Do I have the right to keep my residency as a family member of an EU citizen if there is no longer a link with them?

The authorisation to reside as a family member of an EU Citizen, allowing close relatives of European citizens to legally reside and work in Spain, is one of the most requested residency authorisations in the country.

Should the relationship or link rupture, it seems logical to believe that they will automatically lose their residency authorisation, however, there are exceptional situations in which you can keep your card and residence permit, despite no longer being linked to any citizen of the EU.

These exceptions to maintain the right of residence are included in article 9 of the Royal Decree 240/2007 and include cases of death, departure from Spain, nullity of marriage, divorce, legal separation or cancellation of the registration as a registered couple.

Let’s analyze these cases one by one.

1.- Case of death of the EU citizen.

As long as the family member and the EU citizen were living together in Spain under the “comunitaria” regime, the family member will retain their right of residence. It is not necessary to prove that they have lived together for a minimum period of time.

2.- Case of departure from Spain.

This situation refers to a rupture of cohabitation, where the EU citizen moves from Spain, leaving the family member here.

In this case, the children and/or the parent who has custody of the children will retain the right of residence, if the children they have custody of reside in Spain and are enrolled in an educational center to study, until the completion of said studies.

3.- Case of nullity of marriage, divorce or cancellation of registration as a registered couple.

The member of the couple who is not Spanish may maintain their right of residence in any of the following cases:

- If the marriage or the registered partnership has lasted at least three years, starting from the beginning of the judicial procedure for annulment or divorce, or until the cancellation of the registration of the civil partnership, of which it must be proven that, in those three years, at least one year was spent in Spain.

- If the family member of the EU citizen has custody of their common children, or if there is a judicial resolution or mutual agreement between the parties that determines the right of visitation to the minor child, when said minor resides in Spain and the agreement o resolution is still valid.

- In difficult circumstances such as having been a victim of domestic violence during the marriage or registered partnership, or having been subjected by their spouse or partner to human trafficking while said conjugal relationship existed.

Communication to the authorities to maintain the right

It is VERY IMPORTANT that when the divorce or cancellation of the registration of the civil partnership occurs, it is communicated to the immigration office within a maximum period of three months. It is advisable, however, to communicate it within a period of one month, since foreigners residing in Spain who have a change in their situation (marital status, address, nationality, etc.) have the obligation to notify the authorities within a maximum period of 30 days.

The communication must be made in writing and have dated proof of it’s receipt. The content of the communication is as important as the deadline in which it must be made in order to prove that you meet the requirements to maintain your right of residence.

If you do not communicate it within the established period, the immigration office may initiate a procedure for the cancellation of your card and revoke your residency right. In addition, if you have not previously communicated this circumstance, it is possible that when you want to renew your card, the authorities will deny your application for having resided in Spain irregularly.

Your card will remain valid

If you meet the above requirements and have communicated your change of situation to the authorities properly, you will have the right to keep your residence card as a family member of an EU citizen, which will be fully valid until it expires. Once it expires, the card may be renewed and  will not refer to the EU citizen, only the ex-family members personal data.

In addition, as the cards will generally have a validity period of five years, once this time has elapsed you will have legally resided in Spain for five years, so you will be able to apply for a permanent residence permit.

Nieto Jones is your immigration lawyer.

At Nieto Jones we are experts with extensive experience in immigration law. Contact us by phone 610632963 or by email contact@nietojones.com. We will be happy to review your case, offer you the best advice and help you maintain your right to reside in Spain.