New controversial administrative practices
It is not uncommon for a foreign person to have a minor child with Spanish citizenship in an illegal situation. Such a situation can give rise to various circumstances, and, obviously, this is an exceptional situation that has long deserved specific regulation that would allow, in the interests of the child, to resolve the situation of his foreign parents.
In 2011, a concrete solution was proposed that was not subject to discretionary interpretation by the authorities.
Thus, the Regulation on The Rights And Freedoms Of Foreigners In Spain (Royal Decree 557/2011) established the right to obtain a residence permit in exceptional cases (Article 124.3.a) for the parents of a minor Spaniard.
However, the Regulation also introduced one innovation regarding obtaining a residence permit due to exceptional circumstances. Such permits are not currently renewable, but at the end of their validity period, they can be reviewed to obtain the original residence permit. However, in practice, the requirements for revision are the same as for renewal, and even on the government website, this procedure is documented in the permit renewal section.
It is not surprising that many people who have received a residence permit for family residence, at the end of its validity period, cannot reissue it without fulfilling the necessary requirements, usually without paying the necessary period of social insurance and not having sufficient income to receive a non-commercial residence permit (currently 2,219 euros per month).
What happens in these situations?
At first, one would say that while the requirements for obtaining family residency are being met (that is, while a minor child with Spanish citizenship is being raised), it would be appropriate to apply again for the same residence permit for family residency.
However, the authorities began to inform people in such a situation of the difficulty and impossibility of submitting such a request.
Unfortunately, this is an offense of the administrative practice of informing a foreigner that his application cannot be accepted, which is a clear violation of Law 30/1992 and makes many people refuse to submit a request. But even if the foreigner knows about his rights and insists, the request is accepted, but taken into consideration, with reference to the fact that it is a repetition of previous request.
However, the right to life in the family is enshrined in Art. 8 of the European Convention on Human Rights and Art. 23 International Covenant on Civil and Political Rights. Therefore, Spain must abide by one of the principles of international human rights law.
In turn, the Ombudsman recently made the following recommendation on this procedure: “give urgent instructions to committees and subcommittees of the government so that they provide residence permits for family residence to people who, after the expiration of the validity period of their cards, recieved in the same way, have not fulfilled the necessary requirements to obtain a residence permit and work at one’s or another’s expense “
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