social Security) or because a family member has been able to support them.
Regardless of the above, once the 3 years have passed, we can apply for this residence permit, which among other requirements demands that we have a job contract. In reality, it is a pre-employment contract, as until the Immigration Office issues the resolution recognizing the residence permit for social rooting, the company cannot register the worker.
It is common to include a clause in the contract that conditions its effectiveness on the approval of the residence permit to regularize the situation in Spain and become a legal resident.
In addition to the contract, other requirements will be demanded.
Labor Rooting
How to Be a Legal Resident in Spain?
Another option on how to become a legal immigrant in Spain may be the residence permit for labor rooting, which has an advantage and a disadvantage compared to social rooting.
The advantage is that it requires a shorter previous residency period, only two years.
The disadvantage is that we have to demonstrate that we have worked for at least 6 months within the 2-year period, which implies suing the company judicially or before the Labor Inspection to regularize the situation in Spain.
In practice, we know that often it is a friend or a family member who offers work to the irregular foreigner, so the option of suing is usually ruled out.
In reality, this does not always imply a disadvantage, since sometimes after working for a year (even irregularly), the foreigner is dismissed. In this case, it is possible to sue the company to claim severance pay and also to request recognition of the employment relationship for the duration of the employment.
Family Rooting
Documents to be Legal in Spain
Unlike the two cases we’ve seen before, family rooting does not require a previous residency period to regularize the situation in Spain.
To apply for it, we must be in one of the following situations:
Being a parent of a minor with Spanish nationality. If we have a minor child who already has Spanish nationality, we can directly apply for family rooting. However, the child must be under our care, which implies living with them or, in the case of divorce from the other parent, fulfilling parental obligations (i.e., paying any determined child support). Being the child of a parent who was originally Spanish. If our parent had Spanish nationality by birth and we can prove it, we can also apply for family rooting. If you want to know more about the residence permit for family rooting, we recommend you read our article: «What is Family Rooting?»
Community Card
Regularizing my Situation in Spain
The community card is not, as such, a way to regularize one’s situation in Spain. This card can be requested by those who are relatives of a citizen of the European Union (including Spaniards, of course), a citizen of the European Economic Area, or Switzerland.
In principle, this card should be applied for from the country of origin, requesting what is known as a «community visa» in the case of coming from a country that requires a visa to enter Spain. Once in Spain, the Community Card can be requested within 3 months of entry.
However, in practice, this card is granted to those who are already in Spain and meet the requirements for community reunification.
That is, spouses, for example, could be reunited even if they are already in Spain. Obviously, the marriage would have to be genuine and not fraudulent; if it is a marriage of convenience, the Immigration Office may suspect and request additional documentation.
Let’s provide an example to better understand. Raúl, a Spanish citizen, worked in Uruguay for 2 years. Three months after arriving, he met Sofia, and they have been together since then.
If, for whatever reason, they return to Spain and she has not applied for any type of residence permit, she would be in an irregular situation. In this case, what would need to be done is to apply for a Community Card (also called a community residence permit), whether it’s for an unregistered partnership, a registered partnership, or a marriage.
Residence Permit for Asylum, International Protection, or Refugee Status
Other Options to Regularize Situation in Spain
When a citizen arrives in Spain and applies for asylum, international protection, or refugee status, if their application is accepted, they are granted what is known as a Red Card (Document certifying the status of applicant in the processing of international protection), which allows them to reside and even work after 6 months, while the procedure is being resolved.
In practice, these procedures can take a long time to resolve, sometimes even years. The only good thing is that during this time we will be in a legal situation.
If, at the end of the procedure, our asylum application is denied, we will transition to an irregular situation, although we may already meet the requirements for work authorization.
In conclusion, what we want to convey with this article is that there are legal avenues to stop being in an irregular situation, and as soon as we meet the requirements, we should apply for one of these permits.
Of course, if you need more information or want to discuss your particular case, do not hesitate to contact us.
Marta Palacios Cuesta is the founder and principal consultant of Es Abogado Extranjería, a law firm specializing in immigration law in Madrid and Seville. With an impressive academic background, Marta offers expert advice on immigration procedures, residency processes and obtaining Spanish nationality. Committed to providing personalized and up-to-date solutions, her firm stands out for its detailed and professional approach. If you need legal guidance regarding your status in Spain, contact Marta for a personalized consultation at Es Abogado Extranjería.