Have you been waiting over 3 months since you started your application for any procedure with the Spanish administration? Then your file has adopted positive or negative administrative silence (“silencio administrativo”). In this post you will find out which of the two applies to your particular case, what each one means, and what to do accordingly.
When a foreigner initiates any administrative procedure in Spain, the law establishes a maximum period of time for its resolution. That is, a maximum amount of time granted to the institution responsible for analyzing the application so that it can issue a favorable or unfavorable response.
We are talking about procedures such as the application for a residence permit, the renewal application, an administrative appeal, nationality proceedings, etc.
The maximum period of time that the administration has (the immigration office, national police, Spanish consulate in the country of origin, etc.) is usually 3 months, although depending on the procedure, it may be lower than tat; or higher if the immigration office is overfed with applications.
If after this amount of time they have not issued a response (i.e., the foreigner has not been notified of the decision taken regarding her file or application), the procedure is resolved via “silence”.
This silence, which may be positive or negative, has consequences for the status of the procedure initiated by the foreigner: it will be either estimated or rejected.
Let us see what each of these two options exactly means and what do they imply.
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Types of administrative silence
In accordance with the first additional provision of Organic Law 4/2000, there are two types of administrative silences:
Positive (“Silencio administrativo positivo”)
First of all there is the positive silence (“silencio positivo”).
This is the status that the application adopts when the period granted to the competent institution (usually 3 months) has expired without receiving an explicit response from them, a situation that leads to the approval of the application for that same reason.
However, this does not mean that after these three months the resolution is automatically approved and has full legal effects.
As we will now see, we must carry out an intermediate step in order to finalize the process.
After these 90 days, the government delegation or sub-delegation will be obliged to issue a certificate accrediting this positive silence.
Which are the immigration procedures that work with positive administrative silence?
Below you can find a list with all the procedures that, if after 3 months of applying for them you have not received a response, will be automatically approved by positive administrative silence:
- Extension of a residence permit
- The application for the residence card as a family member of an EU citizen (both temporary and permanent)
- Residency for professional internship
- Job search visa application
- Long-term and long-term EU residence
- Renewal of any residence and/or work authorization in Spain
What should I do after those 3 months?
This is undoubtedly a very frequent doubt.
It’s been 3 months since the beginning of your application, you haven’t received any answer (final resolution), and the positive silence status applies. What should you do to get your residency card?
In these cases you must make a written request to get the silence resolution, document that will have the main goal of putting pressure on the administration so they can finally issue the official resolution.
Our recommendation is that if you do not receive an immediate response after this writing, you should wait a little longer. Although it is true that you can continue to keep pushing from a legal standpoint, all immigration offices in Spain usually experience significant delays. So although it takes longer than expected, they will always issue a response.
So this pressure would be enough.
However, you could legally continue the process to demand an answer. In what way?
If the competent institution does not issue an express resolution accrediting the silence within 15 days of this writing, you can submit a second written document, this time requesting the execution of a firm act.
If after 1 month you do not receive a response either, in that case you can resort to the interposition of an administrative contentious appeal (which can take up to 1 year to resolve), resorting to the court so that it urges the immigration office to issue a final resolution.
Negative (“Silencio administrativo negativo”)
On the other hand, we find the negative silence (“silencio negativo”), which would generate the opposite effect.
This is the most common case in the vast majority of immigration procedures.
For example, when you apply for your visa or residence permit, if you do not receive a response within the time limit set by law, your file/application will be dismissed due to negative administrative silence.
However, as we will see with the citizenship case, it does not necessarily imply that the file will be totally rejected or denied without any option to get the alternative result (a favorable one).
That is to say, if you reach the point of negative silence, the possibility to appeal by means of an administrative or contentious-administrative process will now be opened to you. Hence, it would be possible to get a positive resolution by those means.
What to do to get a positive resolution
As we have just seen, if negative silence has come into play, one option is to file an appeal.
But on the other hand you can also choose to simply wait (which may be the ideal choice)
Due to the frequent delays experienced by the immigration office, the most usual situation is to receive an answer, even if it is a really delayed one.
Therefore, and even though the lack of response may result in a negative silence, you can wait for the explicit resolution from the administration to arrive (which, by law, they are obliged to submit).
Since an appeal always involves longer waiting times, it may be a much more viable strategy to wait for the administration’s final resolution (as if there were no negative silence), and then act only if necessary.
Negative silence in your nationality applicatioin
The lack of an explicit resolution within this period is considered as a rejection (due to negative silence).
But does this mean that your citizenship application is 100% and forever rejected?
Negative silence in this case means that, if you do not receive a response after this year, the path is open for you to initiate a judicial procedure, so that the Audiencia Nacional in Spain can assess whether or not you comply with the requirements.
If you meet them, you will get your Spanish nationality without any problem, so this negative status should not be a reason to get worried about.
It is very common for your file to take longer than the established year (although on certain occasions it may take less time). However, you will always receive an answer.
Therefore, now you can understand why this negative silence does not automatically mean that your application will be denied.
From when does it start counting?
So far we have seen the two possible cases of administrative silence and what to do in each of them.
However, you may be asking yourself a key question regarding these procedures: when do we start counting towards these 3 months after which the administrative silence starts operating?
This silence (no matter if positive or negative) will be adopted 90 days after your application has been sent, starting to count the day after the file or request enters in the registry of the institution responsible for analyzing it.
However, resolutions on family reunification, the residency of minor children of foreigners residing in Spain, or seasonal work authorizations are resolved in half the time.
And that’s all you need to know about administrative silence in your immigration proceedings. If you still have doubts or would like our team of lawyers to file the application for you, minimizing any kind of error that could get your application rejected, do not hesitate to contact us!