So, you want to renew your temporary residency permit in Spain – anything you should worry about?

Well, until recently, a key concern for many — particularly retirees using the highly popular non-lucrative visa – was to count weeks and days to make sure they were not absent from Spain for more than six months during a given year.

Now, thanks to a decision by Spain’s Supreme Court, non-EU nationals have one less thing to worry about.  By its ruling on June 20, 2023, the Court cancelled the regulation that allowed immigration authorities to remove temporary residence permits from those who spent more than six months outside of Spain during the course of a year.

In its ruling the Supreme Court argued that the article in question is null and void because it limits the fundamental right of free movement of foreign citizens with temporary residence in Spain, “which can only be done by a norm with the force of law, but not by a regulatory norm as in this case.” The implication is that the status of temporary residents can be terminated only through a legal process when a person’s eligibility will be determined by the authorities based on factors other than the mere number of days a person has spent away from the country.
 
Obviously, it was an important decision that was widely welcomed. But amid a chorus of approval there were also notes of caution.

For one, while scrapping the six-month rule, the Court at the same time made it clear “that it is not up to it to put itself in the situation of the legislator and determine if a limitation of this type is appropriate, but stresses that in any case it should be done by Organic Law and not by regulatory norm.”

Which means, as the Barcelona-based law firm AGM Abogados pointed out, that “this requirement could reappear in the future if it is introduced in an Organic Law, since the Supreme Court has indicated that this should be regulated in the Immigration Law and not in a Regulation which is a lower legal rank.”

And there is one other important thing to bear in mind. The cancellation of the 6-month limit has no effect on another time-sensitive immigration requirement: the maximum duration of absences that allows the conversion of temporary permits to long-term residence. As SchengenVisaInfo explains, “the temporary residence permit can last up to five years, and once a foreigner has lived in Spain for such a period, they can apply for a long-term residency permit.”

An important point to remember then is that the regulation guiding that process has not changed. To obtain long-term residence in Spain, one cannot be absent from the country for more than 10 months in total during the 5-year period prior to the application. So, for those interested, counting days and weeks remains on the to-do list.