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The Spanish Lawyer Online

Antonio Flores’ Blog

Thoughts about laws and regulations which affect foreigners in Spain

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Archive for the ‘Immigration’ Category

Spanish Supreme Court Backs Iranian Investors

February 5th, 2015

It is a well-documented fact in Spain that, in the layman’s mind, we have a sluggish judicial system is incapable of dealing with a backlog of undecided cases. And this is bad because it brings to the entire court system a loss of public confidence, respect and pride.

But there are notable exceptions: the Spanish Supreme Court has recently ruled on two immigration cases (7/4/2014 and 5/5/2014) in a record breaking time of just under 2 years from when the Spanish Consulate in Teheran turned down two permanent residency applications, rejections subsequently confirmed by the Madrid Appeal Court.

These cases relate to Iranian nationals who had filed for Spanish non-lucrative residency in September 2012, after purchasing real estate in the province of Malaga. In their applications, they had proven that they possessed sufficient “means of subsistence” for the first twelve months, which is the duration of the initial residency period. Both the Consulate and the Appeal Court, strangely enough, understood that the required means of subsistence had to be enough to cover the full span of the temporary residency period, five years, when the law states one year.

The relevance of these cases stems from the unexpected judicial speediness and efficiency in resolving cases that would otherwise drag on for six or more years, an average time to reach the Supreme Court.

But the case also sends a crucial confidence message to investors who rely on the word of the law but have to endure the pains, when applying for their visas, of discourteous and unprofessional members of the Spanish consular service, often seen as a deterrent to foreign investment.

And I can sympathize with Iranians in particular as I have had to deal, many times that is, with bizarre decisions by the Spanish Consulate in Tehran, a place that I have incidentally visited personally on one occasion.

As said, a small victory for two Iranian families willing to invest in Spain but, most significantly, a far-reaching message to investors and Consular service staff members: the law is to be applied, and nothing more.

Immigration , , , ,

Trials and Tribulations of our Spanish Immigration Lawyers

June 1st, 2014

 The outcome of some Spanish residency cases never cease to surprise us. Even considering that we have successfully processed over one hundred and fifty applications in the last years, and that these cases are the exception -not the norm- both Spanish immigration civil servants and consular staff keep throwing at us, periodically, challenging decisions and behaviours that appear to mimic the antics of Spanish officials in this film, as opposed to an always simpler -and obviously preferable- direct application of the law on the matter.

I refer to a couple of inexplicable resolutions to residency applications (Investor’s and Non-Lucrative) that we thought were water-tight.

CASE 1: Russian couple that buy a property for €750,000 to obtain Investors Residency.

The case involves a couple that bought property over the threshold of €500,000 to qualify for residency. Spanish Consulate staff, on receiving our application, worked round the law to reject the applicants, verbally. Firstly, they argued that because the law said that “an investor who wishes to become a resident shall apply…”, it was not possible that a married couple applied together, unless they reached €1,000,000 the threshold. In this case they had invested €750,000 together. Secondly, they argued that the application should be filed within 3 months of purchasing the property.

In respect to the first ground for rejection, we argued that the law states that the investor the law refers can bring his wife and children under 18 years of age, within the same application. So, in practical terms, there is no difference between our application and what the law says. But to add more mystery to the Consulate’s decision, it so happens that Russian law states that, by default, assets acquired by the spouses during marriage are their community property, which means that regardless of whether either spouse buys in his/her name, or buy jointly, the property will be their community property.

The response of the Spanish Consulate in Moscow is: “…we will be guided by future case law in the matter”. That is, case law that will be produced in the next 5 years. That, or have either applicant transfer its 50% to the other so that, after thousands of Euros of costs, they can achieve the same result: have the property owned by both, through their “Community Property”.

CASE 2: Moroccan single applicant who applies for non-lucrative residency.

The lady in particular has 12 properties in Tangiers giving her just under €12,000 in monthly income (well above the €2,000/month minimum required to apply), €170,000 in cash in a Moroccan bank account and €130,000 in Spain, a jointly owned property in Estepona and no need to work for the rest of her life. The application included original documentary evidence of the above (duly translated) and so, according to the precepts of the law, should have been be plain sailing.

But it was not: the Spanish Consul, Arturo Reig Tapia, seemingly wanting to stamp his authority over his staff but lawmakers too, rejected the application on the following not-so-elaborate excuse: “…applicant did not show enough income”.

And in a fit of remorse, he inmediately called her in -following the rejection- to get a 4-year visa multiple entry visa to travel to Spain, whenever she felt like; it was clear to us that the Consul had decided that he would not apply the law in force to this case, for reasons he only knows.

Two cases that fortunately are the exception to the rule but, nevertheless, worth commenting on.

Have you had any experience with Spanish Consular staff worth mentioning? We would love to hear about your experience.

Immigration, Uncategorized , , , , , ,

Spain’s Real Estate Residency Finally Approved

September 28th, 2013

With effect from the 29-09-2013, the Spanish Government has approvedthe Investors’ Support and Internationalization 14/2013 Act which includes, among others measures, a Spanish residency programme that will allow investors to become permanent investors if they invest, at least, €500,000 in a property. The law was published early this morning in the Spanish Official Gazzete (BOE) and one of the most crucial aspect of it is that it facilitates people traveling to, or residing in Spain, who intend to carry out a ‘relevant investment’.

What is a relevant investment?

According to article, 63, the following will suffice to attain residency in Spain:

  • An investment of at least €2,000,000 in Spanish Government bonds.
  • An investment of at least €1,000,000 in shares of Spanish companies.
  • An investment of at least €1,000,000 with a Spanish-based bank or financial entity (basically, depositing that money in a savings or fixed deposit account).
  • An investment of at least €500,000 in Spanish property (one or more), per applicant, provided the first €500,000 of the property value is unencumbered (mortgage free).
  • A business investment that is to be carried out in Spain and is deemed of public interest for which purpose, at least one of the following conditions will be considered relevant: a) jobs it will create b) socioeconomic impact in the geographical area where the activity is to be carried out and c) relevant contribution to technological or scientific innovation.

Investment by foreign companies also qualify for residency provided it does not originate from an offshore tax haven, as per Spanish laws, and that the investor owns, directly or indirectly, the majority of its voting rights and has also the right to designate or remove the majority of the members of the board of directors.

Investment Residency Visa and Investment Residency Permit

The Act has created 2 different types of documents to enter and reside in Spain, the Residency Visa and the Residency Permit. The Residency Visa is valid for up to 1 year, and the Residency Permit is valid for up to 2 years, which can be extended for a further 2 years. This would give a total of 5 years, 4 of which are deemed proper residency and the first one, just the right to stay and live (an important distinction because 5 years of continued residency entitles the beneficiary to reside permanently in Spain). In addition to meeting the conditions to qualify for the Investors’ Residency Visa, an applicant for an Investors’ Residency Permitwill have to comply with the following:

  • Hold an Investors’ Residency Visa that is not overdue by more than 90 days over the expiration date.
  • Have travelled to Spain at least once during the validity of the Visa.
  • Prove that the investment that enabled the applicant to receive the Visa is still in place.

What other requirements have to be met?

The Act will also require that any applicant complies with the following (standard in the Non-Lucrative or Non-Working Residency Permit):

  • Not be in Spain irregularly.
  • Be over 18 years of age.
  • Absence of a criminal record in the country of original residency.
  • Have medical insurance.
  • Have sufficient money or financial means to support the applicant (and family) during the period of stay in Spain: if we are guided by the prerequisites of the Non-Lucrative Residency Permit, the applicant will need to prove earning of at least €2,128/month, plus an additional €532/month per family member.

Application Process and Timescales

The Residency Visa will be applied for and granted by the Spanish Consulate of the demarcation of the applicant. The Residency Authorization will be applied for and granted by Directorate General of Migrations. An application for a Residency Visa will be resolved in a maximum period of 10 days, except where the application is subject to the EU Visa Code. The Residency Authorization will be granted in a maximum period of 20 days from application after which period, if the Consulate has not responded, the application will be presumed granted.

How would it work, in practical terms?

An applicant that wishes to apply for a Residency Visa under the Act will first need to apply for an ordinary visa, with a view to travel to Spain and investigate investment options/opportunities, meet with lawyers, real estate agents, banks, etc. Once a decision is made and the investment carried out, the Residency Visa will have to be applied for at the Consulate. Obviously, it is possible that an investor decides to proceed with the investment operations remotely (for instance, purchasing a property via a lawyer, with a Power of Attorney) and, on conclusion of the property conveyance transaction, he applies for a Residency Visa with the required proof of his investment i.e. Property Title Deeds. The Act does stipulate that the investment needs to be maintained during the period of the validity of the Residency Visa or Residency Permit, and that routine checks may be carried out to verify if this is the case.

Do I have to be in Spain for more than 6 months during any year period?

Specifically, NO! The Act stipulates that Residency Visa or Residency Permit holders do not need to spend more than 6 months in Spain, with a view to renew the permit (which implies that, as stipulated in the law, provided they are in Spain at least once during the period of the Residency Visa, they are pretty much free to spend their time as they wish, in Spain or in any other country).

Can I become a Permanent Resident in Spain or a Spanish Citizen through this method?

YES. In fact, the Act specifically states that the applicant’s absences will not prejudice the right to permanent residency (5 years onwards) and citizenship.

Can a person still apply for permanent residency without having to invest the sums in this law i.e. buying a property worth say €200,000, with a €180,000 mortgage?

The Act has not modified the 2 other main types of residency permit applications, which are:

  • Non-Lucrative Residency Permit (Autorización de Residencia No-Lucrativa)
  • Self-Employed Work and Residency Permit (Autorizacion de Residencia y Trabajo Por Cuenta Propia)

This means a person can still apply for residency in Spain via the regular -above- procedures.

Can I apply if I already have a (unencumbered) property in Spain worth €500,000?

The Act does not include investors who already had a property in Spain prior to its enactment although, nothing stops them from selling, buying again and then apply for the Investors Residency Visa and further, the Investors Residency Permit. People that comply with the other financial criteria (having cash deposits, shares etc.) can apply.

Immigration , , , , , , ,

Buyer Beware: Spanish Residency Frauds

May 25th, 2013

We all know fraudsters never sleep, just like money; in fact when our guard is down the fraudster can be at his most damaging.

And this is exactly what is happening as a result of the irresponsible press release issued by the Spanish Government last November, when they propagated the lie that they would be offering residency (automatic) for anyone who bought a property worth €160,000 and above.

The above innocent release triggered a desire by tens of thousands of potential buyers eager to move to this part of the world, whether to be able to start a better life away from war zones or potentially conflictive areas, move the family to better education or living conditions and where the choice was for the Coastal areas, get the enviably famous weather. For many too, it was a way to be able travel more effectively without the hindrance of waiting in queues to be dealt by unfriendly Consulate staff for visas and for a few, for reasons of privilege and even social status.

And confusion was compounded by ignorant journalists who mistook residency for “citizenship”.

So in the wake of all the above, professional conmen saw an opportunity to try to trick desperate families into buying a property and on the back of it, get permanent residency for all the family. One of such companies, Green Planet EU residency, most probably run by former timeshare resale scammers, is offering a package where you pay €220,000 and you get, for the privilege, a property and a residency card. To make things look legit, they resort to the Costa conman manual and pick novice lawyers generally based in Fuengirola to receive the payment (whether the lawyers are aware of the scam or not is unknown to us).

Far from it. There is no approved norm, law, act, ruling or otherwise, in Spanish law, that will allow you to get automatic residency by buying a property worth €160,000 and above, for one simple reason: it was never approved.

The latest move by the Spanish Government has been to announce that, after much consideration, they will grant residency to families buying a property worth €500,000 and above, as was approved on Friday the 24th of May. But beware, this pre-law has not been published in the official gazette (www.boe.es) so even after this press release, professionals in the sector need to be cautious because as of yet, buying a property over 500,000 (cash-no mortgage) will yet not secure residency, and it is not going to be retrospectively applied!

 

Immigration, Scams , ,

Spanish Government To Grant Residency with a €500,000 Property

April 30th, 2013

 

The Spanish Government was left reeling following heavy critizism by the European Union when they published an automatic house-for-residency programme last November. The reason? The very low property price threshold set by the impending law of €160,000.

Now, that value has been set at €500,000 and it appears that this time it is going to happen, according to El Economista.

The draft proposal establishes that the family will also be eligible and the residency will be indefinite for as long as the investment is maintained.

An additional possibility contemplated by the law establishes that a minimum investment of €1,000,000 and 2 workers will give the right to automatic residency, or €500,000 if the investment is kept yearly.  There is also the possibility to combine different types of investments to attain the half  million mark.

According to the sources, the residency programme will not be retrospective, “as demanded by the Russians”.

Finally, the draft leaves out the right to Spanish State medical cover and education, social beneftis and, rather strangely, the freedom to travel around the Schengen countries (which would breach EU laws on the matter).

Immigration , , ,

Morocco Government says: Buying Property in Spain Illegal Without Authorisation

November 27th, 2012

Morocco’s Exchange Control Office has issued a statement warning citizens of this country against buying property in Spain; according to them, you can only buy property in Spain if you have a special permit issued by the Government in Rabat, and that buying without the said safe-conduct is a matter for the Criminal Courts.

We have some questions for the Office des Changes:

  • Have you made a search on the public Spanish Land Registry website www.registradores.org to know who has, and hasn’t, property in Spain?
  • Do you have enough space in your prisons to accommodate the tens of thousands of Morrocan families that have a second home in Spain?
  • Does this law also apply to the  hundreds of Morocco’s Government officials who have traditionally acquired real estate on the Costa del Sol, inclusive of Government ministers?Is this law real, or is just a way to make prospective purchasers uncomfortable with what is verifiable reality?
  • Are you going to ask the Spanish Government to request that investors produce the permit, as a prerequisite for buying,

And there is a question I personally have: has anyone ever seen this permit? 

Immigration , , ,

Foreigners Who Buy Property in Spain to Get Residency

November 19th, 2012

The Spanish Government has officialy released its plan to bring Spain out of the recession by offering residency to non-EU citizens who buy property worth over €160,000. The specific conditions are yet to be legislated on but the Secretary of Commerce, Jaime García-Legaz, has indicated that the property value is “balanced” and will not give rise to a massive demand for residency permits. He also said that the proposition is directed at the Chinese and Russian markets.

Three things we would like to comment on:

  1. If this is to happen, Spain risks being again a victim of its own success because the demand for property in Spain can be unprecedented, far more than in the boom years.
  2. China and Russia will only be tip of the iceberg as their citizens currently find less problems in obtaining tourist visas than citizens of countries like say Iran, Pakistan, Egypt etc.
  3. If this proposition is finally approved, raising property taxes may not be a bad idea altogether.

We can hope is that Spain will now be able to learn from its previous mistakes and manage the potential masses of property buyers more intelligently by implementing rigid controls on property developers – banning the dodgy ones of course-, real estate agencies and other connected professionals.

 

 

Immigration, Property , ,

10 tips for a Successful Self-Employed Residency Application

September 27th, 2012

The discretional nature of the Spanish residency application approval process adds a great deal of uncertainty to potential applicants that wish to relocate to Spain on the basis of a self-employed residency application.

The following tips should help increase the chances of a successful business residency application:

  1. Where possible, try to visit the area in which you wish to start the business and establish contacts with legal professionals and accountants, real estate agents, schools, existing friends or fellow countrymen that are already established there, keeping a detailed agenda. The reason for this is that once you are granted the self-employed application by the immigration authorities in Spain, who don’t know you, the consul may still want to arrange a conference call, or a meeting, to find out that you are a genuine applicant and a genuine investor.So make sure that you are acquainted with the area and with your own business plan. At all times show your commitment to the venture.
  2. Do have a good business plan that makes sense: As the courts have put it, it will have to be…a business project that, in principle, can be said to be economically reasonable, within a social and economic environment, capable of guaranteeing the applicant enough income to ensure a dignified financial position.Out of curiosity, a recent ruling by the Supreme Court established that street trading… is an activity that, in spite of the modesty of means and resources, provided, it ensures a minimal financial stability for the trader…and given the seriousness of the business proposal and the confidence in a certain financial viability proposal… is good enough to secure a self-employed work and residency permit. The High Court threw out the State Lawyer’s allegations that this activity would force the foreigner into marginalization, begging and even a social danger.
  3. Where possible, try to show a professional background and/or experience connected to the business proposition. This is a plus but not an obligatory requirement.
  4. Do have suitable qualification for a specific business: if you are willing to start a doctor’s practice where you are the sole practitioner, and your background is engineering, you will fail. Equally, if you are a doctor, in say India or South Africa, and have not homologated your degree, you will also fail.On the contrary, businesses that you can run without having a specific qualification or degree, such as a restaurant, a music shop, a rural tourism resort etc. can be started by anyone, and therefore not subject to this restriction.
  5. Do have enough funds to back your business plan: Any serious applicant will have to show that he/she has a financial backing for the business proposal in question, the quantum being consistent with the projected investment. For example, an applicant that wishes to manufacture aircraft will need substantially more than €30,000. If you fall short, you will fail. Conversely, if you exceed the average cash requirement for any business, you are more likely to succeed.
  6. Where possible, try to get your business report “validated” by one of the 4 self-employed workers associations (UPTA, ASNEPA, CIAE and OPA), which have the authority to do so, pursuant to an agreement signed (PDF) by them with the General Directorate for Immigration, as envisaged in a 2007 Ministry of Labour circular (PDF).In fact, if you comply with this requirement, Government discretion in respect of points 2, 3, 4 and 5 are almost eliminated.
  7. Do have the funds in a bank account in the name of the applicant(s), and not just for a day or two: this is one of the requirements of current laws and cannot be substituted by a company account, a friend’s account or an account based in a bank that is not in Spain. Also, the authorities may request that you produce a bank certificate proving the “average” balance once the application has been granted and so it is highly advisable to leave the funds until the authorities resolve the application.
  8. Bear in mind that spending at least 184 days of a calendar year, once you receive your residency permit, is a requirement applicable to any resident of Spain if he/she wishes to retain his/her status. That is not to say that when you apply for the residency to be renewed, the authorities will be counting the days spent in Spain, or at least within any of the Schengen countries, but it is worth keeping it in mind.

    The only time that we were questioned about this was when an Egyptian resident, who had already applied for his residency renewal and had to go back to his country, had to request a “permit of return” from the Police Station (which allows entry to Spain when the residency is expired), and was told that should he apply for one, they would be forced to advise the immigration authorities that the passport did not show any entry into Spain within the whole of the first years of residency (thus recommending residency to be revoked with immediate effect). Faced with this, the applicant opted to stay in Spain until the renewal was approved.
  9. Don’t have a criminal record: obvious and yet, some people don’t realize that having criminal records will automatically mean a rejection. The law states that you need to have clean criminal records in the country(ies) where you have lived in the last 4 years.
  10. Do retain competent legal advisors to represent you in the application.

 

Immigration ,

Iranians Banned From Spanish Banks

September 5th, 2012

A document circulated within certain Spanish banks concerning dealing with citizens of “troubled countries” is tagged as strictly confidential, and so it should for its silliness when addressing the controversial issue of dealing with nationals from Iran or companies domiciled there.

The reason is none other than the embarrassingly sweeping generalization that some banks have made of the Council Regulation (EU) No 267/2012, by prohibiting by way of an internal circular the opening of accounts or the provision of lending to Iranian nationals, even if related to the desperately needed foreign investment in Spain.

It is not clear whether it is a cowardly attitude, the result of taking the “easy route” or, rather plainly, dire ignorance or stupidity for not properly understanding the Council Regulation but, whatever the reasons, such actions are putting off hundreds of Iranians who wish to start a new life in Spain for which the purchase of property is the first step.

The circular says:

RESTRICTIONS ON INVESTMENT:  

The following shall be prohibited:

  1. (a)    the granting of any financial loan or credit to any Iranian person, entity or body.
  2. (b)   the acquisition or extension of a participation in any Iranian person, entity or body.
  3. (c)    the creation of any joint venture with any Iranian person, entity or body.

The Council Regulation, on the contrary, says:

RESTRICTIONS ON FINANCING OF CERTAIN ENTREPRISES

Article 17

  1. The following shall be prohibited:
    1. the granting of any financial loan or credit to any Iranian person, entity or body referred to in paragraph 2;
    2. the acquisition or extension of a participation in any Iranian person, entity or body referred to in paragraph 2;
    3. the creation of any joint venture with any Iranian person, entity or body referred to in paragraph 2.
  2. The prohibition in paragraph 1 shall apply to any Iranian person, entity or body engaged:
    1. in the manufacture of goods or technology listed in the Common Military List or in Annex I or II;
    2. in the exploration or production of crude oil and natural gas, the refining of fuels or the liquefaction of natural gas; or
    3. in the petrochemical industry.

Actually, after re-reading I am comfortable with what really is the most obvious conclusion to the above mistaken transposition of the regulation: the undeniably brainless Spanish bankers’ (yes, it’s them again) who think that every Iranian passport holder wanting to buy a property is in reality a disguised horrible “Mullah”, or some Basiji thug, intent on smuggling nuclear warheads into the Spanish Costas…

!Viva Spanish Banks!

Immigration

Aspects of Spanish Nationality Application

August 28th, 2012

EU countries seem to follow similar legislative trends when handing out passports is concerned. The Daily Mail reported recently that a speeding offence was enough for the UK Border Agency to reject a citizenship application from a person from Botswana due to “bad character”, despite serving in the British Army for 4 years and having an otherwise impeccable record.

Spain’s authorities also apply administrative discretion to assess the eligibility of a foreigner to a Spanish passport, although, by contrast to the above decision, it seems that proportionality is better applied in Spain. The basic principles will however apply when an applicant has won the right to become a national, by passing of time: good behaviour, lack of criminal and police records, adequate integration in the Spanish society, reasonable command of the language and a stable income.

Let’s see the outcome of some cases that were ultimately resolved by the Courts after appeals were lodged both by turned-down applicants, or the Spanish State Lawyer against permits granted by the Civil Registry.

  1. The Moroccan husband living in Spain, with a son (4) and a daughter (2) who is turned down because of insufficient integration, and the allegations put forward are: his only friends are 3 nationals of his country, that he knows that the Spanish Constitution prohibits theft and only socializes with other nationals at work, that he barely comprehends the political structure of the society he lives in, among other things, and has shown minimal understanding of essential aspects of the society he wishes to become part of.
  2. An Argentinian who illegally connected a telephone device to a box and made several free phone calls, within Spain and also abroad, was equally denied citizenship. Turns out that the telephone company operators caught him red-handed and reported him to the Police and whilst he paid the sum and apologized, the Court deemed that such an action was hardly consistent with “good moral character”.
  3. Conversely, the Dominican lady sees the Supreme Court revoking a decision by the Civil Registry rejecting her nationality application. In this case, the High Court understood that there was no reason to deny her right to a Spanish passport on the basis that she was working in a brothel, since it was not demonstrated that she offered sexual services but that even if she were, the profession was neither illegal nor morally reproachable, both in Spain and in the EU.
  4. An Iraqi national that, since entering Spain, had dealings with car robbers, swindlers, document falsifiers and drug traffickers, according to a report drawn up by the Spanish Secret Service (CESID), was denied the right to citizenship by applying notions of “public order” and “national interest”.
  5. A Gambian polygamist was too discarded as eligible to Spanish nationality because according to the Court, the legal configuration of marriage, as being overwhelmingly present in Spain, is monogamy, and having several wives (polygamy) or husbands (polyandry), whilst not negatively considering cultures or societies that allow this form of custom, was crucial to assess the level of integration and adaptation to the Spanish society…which was found to be nil.
  6. Finally, an illiterate  applicant (of unknown origin) who was initially handed down a rejection, successfully appealed on grounds that belonging to a demographical group where the percentage of literacy is minimal, did not necessarily imply that the person could not fully integrate in society as in fact, she could speak Spanish with fluency and express herself clearly and effectively.

Immigration , , ,