LEGAL STATUS OF FOREIGNERS IN SPAIN

Transcription

1 LEGAL STATUS OF FOREIGNERS IN SPAIN

2 The information in this document is addressed to foreigners who wish to come and/or reside in Spain, except for nationals under: -EU citizen status -The Law 45/1999 concerning the posting of workers in the framework of the transnational provision of services. -The agreements for diplomats and consular agents -The Asylum and Stateless person laws. It contains the basic information on the formalities and procedures necessary for you and your family members to enter, remain and work legally in Spain, as given in the Constitutional Law 4/2000, 11 th January, on the rights and freedoms of the foreigners in Spain and their social integration, amended by the Constitutional Laws, 8/2000, 11/2003 and 14/2003 and in its Regulation, approved by Real Decreto 2393/2004, 30 th December. The guidelines contained in this document have an exclusive informational character.

3 1.- VISA PREVIOUS TO ENTRY IN SPAIN. Who does NOT need a visa? Nationals of States who are not submitted to the obligation of having a visa for crossing the external borders of the European Union, citizens who may enter and remain in Spain up to 90 days for tourism, private business, family visit or other similar purposes which do not require previous authorization. Who Does need a visa? a)nationals of States submitted to the obligation of having a visa for crossing the external border of the European Union need to obtain a visa so that they may enter and remain in Spain. b)all foreigners who are not nationals of States part of the Agreement of the European Economical Area and who: -Intend to stay for any length of time to reside and work in Spain. -Intend to stay for more than 90 days in Spain, working or not, or as a student. Where do you apply for a visa? You may apply for a visa at the Spanish Diplomatic Mission or Consular Office in your country of origin or the nearest to your legal residence, at your convenience. What type of visa do I have to apply for? According to the reasons of the journey, you may apply for: -A Transit visa (up to 5 days) -A Short Stay visa (up to 90 days) -A Residence visa (more than 90 days and working not being allowed) -A Labour and residence visa (to reside and work). What documents do I have to attach to a visa application for labor and residence? Your passport, criminal records certificate issued by the Authorities of your country of origin or your present residence, medical certificate, and copy of the labour authorization application approval which your employer must have submitted to the appropriate labor authority in Spain. You must present the visa

4 application, in person, at the Spanish Diplomatic Mission or Consular Office within the month following the notification date of the labor authorization approval to the employer. What kind of documents do I have to attach to a visa application for stay as a student or for training or research purposes? Your passport, admission or pre-registration evidence in an officially recognized educational or scientific center, public or private; course or research programme or training plan; medical insurance, and evidence you have enough money to cover your studies fees and stay costs. In the case of the underage students they must also submit an authorization of their parents or guardian/legal tutors. In the case of students who have reached legal penal age, their must also submit a criminal records certificate issued by the Authorities of his/her country of origin or present residence What kind of documents do I have to attach to a visa application to reside in Spain without working? Your passport, criminal record certificate, medical certificate, and evidence of enough economical means of support. What kind of documents do I have to attach to a visa application to live in Spain on the basis of family reunification applied for by an eligible legal resident family member (spouse, ascendant or descendant)? You can apply for a residence visa to the Spanish Consular Office in your country, only if your eligible legal resident family member in Spain (re-grouper) has applied for and obtained a residence permit for you on the basis of family reunification. Once the approval is granted, you must apply for a visa by submitting a valid passport, criminal record certificate, copy of granted approval as notified to the re-grouper, evidence of the family connection you are claiming, age or, depending on the case, economic dependency, and medical certificate.

5 2. ENTRY IN SPAIN Do I have to submit any document at the border post when requesting entry in Spain? Yes. When you are at a Spanish border check, you must show a valid passport or other traveling document proving your identity to the Police Control officers; these documents should be valid for, at least, the period of time that you intend to stay in Spain, as well as, depending on the case, you should show, the necessary visa. You must also give evidence that you have economic means of support sufficient for the period of time that you intend to stay in Spain and; in certain cases, you must justify the reason of your entry application. In some cases, you may also be requested to show a medical certificate issued in your country of origin by the medical services which the Spanish Diplomatic Mission or Consular Office might designate, or you may be examined by the Spanish medical services, at the border. When do I have the obligation to declare entry in Spain? Whenever you are coming for a country with which border controls have been abolished (such as France, Portugal and other States which are part of the Schengen Space) and therefore you have entered Spain without showing your documents at a border check point or when you enter Spanish territory via a border at wide no police border station exists. If you could not declare your entry in Spain at a police border post, you shall submit the entry declaration at any Police Department or Oficina de Extranjeros, within a maximum term of three working days starting from the moment when you entered Spain. 3. SITUATIONS OF FOREIGNERS IN SPAIN Which situations may I have in Spain? While in Spain you may be legally in one of the following situations: - Transit, to enter Spain with destination to another country for a period of less than 5 days

6 - Short Stay, if you intend to remain in Spain for less than ninety days in a semester. - Temporary residence, if you intend to remain in Spain for a period of more than ninety days but of less than five years. - Permanent residence, which authorizes you to remain in Spain indefinitely if you have been legally residing in Spain for five years without interruption. 4. SHORT STAY What is Short Stay? You are in a short stay status if you legally entered Spain with a purpose other than residence, and for a foreseen stay of less than ninety days for each semester, with a valid visa, if this is required. May I extend my stay in Spain? Yes. If you entered Spain with visa, and this visa is valid for less than three months, you may apply for an extension of your stay in Spain for a period to complete the three months. If to enter Spain you did not need a visa, you may apply for an extension of your stay of more than three months in a period of six, in the event of special circumstances. Where and how must I apply for that extension? You must submit your application in person using an official form provided to you by government officials at the local Oficinas de Extranjeros, Superior Headquarters or Police Department in the province where you are staying or you may download it from the web page The following documents must be attached to the application: -Ordinary passport or traveling document used for entry, valid for a period of time longer than the extension requested. -The original short stay visa which was issued by the Spanish Diplomatic Mission or Consular Office in your country, valid for, at least, the same period of time than the extension you are applying for, in the cases in which a visa is required.

7 -Evidence to support the reasons stated for applying for stay extension. -Sufficient evidence that you have means of support adequate for the extension length of time that you are applying for (cash, certified checks, traveling checks, letters of payment, credit cards, bank certificates). -A medical insurance valid for the same period or longer than the extension requested. -Guarantee of return to the country of origin, or of admission in a third country (nominal and closed ticket, etc.) May I stay in Spain for as a student or for research purposes? Yes. You must enter using a Student visa, which you might be obtained if you meet with the requirements for entry and remain in Spain, that is that you have been admitted to an educational or scientific center, public or private, officially recognized, and that you have economic means sufficient to cover the costs of your studies and your support, return costs and, being the case, to support your family members. Once you are in Spain, you must apply for a Foreigner Identity Card within one month term of your entry in our country. May I bring my family members if I am studying or researching in Spain? Yes. Foreigners who have applied for a student or research visa, or those who already are in Spain with Student Status may apply for a Stay visa for their family members (spouse and children under 18 or under custody or tutelage) to legally enter and stay in Spain during the duration of the aforesaid studies or research. It is not required a previous minimum stay period of the foreign student or researcher. This visa may be applied for simultaneously along with the application for a student visa by the student or researcher, or at any other time after, and it will be issued for the same remaining valid length of the authorization of stay for studies. 5. RESIDENCE What requirements must I meet with if I wish to reside in Spain without working? If you wish to remain in Spain for a period of more than 90 days without interruption or for an indefinite period, you must obtain an initial authorization of

8 non-lucrative residence, valid for one year. Before coming to Spain, you must apply for a visa of non-lucrative residence at the Spanish Diplomatic Mission or Consular Office in your residence country. The following documents must be attached to the application: -Passport or traveling title, valid for at least one year. -Criminal record certificate or equivalent document, in the case in which the applicant is of legal penal age, issued by the Authorities of the country of origin or residence. -Medical certificate. -Evidence of economic means sufficient to support your stay and, depending on the case, to support your family, during the stay length you are applying for, without working. Must I apply for any documents to reside in Spain? Yes. If you wish to stay in Spain for a period of more than six months, you must solicit a Foreigner Identity Card (TIE), within a month term from your entry in Spain, submitting among other documents, the visa previously issued for residence purposes by the Spanish Consular Office or Diplomatic Mission in your residence country. Where may be a Foreigner Identity Card applied for? You may apply for a Foreigner Identity Card at the Oficinas de Extranjeros or at the Police Departments, where you intend to establish your residence, after paying the fiscal fee legally established and, when required before entering Spain, having obtained a visa. May I extend my residence in Spain if I am not working? Yes. At the end of the validity of your first authorization of non-lucrative residence, if your circumstances are the same as they were when you were granted the initial permit, you may in person apply for its renewal for consecutive periods of two years each.

9 Do I have the right to permanent residence in Spain? Yes, if you are in one of the following cases. -If you have legally lived in Spain without interruption for a period of five years. -If you are a resident and receive a Spanish State Retirement pension, or an absolute permanent disability or major disability pension. -If you were born in Spain and if you have had legal residence for 3 consecutive years immediately before your age of majority. -If you are of Spanish origin and you lost Spanish citizenship. -If you have been under tutelage by a Spanish public Institution for 5 years before the age of majority. -If you have remarkably contributed to the progress of Spain, and this has been acknowledged by the Ministry of Labor and Social Affairs The recognition of the right to permanent residence authorizes you to remain indefinitely in Spain and to work in the same conditions as Spanish citizens. You must not forget that the card that authorizes permanent residence must be renewed every five years. May my family members reside with me in Spain? Yes. You may reunite in Spain with your spouse, your children and your spouse s children, including adopted ones who are under 18 or who are disabled, their ascendants and the ones of your spouse if they are dependent and there are reasons that justify the necessity to authorize their residence in Spain. You may apply for family reunion if you have been legally living in Spain for one year and if you have applied for the authorization to reside for at least another year. Your family members must enter with a residence visa issued for family reunification. Previously, you must apply in person for an authorization of residence for family reunion reasons for the members of your family that you wish to come to live with you, and you must give evidence that you dispose of adequate accommodation and economic means sufficient to support you and your family when you are reunited. In what circumstances can I lose my residence authorization? You may lose your residence authorization in the following cases:

10 -If you do not apply for its renewal. -By renouncing the authorization. -If you remain outside Spain for more than six month without interruption within a year. -If you are no longer eligible for a residence authorization for several reasons, among them, if you do not have sufficient economic means. -If you no longer have a valid passport, or similar document, or in other situations, registration certificate, which was used to get the residence authorization, except in those cases when you can give evidence that you carried out the necessary procedures to renew or recuperate such documents. -If there is proved that you committed a severe inaccuracy in the statements you made in order to obtain the residence authorization. -If it is proved that you are involved in one of the legal causes that would have determined the prohibition of your entry in Spain. -When a foreigner changes or loses his/her nationality Which cases may a foreigner in an illegal situation obtain a residence authorization in Spain? Illegal stay in Spain is an infraction which may be sanctioned with repatriation to the country of origin. However, and in some special situations, in the event of some exceptional circumstances (of establishment, necessity of international protection, humanitarian reasons, collaboration with the Spanish Authorities, or public interest), the Administration may grant a temporary residence authorization if the requirements established by the Regulation of the Constitutional Law of foreigners are met with. Do I have to pay a fee for a residence card in Spain? Yes, if you are going to establish your residence in Spain you must pay a fee for both the initial authorization and for its successive renewals.

11 6. EMPLOYMENT 6.1 Common requirements Do I need to get an authorization to work? Yes. To work self-employed or as an employee, you must get a previous administrative authorization. If you have the condition of non-labor legal resident, you may switch your status by applying for a work authorization. If you have Student status, you may also apply for authorization to work or to switch your status into Working Residence if you meet certain requirements. If you are not a legal resident in Spain, a Residence and work permit will allow you to obtain, at the Spanish Diplomatic Mission or Consular Office in your country of origin, a visa to enter into Spain to reside and work. Where may I apply for a work authorization? The applications must be submitted at the Oficinas de Extranjeros or, in absence of these, at the Areas or Headquarters of Labor and Social Affairs or of the Government Delegations in uni-regional Autonomous Communities. If you intend to work self-employed, you must apply for a work authorization at Diplomatic Missions or Consular Offices. In other situations listed by Spanish law, applications must be submitted to the Department of Immigration of the Secretary of State for Immigration and Emigration. What types of work authorizations may be applied for and who may apply for them? If you intend to work as an employee, the following types of authorization may be applied for in succession: Initial work authorization as an employee: it will limit your work to an activity sector and specific geographical area. It will be valid for one year. It must be applied for by your employer or, in the case of the companies, by the legal company representative.

12 Renewal of the work authorization as an employee: you may apply for it at the end of the validity term of the initial authorization or of its first renewal. It allows you to work on any activity in all of Spain. It is valid for two years. It must be applied for by the employee in person. It may be renewed at its expiry term if the contract that was signed for its initial approval is still valid or is renewed, or when a new contract is secured with another employer and a minimum working time has been completed. If you intend to work self-employed, you may apply in person for the following authorizations: Initial work authorization as self-employed worker, it is valid for one year. Renewal of the work authorization as self-employed worker: you may apply for it at the end of the validity term of the initial authorization or of its first renewal. It is valid for two years. It may be renewed at its expiry term when it is proved both the continuity of the activity you received authorization for and have fulfilled your tax and social security obligations. Must I follow any other procedure once I received the working authorization? Yes. It is necessary to register (afiliación y/o alta) the worker into the Social Security System. Where may a foreigner with a work permit apply for an Identity Card? You may apply for a Foreigner Identity Card (TIE) at the Oficina de Extranjeros or at the Police Department corresponding to the place where you intend to establish your residence. The application must be submitted within the month of entry in Spain and you must pay a fee. When may I apply for the renewal of a work authorization? It must be applied for during the 60 days previous to the expiry date. It may also be applied for within the 3 months following the expiry date which will carry a penalty. A copy of the completed application form will extend the validity of the authorization till its formal resolution. May I apply for a permanent work authorization in Spain?

13 Yes, once you have had legal residence in Spain for a period of 5 years and obtained a permanent residence authorization it will not be necessary to apply for a work permit again. The permanent residence allows you to remain indefinitely in Spain and to work in the same conditions as Spanish citizens. Do I have to pay any fees for the issuance of an authorization to work in Spain? Yes. If you going to work as an employee, the employer is the one that is directly responsible to pay a fee for the initial work authorization. Nevertheless, if you are going to work as a self-employed person, you are the one obliged to pay the fee. Is there a document that gives evidence that I have a work authorization? Yes. When the work authorization is for less than 6 months it will be accredited by the visa. When the work authorization is for more than 6 months, once you are in Spain, you must apply for a Foreigner Identity Card within a month term from your entry in Spain. In special cases, as in the case of the students, researchers or holders of residence for exceptional circumstances (among others), it will be accredited by the copy of the approval document of the authorization to work Authorization as an employee What kinds of workers can apply for an initial work authorization as an employee? Workers who will fill positions for which the employer can give evidence of insufficient employment demands either by certificate issued by the public service of employment, or who will fill a position already listed as difficult to fill. The national employment situation will not be taken into consideration when: 1.Workers coming from a country with which Spain has signed a reciprocity agreement.

14 2.Workers who are in one of these specific situations: -To fill a special trust position. -They are the spouse or the children of a foreigner who is a resident in Spain with a renewed authorization. -The children of a nationalized Spanish or EU resident with one year of legal residence in Spain. -Workers required for setting up production installations and equipment. -Those who have had the condition of refugees, during the year following the loss of this status. - What requirements must an employer meet to apply for an authorization for an employee? Those employers who intend to employ a foreign worker must meet the following requirements: -The company must be registered at the corresponding regime of Social Security and it is up to date with its Social Security payments. -The conditions established in the job offer meet the ones established in the labour laws in Spain. What documents must the employer submit to apply for my work authorization as an employee? The employer must attach to the authorization application the following documents: a) DNI or CIF (national identity card or fiscal identification code) and the Social Security registration document, or equivalent document if it is exempted from it, in the case that the company established as legal person, public document acknowledging legal representation to the natural person submitting the application. b) Work contract or employment offer in writing using the model officially established guaranteeing the worker continuous work for the same period of time as the authorization to reside and work is valid for. c) When the competent Authority considers it necessary to ensure that the employer will meet the obligations that arise from the work contract, the employer will be requested to give reasonable evidence of economic, material or personal resources to support the business and to meet all legal obligations.

15 d) Copy of valid passport, or traveling document, belonging to the foreign worker. e) Certificate issued by the Public State Service of Employment on the nonexistence of employment demands, except in those cases when the position is included in the official catalog of employments of difficult fulfillment, or other documents that give evidence that the worker can be in on one of the legal situation in which the national employment situation will not be taken into consideration. f) Properly endorsed title or accreditation that the worker has the required training and skills needed to do the job, when appropriately. May I renew my work authorization? Yes, as long as you provide evidence on the continuity of the work engagement which the initial authorization was based on to be approved. It will also be renewed by completing a minimum period of work of 6 months per year if a new contract was secured and you are working or in a situation that can be assimilated to work according to Social Security requirements, or if you have a new work offer. It will also be renewed when you have worked for at least 3 months if you give evidence that you did not voluntarily break your work engagement, you have been actively looking for employment and you are engaged in a work contract at the moment. May I renew my work authorization if I lose my job? Yes. The work authorization will be renewed when you are eligible for and are receiving unemployment benefit, for at least the period you are receiving this benefit. It may also be renewed if you have a state economic assistance benefit to support you in your social or labor integration or reintegration, for at least the time it was granted for. May an employer apply for a limited duration work authorization of less than one year (season or campaign, works or services etc.)?

16 Yes. The employer may apply for a limited-duration residence and work authorization for an employee for up to one year in the following cases: - Season or campaign: its duration will be the same as the work contract or contracts, up to nine months, within a consecutive 12 months period. The employer is required to supply adequate accommodation to the worker, to organize the trip to Spain and from Spain to return to the country of origin, paying for at least the costs of the first one of these trips and the travel expenses both ways between the entrance point and the destination, along with the employee is obliged to return to the country of origin. - Works and services to set up industrial or electronic factories, construction of infrastructures, buildings and electricity, gas, railway, telephone networks, installations and maintenance of productive equipments, as well as its starting and repairing, among others. It is required to supply adequate accommodation to the worker, to organize the trip to Spain and from Spain to return to the country of origin, paying for at least the costs of the first one of these trips. The employee is obliged to return to the country of origin. - Temporary work carried out by high management personal, sportsmen, professionals, performing artists, etc. It is required the holding of administrative licenses to carry the professional activity, and the employee is obliged to return to the country of origin. - Training and carrying out professional practice. It is required the formalization of a practice or training work contract, and the employee is obliged to return to the country of origin at the end of it. If the working time is less than six months, a visa will be sufficient title to prove the stay and work authorization. If work is for more than six months, the employee must apply for a Foreigner Identity Card (TIE) during the first month after his/her entry in Spain. What is an authorization of trans-border work? If you reside in the border zone of a neighbouring State to which you daily return and you wish to perform economic activities as a self-employed worker or in paid employment in the Spanish border zone, you may apply for a work authorization for trans-border worker, valid for five years. You must apply for a visa prior to entering Spain. What is a work authorization for transnational services?

17 If you work in a company established in a State which does not belong to the European Community and or to the Agreement of European Economical Area, and you must move, at the company expense, to work in Spain, you must have a minimum work engagement of one year, nine months out of which must be to work for that same company. Your employer may apply for a temporary residence and work authorization according to rules applied for transnational provision of services. The employee must also have a visa for entry Work authorization as self-employed worker What kinds of requirements must I meet and what type of documents must I present in order to apply for an initial work authorization as selfemployed worker? If you intend to carry out economical activities as a self-employed worker, you must apply, in your country of origin, for a visa as well as for a work authorization and you must attach the following documents: a) Copy of a valid passport or of traveling document. b) Criminal record certificate issued by the authorities of your country of origin or of the country/countries where you have resided during the last five years. c) Health certificate. d) Properly endorsed title or accreditation that you hold the training and skills required to perform the job, when appropriately. e) Evidence that you have enough economic means for investment or sufficient support by financial institutions or by others. f) Project of business or activity to be carried out, including the proposed investment, expected profits and, depending on the case, work positions that might be created. g) List of the authorizations or licenses that are required for setting up, opening or functioning of the projected activity or for the professional practice stating the situation the procedures these are in, and including completed form copies of all the applications made at the corresponding administrative bodies. h) Estimate that the activity will produce the first year from the beginning sufficient economic resources to support at least the maintenance and Eliminado: Pr Eliminado: ovision

18 accommodation, after all necessary costs to continue the activity have been deducted. You cannot apply for an authorization as self-employed worker is your are living illegally in Spain. May I renew my work authorization? Yes, as long as you give evidence the continuity in the activity on the basis of which the authorization was granted and you have fulfilled your tax and Social Security obligations. 7. OTHER INFORMATION What are your rights as a foreign with residence authorization? The regulatory provisions of the immigration recognize to foreign residents, the following rights, freedoms and legal guarantees, among others: Enjoyment of the rights and freedoms recognized in the Title I of the Spanish Constitution, in the terms established in the international treaties, in the Constitutional Law of Immigration and in its development norms, subject to the some conditions as Spanish citizens. Right and obligation to preserve the documents that accredit your identity issued by the authorities of your country of origin, as well as those that accredit your situation in Spain. Right to free movement in Spain and free choice of residence. Rights of gathering and association. Right to education and to carry out activities of educational or scientific research character, as well as the right to establish and manage educational centers. Right to perform economic activities as self-employed worker or as an employee and to have access to Social Security system benefits, when a work permit has been obtained. Right of foreign workers to freely join a trade union and to strike.

19 Right to sanitary assistance if you are registered at the register of residents ( Padrón de habitantes ) of the municipality where your usually resides. Right to housing benefits. Right to Social Security provisions and services, as well as to social services and provisions. Right to transfer your earnings and savings obtained in Spain to your country or to any other country. Right to family reunion and family intimacy. Right to the effective legal tutelage. Right to appointed lawyer assistance, as well as to interpreter, in certain administrative or legal procedures in the immigration domain. Right to free of judicial assistance in legal trials as long as you accredit the lack of economical resources for the litigation. Do I have to identify myself when requested by the Police? Yes. You and your family members have the obligation to showing the documents that accredit your identity as well as your situation in Spain to the Police agents if they request you to do so (Passport, Visa or Foreigner Identity Card, depending on the case). Do I have to mention my Foreigner Identity Number if I carry out any business in Spain? Yes. You are allocated a Foreigner Identity Number (N.I.E.), which is mentioned on your Foreigner Identity Card, and that you must state in any public or private documents that you sign. If you look for more specific information, you may; - Contact in person the Oficina de Extranjeros or, in absence of it, the Area or Headquarters of Labor and Social Affairs or to the Police Department of the place where you intend to stay. When requesting information, you must indicate:

20 -Your name (as it appears in your passport or identity card). -Your nationality. -Your Foreigner Identity Number (N.I.E.), if you have been previously allocated one. For general information you may also visit the web page of the Ministry of Labor and Social Affairs