Many foreigners who were living legally in Spain end up losing their residency cards. Either for not renewing on time, for not complying with the requirements, or for any other reason, they jump from legal to ilegal status. This is what is known as supervening irregularity (“irregularidad sobrevenida” in Spanish), and in this article we explore in detail what this process implies, how it works, what to do to avoid it, and whether it can affect your application for nationality by residence and invalidate it.
What is the supervening irregularity or “irregularidad sobrevenida”?
The supervening irregularity is the process by which foreigners who at some point have had a residence and/or work permit in Spain, cannot renew it for a certain reason (which usually is a lack of economic means) and therefore enter into an irregular situation.
We are speaking about, for example, the cases of labor or social arraigo, in which the foreigner has not made any payment to the Social Security for at least 6 months during this year of residence due to exceptional circumstances (i.e., has not worked in the country); and therefore cannot subsequently move on to a regular residence permit.
Or, on the other hand, it is also the case of a foreigner who has a residency card thanks to the family reunification process, but the family member who allowed her to obtain it, does not have sufficient economic funds (fundamental criterion for this permit) and therefore the renewal is not possible.
In other words, the supervening irregularity occurs when a foreigner in a legal situation does not meet the necessary requirements to renew and maintain his card, and therefore loses it.
Will my nationality application be denied if I remain in an irregular situation during the process?
A few years ago, this was certainly the case. No matter how well you met all the requirements for citizenship, if at some point between submitting your application and receiving the resolution you lost your residency and entered an irregular situation, your application was invalidated.
Either by returning to your country of origin and losing your card, by not complying with the requirements for renewal, or by letting it expire, any of these reasons (a supervening irregularity) resulted in the denial of Spanish nationality.
However, today this is no longer the case.
Acquiring an irregular status is not a cause for denial nowadays. As long as you are a legal resident and have a valid residence card in force at the very time you submit your citizenship application, this supervening irregularity will not affect the final decision.
In addition, you could leave Spain and travel to your home country during the resolution period, and this would not be negative per se.
However, our recommendation is that while you are waiting for the resolution you renew your card, as this will avoid possible problems when taking oath of allegiance and subsequently obtaining your Spanish ID (2 processes for which you need a valid residency card).
What to do in the event of turning illegal?
First of all, we recommend that you try to avoid this situation at all costs by planning ahead. Make sure you know the renewal requirements of your specific card, and keep in mind that you will have to comply with them to avoid falling into an irregular situation later on.
However, if for any reason you are unable to renew and the irregularity occurs, here is what will happen and what you can do.
First of all, if you are stopped by the police, they will usually take you to the police station to assign you a public defender, and then initiate a deportation order. If you have criminal or police records, you will most likely be deported.
On the other hand, this public defender will be able to present allegations, which, if sufficiently valid (such as having your family in Spain or under-aged children), would allow you to avoid deportation and you would just have to pay an economic fine.
However, keep in mind that it is well possible to renew your residency card if it has expired as long as you do so within 90 days after its expiration, hence being within this period would prevent you from entering an irregular situation.
If this period has passed, then you only have two options:
- Return to your country of origin, from where you can start the application (from 0) for a new residence card
- Stay in Spain irregularly and apply for arraigo after 3 years
What can you do to avoid and prevent a supervening irregularity?
As we have said, this situation occurs when you do not ay of the necessary requirements for renewal. Thus, in order to avoid supervening irregularity, you must make sure to check these requirements beforehand.
However, here is a list of all those actions that you can perform and that would, otherwise, lead to this situation:
- Lack of criminal/police records, maintaining a civic behavior during your residence in Spain; and canceling your records in case of having them
- Renew your passport just when it expires (and avoid delays)
- Renew your “cédula de inscripción“
- Make efforts to integrate into Spanish society
- Do not leave Spain longer than the allowed time
- Contribute to social security (that is, work) in order to have sufficient funds in case the renewal requires it
Do you have doubts or would you like to receive personalized legal advice from our lawyers? Ask us anything here and let us help you: