On 27th May 2019, the Supreme Court (“SC”) issued a ruling stating that temporary residence permits granted for exceptional reasons are subject to extension even when the situation giving rise to the granting of the permit persist for more than one year.
In this case, the father of a minor of Spanish nationality filed an application for the extension of his temporary residence permit for exceptional reasons of family ties in Spain, but the Government Sub-delegation in Alicante denied the application on the grounds that such an extension is not provided for in the Regulations of the Immigration Act that is inferred. A Contentious Court of Alicante, as well as the Superior Court of Justice of Valencia, rejected the father’s appeal and considered the decision of the Sub-delegation to be correct. Finally, the father submitted an appeal to the SC.
Section 1 of Article 130 of the Regulation of the Immigration Act 4/2004, which regulates the issue of the extension of temporary residence permits for exceptional reasons, provides as follows:
“By virtue of their exceptional nature, authorisations granted on the basis of the preceding articles, as well as their extensions, shall be valid for one year, without prejudice to the provisions of this article and the regulations on international protection.”
The SC mentions that by adopting the aforementioned rule, doubts may arise as to whether the validity of one year constitutes the maximum period of authorisations and their extensions, so that once this period has been exhausted with the initial authorisation or with the sum of the corresponding successive extensions, the situation of temporary residence is not viable due to exceptional circumstances, or whether this annual period of validity is governed individually for the initial authorisation and, where appropriate, for any consecutive extensions that may be granted.
In addition, the SC states that the exceptional nature (for reasons of family ties, international protection, community reasons, collaboration with the authorities, national security or public interest) does not in itself allow it to be understood that the period of one year constitutes the maximum term of the authorisations, including their extensions.In addition, the SC adds that, as its name suggests, the term of temporary authorisations for exceptional reasons is obviously temporary. Since the purpose of such authorisations is to respond to situations of exceptionality, their period of validity cannot be any other than that corresponding to the period for which the situation of exceptionality persists. This explains why the regulatory provision establishes a period of authorisation and extensions of one year. The purpose is to ensure that by adjusting the authorisation and the extensions of one-year periods to the situation giving rise to granting of the temporary authorisation, they may not be extended much beyond the time needed to deal with the circumstances of the exceptionality.
With respect to the case in question, the SC mentions that the authorisation for temporary residence due to family ties in the case of the father or mother of a minor of Spanish nationality and where the applicant parent has the minor under his or her care and lives with the child or is aware of the parent-child obligations with respect to the child, it makes no sense that once the period of the authorisation for one year has expired, and the situation contemplated at the time of the authorisation remains unchanged, the extension is be denied. Not only does it make no sense, it also contradicts the website of the Home Office and indirectly violates the legal protection that our internal law and the law of the European Union provide to minors. And in effect, the website of the Home Office expressly provides for the extension of the situation of temporary residence due to exceptional circumstances by informing that the holders of an authorisation granted by the Secretary for Security may extend the authorisation provided that the competent authorities consider that the reasons for initially granting it persist.
Thus, the SC concludes that the solution adopted in the contested decisions and in the appealed judgments “represent, albeit indirectly, a blatant infringement of the legal protection afforded to children by our legal system”, recognising the right of the father to have the request for an extension granted.
Mika Tsuyuki
Vilá Abogados
For more information, please contact:
21st June 2019
