FOREIGN NEWS: INSTRUCTION DGM 8/2020 ON THE RESIDENCE IN SPAIN OF THE PARENTS, NATIONALS OF THIRD COUNTRIES, OF MINORS CITIZENS OF THE UNION, INCLUDING SPANIARDS
A) MINORS NATIONALS OF AN EU COUNTRY (THEY DO NOT HAVE SPANISH NATIONALITY)
The figure of family roots has been, to date, giving legal coverage to the residence permits of parents, nationals of third countries, of Spanish minors.
What was family roots? We processed family roots when we, as undocumented persons, were the fathers or mothers of a minor of Spanish nationality, provided that we demonstrated that the parent who requested it was in charge of the minor and lived with him or was aware of the parental obligations regarding the same. The permit was given to us for one year. After that year, we had to renew the authorization, but presenting an employment contract ourselves.
However, the new regulations do not restrict solely and exclusively to this assumption. It has now expanded and applies to those cases in which we are parents of a minor who is a national of a member state of the EU, European Economic Area or Switzerland, and residing in Spain. For example: I am undocumented and I live with my son who has French nationality.
What is the reason for this extension? Family roots only had a national character, that is, for minors of Spanish nationality. Now it allows us that, if our son is French, for example, as he is within the EU countries, we can process a family settlement. This expansion obeys the principle of free movement.
What has been taken into account to process this type of card in these cases?
- First: Family roots limited the granting of residence for one year.
- Second: that at the time the arraigo was granted they could deny you if you have a criminal record.
- Third: once that year had elapsed, a residence or residence and work authorization had to be requested “as long as the requirements established for obtaining it were met” (what is known as a modification).
To renew our residence card, we had to do it with a work contract. What happens in cases where I do not have an employment contract to process my renewal? This caused a supervening irregularity for those parents who after the year did not meet the requirements required by law for renewal.
The new regulations abolish the temporary limit of validity for one year of family roots. It is established that it may be extended annually, as many times as necessary, in accordance with the best interests of the minor. In other words, if I do not meet the requirements for modifying my card, I automatically have to be able to process an extension of my authorization for family roots.
EU FAMILY RESIDENCE CARD
Now, starting from the same example, my son is French and I am an undocumented person in Spain, I will not always have to resort to this figure of family roots to regularize my situation (Let us understand this figure of family roots in the community context).
La nueva normativa nos dice que, si el progenitor del menor nacional de un estado de la UE tiene, para él y para los miembros de la familia, un seguro de enfermedad (para no ser una carga para España), y también recursos suficientes, You can apply for the residence card of a family member of a Union citizen.
This procedure already exists and gives the right to reside and work for 5 years in Spain. Therefore, this assumption is incorporated into this procedure. In order to benefit from the right of residence for 5 years, I have to meet a series of requirements. If not, I will have to process a family root (explained previously).
Therefore, following the same example, to know if I have to process a family root, or a residence card for a family member of an EU citizen, it will depend on whether I meet a series of requirements: the most important thing is to know if I can accredit that I have health insurance and also sufficient resources.
This is the main and most important novelty.
Pero What would happen if during the validity of my family roots, it turns out that I access a work activity and receive sufficient resources? The new regulations tell us that we can process a residence card for a family member of an EU citizen at any time.
MINOR OF SPANISH NATIONALITY
228 / 5.000 Resultados de traducción Now, when we have children of Spanish nationality, with the new regulations, an analog authorization can be processed to a residence authorization for being a family member of the EU (5 years of residing and working in Spain). Certain requirements must always be met. Therefore, a de facto residence permit for an EU family member will not be processed. It is very important to be clear that analogous does not mean the same. But similar.
The decision to grant or deny this authorization cannot be based on automatic denial criteria, such as the parent’s criminal record. The decision to grant or deny this authorization cannot be based on automatic denial criteria, such as the parent’s criminal record. Understood infraction of public order as a real, current and sufficiently serious threat that affects the fundamental interest of society.
The best interests of the minor are prioritized over an automatic denial. An automatic denial would mean that the parent would have to leave the country.
Anna Nicolàs Torán
Immigration Lawyer at Martinez & Caballero Lawyers