ASSESSMENT AFTER HALF A YEAR OF APPLICATION OF DGM INSTRUCTION 8/2020
There are many foreigners who are in an irregular situation despite having a child with Spanish nationality (or from another EU state), and often it is even both parents who are in an irregular situation. If this is your situation, you should read this article. Until October last year, the situation was very different, since if you had a child with the nationality of an EU state (not Spanish) you did not apply to obtain the EU family card, and if your child was Spanish, there was the figure of family roots, but very different from the current situation (as we will explain later) since it was only granted for one year, having to be modified as long as you met certain requirements, mainly having a job, which meant that many parents, after a year, returned to irregularity as they did not meet these requirements. Well, this situation changed radically in October 2020 with the publication of DGM Instruction 8/2020, which issued new instructions on how to apply the aforementioned applications from then on, by virtue of the recent case law of the European Court. The basis for this is Article 20.1 of the Treaty on European Union, which provides for the right of the child to reside in the company of his or her parents who are responsible for him or her. As a result of this article, the CJEU has issued several rulings (most notably that of 8/03/2011, case c-34/09) which establishes that a residence and work permit cannot be refused to a parent who is in charge of a minor who is a national of an EU state, since, if the permit is refused, this would mean that the minor would have to accompany his or her parent, and therefore leave EU territory. But everything changed radically after the publication of this Instruction, which established two different cases of regularisation of the parent depending on whether the child was Spanish or from another EU country
Situation of parents of a minor from an EU country (not Spain)
They are granted an EU citizen’s family card, as long as they have a valid passport, can prove the family relationship, and meet the requirements of art. 7 of RD 240/2007, that is, as long as they can prove that they have private insurance, as well as sufficient resources to take care of the child (job offer, bank account balances, etc.). However, nobody should be alarmed if, being in this situation, they do not meet the requirements we have just mentioned, as in the event that the parent does not have these resources, instead of the EU Citizen Family Card, they will be given the family roots permit, which, unlike the parents of Spanish minors, will only be for 1 year, but can be extended as many times as necessary, and, as soon as they find work, they can change to the EU Citizen Family Card.
Situation of parents of Spanish minors
In this case, the situation changes considerably, as it would not apply to the EU citizen family card, but to a family roots permit, which will be for 5 years, and which entitles the holder to reside and work, so the differences with the EU family card are minimal. In these cases, it is sufficient to prove a valid passport, the family relationship, the child’s dependency (either because he/she lives with the parent or because the parent meets the child’s expenses by paying child support), as well as providing a criminal record certificate from the country of origin. As can be seen, in this case, NO PROOF OF INCOME IS REQUIRED.
But what happens if I have a criminal record and can I still apply?
Although the answer is complex, what we can say is that there is no automatic refusal of a permit simply because you have a criminal record, and it can only be refused when the Administration considers that granting you a permit could pose a “danger to the maintenance of public order and the safeguarding of public safety”, that is, that you will be granted the permit as long as your record is not serious.
Assessment of these 6 months of application of the Instruction
Our assessment has been clearly positive, as we have been granted 100% of the applications submitted by Foreigners during this half year, the granting of the permit being practically automatic, and although the Aliens Office, true to its habit, has put some other impediments (for example that the birth certificates of the child specify the nationality of the same), these are easily rectifiable, and many of our clients currently enjoy a 5-year permit that enables them to reside and work. However, if you need legal advice on family roots or other immigration issues, do not hesitate to contact Extranjeristas on 676951030. We now have a special promotion to process your residency for family roots for only 150 EUROS.