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FOREIGN NATIONALS.
Spain's Immigration Act has undergone several amendments in recent years. For the purposes of this legislation, and without prejudice to the provisions of International Treaties, a foreign national is defined as any person who does not hold Spanish nationality.
MAIN RIGHTS AND FREEDOMS OF FOREIGN NATIONALS IN SPAIN:
In the employment context, the following rights of foreign nationals must always be respected:
· The right to carry out paid work, whether as an employee or on a self-employed basis: income earned in Spain is subject to Spanish tax law, but may be transferred to family members abroad.
· The right to be employed as staff within Public Administrations, on equal terms with nationals of EU Member States.
· The right to access Social Security services and benefits: residents are entitled to these on the same basis as Spanish nationals. All other foreign nationals are entitled to basic services and benefits.
· The right to healthcare.
· The right to join a trade union freely.
· The right to strike in defence of their interests.
LEGAL SITUATIONS OF FOREIGN NATIONALS IN SPAIN:
ENTRY INTO SPAIN:
Requirements:
· A valid passport or identity document.
· Evidence of sufficient financial means to cover the duration of the stay in Spain.
· A visa issued by a Spanish consular office.
There is one exception under which these entry requirements do not apply: where the foreign national is seeking asylum, or where there are humanitarian grounds for requesting entry into the country.
SHORT-STAY STATUS:
Permits a stay in Spain of up to 90 days.
To remain in Spain beyond this period, it is possible to apply for:
· An extension of a further 90 days.
· A residence permit.
TEMPORARY RESIDENCE STATUS:
Allows the holder to remain in Spain for between 91 days and less than 5 years.
To apply for this type of residence permit, at least one of the following requirements must be met:
· Having sufficient means of support to cover the living and accommodation expenses of the family for the duration of the authorisation requested, without needing to engage in any gainful activity.
· Intending to carry out a self-employed gainful activity and having applied for any necessary licences or permits.
· Holding a job offer under an employment contract.
· Being a beneficiary of the right to family reunification. The following persons are entitled to join a foreign national lawfully residing in Spain through family reunification:
- The spouse
- The children of the foreign national and their spouse.
- The foreign national's ascendants who are financially dependent on them.
· Demonstrating 2 years of uninterrupted stay in Spain and being registered on the municipal census (empadronamiento) at the time of the application.
In all cases, the granting of residence requires that the applicant has no criminal record in Spain or in any other country where they have previously resided.
Once authorisation has been granted, the Ministry of the Interior must be notified of any change of address or nationality.
PERMANENT RESIDENCE STATUS:
Allows the holder to live and work in Spain on equal terms with Spanish nationals.
This status is available to those who have held temporary residence for 5 years. Alternatively, it may be granted after less than 5 years where there are grounds demonstrating a special connection with Spain.
REQUIREMENTS FOR FOREIGN NATIONALS AGED 16 AND OVER TO WORK IN SPAIN:
Self-employed economic activities:
To carry out this type of activity, the following is required:
· Demonstrating that administrative authorisation to carry out the activity has been applied for.
· Meeting the same requirements that apply to Spanish nationals for the activity in question.
Employed (salaried) lucrative activities:
A foreign national wishing to work as an employee must obtain a work permit, which will initially be granted:
· Taking into account the national employment situation.
· For a period of less than 5 years.
· Subject to possible restrictions by territory, sector or type of activity.
· Automatically, for 1 year, to those holding a residence permit who can demonstrate 2 years of continuous residence in Spain.
To hire a foreign employee, the employer must obtain prior authorisation from the Ministry of Labour. Any failure by the employer to comply with this obligation may not be used to the detriment of the employee's rights.
Upon expiry, the work permit will be renewed in the following circumstances:
· If the employment contract or job offer remains in force or is renewed.
· Automatic renewal will apply for as long as the holder is receiving contributory unemployment benefit.
· It will be renewed on a permanent basis once 5 years have elapsed since the initial grant.
The following do not require a work permit:
· Scientists invited or contracted by the State.
· Professors invited by a Spanish university.
· Civil or military officials of foreign state administrations.
· Artists coming to Spain to perform specific engagements.
· Representatives of religious churches and denominations.
· Foreign nationals holding a permanent residence permit in Spain.
IMMIGRATION OFFENCES:
The following are considered minor offences (subject to a 6-month limitation period):
· Failure to notify, or delay in notifying, the Spanish authorities of changes of nationality or address.
· Delays of up to 3 months in applying to renew expired authorisations.
· Working without having applied for a work permit.
The following are considered serious infringements (subject to a 2-year limitation period):
· Remaining in Spain irregularly due to failure to obtain an extension of stay.
· Entering Spanish territory without the required documentation.
· Committing a third minor infringement, provided that two minor offences have been sanctioned within the preceding 6 months.
· Participating in illegal activities.
The following are classified as very serious infringements:
· Participating in activities contrary to the external security of the state.
· Inducing or promoting, as part of a profit-making organisation, the clandestine immigration of persons into Spanish territory.
· Habitually employing foreign workers without having first obtained the corresponding authorisation.
PENALTIES:
· Minor infringements carry a fine of up to €300.51.
· Serious infringements carry a fine of between €300.51 and €6,010.12. Depending on the nature of the offence, expulsion from Spain may also be ordered.
· Very serious infringements carry a fine of between €6,010.12 and €60,101.21, in addition to expulsion from the country.
An expulsion order carries with it an implicit ban on re-entering Spain for a period of between 3 and 10 years.
