NEW DEVELOPMENTS IN A RESIDENCE PERMIT THAT IS ALWAYS CONTROVERSIAL
At the law firm Extranjeristas we have been defending for some time, like true preachers in the desert, the idea that foreigners who, in one way or another, had worked legally in Spain and for various reasons had become irregular (i.e. asylum seekers with a red card who were denied international protection, or foreigners whose residence permit had expired), could make use of the figure of “arraigo laboral” to recover not only their residence, but also their work permit.
Now, with great satisfaction, we can say that the Supreme Court has given us the reason in this matter, and in its recent ruling of 25/03/2021 has established the doctrine on this controversial issue, but which will surely restore hope to many foreign citizens who were currently at a dead end.
Many of you are probably asking yourselves, but what exactly has changed to restore hope? To do so, we have to start from the beginning, i.e. how the Foreigners’ Offices have interpreted the “arraigo laboral” until now, and then explain the changes that have taken place.
Previous situation of “arraigo laboral
Arraigo laboral is an extraordinary circumstance for obtaining a residence permit regulated in art. 124.1 of the Foreigners’ Regulations. This article consists of 2 paragraphs. The first paragraph indicates that anyone who can prove that they have been residing in Spain for more than 2 years (obviously with a census) and can prove that they have worked for more than 6 months, may opt for legal residence under this circumstance. So far so good, right? I’m sure that many of you reading this blog will be thinking: “Well, I’m in this situation”, but then we read the second paragraph which indicated that, in order to prove this situation, we would have to provide either a final court ruling or an infringement report from the Labour Inspectorate, and that was the end of our hopes, because from a first reading it implicitly obliged us to denounce or sue the company in order to obtain this permit.
The reason for the wording of the second paragraph was obvious: The Administration, although it will not admit it explicitly, established this permit as a “prize” for all those irregular immigrants who denounced illegal work, in such a way that this “prize”, the work roots, was compensated by the Administration, with the enormous fines it imposed on the company that had hired an “undocumented worker”.
Current situation of the arraigo laboral
So what exactly has changed with the new ruling?
Well, the interpretation of this article. Let me explain. Nowhere in the aforementioned articles regulating employment roots, even though other immigration lawyers have indicated the contrary, did it state that the work carried out had to have been clandestine or irregular. Therefore, the judgment, with good judgement, establishes that being so worded, it does not make sense that, speaking precisely of “a situation of rootedness”, clandestine work is valued more highly than the regular work of a foreigner who, from the outset, would have done everything possible to have his situation regularised.
The basic problem was to be found in the second paragraph, which seemed to establish that, apart from the two cases of proof established (the judgement or the IT infringement report), there was no room for other cases, such as a simple employment history report issued by the Social Security.
Well, we can finally say loud and clear that the SC has done justice, and that from now on, any foreigner who can prove, in addition to having been in Spain for 2 years and not having a criminal record, that they have worked for more than 6 months in our country, whether clandestinely, with a work permit or as an asylum seeker, can apply for a work permit, with a work history report from the Social Security being sufficient.
However, I would like to point out that the new situation has a time limit, i.e. the work must have been carried out relatively close in time to the application for residence. Therefore, those who had worked legally 10 years ago would not be eligible for the new “arraigo laboral”, but we understand that, for example, foreigners whose permits have recently expired or asylum seekers whose applications for international protection have recently been rejected would be eligible.
However, if you need legal advice on employment roots or other immigration issues, do not hesitate to contact Extranjeristas on 676951030.