Author
National forms of protection
The Immigration Law and its Regulation establish the applicable rules, criteria and conditions for the recognition of different national protection statuses.
Foreign nationals in an irregular situation have the possibility of regularising their situation by applying for a residence permit for exceptional circumstances, either for social, labour, education, ‘second opportunity’ (see below) or family roots, in the case of being a victim of gender-based violence or a victim of human trafficking, for various humanitarian reasons, or for collaboration with the administrative or judicial authorities, for national security reasons or for public interest, provided that the requirements for each of them are met.[1]
Permits for exceptional circumstances grant foreigners a temporary authorisation to reside in Spain for a period that can range from more than 90 days up to 5 years. They can be renewed, and renewal should be asked by the foreigner, based on the same circumstances that determined the initial granting of the permit. The Regulation of the Immigration Law details the duration of the residence permit initially granted, as well as the duration of its renovations, which can vary according to the type of each permit for exceptional circumstances.
The residence permits for exceptional circumstances also grant the right to work to persons older than 16, according to the rules set forth in Article 36 of the Immigration Law.
The permits for temporary residence granted based on different links (‘arraigo’, that can be translated in English as ‘roots’) that the foreigner has with Spain can be of different kinds:[2]
- To grant a ‘second chance’. This is an initiative created to regularise the situation of those who have lost their residence permit in the last two years, provided that the loss is not due to reasons related to public order, security or health. This mechanism is intended to address situations of recent administrative irregularity, such as those cases in which the permit was not renewed due to lack of knowledge regarding the necessity of renewal or due to the person being outside Spain at the time it expired.[3]
- For social and labor reasons.
- For social connection reasons.
- For social and training reasons.
- For family reasons.
The person must comply with all the following requirements to be granted a residence permit for ‘arraigo’:
- Be present in Spain and not have the status of applicant for international protection at the time of filing the application or during its processing. For this purpose, an applicant for international protection shall be understood to be a foreign national who has made an application for international protection on which a final decision has not been adopted in administrative nor judicial proceedings.
- To have remained in Spain continuously for at least two years prior to the presentation of the application. For these purposes, when the foreigner has been an applicant for international protection, the time of permanence in Spain during the processing of the application for international protection until its final resolution in administrative or judicial proceedings, will not be computable. The family roots will not require any minimum permanence in Spain.
- The person does not represent a threat to public order, security or public health.
- The person does not have a criminal record in Spain and in the countries where he/she has resided during the last five years prior to the date of entry into Spain, for crimes foreseen by the Spanish legal system.
- The person is not returnable for those countries with which Spain has signed an agreement in such sense.
- The person must not be within the period of the prohibition to return to Spain.
- The applicant has paid the fee for the processing of the procedure.
In addition to those general requirements, the foreigner must comply also with specific conditions established for each kind of permit for ‘arraigo’.
The duration of these authorizations is of one year, except for reasons of family roots, whose duration will be of five years.
It is worth recalling that, in November 2024, the Government adopted a new Regulation of the Immigration Law, officially aimed at improving the integration of migrants according to three main paths for regularisation: work, training and family ties.[4] The reform will enter into force 6 months after its publication, and it aims at regularising 300,000 persons.[5] In addition, it simplifies the requirements for foreigners to obtain residence and work permits, and foresees the regularisation of asylum seekers whose application was rejected, by establishing that the period they have been in Spain as asylum applicants will not count for the issuing of the residence permit for ‘arraigo’, and that just the period after the denial of the asylum application will be taken into account.[6] As underlined in another part of this report, while welcoming the new reform, different organisations (i.e. Accem, CEAR, APDHA, Caritas, the Spanish Bar Association, etc.) observed that the reform could have had more significant impact and there were several missed opportunities.
The law[7] foresees the possibility to request the residence permit for humanitarian reasons under the following conditions:
- To those persons who the Minister of Interior has authorised the stay in Spain:
- As an outcome of the asylum procedure, when the applicant has been denied both refugee status and subsidiary protection, but the competent authority decides to authorise the stay or residence for humanitarian reasons, according to criteria set forth by the legislation.
- For displaced persons according to the temporary protection legislation.
- Being a victim of any of the offences foreseen in Articles 311 to 318 (concerning offences against the rights of workers), 510 (criminal offences related to fundamental rights and public freedoms), 511.1 (denial of a service provision by a public officer) and 512 (denial of a service provision by a private company or professional) of the Criminal Code, when committed with the aggravating circumstance of racism, antisemitism or other kinds of discrimination based on the ideology, religion or beliefs of the victim, the ethnic group, race or nation to which he/she belongs, his/her sex, age, sexual or gender orientation or identity, reasons of gender, aporophobia or social exclusion, illness or disability, regardless of whether such conditions or circumstances are actually present in the person who is the object of the conduct; or being a victim of crimes of violent conduct committed in the family environment, provided that a final and definitive judicial decision has been adopted in the judicial proceeding establishing the status of victim of such crimes.
- Having a severe disease requiring specialised health care, not accessible in the country of origin, where the interruption of treatment would pose a serious risk to the health or life of the person.
- To foreign nationals who can prove that their transfer to the country of origin, 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 other requirements for obtaining a temporary residence or residence and work permit.
Spanish legislation also foresees the possibility to obtain a residence permit for exceptional circumstances based on the fact of having collaborated with the authorities (administrative, police, judiciary, and with the public prosecutor) in the investigation of certain criminal offences, as well as for reasons of national security or public interest.[8]
Spanish legislation foresees the granting of a residence and work permit for exceptional circumstances also in cases of gender-based violence against women or sexual violence.[9] Concretely, a woman in an irregular administrative situation who has reported gender-based violence or sexual violence, may apply for a residence and work authorization for exceptional circumstances from the moment a protection order has been issued in her favour or, failing that, a report from the Public Prosecutor’s Office indicating the existence of signs of gender-based violence or sexual violence has been issued. As soon as the report is lodged, the forced return procedure is suspended. In addition, the law establishes that their minor children or their children with disabilities that 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 old.
According to legislation, as soon as the application for the residence and work permit for gender-base violence, the competent authority will immediately grant ex officio a provisional residence and work permit to the applicant. When the condition of victim has been recognised by a conviction decision or a judicial resolution, a temporary residence and work permit for exceptional circumstances will be issued, as well as the corresponding permits for her children and ascendants. These permits have a duration of five years.
The same regime applies for the issuing of residence and work permit to victims of sexual violence.
The Immigration Law and its Regulation set forth the criteria for the granting of a residence and work permit for exceptional circumstances for victims of trafficking in human beings.[10] When the competent authority assesses the existence of reasonable grounds to consider that a person in an irregular manner has been trafficked, it can declare the victim exempt from administrative liability and can provide him/her with the assisted return to his/her country of origin, or the issuing of a residence and work permit for exceptional circumstances. The latter is issued when the victim decides to cooperate with the authorities with the investigation or the criminal proceedings, or because of his/her personal situation (i.e. physical or mental disease, etc.). Pending a decision on the residence and work permit’s procedure, a provisional residence and work permit can be granted. For the issuance of this kind of permits, the victim can be exempted from submitting the documentation which acquisition may suppose a risk for him/her. As foreseen for the victims of gender-based violence, the trafficked persons’ minor children or their children with disabilities that 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 old. Similarly, the provision on the granting of a provisional residence and work permit pending the procedure on the final permit is foreseen also for the victims of trafficking. The final residence and work permit has a duration of 5 years.
As highlighted in previous updates of this report, during many years different stakeholders (i.e. Accem, CEAR, UNHCR, Spanish Network against Trafficking in Persons, Spanish Ombudsperson, etc.) expressed concerns and denounced the practice of the authorities in establishing the incompatibility between the two protection statuses foreseen by the asylum law and the immigration law for trafficked persons, despite the EU and national legislation foreseeing their compatibility. That has meant in practice that victims of trafficking who had applied for asylum procedure and where waiting a decision were not allowed to apply for the protection status set forth for the cases of trafficking, and they were obliged to renounce to the asylum procedure if they wanted to apply for a residence and work permit according to the Immigration Law’s provisions.[11] The Spanish Ombudsperson has also made a recommendation to the Ministry of Interior in order to clarify the compatibility of asylum procedure and the procedures regulated by the Immigration Law.[12] Similarly, the Ombudsperson reiterated for several years a similar recommendation to the Ministry of Inclusion, Social Security and Migration, suggesting the adoption of an instruction to clarify the compatibility of the asylum procedure with those regulated in the Immigration Law, in particular, the applications for residence permits due to exceptional circumstances relating to minors and human trafficking victims, in coordination with the Subsecretary of Interior.[13] In 2020, the Minister of Inclusion, Social Security and Migration finally adopted an instruction on such a compatibility between the two procedures.[14] Some improvements in national practices have been observed since then, even though many cases of trafficked persons who cannot apply for both procedures are still registered.[15]
The residence and work permit for victims of gender-based violence, victims of sexual violence and victims of trafficking in human beings will indicate the right of residence and work in Spain without including an indication as to the reason for having been granted the permit.
As specified in other sections of this report, UAMs are entitled to a residence and work (if older than 16 years old) permit. Similarly, foreign children arriving alone in Spain, who have been under the guardianship of the Spanish administration, and who reach the age of majority, may apply for or renew a residence and work permit, when the requirements foreseen by the law are met.[16] As detailed in other part of this report, as well as in previous updates, in October 2021, the Spanish government adopted a decree to facilitate access to residence and work permits for unaccompanied migrant children as they turn 18 and transition into adulthood. This is a reform to the Regulation of the Immigration Law. The reform facilitates access to residence and work permits for unaccompanied children, as well as those who arrived as children and aged out and are now between 18 and 23 years old. The change aimed to improve living conditions and integration prospects for thousands of young people. For unaccompanied children the reform simplifies bureaucratic procedures to access residence and work permits before they turn 18, in terms of documentation required and involvement of different public bodies. It extends the validity of residence and work permits to two years, which can be renewed once for a period of three years as long as they’re underage. Previously, permits had to be renewed every year, which led to the saturation of courts and administration. In addition, the reform ensures that their documentation process starts within three months of arrival. Previous legislation set this period at nine months, which put lots of children in situations of great uncertainty for a much longer period of time. It also helps reduce the number of children who turn 18 without this documentation. Finally, it allows them to work when they are 16.[17]
The person has to apply for these different forms of protection, as they are not automatically reviewed by national authorities when they reject an asylum application and/or as they consider a return decision.[18] The only exceptions are the protection for humanitarian reasons within the asylum procedure, as such form of protection can be granted by the asylum authority, under certain circumstances, as an outcome of the asylum procedure, and the residence and work permit for UAMs, which procedure is submitted by his/her guardian.
The Delegations and Sub-Delegations of the Government are competent to issue the residence and work permits for exceptional circumstances. Applications must be submitted at the Offices for Foreigners.[19]
Rejected asylum applicants, including those with a return decision that can be implemented and those with a return decision that cannot be carried out, can access these national forms of protection when they meet the requirements set by the law for each of them. The reform of the Regulation of the Immigration Law adopted in November 2024 foresees that, in order to access the residence and work permit for ‘arraigo’, except for that based on family links, requires thay applicant has to be in Spain and not have the status of applicant for international protection at the time of submitting the application or during its processing. For this purpose, an applicant for international protection shall be understood to be a foreign national who has made an application for international protection on which a final decision has not been taken at administrative and, where appropriate, judicial level. Additionally, the reform introduced the requirement that applicant has had to remain in Spain continuously for at least two years prior to the submission of the application. For asylum applicants, the time spent in Spain during the processing of the application for international protection until its final administrative and, where appropriate, judicial decision will not be counted.[20] While welcoming the new reform, different organisations (i.e. Accem, CEAR, APDHA, Caritas, the Spanish Bar Association, etc.) criticised the fact that the reform does not allow asylum seekers to regularise their situation while still waiting for the asylum decision could have been granted. In addition, in January 2025, different NGOs challenged at the Supreme Court (Tribunal Supremo) the reform of the Regulation of Immigration Law, concretely the provisions establishing the incompatibility between the international protection procedure and the procedure for the residence permits on ‘arraigo’ basis.[21]
Statistics on the number of people granted all these protection statues are issued by different bodies.
From January to November 2024, a total of 56,498 work permits for ‘arraigo’ and other exceptional circumstances have been issued. Out of them, 33,478 beneficiaries were men and 23,020 women.[22]
According to the last published figures, as of 31 December 2023, the Central Register of Foreign Nationals recorded 210,334 persons with a first residence permit for ‘arraigo’ in force, which represents an increase of 84,983 persons in the previous year.[23]
As of 31 December 2021, the Central Register of Foreigners (RCE) counted with a total of 11,280 persons between 16 and 23 years of age with residence permits as unaccompanied minors or former UAMs. Two years later, as of 31 December 2023, this number had risen to 15,045 persons.[24]
In 2023, the OAR granted a total of 41,506 residence permits for humanitarian reasons, mainly to Venezuelans (40,693). Out of the total of all permits granted for humanitarian reasons, 21,630 were women and 19,876 were men.[25]
During the same year, a total of 7,143 residence and work permits has been granted to foreigner women victims of gender-based violence.[26]
Official figures on residence and work permits granted to victims of trafficking are not published.
Return procedure
As specified above, in case of denial of international protection, the issuance of a return decision is not automatic. In addition, the competence to issue the international protection and return decisions lays with two different authorities.
In December 2021, the High Court (Tribunal Supremo) issued a decision establishing that an application for international protection implies the automatic suspension of the expulsion procedure for the irregular stay until the competent asylum authorities issue a decision which rejects or declares the application inadmissible. This means that the expulsion or return order cannot be executed before a decision on the asylum application has been taken, because during the decision-making period of the asylum application the stay of the applicant cannot be considered as irregular.[27]
According to Save the Children, Spain’s efforts to synchronize asylum and return decisions pose significant risks to children’s rights:[28]
- Automatic issuance of return orders following asylum rejections when they have been declared as adults: This practice undermines the principle of individualized assessment and may result in the deportation of children with legitimate protection needs.
- Inadequate legal assistance: Expedited asylum procedures leave little time for legal counsel to prepare cases, particularly for children seeking protection.
- Limited access to child-specific asylum claims: Many children arriving irregularly do not receive adequate information about their right to seek asylum, leading to a low number of claims filed.
- Risk of pushbacks and unlawful returns: There have been instances of minors being returned to their countries of origin without proper best-interest assessments, in violation of Spanish and international law.
In October 2024, the trade union UGT condemned the proposal of the President of the EU Commission to create return centres outside the EU, and called on the Spanish Government to oppose the idea, and to advocate for migration policies in line with human rights standards and the international law.[29] Similarly, different NGOs (i.e. Accem, Caminando Fronteras and CEAR) opposed the creation of such facilities outside the EU, due to the risks in terms of fundamental rights violations these would lead to.[30] At a meeting of the European Council held in October 2024, the Spanish Prime Minister expressed his opposition to the creation of reception centres outside the EU, as he considered that they would not address the existing problems, and instead give rise to new challenges.[31]
Official figures on the number of cases where a return decision has been issued following a rejected asylum application and where appeals are ongoing are not published in Spain. Similarly, public information is not available on the number of cases where a return decision has been issued following a rejected asylum application but where the person cannot be returned due to practical or political obstacles (e.g. a moratorium on returns, deportation ban, lack of cooperation with the country of origin or transit, etc).
[1] Article 31 and ss. of the Immigration Law; Articles 124 and ss. of the Regulation of the Immigration Law.
[2] Articles 125, 126 and 127 of the Regulation of the Immigration Law.
[3] Pajares y Asociados, ‘Qué es el arraigo de Segunda Oportunidad, el nuevo concepto que beneficia a los extranjeros en España’, 16 December 2024, available here.
[4] Ministerio de Inclusión, Seguridad Social y Migraciones, ‘El Gobierno aprueba un nuevo Reglamento de Extranjería para mejorar la integración de las personas migrantes a través de tres palancas: trabajo, formación y familia’, 19 November 2024, available here.
[5] El Diario, ‘El Gobierno aprueba un nuevo reglamento de la Ley de Extranjería que prevé regularizar a unos 300.000 migrantes al año’, 19 November 2024, available here; El Diario, ‘Qué incluye el nuevo reglamento de la Ley de Extranjería y cómo facilitará la regularización de miles de migrantes’, 19 November 2024, available here.
[6] 20 minutos, ‘Nuevo reglamento de extranjería: los plazos para solicitar la nacionalidad española, el permiso de trabajo y la residencia’, 20 November 2024, available here.
[7] Article 128 of the Regulation of the Immigration Law.
[8] Article 129 of the Regulation of the Immigration Law.
[9] Article 31-bis of the Immigration Law; Articles 133-141 of the Regulation of the Immigration Law.
[10] Article 59-bis of the Immigration Law; Articles 148-155 of the Regulation of the Immigration Law.
[11] Accem, ‘Proyecto SAFER PATH – Informe Nacional España’, 2012, available here; Defensor del Pueblo, ‘El Defensor celebra que Migraciones acepte su recomendación para que los solicitantes de protección internacional puedan obtener una autorización de residencia sin renunciar a su estatus’, 9 September 2020, available here; Diez Velasco, ‘La protección de personas víctimas de trata en el anteproyecto de Ley Orgánica Integral contra la Trata y la Explotación de Seres Humanos: el caso de la infancia y las personas solicitantes de asilo. IgualdadES, 8, 141-168, 20 June 2023, available here.
[12] Defensor del Pueblo, ‘Clarificación de la compatibilidad de los procedimientos de asilo y los regulados por la ley de extranjería’, available here.
[13] Defensor del Pueblo, ‘Compatibilidad entre procedimientos de asilo y de extranjería En particular, solicitudes de residencia por circunstancias excepcionales relativas a menores y trata de seres humanos’, available here.
[14] Ministerio de Inclusión, Seguridad Social y Migraciones, ‘Los solicitantes de protección internacional podrán obtener una autorización de residencia sin renunciar a su estatus’, 8 September 2020, available here.
[15] Diaconía, ‘Informe de análisis de la situación de las víctimas de trata de personas en necesidad de protección internacional en España’, December 2022, available here; information provided by Accem’s anti-trafficking programme in March 2025.
[16] Article 35 of the Immigration Law, Articles 172-174 of the Regulation of the Immigration Law.
[17] PICUM, ‘Spain adopts law to facilitate regularisation of young migrants’, 18 November 2021, available here.
[18] Article 128 of the Regulation of the Immigration Law.
[19] Ministerio de Política Territorial y Memoria Democrática, ‘Solicitudes Telemáticas de Autorizaciones de Extranjería’, available here.
[20] Article 126 of the Regulation of the Immigration Law.
[21] El País, ‘ONG que trabajan con migrantes recurren al Supremo el nuevo reglamento de Extranjería’, 20 January 2025, available here; Cáritas, ‘Cinco entidades, entre ellas Cáritas, recurrirán ante el Tribunal Supremo la regulación del asilo en el nuevo Reglamento de Extranjería’, 21 January 2025, available here; Europa Press, ‘Migraciones se reunirá “próximamente” con las ONG que han recurrido el nuevo Reglamento de Extranjería’, 30 January 2025, available here.
[22] Ministerio de Trabajo y Economía Social, ‘Estadística de autorizaciones de trabajo a extranjeros’, November 2024, available here.
[23] Ministerio de Inclusión, Seguridad Social y Migraciones, Observatorio Permanente de la Inmigración (OPI), ‘Personas con autorización de residencia por arraigo’, 9 April 2024, available here.
[24] Ministerio de Inclusión, Seguridad Social y Migraciones, Observatorio Permanente de la Inmigración (OPI), ‘Menores no acompañados y jóvenes extutelados con autorización de residencia’, 22 February 2024, available here.
[25] Ministerio del Interior, ‘Asilo en Cifras 2023’, 2024, available here.
[26] Ministerio de Igualdad, ‘Boletín estadístico anual – Año 2023’, 2024, available here.
[27] Tribunal Supremo, Sala de lo Contencioso-Administrativo, Sección Quinta, Sentencia núm. 1.458/2021, 13 December 2021, available here.
[28] Information provided by Save the Children in February 2025.
[29] UGT, ‘UGT rechaza la propuesta de la presidenta de la Comisión Europea sobre la creación de “centros de retorno” de migrantes fuera de la UE’, 16 October 2024, available here.
[30] Europa Press, ‘ONG rechazan la creación de centros para refugiados fuera de la UE: “Supone la externalización de las fronteras”’, 15 October 2024, available here.
[31] Agenzia Nova, ‘Spain, Sanchez: “Against the creation of reception centers for migrants outside the EU”’, 18 October 2024, available here.