Has the initial application for your residence permit or card renewal been denied? Then don’t worry, it has a solution and it’s easier than you think! And in this article you are going to learn how to execute it. We will analyze everything you need to know about immigration appeals in Spain to dispute visa and residence permit decisions with the administration, something that will allow you to get your card after a denial. We will see the different types of appeals, requirements, deadlines, and how this procedure works exactly.
An appeal is a notification to the immigration office in which we state that we do not agree with the decision taken in relation to our application file, explicitly requesting that it be re-examined.
It is a formal document in which we communicate our disagreement with the rejection of our application for residency or card renewal, asking for a review based on a viable reason and contemplated by law.
More technically, this procedure allows the foreign citizen to appeal against the decisions made by the public administration, whatever his or her legal status.
In other words, suppose you have submitted your application for social roots, your community card, family reunification or the renewal of your long-term residence. After preparing all the documentation, investing time and money, and waiting for 3 months… you enter the government platform to check the status of your application, and see an unfavorable response: you are not granted the card.
It will be in those cases that you can file an appeal, since this will allow you to “discuss” the decision and get a favorable resolution finally.
In that sense, to which bodies or institutions can you appeal?
To decisions or resolutions taken by the immigration office, government delegations or sub-delegations, and by the different Spanish consulates around the world.
Types of appeals
When it comes to immigration we find two different types of appeals that will allow us to dispute the decision of a rejected application:
- Appeal for reversal (“recurso de reposición” in Spanish) if the competent body that decides is the same one that rejected the application (at the same hierarchical level). It can be filed online here.
- “Alzada” appeal (“recurso de alzada” in Spanish), if the institution in charge is the one immediately above the one that rejected the application. In other words, if we have applied for our residency card and it has been rejected by the Immigration Office, this type of appeal will be directed to the corresponding government delegation or sub-delegation.
However, we must bear in mind that these are both are administrative appeals; that is, it is the Executive who decides (the Public Administration).
But there is more to that.
Let’s imagine that we have submitted an appeal, and it has been rejected. In that case, we will have exhausted the administrative route, and we will be able to move on to the judicial one in what is known as a contentious-administrative appeal. Timings here are longer, as it may take up to 3 months, and it will be the Judicial Power who decides (Courts or Tribunals).
It is important to mention that we cannot access the contentious route (if we disagree with the decision of the executive branch) until we have gone through the administrative route first. In other words, you cannot jump directly to a contentious appeal without first having submitted an administrative one before.
Is it worth it? Main benefits of submitting your appeal
If your initial application or renewal has been denied, our recommendation is to ALWAYS file an appeal.
And this has a number of reasons or advantages that make the resource can only benefit you:
- Firstly, there is no fee or cost associated with it, as it is completely free.
- You will be much more legally protected and you will not be able to receive an expulsion file, since that would be illegal (in case you receive one, you could appeal).
- From the previous point we derive that during the appeal you will continue to have the right to live legally in Spain.
- After one month, you will return to your previous situation (either initial residency or renewal in process); so you can return to live/work legally.
- At the same time as the appeal is being processed, you will be allowed to resubmit your application or start a different one; which increases your chances of rapid success.
How does it work?
As we have already mentioned, an appeal is a formal document that you will have to prepare and deliver.
You have 1 month to file it and submit it to the institution that issued the denial (or with the superior one) from the day after you received the denial notice.
And here we find an important consideration, since we should not confuse it with the time period in which the sentence is issued.
Let’s take an example.
If your card or renewal application was denied on January 30th by the administration, but you did not receive the proper notification until February 15th, the one-month period doesn’t start until the 16th of February. And it would end on March 16, because it’s not counted in days, but in whole months.
What happens after immigration appeal hearing?
On the other hand, and in order to continue with the legal process, even if you send your appeal to the immigration office, it will be the superior body who will decide: a judge.
This judge will issue a sentence and send it to the immigration office. Once they analyze it, and if favorable, they will send you a letter with a favorable response.
And that is comparable to when you get a permit for the first time: you will need to get an appointment to register your fingerprints and pick up your residency card.
What should I include?
It is very important that you understand that there is no magic formula or general template that is valid for drafting any immigration appeal. Each situation is totally different, and creating an individualized appeal based on the needs of your particular case will be the only way to succeed.
However, here you can find a list with all the common elements that any immigration appeal must include:
- Name and surname of the foreigner
- NIE or identification number
The act being disputed and the reason for the appeal
- Body or institution to which we send the appeal, with its relevant identification code
- All the details that allow us to appeal the decision in a reasonable manner and based on legal assumptions
- Date, signature, and place of signature of the appeal
To sum up, while it is true that you could create and present the appeal by yourself including these elements, it is not something we recommend. Again, successfully drafting one requires knowledge of the law.
In other words, if you really want it to be effective, it must be prepared by a lawyer after studying the case in careful detail. Why? To detect any flaws in the resolution, thus minimizing the chances of a second denial.
How long does it take for an immigration appeal?
The maximum time that the administration has to submit an answer is 3 months, both for the alzada appeal and for the reposición one.
However, depending on the autonomous community in which you are located, it is likely to take less than 90 days. The delay depends largely on the number of applications to be reviewed, and in those regions where there are fewer foreigners, the procedures go much faster.
Also note that if you have not received a response within one month, the appeal will be deemed to have been rejected due to negative administrative silence.
What can you do then? In this case, the contentious-administrative procedure is available, so you can appeal the decision of the public administration before a court or tribunal.
If my visa application has been rejected and I initiated an appeal, can I leave Spain?
No. If you have filed an administrative appeal you cannot leave Spain. You would have serious problems when returning and trying to enter the country back again.
That is, it is not the same as when there is a renewal being processed, time when you can request a return authorization and leave Spain. This authorization to come back guarantees that our card is being renewed, and acts as a legal confirmation, replacing the official card itself.
However, if you initiate an appeal it is because your renewal or initial application has been rejected, so it is not equivalent to being “in process”. That is why you cannot request a return authorization and enter freely in return in those cases.
Our recommendation is that you stay in Spain for the month that it takes to resolve the appeal.
The best way to get a favorable resolution
This is undoubtedly a critical moment. Your residency application has just been refused, and the appeal is your last option. If it also gets rejected, you will need to leave Spain and lose the possibility of residing in the country.
So making sure the appeal is favorable and that it succeeds is essential.
What is then the key to victory in this regard?
Well, there is an infallible strategy that you should definitely use: avoid having to resort to it.
The key to a favorable appeal is to avoid getting your application for renewal or initial card rejected in the first place. It’s that simple.
To do so, you must take into account the specific requirements for your application. If you make sure you comply with all the requirements the immigration law in Spain dictates, it is almost impossible for your application to be rejected, so you will never have to reach the point of needing to appeal.
So, our advice is to talk to a lawyer first.
Find out all the detail of what is needed to apply for your residence permit or to renew it, and let them take care of everything.
Appealing is not an ideal situation, but with a little planning, you can avoid it.
In this sense, our team of lawyers is at your disposal to help you with your application: