Appeal for reconsideration of immigration status in Spain

The denial of immigration permits is a frequent situation faced by many immigrants in Spain. When faced with an unfavourable notification, it is advisable to appeal the decision by means of an administrative appeal before going to court.

The appeal for reconsideration is the most commonly used option in these cases to ask the administration to reconsider its initial decision, whether it is for a visa such as the Golden Visa or others (Nomada Digital, entrepreneurs, etc.).

In this blog we will explain what this appeal consists of, how to apply for it correctly and how long it usually takes to be resolved.In addition, a model appeal is provided as a guide.

What is an appeal for reconsideration or “Recurso de reposición”?

The appeal for reconsideration is an administrative appeal that allows you to challenge unfavourable decisions issued by the administration in matters relating to foreigners. It is an optional appeal, i.e. it is not obligatory to file it before going to court.

This appeal is lodged with the same administrative body that issued the decision appealed against, requesting that it annul or revoke the decision because it does not agree with it. The aim is for the administration to recognise that it has made a mistake and either grant what was requested or change the direction of its initial decision.

The main acts against which an appeal for reconsideration can be lodged in matters of immigration are:

• Refusal of residence and work permits.
• Refusal to renew authorisations.
• Refusal to issue an EU citizen’s family card.
• Expulsions from the national territory.
• Refusal of Spanish nationality.
• Sanctions in matters relating to foreigners.

It should be borne in mind that this appeal does not suspend the execution of the appealed act, so the unfavourable resolution will continue to have effects while it is being processed, unless the suspension is expressly requested.

How to request an appeal for reconsideration

In order to correctly request an appeal for reconsideration in matters relating to foreigners, the following steps must be followed:

1. Deadline for lodging an appeal

The appeal must be lodged within 1 month, counting from the day following the day of notification of the contested decision. If you have not been notified, the time limit is 3 months from the date of official publication.

2. Body with which the appeal is lodged

The appeal shall be lodged with the same body that issued the decision, normally the corresponding Government Delegation or Subdelegation.

3. Content of the appeal

The notice of appeal must contain

– Details of the interested party.
– Identification of the decision being appealed.
– Arguments stating the reasons for not agreeing with the decision.
– Specific claim that is requested.
– Place, date and signature.

4. Forms of presentation

The appeal can be presented in the following ways:

• In person: at the registry of the competent body or at any other public registry.
• Registered post: by sending the appeal by registered post to the competent body.
• Electronic site: through the electronic site of the Ministry of the Interior, with a digital certificate.

5. Payment of fees

Except in cases of refusal of asylum, it is not necessary to pay any fee to file an appeal for reconsideration.

Model for lodging an appeal for reconsideration

The following is a model of an appeal for reconsideration in matters relating to aliens that can serve as a guide:

TO THE DELEGATE/SUBDELEGATE OF THE GOVERNMENT IN (PLACE)

(Name and surname), with NIE/Passport (number), and address for notification purposes at (complete address), appears before the administrative body and, as best suited, STATES:

That by means of this letter he lodges an APPEAL AGAINST the decision (cite specific decision) dated (date), issued by (body), by which it was agreed (cite content of the decision).

GROUNDS OF APPEAL: (State the reasons why you disagree with the decision appealed against and consider it to be unlawful).

In view of the foregoing, I REMAND:

– To consider that this letter and the accompanying documents have been submitted and that an appeal for reconsideration against the above decision has been lodged.

– That the appeal be admitted for processing and, following the appropriate legal procedures, that a decision be issued upholding the appeal lodged and revoking the contested decision, recognising the right to (state specific claim).

OTHERWISE, that if the claims requested are not upheld, the contentious-administrative appeal be deemed to have been announced, so that the case file may be referred to the competent Contentious-Administrative Chamber, in accordance with the provisions of Article 114.1 of Law 39/2015, of 1 October, on the Common Administrative Procedure of the Public Administrations.

In (place) on (date)

(Signature)
(Name and surname of the appellant)
“`

How long does it take to process an appeal for reconsideration?

One of the main questions that foreigners have when they file an appeal for reconsideration is how long it will take for the administration to respond.

Law 39/2015 establishes that the maximum period for the administration to resolve the appeal for reconsideration and notify the resolution is 1 month.

However, in practice this deadline is often not met, and the resolution of the appeal can take much longer, even years in some cases. This is mainly due to the current heavy workload of the bodies in charge of processing aliens cases.

Here are some tips to speed up the resolution of the appeal:

• Submit the appeal with all the necessary documentation and a good legal basis.
• Regularly monitor the status of the case, either by requesting information or by going in person, in which case it is best to use the services of professionals with experience in this type of procedure.
• If there is no response for a long time, expressly request that the petition be resolved.

Once the period of 1 month has elapsed without an express resolution being received, it is understood that the appeal has been dismissed by administrative silence. In this case, it is possible to go directly to court by filing a contentious-administrative appeal.

While the procedure is underway, the foreigner will be in an irregular situation if the decision appealed against entails the loss of validity of his or her residence or work permit. It is therefore important to study the possibility of requesting precautionary measures from the judge to suspend the effects of the appealed resolution while the judicial process is being processed.

In short, although the law establishes one month to resolve the appeal for reconsideration, in practice this deadline is usually not met, which means that the process can take several months or even years. With good preparation of the appeal by Apply Golden Visa and constant monitoring, waiting times can be considerably reduced.