Spanish nationality law

Spanish nationality law refers to all the laws of Spain concerning nationality. Article 11 of the First Title of the Spanish Constitution refers to Spanish nationality and establishes that a separate law is to regulate how it is acquired and lost.^[1] This separate law is the Spanish Civil Code. In general terms, Spanish nationality is based on the principle of jus sanguinis, even though certain limited provisions exist for the acquisition of Spanish nationality based on the principle of jus soli.

History

All the constitutions in Spain before 1978 have had an article that defines Spanish nationality, even the constitutions that never came into effect.^[2] The current constitution of 1978 is the first that does not define Spanish nationality; rather, article 11 establishes that a separate law is to define and regulate it entirely, namely the Spanish Civil Code.^[2] It is also the first constitution that emphasises that those "Spaniards by origin", roughly equivalent to a "natural born Spaniard", cannot be deprived of their nationality.^[2] On 13 July 1982, and in accordance to what had been established in the constitution, the first law regarding nationality was approved, which was in fact an amendment to the Spanish Civil Code in effect. This law has been reformed on 17 December 1990, 23 December 1993, 2 November 1995, and most recently 2 October 2002.

The approval of article 11 of the constitution was somewhat controversial, mostly due to the possible confusion it would cause with the term "nationalities", in reference to those communities or regions in Spain with a special historical and cultural identity,^[3] a term that had been used in the second article of the constitution.^[4] It was suggested that article 11 should substitute the term "nationality" for "citizenship", but it was considered, as it is common in other legislations in Europe and Latin America, that the terms were not synonymous.^[2]

Another point of constitutional conflict the creation of European Union citizenship made all nationals of the member States were to have the same rights in all member States, including the right of active and passive suffrage in municipal elections. The constitution was reformed to allow this.

Spanish nationality by origin

Biometric Spanish passport

Spanish legislation regarding nationality establishes two types of nationality: "Spanish nationality by origin" (nacionalidad española de origen, in Spanish)—that is, a "natural-born Spaniard"—and the "Spanish nationality not by origin" (nacionalidad española no de origen in Spanish).

According to article 17 of the Spanish Civil Code, Spaniards by origin are:^[5]

• those individuals born of a Spanish parent;
• those individuals born in Spain of foreign parents if at least one of the parents was also born in Spain, with the exception of children of foreign diplomatic or consular officers accredited in Spain;
• those individuals born in Spain of foreign parents if neither of them have a nationality, or if the legislation of either parent's home country does not grant the child any nationality;
• those individuals born in Spain of undetermined filiation; those individuals whose first known territory of residence is Spain, are considered born in Spain.

Foreigners under 18 years of age who are adopted by a Spanish national acquire, from the moment of adoption, Spanish nationality by origin.^[6] If the adoptee is 18 years or older, he or she can apply (lit. "opt") for Spanish nationality by origin within two years after the adoption took place.^[6]

All other individuals that acquire Spanish nationality, other than by which is specified above, are "Spaniards not by origin".

Spanish nationality by option

Article 20 of the Spanish Civil Code, established that the following individuals have the right to apply (lit. "to opt") for Spanish nationality:^[7]

• those individuals that were under the tutelage of a Spanish citizen,
• those individuals whose father or mother had been originally Spanish and born in Spain (i.e. those individuals who were born after their parent(s) had lost Spanish nationality).
• those individuals mentioned in the second bullet-point in article 17, and adopted foreigners of 18 years of age or more.

Spanish nationality by option must be claimed within two years after their 18th birthday or after their "emancipation", regardless of age. Spanish nationality by option does not confer "nationality by origin" unless otherwise specified (i.e. those mentioned in article 17, and those who obtained it through the Law of Historical Memory).

Spanish nationality by naturalisation and residence

Spanish nationality can be acquired by naturalisation, which is given only at the discretion of the government through a Royal Decree, and under exceptional circumstances, as in notable individuals.^[8] Any individual can request the Spanish nationality by naturalisation, as long as he or she is 18 years or older, or through a legal representative if he or she is younger.^[9]

Under Article 22, Spanish nationality can also be acquired by residence in Spain. To apply for naturalisation by residence it is necessary for the individual to have lived in Spain for:^[10]

• ten years, or
• five years if the individual is a refugee, or
• two years if the individual is a national of a country of Iberoamerica, Andorra, Philippines, Equatorial Guinea, Portugal, or if the individual is a Sephardi Jew; or
• one year for those individuals:
  • born in Spanish territory, or
  • those who did not exercise their right to their nationality by option within the established period of time, or
  • those who had been under legal tutelage or protection of a Spanish citizen or institution for two consecutive years,
  • those who had been married for one year to a Spanish national and are not separated legally or de facto, or
  • those widowers of a Spanish national if at the time of death they had not been legally or de facto separated, or
  • those born outside of Spain, if one of their parents or grandparents had been originally Spanish (i.e. Spanish by origin).

Nationals of Iberoamerica, Andorra, Philippines, Equatorial Guinea and Portugal must be natural born citizens of their respective countries. That is, individuals who acquire the nationality of the said countries by naturalisation would still have to live ten years in Spain before applying for nationality by residence.^[11]

In 2012, the Government of Spain approved a measure that would allow Sephardi Jews to obtain the Spanish nationality automatically by naturalisation, thus bypassing the residency requirement as explained above. Applicants must provide a Certification from the Federation of Jewish Communities of Spain, to accredit that she or he is Sephardi.^[12]

Loss and recovery of Spanish nationality

Spanish nationality can be lost under the following circumstances:^[13]

• Those individuals of 18 years of age or more whose residence is not Spain and who acquire voluntarily another nationality, or who use exclusively another nationality, which was conferred to them prior to their age of emancipation lose Spanish nationality. In this case, loss of nationality occurs three years after the acquisition of the foreign nationality or emancipation only if they individual does not declare their will to retain Spanish nationality. The exception to this are those Spaniards by origin who acquire the nationality of an Iberoamerican country, Andorra, Philippines, Equatorial Guinea or Portugal;
• Those Spanish nationals that expressly renounce Spanish nationality if they also possess another nationality and reside outside Spain will lose Spanish nationality;
• Those minors born outside Spain that have acquired Spanish citizenship being children of Spanish nationals that were also born outside Spain, and if the laws of the country in which they live grant them another nationality, will lose Spanish nationality if they do not declare their will to retain it within three years after their 18th birthday or the date of their emancipation.

Spanish nationality, however, is not lost, as described above, if Spain is at war.

In addition, Spaniards "not by origin", will lose their nationality if:^[14]

• they use exclusively for a period of three years their previous nationality—with the exception of the nationality of those countries that Spain has signed an agreement of double nationality with;
• they participate voluntarily in the army of a foreign country, or serve in public office in a foreign government, against the specific prohibition of the Spanish Government;
• they had lied or committed fraud when they applied for Spanish nationality.

Those individuals who had lost the Spanish nationality can recover it if they become legal residents in Spain.^[15] Nonetheless, emigrants and their children are not required to return to Spain to recover the Spanish nationality. (Since the nationality law automatically grants the Spanish nationality to those individuals born of a Spanish parent, an individual born outside Spain to a Spanish parent born in Spain that uses the citizenship of the other country exclusively since birth is said to "recover" his or her Spanish nationality should he or she apply for it).

Spanish nationality by the Law of Historical Memory

In 2007, the Congress of Deputies, under the government of prime minister José Luis Rodríguez Zapatero, approved the Law of Historical Memory with the aim or recognising the rights of those who suffered persecution or violence during the Spanish Civil War (1936-1939), and the dictatorial regime that followed (1939-1975). In recognition of the "injustice produced by the exile" of thousands of Spaniards, the law allowed their descendants to obtain the Spanish nationality by origin, specifically to:^[16][17]

• Those individuals born of a parent that was Spanish by origin, regardless of the place of birth of the parent, whatever the age of the applicant. (The Spanish Civil code currently grants Spanish nationality "by origin" only to those individuals born of a Spanish national who was born in Spain, and Spanish nationality "not by origin" to those individuals born of a Spanish national who was not born in Spain only if they apply for it prior to the second year after their 18th birthday or emancipation); and
• Those individuals whose grandfather or grandmother had been exiled because of the Spanish Civil War, and had lost his or her Spanish nationality. In this case the applicant must have proven that the grandparent had left Spain as a refugee or that the grandparent left Spain between 18 July 1936 and 31 December 1955.

The law also granted the Spanish nationality by origin to those foreign individuals members of the International Brigades who had defended the Second Spanish Republic in the Spanish Civil War. (In 1996, they were granted Spanish nationality "not by origin", which implied that they had to renounce their previous nationality—Spanish nationals "by origin" cannot be deprived of their nationality, and therefore, these individuals can also retain their original nationality).

By virtue of this law, if an individual, whose father or mother had been originally Spanish and born in Spain, had previously acquired Spanish nationality "not by origin" by option (art. 20) could request his or her nationality to be changed to nationality "by origin", if he or she chose to do so.^[16]

The period wherein the Spanish nationality could be acquired by the Law of Historical memory started in 27 December 2008, and was concluded in 26 December 2011. Even though the Ministry of Foreign Affairs has not yet released the final count, and it is still reviewing applications, by 30 November 2011 446,277 individuals had applied for Spanish nationality through this law. Around 95% were Latin American, half of them from Cuba and Argentina.^[18] To the surprise of government officials, 92.5% of all applications were made by sons or daughters of Spaniards by origin regardless of their place of birth, and only 6.1% by grandchildren of refugees.^[18]

Dual nationality

Dual citizenship is permitted for all Spaniards by origin, as long as they declare their will to retain the Spanish nationality within three years of the acquisition of another nationality. This requirement is waived for those individuals who are natural citizens of an Iberoamerican country, Andorra, the Philippines, Equatorial Guinea or Portugal, and any other country that Spain may sign a bilateral agreement with.^[1][19]

On the other hand, foreign nationals that acquire the Spanish nationality lose their previous nationality, unless they were natural born citizens of an Iberoamerican country, Andorra, the Philippines, Equatorial Guinea or Portugal, even if these countries do not grant their citizens a similar treatment.^[1][19]

Citizenship of the European Union

Spanish citizens are also citizens of the European Union and thus enjoy rights of free movement and have the right to vote in elections for the European Parliament.

References

External links

• Government of Spain. Ministerio de Empleo y Seguridad