Exceptional Circumstances Visa for Spain in Colombia

What are exceptional circumstances?

Exceptional circumstances are situations that allow a foreign citizen to legalize his or her stay in Spain in the ordinary way, without taking into account the national employment situation, and without requiring a visa. These are exceptional situations that cannot be requested frequently due to their extraordinary nature.

Therefore, the exceptional circumstances visa is a type of temporary residence authorization that may be granted for the different reasons listed below, known as exceptional circumstances.

Are there any limitations to apply for this type of visa?

Despite the fact that Spanish immigration regulations do not stipulate a limit on the number of times that this visa can be granted, the immigration offices regularly refuse to process repetitive applications for the same reason, such as those for family roots when this method has already been used in the past, based on the premise that “the exceptional cannot be turned into a frequent occurrence”.

However, there is the possibility of reapplying for a visa for a previously requested concept, such as the case of family roots, through Spanish jurisprudence, since in recent judgments of the contentious-administrative courts of Spain, the possibility of recognition of a residence authorization is interpreted in an extensive manner given the lack of a specific regulation and norms, and given the restrictive and closed interpretation that foreigners’ offices usually use in relation to a second family roots (1)..

Common characteristics in all exceptional circumstances:

• Who should apply for the exceptional circumstances visa? The foreigner personally, or his legal representative in the case of being a minor or incapable.
• Where to apply? At the Spanish Consular Office in Colombia. except for cases of family reunification and student visa extension (2).
• Cost of temporary residence due to exceptional circumstances: it will be accrued at the time the application is admitted for processing, and must be paid within 10 working days .
  Form 790 code 052
  Section 2.5 “Authorization for temporary residence due to exceptional circumstances”.
• Deadline for the resolution of the applicationis 3 months counted from the day following the date on which it has been received at the registry of the competent body for its processing. Once this period has elapsed without the Administration having made the notification, it may be understood that the application has been rejected by administrative silence.
• Authorization granted: Once the residence authorization has been granted, it will be linked to an authorization to work as an employee or self-employed person in Spain for the duration of the authorization. Within one month of notification of the granting of the residence permit for exceptional circumstances, the foreigner must personally apply for the Foreigner’s Identity Card (Tarjeta de Identidad de Extranjero, TIE).
• Validity: The authorization granted will be valid for one year, At the end of this period, a residence authorization or a residence and work authorization may be requested.

Common requirements:

• Not be a citizen of a State of the European Union, the European Economic Area or Switzerland, or a family member of citizens of these countries to which the Union citizen regime applies.
• Not have a criminal record in Spain and in their previous countries of residence for offenses existing in the Spanish legal system.
• Not to be banned from entering Spain and not to be considered as rejectable in the territorial space of countries with which Spain has signed an agreement in this regard.
• Not being, if applicable, within the period of commitment not to return to Spain that the foreigner has assumed when returning voluntarily to his/her country of origin.

Common documents:

• Application form in official form in duplicate, duly completed and signed by the foreigner.

• Complete copy of passport, travel document or registration card valid for at least four months.

• Proof of continuous residence in Spain for a minimum period of two years. The documentation provided must contain the applicant’s identification data, preferably issued and/or registered by a Spanish Public Administration.
• Certificate of criminal record issued by the authorities of the country or countries in which he/she has resided during the last five years prior to entry into Spain.

*Chen documents from other countries are submitted, they must be translated into Spanish or the co-official language of the territory where the application is submitted.

*On the other hand, all foreign public documents must be previously legalized by the Spanish Consular Office with jurisdiction in the country where such document has been issued or, if applicable, by the Ministry of Foreign Affairs and Cooperation, unless such document has been apostilled by the competent Authority of the issuing country according to the Hague Convention of October 5, 1961 and unless such document is exempt from legalization by virtue of an International Convention (3)..

What are the exceptional circumstances authorized to apply for temporary residence?

Labor roots

It may be granted to foreign nationals who are in Spain and have had an employment labor relations for a minimum period of six months (4).

Specific requirements

• Have have been continuously in Spain for a minimum period of two years. Continuous permanence is understood to mean continuous permanence if the absences have not exceeded 90 days in the last two years.
• Be able to demonstrate the existence the existence of employment relationships whose duration is not less than six months..

Specific documentation:

• Documentation proving the existence of labor relations, which may be: judicial decision o conciliation act in judicial proceedings that recognizes it, or administrative resolution confirming the infraction report of the Labor and Social Security of the Labor and Social Security Inspection that accredits it.

Social Roots

It may be granted to foreign citizens who are in Spain and have family ties in Spain, or are socially integrated.

Specific requirements:

• To have stayed continuously in Spain for a minimum period of three years. For this requirement to be met, absences from Spain during this period cannot exceed 120 days.
• Have family ties (spouse or registered domestic partner, ascendants or descendants in first degree and direct line) with other resident foreigners or with Spaniards, or submit a report accrediting their social integration issued by the Autonomous Community.
• To have an employment contract signed by the employee and employer for a period of not less than one year.

Specific documents: Documentation evidencing the existence of employment relationships.

Family Roots

It may be granted to foreign citizens who are in Spain, or are the father or mother of a minor of Spanish nationality, or are the children of a father or mother who were originally Spanish.

Specific requirements:

• Be the father or mother of a minor of Spanish nationality, or the child of a father or mother who was originally Spanish.

Specific documents: Supporting documentation of family relationship and nationality, which shall be:

1. In the event of being father or mother of a minor of Spanish nationalityCertificate of birth of the minor of Spanish nationality in which the family tie and the Spanish nationality of the minor are stated.
2. In the case of being child of a father or mother originally from Spain: 1. Birth certificate of the applicant. 2. Certificate of birth of the original Spanish father or mother or certificate of the Civil Registry that accredits this condition.

International Protection Reasons

It may be granted for reasons of international protection.

Specific requirements or assumptions:

• That the Minister of the Interior, at the proposal of the Interministerial Commission on Asylum and Refuge, has authorized the stay in accordance with the regulations governing the right to asylum and international protection.
• To be a displaced foreigner in the sense regulated in the regulations on temporary protection in case of mass influx of displaced persons.
• Those provided for in the regulation implementing Law 12/2009, of October 30, 2009, regulating the right of asylum and subsidiary protection.

Specific documents: Supporting documentation of being in one of the aforementioned assumptions.

Humanitarian Reasons

It is a temporary residence authorization for exceptional circumstances that may be granted for humanitarian reasons.

Specific requirements: Prove one of the following one of the following circumstances:

• Being a victim of a crime typified in articles 311 to 315, 511.1 and 512 of the Penal Code: crimes against workers’ rights.
• Being a victim of crimes in which the aggravating circumstance has been present. of commission for racist, anti-Semitic or other types of discrimination based on the victim’s ideology, religion or beliefs, the ethnic group, race or nation to which he/she belongs, his/her sex or sexual orientation, or the illness or disability he/she suffers.
• To be a victim of crimes due to violent conducts exercised in the family environment.provided that a court decision has been handed down at the end of the legal proceedings establishing the victim’s status.
• Suffering from a serious, supervening illness requiring specialized medical careThe patient’s health, not accessible in his or her country of origin, and that the fact of being interrupted or not receiving it poses a serious risk to his or her health or life. Exceptionally, it will not be necessary to be supervening in the case of prolonging the stay of a foreign minor temporarily displaced to Spain for medical treatment, once the possibility of prolonging the stay has been exhausted and the stay is essential for the continuation of the treatment.
• That their transfer to the country of origin or originating from or come from, for the purpose of applying for the corresponding visa, implies a danger to their safety or that of their family. and that they meet the rest of the requirements to obtain a temporary authorization of residence or residence and work.

Specific documents: Supporting documentation of humanitarian circumstances, which will be:

• If you are a victim of any of the aforementioned crimes, judicial resolution that finalizes the judicial proceeding that establishes the status of victim.
• If he/she suffers from a supervening illness or is a foreign minor displaced for medical treatment, a clinical report issued by the corresponding health authority.
• Foreigners whose removal to their country involves a danger to their safety or that of their family, must provide: 1. Documentation accrediting that their transfer involves a danger to their safety or that of their family. 2. Proof of financial means. If you have no financial means of your own, you may apply in person, simultaneously with the application for exceptional circumstances, for authorization to work as an employee or self-employed person.

*The authorization granted will be valid for one year. Except in the case of minors displaced for medical treatment, who may extend the authorization for the minimum time necessary to complete the treatment.

Collaboration with Police, Prosecutorial, Judicial or National Security Authorities.

It is a temporary residence authorization for exceptional circumstances that may be requested for collaboration with law enforcement, tax, police or national security authorities.

Specific requirements: Collaborate with police, fiscal or judicial authorities, or there are national security reasons that justify the granting of authorization.

Specific documents: Report from the corresponding headquarters of the State or Autonomous Community Security Forces and Corps, or the Tax or Judicial Authority to accredit the reasons justifying the request.

Women Victims of Gender Violence.

This is a residence and work authorization for exceptional circumstances that will be granted to foreign women victims of gender violence who are in Spain in an irregular situation.

Children who are minors or disabled and are in Spain at the time of the complaint may obtain a residence permit or a residence and work permit if they are over sixteen years of age.

Specific requirements:

• Having denounced being a victim of gender violence, and being able to provide one of these documents: 1. A protection order, by the competent judicial authority in the framework of criminal proceedings. 2. A report from the Public Prosecutor’s Office indicating the existence of signs of gender violence.
• For the definitive granting of the temporary residence permit for exceptional circumstances, it will be required that the criminal proceeding concludes with a conviction or with a court decision from which it can be deduced that the woman has been a victim of gender-based violence.ncluding the closing of the case due to the fact that the accused is at an unknown location or the provisional dismissal due to the expulsion of the accused.

Specific documents:

• If applicable, a document granting legal representation in favor of the natural person making the application on behalf of the foreigner.
• Proof of having reported being a victim of gender violence.. You may submit:

• Protection order or report from the Public Prosecutor’s Office. With this documentation, a provisional residence and work authorization will be granted ex officio. The authorization will be definitively resolved when the criminal proceedings are concluded, for which the sentence must be provided.
• A conviction, a court decision concluding that the woman has been a victim of gender-based violence, the dismissal of the case because the accused is unaccounted for or the provisional dismissal of the case due to the expulsion of the accused. In this case, definitive authorization for residence and work may be obtained.

Residence authorization for minor children of foreign women who are victims of gender violence.

• At the same time that the foreign woman files her application for residence and work authorization, or at any other subsequent time during the criminal proceedings, the foreign woman or her representative may apply for residence or residence and work authorization for her minor children who are in Spain at the time of the complaint, providing a copy of the complete passport, travel document or registration card in force.
• The provisional and definitive authorization of the children will be for residence if they are not of working age, or for residence and work if they are of working age.
• The provisional and definitive authorization of the children will have the same validity as that of the woman victim of gender violence.

Collaboration with Non-Police Administrative Authorities, Against Organized Networks.

It is a residence and work authorization for exceptional circumstances that may be granted to foreigners who are collaborating with non-police authorities and are victims, injured parties or witnesses of an act of illicit labor trafficking or exploitation in prostitution abusing their situation of need..

Special procedure:

• The non-police administrative authority with which the foreigner who is a victim, injured party or witness of the act of illicit trafficking of labor or exploitation in prostitution by abusing his or her situation of need is collaborating, will issue a report on such collaboration and will send it to the body in charge of the sanctioning file, so that it may propose to the Government Delegate or Subdelegate the exemption of the foreigner from liability for infringement of Article 53.1.a of Organic Law 4/2000.
• The Government Delegate or Subdelegate will decide on the exemption and suspension of the sanctioning file and will inform the foreigner of the possibility of requesting a residence and work permit or assisted return to his/her country of origin.

Assisted return: once the exemption from liability is declared, the alien may obtain assisted return to his country of origin., before the Delegation or Subdelegation that had determined the exemption of responsibility and addressed to the General Secretariat of Immigration and Emigration.

• Assisted return includes: pre-departure risk and safety assessment, transportation, as well as assistance at the point of departure, transit and destination.

Collaboration with Police, Prosecutorial or Judicial Authorities, Against Organized Networks

This is a residence and work authorization for exceptional circumstances that may be obtained by foreigners who are collaborating with police, fiscal or judicial authorities and are victims, injured parties or witnesses of an act of illicit labor trafficking or exploitation in prostitution by abusing their situation of need.

Procedure:

• The police, prosecutorial or judicial authority, with which the foreigner who is a victim, injured party or witness of the act of illicit trafficking of labor or exploitation in prostitution by abusing his situation of need is collaborating, shall issue a report on such collaboration and shall forward it to the body conducting the sanctioning proceedings, so that it may propose to the Government Delegate or Subdelegate the exemption of the foreigner from liability for infringement of Article 53.1.a) of Organic Law 4/2000.
• The Government Delegate or Subdelegate will decide on the exemption and suspension of the sanctioning file and will inform the foreigner of the possibility of requesting a residence and work permit or assisted return to his/her country of origin.

Assisted return:

• Once the foreigner has been declared exempt from liability, he/she may request the assisted return to his/her country of origin, before the Government Delegation or Subdelegation that had determined the exemption from liability and addressed to the General Secretariat of Immigration and Emigration.
• Assisted return includes: pre-departure risk and safety assessment, transportation, as well as assistance at the point of departure, transit and destination.

Foreigners Victims of Human Trafficking

It is a residence and work authorization for exceptional circumstances that may be obtained by foreigners who are victims of human trafficking.

Children who are minors or disabled and are in Spain at the time of identification may obtain a residence permit, or a residence and work permit if they are over sixteen years of age.

Procedure:

• The police unit that has identified the foreigner as a victim of human trafficking will submit (ex officio, at the request of a party or by order of the Government Delegate or Subdelegate), within a maximum period of forty-eight hours, a proposal on the granting of the period of restoration and reflection to the Government Delegation or Subdelegation of the province where the identification was made.
• In the event that a period of reinstatement and reflection is granted of the period of reinstatement and reflection, the resolution will include the duration of the period, the suspension of the sanctioning procedure, and will authorize the stay of the foreigner and, if applicable, that of his/her children.
• The Government Delegate or Subdelegate may determine ex officio, based on his or her personal situation, or at the request of the authority with which the victim of trafficking in human beings is collaborating in the investigation of the crime or criminal proceedings, the exemption of the foreigner from responsibility., for being irregularly in Spanish territory (art. 53.1.a of Organic Law 4/2000).
• Once the exemption from responsibility has been determined, the Government Delegate or Subdelegate will inform the foreigner of the possibility of requesting a residence and work permit for him and, if applicable, for his children, addressed to the Secretary of State for Security, or to the General Secretariat for Immigration and Emigration, or to both, depending on whether the motivation lies, respectively, in the victim’s collaboration in the investigation of the crime, in his personal situation, or in both causes.

Assisted return:

• In this case, both the foreigner and his/her children may request the assisted return to their country of origin, at any time from the moment that reasonable grounds are appreciated regarding their possible status as a victim of human trafficking, taking into account that the competent authorities, within the framework of the investigation of a crime or criminal procedure, may determine that it is necessary for them to remain in Spain.

• The application may be submitted to any of the competent authorities in the procedure and addressed to the General Secretariat of Immigration and Emigration.

• Assisted return includes: pre-departure risk and safety assessment, transportation, as well as assistance at the point of departure, transit and destination.

Cybergraphic citation

1. Article: Exceptional circumstances. Attorney Lino García. Retrieved from: https://extranjeria.abogado/circunstancias-excepcionales/#:~:text=The%20exceptional%20circumstances%20are%20situations,the%20tr%C3%A1mite%20encountered%20in%20Spa%20C3%B1a
2. Article: Guide for the Colombian immigrant in Madrid. Directorate of Immigration, Consular Affairs and Citizen Services. Retrieved from: https://madrid.consulado.gov.co/sites/default/files/FOTOS2019/guia_inmigrante_colombiano_madrid_0.pdf
3. Article: Temporary residence authorization for exceptional circumstances. Spanish immigration portal. Retrieved from: https://extranjeros.inclusion.gob.es/es/informacioninteres/informacionprocedimientos/ciudadanosnocomunitarios/hoja035/index.html
4. Article: Temporary residence authorization for labor roots. Attorney Lino García. Retrieved from: https://extranjeria.abogado/autorizacion-residencia-temporal-arraigo-laboral/