12/09/2024
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Employment ties Temporary residence can be proven by any valid evidence
The Supreme Court has ruled that employment ties to Spain for obtaining temporary residency can be proven by any valid means. The Fifth Chamber of the Administrative Law Division of the Supreme Court has issued a ruling establishing that, in order to obtain temporary residency authorization in Spain under exceptional circumstances of employment ties, foreigners can prove their employment relationship and its duration by any valid means, including a work history certificate that demonstrates an employment relationship stemming from a previous residency permit that has expired.
The Supreme Court has ruled that employment ties to Spain for obtaining temporary residency can be proven by any valid means. The Fifth Chamber of the Administrative Law Division of the Supreme Court has issued a ruling establishing that, in order to obtain temporary residency authorization in Spain under exceptional circumstances of employment ties, foreigners can prove their employment relationship and its duration by any valid means, including a work history certificate that demonstrates an employment relationship stemming from a previous residency permit that has expired.
The Court thus establishes that it is not essential to prove the employment relationship exclusively through the means established in the second paragraph of article 124.1 of Royal Decree 557/11 of the Regulation of the Law on the rights and freedoms of foreigners in Spain, which mentions "a judicial resolution that recognizes it or the administrative resolution confirming the report of infringement of the Labor and Social Security Inspectorate that proves it."
The Supreme Court has dismissed the appeal filed by the State Attorney's Office against the ruling of the High Court of Justice of Andalusia, which granted a Moroccan woman the residence permit she requested based on her employment ties, as evidenced by her employment history certificate. Her application had previously been denied by the Government Sub-delegation in Almería and an Administrative Court in that city.
WORK, SOCIAL OR FAMILY LINKS
The Supreme Court ruling recalls that Article 124.1 of the Immigration Regulations states: “A residence permit may be granted for reasons of employment, social or family ties when the following requirements are met:
-For reasons of employment, foreigners who can prove continuous residence in Spain for a minimum period of two years may obtain authorization, provided they have no criminal record in Spain and in their country of origin or in the country or countries in which they have resided during the last five years, and who demonstrate the existence of employment relationships whose duration is not less than six months.
For the purposes of proving the employment relationship and its duration, the interested party must present a judicial resolution that recognizes it or the administrative resolution confirming the report of infringement of the Labor and Social Security Inspectorate that proves it.”
The high court emphasizes that this does not mean that "any other means of proof" to demonstrate employment ties are excluded, a concept which, as defined in the Regulation itself, would be unjustifiably restricted.
“There is no justification, nor support in the definition of employment-based integration contained in the regulations, for attributing such integration to someone who, having remained in Spain for at least two years, has been working illegally or clandestinely for six months, and denying it, on the other hand, to someone who, under the same temporal circumstances, has worked legally under a previous residence permit that has expired,” the Court explains.
ANY EVIDENCE
Regarding the State Attorney's argument that this interpretation renders the renewal of residence permits superfluous, since the requirements established in Article 71 of the Regulation would no longer need to be met, the court responds that "this situation would not only constitute a clear act of fraud against the law, but it is, in reality, a case in which what is lacking is the employment relationship itself, which, by its very nature, always refers to an employment relationship that must be close in time to the moment of seeking the permit based on it."
The Supreme Court indicates that requirements derived from both the right to evidence and the very concept of employment ties contained in the regulations, "demand that said employment ties can be proven by any means of proof valid in law, including, therefore, employment history certificates that prove an employment relationship that may have derived from a previous residence permit that has expired."
He explains that “the purpose of the second paragraph of Article 124.1 of the Regulations is not, nor can it be correctly interpreted, to restrict the means of proving employment ties, but rather, on the contrary, to facilitate proof thereof when it is based on clandestine employment relationships, precisely because of the difficulty of proving such circumstances. The provision thus aims to address the problems that may arise in proving situations where ties stem from illegal, hidden, or clandestine employment relationships, but it does not intend to restrict the very concept of employment ties to a specific type of employment relationship, namely illegal or clandestine, much less impose an obligation to report the illegality of the employment situation on those who suffer it. None of this can be inferred from the definition of employment ties contained in the first section of the provision.”
SPECIFIC CASE
The Moroccan woman in question submitted an application for residence authorization based on employment ties on February 15, 2016, pursuant to Article 124.1 of the Regulations. To prove her employment relationship of more than six months, she provided a work history certificate showing that she had worked for 8 months and 11 days, of which 70 days corresponded to the year 2008, and the remainder to the year 2015. Therefore, the bulk of the employment relationship supporting the alleged employment ties was carried out under the provisional residence and work permit she had obtained on September 24, 2014.
Employment-based residency, Foreigners in Spain, Immigration, Immigration Law
