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Directive 2004 /38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64 /221/EEC, 68 /360/EEC, 72 /194/EEC, 73 /148/EEC, 75 /34/EEC, 75 /35/EEC, 90 /364/EEC, 90 /365/EEC and 93 /96/EEC, regulates the right of entry into and exit from the territory of a Member State, the right of residence of the citizens of the Union and the members of their families, and the administrative procedures to be carried out by the authorities of the Member States. It also regulates the right of permanent residence, and finally establishes limitations on the rights of entry and residence for reasons of public order, public security or public health.
The approval of the aforementioned Directive 2004 /38/EC of 29 April 2004 made it necessary to incorporate its content into the Spanish legal order, by means of Royal Decree 240/2007 of 16 February 2007 on free entry movement and residence in Spain of citizens of the Member States of the European Union and of other States parties to the Agreement on the European Economic Area.
This Royal Decree 240/2007 regulates the conditions for the exercise of the rights of entry and exit, free movement, stay, residence, permanent residence and work in Spain by the citizens of Spain. other Member States of the European Union and of the other States Parties to the Agreement on the European Economic Area, as well as the limitations to previous rights for reasons of public policy, public security or public health.
However, the practical experience in application of Royal Decree 240/2007 has evidenced the need to proceed to the modification of some of its articles in order to strengthen the connection of its interpretation with the content of Directive 2004 /38/EC by way of the same, as well as with the criteria laid down by the Supreme Court in its judgment of 1 June 2010, by which several paragraphs of articles of Royal Decree 240/2007 are annulled.
For these purposes, this Royal Decree provides for the amendment of Articles 8.4, 9.4, 15.2 and 18.2 of Royal Decree 240/2007, as well as the addition of a new paragraph 5 in Article 9 and a new paragraph 4 in the Article 14.
This Royal Decree has been submitted to the hearing and informed by the Forum for the Social Integration of Immigrants and by the Interministerial Committee on Foreign Affairs.
Under its virtue, on the proposal of the holders of the Ministries of Foreign Affairs and Cooperation, of the Interior and of Labor and Immigration, with the prior approval of the Vice President of the Government of Territorial Policy and Minister of Territorial Policy and Public Administration, in agreement with the Council of State and after deliberation by the Council of Ministers at its meeting on 18 November 2011,
DISPONGO:
Single item. Amendment of Royal Decree 240/2007 of 16 February on entry, free movement and residence in Spain of citizens of the Member States of the European Union and of other States party to the Agreement on the European Economic Area.
Royal Decree 240/2007 of 16 February 2007 on entry, free movement and residence in Spain of citizens of the Member States of the European Union and of other States party to the Agreement on the European Economic Area, is amended as follows:
One. Article 8 (4), which is worded as follows, is amended as follows:
" 4. The issue of the family residence card of a citizen of the Union shall be issued within three months of the date of the submission of the application. The favourable resolution shall have retroactive effect, with the status of residence from the date of entry in Spain being familiar as a family member of the Union citizen. '
Two. Article 9 (4), which is worded as follows, is amended as follows:
" In the case of nullity of the marriage bond, divorce or cancellation of the registration as a registered partner, of a national of a Member State of the European Union or of a State party to the Agreement on the Economic Area European, with a national of a State that is not, the latter will have the obligation to communicate that circumstance to the competent authorities. In order to retain the right of residence, one of the following cases must be credited:
(a) Duration of at least three years of the marriage or situation of registered partner, until the beginning of the judicial procedure of nullity of the marriage, divorce or cancellation of the registration as a registered partner, of the which must be established that at least one of the years has elapsed in Spain.
(b) Granting by mutual agreement or judicial decision, the custody of the children of the Community citizen, the former spouse or registered partner who is not a citizen of a Member State of the European Union or of a State party to the Agreement on the European Economic Area.
c) Existence of particularly difficult circumstances such as:
1. º Haber has been the victim of gender-based violence during marriage or the situation of a registered partner, a circumstance that will be considered provisionally accredited when there is an order of protection in his favor or report of the Fiscal Ministry indicating the existence of indications of gender-based violence, and of a definitive nature where there has been a judicial decision of which the alleged circumstances have occurred.
2. º Haber has been subjected to human trafficking by his spouse or partner during the marriage or the situation of a registered partner, circumstance which will be considered as being provisionally accredited when there is a judicial process in the spouse or partner has the status of the victim and his or her family member of the potential victim, and on a final basis, where the court decision has been brought to the effect that the alleged circumstances have occurred.
(d) Judicial or mutual agreement between the parties determining the right of access, the child, the former spouse or registered partner who is not a citizen of a Member State of the European Union or of a State party to the Agreement on the European Economic Area, where that minor is resident in Spain and that resolution or agreement is in force. "
Three. A new paragraph 5 is added to Article 9, with the following wording:
" 5. Where the competent authorities consider that there are reasonable doubts as to compliance with the conditions laid down in Articles 8 and 9, they may carry out checks in order to verify whether they are satisfied. Such checks shall in no case be systematic. "
Four. A new paragraph 4 is added to Article 14, with the following wording:
" 4. Without prejudice to the obligation of the citizens of the Member States of the European Union and of the other States party to the Agreement on the European Economic Area and their family members to apply for and obtain the certificate of registration or the residence card and its corresponding renewals, the same may prove to be beneficiaries of the Community scheme provided for in this Royal Decree by any means of proof accepted in law. "
Five. Article 15 (2) is amended as follows:
" 2. Those persons who have been the subject of a decision prohibiting entry into Spain may submit a request for the lifting of the decision within a reasonable period to be determined by the competent authority on the basis of the concurrent circumstances and shall include in the resolution determining the prohibition of entry. The request for the lifting of the entry ban shall be made on the grounds that they demonstrate a material change in the circumstances that justified the entry ban in Spain. In any event, such a request may be submitted after three years after the entry ban decision has been implemented in Spain.
The competent authority that resolved such an entry ban shall terminate that application within three months of its submission.
During the time when the application is examined, the affected person will not be able to enter Spain. "
Six. Article 18 (2), which is worded as follows, is amended as follows:
" 2. Expulsion decisions shall be reasoned, with information on the resources which may be brought against them, the time limit for doing so and the authority to whom they must be formalised, and, where appropriate, the time limit for leaving them. the Spanish territory.
The expulsion decisions will set a deadline for leaving the Spanish territory, which can only be excepted in the cases where one of the circumstances mentioned in Article 17.1 is present.
Except in urgent cases, duly justified, this time limit may not be less than one month from the date of notification. In any event, the decision taken on the duration of the period may not be an impediment to the control of the expulsion order on administrative and/or judicial terms. "
Final disposition first. Competence title.
This Royal Decree is issued under the provisions of Article 149.1.2. of the Constitution, which attributes exclusive competence to the State on immigration.
Final disposition second. Entry into force.
This Royal Decree shall enter into force on the day following that of its publication in the "Official Gazette of the State".
Given in Madrid, on November 18, 2011.
JOHN CARLOS R.
The Minister of the Presidency,
RAMON JAUREGUI STUNNED
