Could my residence card as family member of a EU citizen in Spain be revoked?
Many clients have asked us if it is possible to lose the EU family member residence card, that is, if the Immigration Office could revoke or extinguish said card before the 5 years of its validity.
The answer is yes. And in fact it is doing it with some frequency. It supports on a provision of Royal Decree 240/2007, of February 16, which is the regulations applicable in these cases, specifically in its article 14.2, which states:
“In any case, the validity of the registration certificates and residence cards contemplated in this royal decree, and the replacement of these by a document accrediting permanent residence or a permanent residence card, respectively, will be conditional on the fact of that the owner continues to be in one of the cases that entitle them to obtain it. Holders of such permits should communicate any changes in circumstances related to their nationality, marital status or domicile to the Immigration Office of the province where they reside or, failing that, to the corresponding Police Station. ”
Reasons why you can lose the EU family member’s residence card
1-Termination of the relationship.
If you were married or were a registered couple of the EU or Spanish citizen for less than three years, counted from the beginning of the judicial procedure for annulment of marriage, divorce or cancellation of registration as a registered couple. This would also affect your ascendants and your children who are not children of your former EU or spaniard partner. There are some exceptions to this cause of extinction, as would be the case where the former non-community partner is assigned the custody of the common children.
2. When the EU or Spanish citizen no longer lives in Spain
However, it will not result in the loss of the right of residence of their children or of the parent assigned to their effective custody, regardless of their nationality, provided that said children reside in Spain and are enrolled in a study center to attend studies, until the end of the aforementioned studies.
3-Absences of Spain by the holder of the EU family residence card
In accordance with article 14.3 of the aforementioned RD 240/2007, the validity of the residence card of a relative of a citizen of the Union will expire for absences greater than six months in a year, except in the case of illness, pregnancy (including delivery and postpartum), studies or transfers for work reasons (in these cases, the absence can be up to 12 consecutive months).
4-When it is so required by public order, public safety or public health reasons.
These must be based exclusively on the personal conduct of the person who is the object of said measure, which, in any case, must constitute a real, current and sufficiently serious threat that affects a fundamental interest of the community, and that will be valued, by the competent body to resolve, based on the reports of the police, tax or judicial authorities that are in the files. The existence of previous criminal convictions will not, by itself, constitute a reason for adopting such measures.
5- Lack of economic means
Here we are in the presence of a not very ofter criterion, in our view disproportionate, by the Immigration Offices. There have been cases in which it has detected, for example, that the EU citizen has stopped working, and that has considered, consequently, that the assumptions that gave rise to the permit were not maintained, and that their non-community relatives, consequently, must lose the EU relative’s residence card.
More serious and disproportionate is even a case published in the social media, in which the Office of Inmigration of Madrid declared extinct, that is, losing the residence card of a family relative, to two elderly people of 86 and 81 years of age , respectively, for lacking private health insurance at a certain time.
What to do when losing the community family member’s residence card
If the Immigration Office (sub-delegation or government delegation) declares your EU family card extinguished, you have several options. First, if it is a disproportionate measure or not fully adjusted to the regulations, it is appropriate that you appeal, first filling the corresponding administrative resource (“recurso administrativo”).
If this is not resolved favorably, try a lawsuit in the contentious-administrative jurisdiction. It is quite frequent that the courts give the reason to the holder of the EU family card.
When the reason is quite clear (for example, that the marriage or de facto union lasted less than 3 years) there is the possibility of requesting a modification of the community regime and requesting a residence and work permit, or a non-profit residence, provided that the requirements established for it are met. In this case, applications can be made in Spain, without the applicant having to go to their country of origin