Go to:
• Section A General questions
• Section B Questions on specific provisions
• Section C Final questions
• Section D Table on transposition

• LEY ORGÁNICA 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social, en su redacción dada por la LO 8/2000, de 22 de diciembre, por la LO 11/2003, de 29 de septiembre y por la LO 14/2003, de 20 de noviembre. [LOE] (Organic Law on the rights and freedoms of aliens in Spain and their social integration amended by OL 8/2000, OL 11/2003 and OL 14/2003).
• REAL DECRETO 2393/2004, de 30 de diciembre, por el que se aprueba el Reglamento de la LO 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social, BOE nº 6, 7/01/2005. [RLOE] (Regulation on the application of the Organic Law on the rights and freedoms of aliens in Spain and their social integration amended by OL 8/2000, OL 11/2003 and OL 14/2003).
• LEY 5/1984, de 26 de marzo, reguladora del derecho de asilo y de la condición de refugiado, modificada por la Ley 9/1994, de 19 de mayo. (Asylum Law 5/1984, amended by Law 9/1994).
• REAL DECRETO 203/1995, de 10 de febrero, por el que se aprueba el reglamento de aplicación de la ley 5/1984, de 26 de marzo, reguladora del derecho de asilo y de la condición de refugiado. (Implementation Rules of Asylum Law 5/1984, amended by Law 9/1994).

• Sentencia del Tribunal Superior de Justicia (Sala de lo Contencioso-Administrativo) del País Vasco, 284/2006, de 21 de abril: refusal of temporal residence permit on the grounds of “roots”. Reference made by the Court.
• Sentencia del Tribunal Constitucional (Sala 2ª), 41/2006, de 13 de febrero: recurso de amparo; discriminatory dismissal for sexual orientation. The Court quotes some European acts containing protection against discrimination on the grounds of sexual orientation. Among those acts, mention is made of Directive 2003/86.
• Sentencia del Tribunal Superior de Justicia de la Comunidad Valenciana (Sala de lo Contencioso-Administrativo), 1334/2005, de 14 de julio: refusal of visa exemption. The appealing party alleges the Directive 2003/86. Rejection of the appeal on formal grounds.
• Sentencia del Tribunal Superior de Justicia (Sala de lo Contencioso-Administrativo) de Madrid, 914/2005, de 30 de mayo: refusal of visa for family reunification. Invoked by the appealing party.
• Sentencia del Tribunal Superior de Justicia (Sala de lo Contencioso-Administrativo) del País Vasco, 94/2005, de 11 de febrero: refusal of temporary residence permit. Reference made by the Court.
• Sentencia del Tribunal Superior de Justicia (Sala de lo Contencioso-Administrativo) del País Vasco, 1100/2004, de 10 de diciembre: refusal of visa exemption and temporary residence permit. Reference made by the Court.

Regarding article 8, which was also attacked by the European Parliament, we have already stated that Spanish legislation requires that the sponsor must have resided legally in Spain for one year and have obtained a residence permit for at least one more year before filing the family reunification application (see answer to question on article 8). Nevertheless, Spain does not make use of the possibility laid down by article 8, second paragraph. Therefore, we could affirm that no effects in Spanish legislation can be deduced from the judgment of the ECJ.

There is some legal literature dealing with the judgment of the Court of Justice of 27 June 2006 such as FERNÁNDEZ COLLADOS, Mª Belén, "Las controvertidas excepciones previstas en la Directiva 2003/86/CE de reagrupación de familiares de nacionales de países terceros. Comentario a la STSJCE de 27 de junio de 2006.", Aranzadi Social nº 11/2006. [The controversial exceptions laid down on the Directive 2003/86/EC on family reunification of third-country nationals. Comments on the ECJ judgment of 27 June 2006.]

Neither the LOE nor the RLOE mention the clause “reasonable prospects of obtaining the right of permanent residence”. [The Spanish law provides that an alien who can prove that he/she has resided legally and permanently in Spain during 5 years has the right to obtain a permanent resident permit (article 72 RLOE).] However, in our opinion, the conditions required by Spanish legislation which has been described above could be considered as more favourable than the clause of article 3.1 of the Directive.

Third country national family members of Spanish citizens are entitled to a more privileged treatment than third country national family members of aliens. Their regime is more favourable than the general one.

For example, regarding the family members entitled to reunification:

• Spouse: only not being legally separated (the general regime lays down that the spouse must not be separated de facto neither) [art. 2.a Royal Decree];
• Relatives in descending line: under 21 or over 21 but dependant on the sponsor (the general regime lays down the rule of family members under 18 or over 18 if they are handicapped) [art. 2.b Royal Decree];
• Relatives in ascending line: they must be dependant on the sponsor (the general regime adds that there must be also reasons justifying the need to authorize their residence in Spain) [art. 2. c) Royal Decree].

Concerning the spouse of a Spanish citizen, he/she does not need to prove stable long-term cohabitation. The only condition to enter Spain is to prove the existence of an effective conjugal bond. (Concerning the possible protection of the situation of unmarried partners and even if they are not covered by RD 178/2003, it seems that some judicial decisions try to cover the question. However, there are divergent opinions in judicial decisions dealing with the possibility of exempting unmarried partner from visa requirements in order to reside in Spain with a citizen, that is to say, before the judgement of ECJ of 14 April 2005 (Decision of Juzgado de lo Contencioso-Administrativo núm. 13 de Barcelona, de 14 de mayo de 2004 answers affirmatively; on the contrary, decision of the Juzgado de lo Contencioso-Administrativo núm. 3 in Pamplona, of April 16, 2004, denies the exemption of visa to the unmarried partner of a Spanish citizen). See Annexe to the Spanish report where this question has been solved by the new Royal Decree 240/2007.)

a) The sponsor’s spouse, if they are not separated legally or de facto or when the marriage has not been carried out in legal fraud. It is not possible to authorise the family reunification of another spouse, although the national law of the alien accepts polygamous marriage.

b) The minor children of the sponsor and of his/her spouse, including adopted children, if they are under 18 years old or they are handicapped in accordance with Spanish law or their national law. None of them can be married. Children only of the sponsor or only of his/her spouse have to be under his/her custody, which must not be shared. Besides, children should be dependant on him or her. Regarding adopted children, they must have been adopted in accordance with a decision which takes effect in Spain.

c) Minors under 18 years old or handicapped when they are under legal representation of the sponsor.

A legal reform to implement the provision of the Directive on the admission of unmarried partners should be adopted by the Spanish authorities. Unmarried couples are not against public order in Spain and Spanish case-law gives the same treatment to married and unmarried couples in relation to family reunification (Decisions of Supreme Court –Tribunal Supremo- of 14 February 1997 and 15 December 1998, 3 March 1999 (6337/95); 11 October 1999 (10/96); 15 November 1999 (5413/96); 6 June 2000, RJ 6119; etc.). Nevertheless, it must be pointed out that the Supreme Court has only established that couples who reside in Spain should not be separated. That is to say, this criteria is applied only to refuse the expulsion of an unmarried partner already residing in Spain, but the argument has not been used yet to admit an unmarried partner in our country for family reasons.

The Spanish Constitutional Court has established that the term “spouse” (cónyuge) refers also to an unmarried partner in those legal acts where is the situation of cohabitation and affection which is taken into account. This use is not against the Spanish Constitution. (Decisions of Constitutional Court 222/1992; 237/1992 y 47/1993).

Concerning married homosexual partners, since LOE refers to “spouse” without sexual distinctions, it should be considered as admitting this possibility after the amendment of the Civil Code by the Law 13/2005, of 1 July (BOE 157, 2 July 2005). The homosexual marriage is not against Spanish public order. In this case, the sponsor has the right of family reunification of the spouse if the marriage has taken place in Spain, The Netherlands, Belgium or Canada.

• Documentary evidence of the family relationship and, if necessary, of the age and the legal and economic dependence;
• Documentary evidence of the sponsor’s residence permit or residence and employment permit, together with the renewed one, or his/her application for renewal.
• Documentary evidence proving the existence of an employment and/or economic resources sufficient to cover the family’s needs, and medical care if it is not covered by the social assistance system. The amounts of the economic resources and who the resources may belong to are not specified. The amounts shall be established by Ministerial Order. Nevertheless, there could be a problem of legal certainty due to this lack of clarity in the norms. At the same time, it is not possible to find or have access to the order by which the Presidency Minister has had to determine the amount of resources required and the possible ways to prove these (article 42. 2. d) RLOE).
• Documentary evidence proving the existence of accommodation regarded as sufficient for the sponsor and his/her family. A report must be provided by the City Council on the sponsor’s place of residence. The time limit for this report is 15 days. Instead of the report, an affidavit (“acta notarial”) can be provided. The report or the affidavit shall mention the number of persons who live in the house and the general conditions of accommodation.
• Concerning the reunification of the spouse, the sworn statement of the sponsor that there is not another spouse living with him/her in Spain is required.

Concerning fees, the applicant (the sponsor) must not pay any at the time of filing the application for family reunification.

Once there is a positive decision regarding both the family reunification application and the visa, it is the family member who has to pay fees in order to obtain the document granting him/her the residence permit on the grounds of family reunification. The amount is of approximately €18. (Information provided by a legal advisor on asylum and aliens law.)

The Spanish regime on family reunification only specifies that the sponsor has to pay fees when he/she obtains the renewal of his/her residence permit or the new alien’s identity card (article 44.6 RLOE).

However, according to article 5.3 of the Directive, the Spanish legislation establishes two possible exceptions (article 42.6 RLOE):

• the minor children or handicapped children of the sponsor who have lived in Spain two years in a permanent fashion (article 94.2 RLOE);
• family members who live with the sponsor at the time his/her student residence permit changes to a residence and employment permit (article 95 RLOE).

According to article 18.2 LOE and 42 RLOE, the sponsor may file a family reunification application when he/she has resided legally in Spain for one year and has obtained a residence permit for at least one more year. However, it is not necessary to have the renewed residence permit at the time of the application, but the latter can be already filed if the residence permit renewal has been requested but not granted yet. Nevertheless, the family reunification permit will not be granted until the effective renewal of the sponsor’s residence permit or after the period understood as positive silence.

The time limit for the decision on the application is 3 months when the sponsor has applied for the renewal of his/her residence permit or residence and employment permit. In other cases (when the sponsor already has the renewed permit), the time limit is one month and a half, according to Eighth Additional Provision of RLOE.

Concerning public health, article 43.2.e) also requires a medical certificate proving that he/she is not suffering from any of the illnesses, prone to quarantine and stipulated by the International Health Regulations.

Moreover, as regards the issue of visas, article 27.6 LOE establishes that the refusal of a visa for family reunification purposes shall be justified, and one of the grounds for refusal is that the applicant was reported in the Schengen Information System (SIS) as a person not to be permitted entry.

Concerning temporary residence, article 31.4 LOE requires compliance with the same conditions as those explained for visa applications [criminal record and SIS (article 31.4 LOE)]

We may add that, according to article 42.3 and 42.4 RLOE, a previous report of the police on the reasons for the refusal of the family reunification application must be provided.

In addition, we would like to point out that the general regime applicable to aliens mentions the public policy exception in relation to expulsion. Therefore, if an alien takes part in any incident contrary to public policy as established by Organic Law 1/1992, of 21 February, on Protección de la Seguridad Ciudadana, the sanction will be to pay a fine or to be expelled (articles 53.f ); 54.1.a) and 57.1 LOE).

The Supreme Court has established the possibility to refuse a residence permit on the grounds of public order (Decision of 23 October 1998).

[See also answer to question B.37].

According to this regime and comparing it with the one mentioned above, there are some similarities:

• Public policy is considered as a ground to refuse the issue of visa for entry purposes (article 4.3 RD 178/2003).
• Requiring a medical certificate (article 12.2 RD 178/2003).

Secondly, according to the ECJ judgement of 31 January 2006 [C-503/03, Commission v. Kingdom of Spain , OJ C 21, 24.01.2004], the public policy exception regarding the inclusion of an alien in the Schengen Information System (SIS) must receive a restrictive interpretation, as far as third country nationals who are spouses of Spanish citizens are concerned. As a consequence, a Member State, willing to refuse an entry based on the SIS, should verify whether the presence of these persons constitutes a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. This interpretation does not apply to third country nationals who are family members of an alien, but only to those third country nationals who are family members of EU citizens.

The Spanish legislation does not mention the need to take into account “stable and regular” economic resources, although it is established by article 7.1 (c) of the Directive.

In this regard, a report of the City Council of the sponsor’s residence place must be provided. The time limit for this report is 15 days. Instead of it, an affidavit can be provided. The report or the affidavit shall mention the number of persons who live in the house and the general conditions of accommodation, but it is not compulsory to meet any specific accommodation standard (contrary to the previous RLOE, approved by Royal Decree 864/2001, which required some standards regarding, for instance, electricity, running water, etc). The sponsor can be the owner or the tenant of the house.

However, it is not necessary to have the renewed residence permit at the moment of the application, but the latter can be already filed if the residence permit renewal has been requested but not granted yet. Nevertheless, the family reunification permit will not be granted until the effective renewal of the sponsor’s residence permit or after the period understood as positive silence.

Preliminary considerations in relation to refugees:
Law 5/1984 concerning the right of asylum and refugee status and Royal Decree 203/1995, which is the Implementation Rules of the Asylum Law, constitute the specific rules regarding refugees and asylum seekers in Spanish legislation. These acts do not regulate strictu sensu the right to family reunification of refugees. Nevertheless, article 10 of the Law and 34 of the Royal Decree provide for the right to family extension of asylum, to which refugees are entitled and which can be considered as the legal institution that allows the family reunification of refugees. In addition, family extension of asylum is deemed to be more favourable than the regime of family reunification stipulated by the LOE and the RLOE.

We must point out that the LOE and the RLOE shall be understood as the subsidiary applicable rules to refugees, according to the so called unique article of the RLOE.

However, article 10 of this law excludes from family extension of asylum those family members of the refugee who are not dependent on the refugee. Nevertheless, we consider that this will not be applicable to the situation of minors, where the dependence of the relative in the ascending line in relation to the refugee would not be examined due to the “best interest of the child” principle.

Mention of refugees who are minors is made on article 92.6 RLOE, which refers to article 15.4 RD 203/1995. Nothing is said about their family.

The only reference to documentation is made by article 8.5 of the Asylum Law which stipulates that if the persons for whom family extension of asylum is demanded are on Spanish territory, they must enclose their personal documents to the application [article 8.5 Law of Asylum].

Therefore, we could understand that Spanish legislation is permissive, allowing the filing of documents or evidence other than official documents, but at the same time this absence of regulation implies a broad margin of appreciation by public authorities.

• The application is to be filed by the family member personally at the Spanish diplomatic mission or consular office in the country of origin. However, there are some exceptions where a legal representative is allowed to file the application for the visa: a) when there are justified grounds that prevent the displacement of the applicant (distance to the consular office, difficulties of transport, illness or physical condition affecting mobility in a sensible manner) b) minors. [art. 43 RLOE]. Third additional provision of the LOE and Fourth additional provision of RLOE dispose that the presentation by legal representative “may be granted” in these situations, while article 43 RLOE states that the diplomatic mission or consular office “shall accept” the filing by a legal representative in the situations described above when family reunification is concerned, which implies a facility in relation to the general regime. However, it should be added that the possibility of being called for a personal interview could distort the effectiveness of the legal representation, added to the fact that not attending the interview will be considered as abandonment of the procedure [art. 43.3 RLOE].
• Among the documents that must be attached to the application are a passport or travel document, valid in Spain and with a minimum validity period of 4 months. It should be pointed out that, as regards other types of visas, the required minimum period of validity is 1 year [e.g. art. 35.2.a) for the temporal residence visa].
• The diplomatic mission or consular office shall notify the granting of the visa for family reunification in 2 months maximum [art. 43.5 RLOE]. However, Eighth additional provision of RLOE establishes a maximum period for visa procedures of 1 month with some exceptions of 3 months in the case of a transit visa, stay visa or non lucrative residence visa. In consequence, it is true that a period of 2 months as the one established for family reunification is not the most burdensome for the individual, but if the objective is to “grant every facility for obtaining the required visas” a period of 1 month could have been preferable. (Nevertheless, part of the doctrine considers the Eighth Additional Provision as being applicable to family reunification, which will mean that the maximum period for visa procedure will be of 1 month. However, it should be pointed out that a specific provision of a law or regulation (as art. 43 of RLOE) takes precedence over an additional provision).
• The eleventh additional provision of RLOE lays down that visa applications and residence permits on family reunification grounds shall have preferential treatment.
• The refusal of a family reunification visa shall be justified; the concerned person shall be informed about the facts and circumstances stated, about the testimonies received and about the documents and reports, mandatory or not, which, according to applicable laws, had led to the refusal decision [DA 6ª RLOE, p. 6; art. 27.6 LOE].
• It should be added that the possible refusal decision based on enough signs to doubt on identity, validity documents or truthfulness of the grounds for visa (art. 43. 4 RLOE) could constitute an excessive burden, due to the fact that these questions have already been examined through the family reunification application by Spanish authorities. There will not be any reason to refuse the visa application except for public order or medical reasons, aspects which are not verified at the time of the permit application.

Specifically, concerning access to employment, it is necesssary to comply with the employment requirements stated in article 50 RLOE and also that the employer files the application for the permit. These requirements are supposed to be the same as those which the sponsor had to comply with to access employment. Nevertheless, the national situation of employment is not taken into account, neither is the worker’s criminal record in Spain and in previous countries of residence [art. 96.3 RLOE]. [It should be underlined that not requiring the criminal record does not seem to be very coherent with the general regime of the family reunification permit, since a criminal record must be included in the application for the visa on the grounds of family reunification and since a renewal application of the residence permit can be refused because of behaviour contrary to public order (art. 57 LOE; LO 1/1992 on Protection of Public Security).]

Regarding access to self-employment, requirements are set out in article 58 RLOE, and the person’s criminal record is also excluded.

The order TAS/3698/2006, of 22nd November, enacted by the Ministry for Employment and Social Affairs, lays down the possibility for the titular of a residence permit on the grounds of family reunification to be inscribed as a job seeker in the public services of employment and in job agencies, without any limitation except the validity of the residence permit. This order repeats that there is not a minimum time of previous residence required for family members and that national situation of employment and the criminal record are not taken into consideration. In addition, refugees and family members who have been granted the family extension of the protection are included in this legal instrument, without specifying any condition or requirement.

• Spouse: not being separated.
• Children and minors under legal representation of the sponsor: to be of legal age (18 in Spain).

• Spouse: obtaining a permit to work or being in one of the following situations: break up of the conjugal bond by separation or divorce after 2 years of marital cohabitation in Spain with the sponsor; being a victim of domestic violence once a protection order had been adopted; in the case of the sponsor’s death.
• Children and minors under the legal representation of the sponsor: being of legal age and obtaining a permit to work. Concerning children, we wonder if the requirement to have the legal age could be discriminatory as concerns Spanish minors or other aliens taking into account that the age when a person is allowed to work (the minimum legal age to access to an employment is 16, although the minor will need a parents’ permit until he is 18 years old. [art. 7, Estatuto de los Trabajadores, RDL 1/1995, de 24 de marzo].) is lower than the legal age of 18. In order to solve this obstacle, it should be noted that, under Spanish legislation, the legal concept of emancipation is equivalent to the legal age. The ways to access emancipation (possible to obtain from 16 years old) are regulated in the Civil Code (articles 314 - 324): marriage, granting by the holder of the parental authority or granting by judicial order. Moreover, emancipation must be registered at the Civil Registry in order to take legal effect as regards third parties (art. 318 CC).

In addition, the parents of the sponsor are also entitled to an autonomous residence permit. However, their only possibility is to obtain a work permit, meaning that the residence period of 5 years is not applicable to them. As this could be quite burdensome to the relatives in the ascending line, we consider that Spanish legislation should have introduced a provision like the one contained in article 15.3 in fine of the Directive, ensuring the granting of an autonomous residence permit on the grounds of “particularly difficult circumstances”.

Finally, Spanish legislation does not grant an autonomous residence permit to an unmarried partner due to the simple reason that unmarried partners are not included among the family members who can benefit from family reunification, as we referred to in the question related to article 4.3. This does not constitute an infringement due to the fact that article 4.3 of the Directive is not a mandatory provision.

In our opinion, it could be interpreted that resources of family members should be taken into consideration at the time of the renewal of the permit, even if the legislation makes no particular reference to this issue. These resources could be taken into account in those cases where family members have not acquired autonomous residence permits yet (spouse and non independent children, see art. 41.6 RLOE).

Nevertheless, there could be a problem of legal certainty due to this lack of clarity in the norms. At the same time, it is not possible to find or have access to the order by which the Presidency Minister has had to determine the amount of resources required and the possible ways to prove these (article 42. 2. d)).

On the other hand, the above mentioned article 44 RLOE related to the renewal of residence permits on a family reunification basis does not make any specific reference to family bonds. According to the model of the application form, while a document proving family bonds must be filed on the initial application, nothing is said in this respect as far as the renewal application is concerned.

Article 75 RLOE lays down the motives leading to the extinction of the temporary residence permit. Our interest will concentrate on paragraph 2, related to express decisions of extinction, due to the fact that the silence on a renewal application for a family reunification permit is favourable. Letter c establishes the disappearance of the circumstances on which the permit’s granting has been based as a reason leading to the extinction of the permit. That is to say, that the disappearance of a real family relationship may allow for refusal or withdrawal of a residence permit, always at the time of the renewal because there are no periodical controls of the conditions on which the permit has been based.

We could add that, by virtue of the reform of the Civil Code by Law 15/2005, the suspension of marital cohabitation is no longer a cause of marriage separation. Therefore, as this suspension is not part of Spanish public order, it should not be required from aliens willing to renew their residence permits on the grounds of family reunification.

The criteria which should be fulfilled in order to prove a real marital relationship could be those stated on articles 67 and 68 of the Civil Code, according to which, “The spouses must respect and help each other and act in the interest of the family” and, “The spouses are obliged to live together, to be faithful and help each other. They will also have to share domestic responsibilities and the care and the attention to relatives in the ascending and descending lines and other dependent people”.

Concerning the relationship between parents and minors, the condition required by Spanish legislation in order to obtain the family reunification permit or its renewal, according to which family bonds must be proved, is of course applicable to this kind of family relationship too.

Concerning provisions on this issue, there exists an Instruction from the General Direction for Registers and Notaries, of 31 January 2006, related to marriages of convenience. Among the objectives of this kind of marriage, the instruction mentions the aim of “obtaining family reunification of third country nationals”. It adds that these marriages promote infringements of nationality and alien legislation, according to the Council Resolution of 4 December 1997, and they favour illegal immigration.

Regarding a marriage of two aliens, as will be the case in a family reunification situation such as the one examined here, the authenticity of the consent should be examined on the basis of the individuals’ personal law. Therefore, Spanish law will not be applicable, unless the foreign law in question admits a marriage with a simulated consent. In that case, Spanish law will be of application due to public order.

Even if the instructions and advice given by this provision are aimed at the Registry Officials, responsible for marriage registrations, we understand that they are also relevant for the public authorities examining the residence permit applications on the grounds of family reunification. It seems that practice is in conformity with the Directive, since the official must assume certain presumptions in favour of authentic marital consent and since an “absolute moral certainty” must be attained by the official in order to refuse registration of the marriage.

On the one hand, article 75 RLOE concerning the extinction of residence permits, analysed above, does not state anything related to this issue.

On the other hand, article 44.4 RLOE refers to the general regime of mandatory leaving established in the LOE. According to this provision, a negative decision concerning the renewal of residence permits on the grounds of family reunification will produce the mandatory leaving of the applicant. It is clear that such a provision should have included that the negative decision must be motivated and the person notified personally, stating the possible appeals and their terms. If the person does not comply with this mandatory leaving within the specified deadline or in 15 days maximum, he/she will be in an irregular situation in Spain, and wil then receive an expulsion order. The provisions of the LOE and RLOE on mandatory leaving do not make references to these relevant considerations, which could be considered as an infringement of article 17 of the Directive. However, judicial practice seems to be in accordance with article 17, since Spanish courts are bound to apply the jurisprudence of the European Court of Human Rights on expulsions. In addition to Spanish case law, this is expressly stated in Memorandum 2/2006 on several aspects of the regime on aliens in Spain, issued by the Attorney General, in relation to expulsions of aliens as a consequence of committing a criminal offence. Therefore, it is also applicable to expulsions ordered on administrative grounds.

The only references made to family members as far as expulsion is concerned can be found, firstly, in article 57.6 of LOE, which is not exactly the same as that which is required by article 17 of the Directive. The exemptions to expulsion applicable to aliens in specific situations shall extend to their family members (spouse, relatives in ascending line, children and discapacitated members), only if the family member has resided legally in Spain for more than two years. Secondly, article 119 RLOE concerning the infringements and sanctions regime refers to taking into account the personal and family situation of the offender at the time of determining the corresponding sanction.

• Article 21 LOE: any act and administrative resolution adopted in relation to aliens shall be subject to appeal according to the law.
• Article 22 LOE grants the right to free legal assistance for those who lack the sufficient resources. However, since the sponsor of family reunification must prove the possession of sufficient economic resources in order to maintain family members, the fact of requesting free judicial assistance would be an evidence of not complying with the application requirements.
• Article 27.6 LOE: the refusal of a visa must be motivated in the case of the residence visa for family reunification. The resolution shall specify the possible appeals against this, the organism before which they shall be filed and the period of time.
• Article 65 LOE: the sanctioning administrative resolutions shall be subject to appeal according to the law. The alien who is out of Spanish territory will be able to give notice of pertinent appeals, administrative or judicial, through diplomatic or consular missions, which will refer them to the competent authority.
• Article 42.4 RLOE: A negative decision on the family reunification application shall be communicated to the sponsor, including the reasons for the refusal.

Concerning the administrative review (LRJAP-PAC), it is important to make a distinction between acts which imply the end of the administrative channels and those which do not (Tenth Additional Provision RLOE). Among the first ones, the decisions on renewal of residence permits and on “returns” must be included, which means that the proper administrative review against this type of decision is a “recurso de alzada” [art. 114-115 LRJAP-PAC]. Among the second ones, reference must be made to decisions on visa refusal, refusal of residence permit (on the grounds of family reunification as far as we are concerned) and expulsions. Against this type of decisions, the administrative review consists of a “recurso de reposición” [art. 116-117 LRJAP-PAC]. The latter is a voluntary review in the sense that the individual may decide to attack the administrative act directly before the jurisdictional order.

Regarding judicial review (LJCA), litigious-administrative actions can be brought against any administrative act which implies the end of the administrative channels. The claimant may try to obtain a declaration by which the act is said not to be in accordance with the law and therefore it is null and void. Moreover, he/she may try to obtain the recognition of an individualised legal situation and the adoption of the pertinent measures which are necessary to restore that situation, even compensation for damages. Therefore, it seems to imply a full review.

However, the general procedure stipulated in the LJCA is excepted in some cases, where a “Procedimiento abreviado”/Abridged proceedings is to be applicable [art. 78 LJCA]. Among those cases, we find precisely every matter related to aliens (“extranjería”). The competent organs are the Courts for Litigious-Administrative proceedings (art. 8.4 LJCA). Besides, we understand that the decisions can be appealed according to articles 81 et seq. of the LJCA.

Article 114 of the same law lays down a special procedure for the protection of fundamental rights, which might be applicable to family reunification matters. However, this procedure is only pertinent to those rights granted by articles 14 to 29 of the Spanish Constitution, the core fundamental rights which are protected by the appeal for legal protection (“recurso de amparo”) before the Constitutional Court [art. 53.2 Spanish Constitution]. Now the question is to establish whether the right to family reunification is considered to be one of those core rights or not. There are two possibilities: 1.- to include this right into the right to private and family life, granted by article 18; 2.- to understand it under article 39 which establishes that “public authorities shall ensure the social, economic and legal protection of the family”. In the second case, we are dealing with a guiding principle for social and economic policy, which is not strictu sensu a fundamental right which can be granted “amparo” or legal protection by this special procedure. In our opinion, family reunification should be understood as part of the right to family life, granted by article 18 of the Constitution. This interpretation follows the same line as article 8 of the European Convention on Human Rights and Fundamental Freedoms of 1950.

The special procedure for the protection of fundamental rights implies preferential proceedings and it can be introduced against a provision, action or act which involves an infringement of the legal order, even power deviation, and therefore it produces a violation of a right with this legal protection. Nevertheless, this action may be used, in our opinion, against negative decisions on renewal residence permits, on refusal of the family reunification permit filed by the sponsor or decisions on expulsion. Probably, it would not be accepted against refusals on the grounds of the irregular presence of the person in Spanish territory.

Concerning the active legal standing, we must stress that there is a contradiction between the Spanish version and the English one. The first establishes in its article 18 that Member States shall ensure that the sponsor and his/her family members have the right to introduce judicial or administrative appeals, while the latter states the same thing but as regards the sponsor and/or the members of his/her family […]. The Spanish version seems to be the wrong one, taking into account that other versions coincide with the English one (e.g. Italian, French).

In Spanish legislation, the active legal standing belongs to the physical or legal person who has a right or legitimate interest [art. 19.1.a) LJCA]. In consequence, we may understand that the sponsor as well as the family member has a legitimate interest in any appeal concerning the family reunification procedure, even if both of them have not been parties to the administrative procedure. (That is to say that in the visa procedure for family reunification it is the family member who is party at the procedure, but the sponsor has a legitimate interest. And in the procedure for obtaining the residence permit for family reunification, it is the sponsor who is party, but the family member has a clear legitimate interest.) Therefore, Spanish legislation complies with article 18 of the Directive, including the more restrictive writing given by the Spanish version.

Before this judgment, the aliens entitled to free legal aid were those residing legally in Spain (article 2.a) of Law 1/1996). After the judgment and the subsequent legal reform, aliens who are in Spain, whatever it is their administrative situation, are entitled to this assistance. (Even if this judgment of the Constitutional Court made only reference to Law 1/1996, we may understand that article 22 LOE should also be interpreted according to that judgment and the modified Law on legal aid).

Strengths:

• The fact that the application for family reunification may be submitted by the third country national residing lawfully in the Member State as well as by his/her family members.
• Including unmarried partners in the personal field of the Directive, even if it is not a mandatory clause for Member States.
• The relevant considerations which must be taken into account according to article 17 of the Directive.

• The great margin of appreciation left to the Member States on the implementation of the Directive.
• Not including in the personal field of the Directive those persons who benefit from subsidiary forms of protection (article 3.2).
• Requiring integration conditions to children aged over 12 years (article 4. 1 in fine) and requiring the submission of the application for minors under the age of 15 (article 4.6).
• Requiring a maximum time limit of 9 months for adopting a decision on the family reunification application appears to be quite excessive (article 5. 4).

Strengths:

• The sponsor may file a family reunification application when he/she has resided legally in Spain for one year and has obtained a residence permit for at least one more year (article 18.2 LOE and 42 RLOE). These conditions seem to be more favourable than the clause of article 3.1 of the Directive, requiring “reasonable prospects of obtaining the right of permanent residence”.
• The absence of a time limitation for access to employment and self-employment by family members of the sponsor (not use of the exception of article 14.2 of the Directive)
• The possibilities of the judicial and administrative review of negative decisions seem to be quite protector for the sponsor and their family members.

• The absence of formal implementation of the Directive into Spanish legislation.
• The fact that family members are not entitled to apply for family reunification.
• The need for legal reform in order to introduce the right of the sponsor to family reunification of his/her unmarried partner.
• Legal uncertainty regarding the “sufficient resources” required from the sponsor at the first application as well as at the renewal application.
• The absence of formal transposition of article 17 of the Directive.

The recent Royal Decree 240/2007, of 16 February, on the entry, free movement and residence in Spain of nationals of EU Member States and other States of the EEA [BOE nº 51, 28.02.2007] constitutes the transposition of the Directive 2004/38/EC and covers the family reunification of Spanish citizens, even if they have not exercised their right to free movement inside the EU. This new legal act has replaced the previous Royal Decree 178/2003.

For this purpose, the Third Final Provision of RD 240/2007 has amended the RLOE, the regulation of the Law on Aliens in order to include a new Additional Provision, the Twentieth to be precise. According to the latter, RD 240/2007 will be applicable to the following family members of a Spanish citizen, irrespective of nationality:

• Spouse, neither divorced nor legally separated;
• Unmarried partner, registered in a public office of any Member State or EEA State, thus giving protection to a situation only dealt with by the Courts up to the present;
• Relatives in the descending line of the sponsor – including those of the spouse or the unmarried partner– under 21 years old or over 21 but dependant on them or incapacitated. This reference to incapacitated children was missing in the precedent regulation (RD 178/2003)
• Relatives in the ascending line of the sponsor – including those of the spouse– where they are dependent on them and have a card of family member of an EU resident at the moment of entry into force of RD 240/2007. Family reunification of other relatives in direct ascending line will be covered by RLOE, that is to say the general regime of family reunification. It constitutes a new regulation, a restrictive one in this case, in comparison to the regulation of family reunification of Spaniards laid down on RD 178/2003.

On the other hand, family members shall need an entry visa when required by EC Regulation nº 539/2001. Visa procedures shall have preferential treatment and the issuing of the visa shall be free of charge. In addition, family members are exempt from visa requirements when they have a card of a family member of an EU citizen (article 4.2 RD 240/2007).

However, if the family member does not have the required visa, the competent authorities, responsible for border controls, shall grant him/her every facility for obtaining the necessary documents in a reasonable period of time, before proceeding to his/her return (article 4.4 RD 240/2007).

Family members are required to ask for an EU citizen’s family member card, which will be issued within 3 months from the filing of the application and will have a validity of 5 years (article 8 RD 240/2007).

Finally, an expulsion order addressed to the family member having a permanent residence permit may only be adopted in the case of serious grounds of public order or public security. Before taking this decision, considerations such as the length of the residence and social and cultural integration in Spain of the individual concerned, his/her age, state of health, family and economic situation and the importance of his/her links with the country of origin shall be taken into account (article 15.1 RD 240/2007).

• Ley 29/1998 Jurisdicción contencioso-administrativa
• Ley 1/1996 Asistencia jurídica gratuita
• Ley 30/1992 Administraciones publicas-procedimiento administrativo
• Ley 5/1984 Regula el derecho de asilo y la condición de refugiado
• Ley Orgánica 4/2000 Regula los derechos y libertades de los extranjeros en España
• Orden Tas/3698/2006 Regula la inscripción de trabajadores extranjeros
• Real Decreto de 14 febrero 2003 sobre etrada y permanencia en España
• Real Decreto de 10 febrero 1995 Aprueba el Reglamento de aplicación de la Rey 5/1984 (derecho de asilo y refugiado)
• Real Decreto de 30 diciembre 2004 Aprueba el Reglamento de la Rey 4/2000 (sobre derechos y libertades de los extranjeros)

• correct transposition
• no transposition
• violation of the Directive
• unclear