The Contentious-Administrative Chamber of the Supreme Court has declared null and void the article of the Regulations of the Immigration Law that establishes as a cause for extinction of the authorization of temporary residence in Spain of foreign citizens the permanence outside of Spain for more than six months in a period of one year.
The court points out that the article 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. No article of Organic Law 4/2000, on the rights and freedoms of foreigners in Spain and their social integration, covers this provision of its Regulations, approved by Royal Decree 557/2011, and neither does any European directive.
Therefore, it considers the appeal of a citizen of Iran, whose temporary residence and work authorization in Spain was declared extinguished in 2019 by the Government Sub-delegation in Girona, for having remained outside the national territory for a period of more than six months. , according to the report issued by the Barcelona-El Prat Airport Border Post. The Administration considered that the cause for extinction of the temporary residence authorization established in article 162-2º-e) of the Regulation of Organic Law 4/2000, on Rights and Freedoms of Foreigners in Spain and their Social Integration was applicable.
The Supreme Court considers the appeal, and concludes that the absence from the national territory of a foreigner with temporary residence authorization in Spain, during the period of six months, in the period of one year, referred to in the current article 162-2º- e) the RLOEX, cannot suppose the extinction of said authorization.
It explains that if the reason for the revocation of temporary residence is the departure from the national territory at the times mentioned, it should be noted that what the precept imposes is that those who have said permit cannot leave Spanish territory during said period, when no precept of the Immigration Law imposes this obligation nor does it state that, for having left the national territory for the aforementioned period, in the annual computation, the temporary residence permit must be declared extinct.
In any case, the court makes it clear that it is not for it to put itself in the situation of the legislator and determine whether a limitation of this type is appropriate, but it stresses that in any case it should be done by Organic Law and not by regulatory norm.