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SHOULD THE TEMPORARY RESIDENCE AND WORK PERMIT EXPRESSLY STATE WHETHER IT IS 'SELF-EMPLOYED' OR 'EMPLOYED', AND IS IT ALWAYS SPECIFICALLY STATED?
Residence and work permits that have been applied for in order to work as an employee or self-employed person usually state the type of residence that has been granted, and may limit the work activity to one of the two regimes. In turn, this type of authorisation may limit the sector of activity and the geographical area in which the worker may carry out his or her activity.
As for the ‘arraigo social’, although it is not limited to a geographical area or activity, it will be determined whether the permit is 'employed' or 'self-employed', depending on how the application has been handled.
DOES THE LONG-TERM RESIDENCE PERMIT ENTITLE THE HOLDER TO WORK BOTH AS AN EMPLOYEE AND AS A SELF-EMPLOYED PERSON?
Yes, long-term permits do not impose limitations and you can work under the same conditions as a Spanish national.
WHAT IS THE DEADLINE FOR THE HOLDER TO APPLY FOR THE RENEWAL OF HIS/HER RESIDENCE PERMIT?
The renewal application for these permits may be submitted 60 days prior to the end of the permit’s validity and up to 90 days after its expiry.
In the event that the application is submitted within three months of the date on which the previous authorisation expired, the permit will be extended until the procedure is resolved without prejudice to the initiation of the corresponding sanctioning procedure for the infringement incurred.
FROM THE DAY THE RESIDENCE PERMIT EXPIRES AND THE WORKER HAS SUBMITTED THE APPLICATION FOR RENEWAL, THE ADMINISTRATION HAS 3 MONTHS TO ISSUE AN AFFIRMATIVE OR NEGATIVE REPLY.
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ARE THE 3 MONTHS COUNTED FROM THE DATE OF SUBMISSION OF THE RENEWAL APPLICATION (FIRST 2 MONTHS) OR FROM THE EXPIRY OF THE WORK PERMIT?
The three months are counted from the day on which the application for renewal was submitted.
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WHAT IS A DISCRETIONARY APPEAL (EL RECURSO POTESTATIVO DE APELACIÓN)?
The discretionary appeal (el recurso potestativo de apelación) is the instrument by virtue of which citizens can request the review of acts and/or resolutions issued by an administrative body, provided that it has put an end to administrative proceedings. This appeal is discretionary, as it can be dispensed with and can go directly to the contentious-administrative jurisdiction.
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FROM THE DAY THE PERMIT EXPIRES:
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CAN THE WORKER BE HIRED DURING THE 3 MONTHS AFTER THEY SUBMITTED THE APPLICATION FOR RENEWAL AND WHILE THEY ARE WAITING FOR AN ANSWER?
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Yes, it is possible to employ a person, or to keep him/her registered with Social Security, when the application for renewal/extension of the previous permit of which he/she is the holder has been submitted. This is because the fact of having applied for renewal extends the effects of the permit until there is a resolution.
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DOES THE ADMINISTRATION ALWAYS RESPOND WHETHER IT BE TO GRANT OR TO DENY A PERMIT?
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As a general rule, yes.
If they do not, in the case of the renewal of residence permits for self-employed and employed work, if the period of three months has passed without the Administration notifying the interested party, it may be understood that the application has been accepted by administrative silence (estimada por silencio administrative). The competent granting authority shall issue, at the request of the interested party, a certificate granting the renewal for this reason.
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CAN A WORKER BE HIRED WHEN AN APPEAL HAS BEEN LODGED?
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In the event of a refusal to renew, the lodging of an administrative appeal does not suspend the effects of the contested decision. As such, the worker should ask the body that is managing the renewal (and the corresponding appeal) to suspend the effects and validity of the decision, in order to be able to keep his or her residence and work permit during the process and thus be able to stay and work in Spain.
Article 117 of the Law on Common Administrative Procedure.
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WHAT HAPPENS IF THE APPLICANT DOES NOT RECEIVE A FAVOURABLE RESPONSE TO THEIR RENEWAL APPLICATION AND HAS LODGED AN APPEAL?
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DOES THE WORKER HAVE TO BE DISIMISSED FROM THEIR JOB OR CAN HE/SHE CONTINUE TO WORK UNTIL A REPLY TO THE APPEAL IS RECEIVED?
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If the worker has appealed the decision, but does not have any document proving that the Administration has suspended the effects of the contested decision, then yes, the worker must be removed from the Social Security system as he/she would not be authorised to work in Spain.
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HOW MUCH TIME MUST PASS BEFORE IT IS UNDERSTOOD THAT THERE HAS BEEN A NEGATIVE SILENCE?
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The maximum period that the administration has to issue and notify the resolution of the appeal is one month. Once this period has elapsed without an express decision, the appeal may be understood to have been denied but the option of contentious-administrative procedure remains open.
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IF ONE HAS APPEALED TO THE ADMINISTRATIVE COURTS AND IS AWAITING TRIAL
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CAN HE/SHE BE EMPLOYED OR CAN SHE BE DISCHARGED WITH ANOTHER EMPLOYER?
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In this case, the worker must apply to the Court for the adoption of a precautionary measure suspending the validity of the decision of the Immigration Office.
The request established in art. 117 (Suspension of enforcement) must be substantiated and reasoned.
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WHEN THEIR TIE EXPIRES AND THEY APPLY FOR RENEWAL
Foreigners who are holders of a long-term residence permit will only have to renew their TIE, they will no longer have to go to the Immigration Office. Therefore, they must go to the Police Station to apply for the renewal of the TIE and during this process they can continue to work.
NIE, TIE AND CUE
NIE: stands for ‘Número de identificación de extranjero (Foreigner identification number)’. It is only the number and has no physical support. It is assigned to all foreigners in Spain in order to identify them administratively before the Spanish State bodies.
It must be processed by any foreigner who, for whatever reason, is going to carry out any procedure with the Spanish public administration.
As such, it is important to bear in mind that the NIE does not imply residence or legal stay in Spain. In order to be a legal resident in Spain, you must apply for some type of residence/visa/stay/nationality.
Since the NIE is only the number, depending on each case, it can be found on the CUE (EU citizens), on the TIE (non-EU citizens) or on a non-resident NIE document (a white A4 sheet).
CUE: Non-Spanish EU citizens who want to live and work in Spain for more than 90 days must apply for the CUE. The CUE is the ‘Certificado de Registro de la Unión Europea’ (Certificate of Registration of EU Citizens)).
The CUE is the document that certifies the registration in the Central Register of Foreigners of the citizens of a Member State of the European Union or of another State party to the Agreement on the European Economic Area who are going to reside in Spain. It is a small green piece of paper without a photo and it must be accompanied by an official photo ID that supports the identity of the holder.
TIE: The TIE is the ‘Tarjeta de Identidad de Extranjero’ (Foreigner's Identity Card). It is the only and exclusive document that accredits the legal situation of non-EU foreigners (nationals of any country that does not belong to the European Union) in Spain. All non-EU nationals living in Spain with a legal residence/stay must have a TIE.
By exception, it is not required for those who are authorised to stay in Spain for a period of 6 months or less.
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DOES AN EXPIRED NIE IMPLY ILLEGALITY OF RESIDENCE/WORK OR DOES IT AFFECT THE TIE?
The NIE does not expire. What expires is the residence and the TIE.
In the event that a person's TIE expires, he/she must renew his/her residence and/or TIE in order to continue living in Spain legally.
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CAN THE NIE ALSO INDICATE THE AUTHORISATION TO RESIDE AND WORK OR IS IT ONLY THE TIE?
No, the NIE is only a number, the document that proves residence is the decision of the Immigration Office and the TIE.
COMMUNITY REGIME
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CAN THOSE NATURAL PERSONS WITH A "COMMUNITY REGIME" CARD RESIDE AND WORK WITHOUT ANY LIMITATIONS UNDER THE SAME CONDITIONS AS A SPANISH RESIDENT? ARE PERSONS IN THE "COMMUNITY REGIME" UNDERSTOOD TO BE THOSE COMING FROM AN EU MEMBER STATE AS WELL AS FROM THE EEC?
Yes, they will be able to work as self-employed and employed persons without limitations. When they move to Spain for more than 90 days, they must apply for a CUE.
This applies both to nationals of Member States of the European Union and to nationals of another State party to the Agreement on the European Economic Area.
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IS IT THE SAME AS FAMILY REUNIFICATION?
Family members wishing to accompany or join in Spain a citizen of a Member State of the EU, of a State party to the EEA Agreement or of Switzerland but who are not themselves nationals of one of these States may reside in Spain for a period of more than three months. To this end, they must obtain the ‘tarjeta de residencia de familiar de ciudadano de la Unión’ (residence card of a family member of a Union citizen)
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DOES IT ENTITLE THE FAMILY MEMBER TO WORK AS AN EMPLOYEE OR SELF-EMPLOYED PERSON?
Yes, this type of residence gives family members the right to work as employees or self-employed persons without limitations.
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WHAT HAPPENS IF THE THIRD-COUNTRY NATIONAL AND EU FAMILY MEMBER CEASES TO BE AN EU FAMILY MEMBER (DUE TO DEATH, DIVORCE, ETC. OF THE EU FAMILY MEMBER)? IF THE THIRD-COUNTRY NATIONAL DOES NOT HAVE THE RIGHT OF PERMANENT RESIDENCE, SHOULD THEY START THE PROCEDURE FOR OBTAINING A RESIDENCE AND WORK PERMIT? DO THEY OBTAIN PERMANENT RESIDENCE FROM THE OUTSET OR DOES THE PROCEDURE START FROM ZERO?
When the first application is made, the family member obtains a ‘temporary’ or ‘initial’ residence permit, which is valid, in general, for five years. Once its validity comes to an end, if everything remains the same (the link with the EU citizen remains unchanged), the foreigner may renew his or her authorisation. If, on the other hand, the link has been broken, the foreigner is obliged to notify the Immigration Office of this situation.
Once the Immigration Office has been informed of the dissolution of the relationship, it is necessary to check whether the foreigner will maintain the right to the residence card or not. In this respect, they will keep the right to keep the same card if:
- The duration of the marriage until the start of the legal proceedings for annulment of the marriage, divorce or cancellation of the registration as a registered partner, has been three years. Likewise, it must be shown that at least one of the years has been spent in Spain;
- Custody of the children of an EU citizen has been granted by mutual agreement or court decision to a former spouse or registered ex-partner who is not from an EU Member State or a State party to the Agreement on the European Economic Area;
- They been a victim of gender-based violence during the marriage or partnership;
- They have been subjected to human trafficking by a spouse or partner during the marriage or partnership;
- Judicial resolution between the parties has determined that the ex-spouse or ex-partner (who is not an EU citizen) has visitation rights to their minor children, in those cases where the minor has their residence in Spain.
In the event that the foreigner does not fall into any of the above cases, and therefore does not have the right to keep his/her Community card, he/she must request a modification of the type of authorisation, changing from the Community regime to the general regime.
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DO ALL WORKERS WHO HAVE BEEN IN SPAIN FOR MORE THAN THREE MONTHS HAVE TO APPLY FOR A NIE, EVEN IF THEY HAVE A PASSPORT/IDENTITY CARD FROM THEIR COUNTRY, E.G. ITALY?
Yes, in order to be able to live legally in Spain, any EU citizen who wants to reside in Spain for more than 90 days must apply for a CUE (which will include a NIE).
ARRAIGOS
Arraigos is the legal concept that allows foreigners in Spain who are in an irregular situation to regularise their situation. This type of authorisation is included in the concept of exceptional circumstances.
THERE ARE FOUR DIFFERENT TYPES OF ARRAIGO:
- ARRAIGO LABORAL (LABOUR ARRAIGO):
It will be granted only to those people who can demonstrate working relationships in Spain for at least 6 months, in addition to having lived in the country continuously for 2 years.
- ARRAIGO SOCIAL (SOCIAL ARRAIGO):
The arraigo social can be obtained by those foreigners who are irregular and have been continuously in Spain for 3 years (albeit irregularly), and who also have an employment contract that guarantees minimum wage.
- ARRAIGO FAMILIAR (FAMILY ARRAIGO):
This type of arraigo can be requested by persons who are direct relatives of a Spanish national of origin (parents, children, spouse/partner).
In the case of parents of minors, this is the only arraigo permit that can be renewed.
- ARRAIGO PARA LA FORMACIÓN (ARRAIGO FOR STUDIES):
To obtain this residence permit the foreigner must have been in Spain for at least 2 years and commits to undertaking regulated training for employment or to obtain a professional qualification, or training leading to obtaining the technical aptitude certification or professional qualification necessary for the exercise of a specific occupation, or one promoted by the Public Employment Services or university studies.
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DOES THE APPLICATION FOR SOCIAL ARRAIGO AND/OR LABOUR ARRAIGO AUTHORISE TEMPORARY RESIDENCE OR MUST 6 MONTHS PASS SINCE THE APPLICATION (NOT DENIED) IN ORDER TO DO SO?
Once the arraigo is approved by the Immigration Office of the foreigner's place of residence, the foreigner already has his/her residence and can be hired in Spain.
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DIFFERENCE BETWEEN ARRAIGO APPLICATIONS (EMPLOYMENT, SOCIAL, FAMILY) AND A RESIDENCE AND WORK PERMIT.
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DOES IT GIVE THE SAME ENTITLEMENT?
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Yes, they give the right to live and work in Spain. The difference lies in the requirements for each of the arraigos, the documents that must be provided.
Arraigo residence and work permits are valid for one year and cannot be renewed. Once the year has finished, a change of situation must be submitted and another type of permit/residence must be applied for.
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WHO CAN APPLY FOR ARRAIGO?
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Arraigo can be applied for by any foreign citizen who is in Spain irregularly. It will depend on the type of arraigo to determine the time requirements (i.e. how long the person must have lived in Spain irregularly in order to be able to apply for regularisation of their situation).
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CAN A PERSON WHO HAS BEEN DENIED THE ARRAIGO OBTAIN A RESIDENCE OR WORK PERMIT?
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The reason for the refusal and the options available to the foreigner would have to be determined. If he/she fulfils the requirements, he/she could apply for a new residence permit and thus regularise his/her situation.
If a person is in Spain illegally, the only way to regularise his or her situation is by means of an arraigo (fulfilling all the requirements) or by means of marriage or official partnership with a Spanish or EU resident in Spain.
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IF WE ARE ASKED FOR A PRE-CONTRACT IN ORDER TO BE ABLE TO ACQUIRE THE LABOUR ARRAIGO, WHEN SHOULD WE REGISTER THIS EMPLOYEE WITH THE SOCIAL SECURITY SYSTEM: ONCE HE/SHE HAS ACQUIRED THE ARRAIGO, ONCE 6 MONTHS HAVE ELAPSED SINCE THE APPLICATION FOR THE ARRAIGO, OR WHEN? WE UNDERSTAND THAT WITH A SIMPLE PRE-CONTRACT, WITHOUT HAVING REGULARISED HIS/HER RESIDENCE SITUATION, WHETHER VIA SOCIAL OR LABOUR ARRAIGO, WE CANNOT REGISTER THIS EMPLOYEE.
In the case of social arraigo, the company must sign the employment contract and, in the additional clauses of the contract, it must be specified that the contract will come into force when the foreigner's permit is approved. In this respect, once the residence and work permit is approved, the company has a period of one month to register the worker. Once the worker has been registered, the Immigration Office must be informed that the foreigner has been registered.
WITH REGARD TO THE EMPLOYMENT CONTRACT IN THE CASE OF SOCIAL ARRAIGO:
- The duration of the contract must be at least as long as the duration of the validity of the permit applied for.
- The start date of the contract is conditional on date on which the permit applied for comes into effect.
- The clause to be included in the contract in relation to the two previous points:
- “Dada la vinculación de este contrato con la solicitud de una autorización de residencia y trabajo a favor de la persona trabajadora, se deja constancia que la fecha de inicio del contrato será aquella en que la autorización solicitada tome eficacia, y que la empresa o el empleador/a se compromete a mantener la actividad laboral de la persona trabajadora de manera continuada como mínimo durante toda la duración de la autorización que se obtendrá.”
("Given the link between this contract and the application for a residence and work permit in favour of the worker, it is hereby stated that the start date of the contract will be that on which the permit applied for becomes effective, and that the company or employer undertakes to maintain the employment activity of the worker continuously for at least the entire duration of the permit to be obtained.")
- The remuneration that the worker will receive, expressed in euros, and the number of payments in which it is distributed annually, must be expressly stated. In the case of part-time contracts, the remuneration must be at least equal to the full-time minimum wage (SMI), on an annual basis.
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WHEN AN OFFENCE IS COMMITTED FOR HIRING AN IRREGULAR EMPLOYEE, IS THE NORMATIVA LISOS OR THE REGLAMENTO DE EXTRANJERÍA APPLICABLE? WE UNDERSTAND THAT THE LISOS SHOULD PREVAIL IN ORDER TO ESTABLISH THE EXTENT OF THE INFRINGEMENT AND, CONSEQUENTLY, THE PENALTY TO BE APPLIED. IS THIS THE CASE?
To clarify this question, the first thing to bear in mind is that there are two sets of regulations that apply and coexist:
1) El Título III de la LEOx (Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social) (Title III of the LEOx (Organic Law 4/2000, of 11 January, on the rights and freedoms of foreigners in Spain and their social integration)) regulates offences relating to foreigners and their penalty regime.
2) El Capítulo IV del Texto Refundido de la LISOS (Ley sobre Infracciones y Sanciones en el Orden Social) (Chapter IV of the Consolidated Text of the LISOS (Law on Offences and Penalties in the Social Order)) regulates offences relating to emigration, migratory movements and work by foreigners.
In order to answer the question of what regulations will apply to the sanctions imposed on companies that hire workers without residence and/or work permits, we must refer to Article 254 of Royal Decree 557/2011, of 20 April (el artículo 254 del Real Decreto 557/2011, de 20 de abril), which approves the Regulation of Organic Law 4/2000 (el Reglamento de la Ley Orgánica 4/2000), on the rights and freedoms of foreigners in Spain and their social integration, following its reform by Organic Law 2/2009 (Ley Orgánica 2/2009).
In this regard, section 1 of this article establishes that:
“Las infracciones leves tipificadas en los artículos 52.c), d) y e); graves del artículo 53.1.b) y 53.2.a); y muy graves del artículo 54.1.d) y f) de la Ley Orgánica 4/2000, de 11 de enero, serán sancionadas de conformidad con el procedimiento para la imposición de sanciones por infracciones de orden social, y por lo dispuesto en este artículo (…)”. ("The minor offences defined in Articles 52.c), d) and e); serious offences in Articles 53.1.b) and 53.2.a); and very serious offences in Article 54.1.d) and f) of Organic Law 4/2000, of 11 January, shall be sanctioned in accordance with the procedure for the imposition of sanctions for offences of a social nature, and by the provisions of this article (...)").
The same article continues and determines that: “Las sanciones por las infracciones a las que se refiere el apartado anterior podrán imponerse en los grados de mínimo, medio y máximo, atendiendo a los criterios expresados a continuación y aplicando el principio de proporcionalidad (…)”. "The penalties for the offences referred to in the previous section may be imposed in the minimum, medium and maximum degrees, in accordance with the criteria set out below and applying the principle of proportionality (...)".
Therefore, and in accordance with current legislation, the following infringements will be sanctioned on the basis of the provisions of the LISOS:
INFRACCIONES LEVES (ARTÍCULO 52.C), D) Y E): (MINOR INFRINGEMENTS (ARTICLE 52.C), D) AND E):)
- c): “Encontrarse trabajando en España sin haber solicitado autorización administrativa para trabajar por cuenta propia, cuando se cuente con autorización de residencia temporal”.
"Being found working in Spain without having applied for administrative authorisation to work as a self-employed person, when you have a temporary residence permit. - d) “Encontrarse trabajando en una ocupación, sector de actividad, o ámbito geográfico no contemplado por la autorización de residencia y trabajo de la que se es titular”.
"Being employed in an occupation, sector of activity or geographical area not covered by the residence and work permit held". - e) “La contratación de trabajadores cuya autorización no les habilita para trabajar en esa ocupación o ámbito geográfico, incurriéndose en una infracción por cada uno de los trabajadores extranjeros ocupados”.
"Hiring workers whose authorisation does not entitle them to work in that occupation or geographical area, constituting an offence for each of the foreign workers employed".
INFRACCIONES GRAVES (ARTÍCULO 53.1.B) Y 53.2.A) (SERIOUS INFRINGEMENTS (ARTICLE 53.1.B) AND 53.2.A));
53.1.b): “Encontrarse trabajando en España sin haber obtenido autorización de trabajo o autorización administrativa previa para trabajar, cuando no cuente con autorización de residencia válida”.
"To be found working in Spain without having obtained a work permit or prior administrative authorisation to work, when he/she does not have a valid residence permit".
53.2.a): “No dar de alta, en el Régimen de la Seguridad Social que corresponda, al trabajador extranjero cuya autorización de residencia y trabajo por cuenta ajena hubiera solicitado, o no registrar el contrato de trabajo en las condiciones que sirvieron de base a la solicitud, cuando el empresario tenga constancia de que el trabajador se halla legalmente en España habilitado para el comienzo de la relación laboral. No obstante, estará exento de esta responsabilidad el empresario que comunique a las autoridades competentes la concurrencia de razones sobrevenidas que puedan poner en riesgo objetivo la viabilidad de la empresa o que, conforme a la legislación, impidan el inicio de dicha relación”.
"Failure to register in the corresponding Social Security Scheme by the foreign worker whose authorisation to reside and work as an employee had been applied for, or failure to register the employment contract under the conditions that served as the basis for the application, when the employer is aware that the worker is legally in Spain and authorised to begin the employment relationship. However, the employer shall be exempt from this responsibility if he informs the competent authorities of the occurrence of supervening reasons that may objectively jeopardise the viability of the company or that, in accordance with the law, prevent the commencement of the employment relationship.
INFRACCIONES MUY GRAVES (ARTÍCULO 54.1.D) Y F) (VERY SERIOUS INFRINGEMENTS (ARTICLE 54.1.D) AND F)):
54.1. d) “La contratación de trabajadores extranjeros sin haber obtenido con carácter previo la correspondiente autorización de residencia y trabajo, incurriéndose en una infracción por cada uno de los trabajadores extranjeros ocupados, siempre que el hecho no constituya delito”.
"Hiring foreign workers without having previously obtained the corresponding residence and work permit, constituting an offence for each of the foreign workers employed, provided that the act does not constitute a crime".
54.1.f): “Simular la relación laboral con un extranjero, cuando dicha conducta se realice con ánimo de lucro o con el propósito de obtener indebidamente derechos reconocidos en esta Ley, siempre que tales hechos no constituyan delito”.
"Simulating an employment relationship with a foreigner, when such conduct is carried out for profit or with the purpose of improperly obtaining rights recognised in this Law, provided that such acts do not constitute an offence".
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For an offense in this area, does it apply per worker or per employer, i.e. if the same worker is employed by several employers, does this count as one offense or are there as many offenses as the number of employers who employed that employee?
The worker can be sanctioned and then the employers who have hired the worker without authorisation can be sanctioned. The penalty will be for each employer.
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In the event of the loss of a permit, is it correct to terminate the employee's employment on the grounds of objective dismissal?
In this case, an objective dismissal should be carried out, because the unfitness is recognised as a generic lack of aptitude or knowledge for the agreed work, including the lack of the qualification or authorisation required to carry out the work. The fact is that, from the time at which the authorisation to work had been lost, there would be a legal impossibility to maintain the employment contract (Sentencia del Tribunal Supremo, Sala de lo social, sentencia núm. 642/2021 de 23/06/2021 – unificación de doctrina (Judgment of the Supreme Court, Social Division, Judgment no. 642/2021 of 23/06/2021 - unification of doctrine)).
