17
oct-2022
1. APPLICATIONS FOR SPANISH NATIONALITY FOR SEPHARDIES THAT ARE AT A STANDSTILL OR HAVE BEEN DENIED BY RESOLUTION.
Q. Why, after so many months, is my application for Spanish nationality still "in process" and without response?
R. If you have gone 15 months or more without a response, and your file is "in process" or "received" or "pending" in the electronic platform of the notary's office, we can affirm that your application is in a situation of administrative silence. However, you are entitled to a reasoned resolution of your application by the Spanish administration. If other messages such as "material error" appear, it is possible that there have been errors in the process of sending or receiving the acta to the Ministry. You should verify this with your notary.
Q. What is administrative silence and how does it affect my nationality application?
R. Basically, it is one of the ways that the administration can end an administrative procedure without an express act of pronouncement on it. It will be understood that the process has ended when a certain period of time expires without the interested party's claims having been upheld or rejected. If by means of this presumed act the interested party's petition is considered to be upheld, the silence will be positive, and if the petition is rejected, the silence will be negative. Over the years, the different legal reforms of the administrative legislation have tried to reduce this prerogative of the administration in favor of the citizen's right to obtain an answer to his requests, precisely to avoid this "silence for an answer", which is nothing more than a neglect of the general obligation to expressly resolve any request submitted.
Q. Then, in the process of request of nationality for Sephardim the silence is NEGATIVE.
R. Yes. And this is expressly established in Law 12/2015 in its first additional provision, when it states "3. Once the previous term (12 months) has elapsed without an express resolution, the applications shall be understood as rejected by administrative silence". To this period of 12 months must be added 3 more months, which is the period that the Ministry of Justice has to receive information about the candidate from other Spanish administrations (especially referring to crimes of international scope). (Art 22.1. d of Law 39/2015 of October 1 of the Common Procedure of Public Administrations "......this period of suspension may not exceed in any case three months. In the event that the report is not received within the indicated period, the procedure shall continue..." Therefore, the total accumulated term that the administration has to resolve the application for nationality is, in principle, 15 months from the reception by the Ministry of Justice of the notoriety certificate sent telematically by the notary.
Q. Does this prolonged silence imply that my application for Spanish nationality has been denied?
R. Well, it depends. We cannot really know, and this situation in itself generates a lack of defense. It may be that they are indeed denying the application, or it may simply be that due to a lack of human or technical resources they are not able to resolve the enormous number of pending applications within the established period. The latter option is the most likely, but in order to be sure, you will have to take the initiative.
Unfortunately, what should be an exception has become the norm in the case of applicants for Spanish nationality by residence and of Sephardics originating in Spain, who see how in practically no case the deadlines for resolution are met and the administrative silence is perpetuated over time. In many cases, it is a matter of applications with certificates of notoriety signed more than 20 months ago that are still in that legal limbo that leads nowhere. Some of our clients have been waiting for more than 2.5 years for a notification. It is true that there are some cases that have been resolved in less than a year, but these are the exceptions, and this is no consolation for those who accumulate these enormous delays.
Q. So what else can I do to move my process forward?
R. There are two options. Wait indefinitely or act. The very legal deadlines established by both Law 14/2015 and the aforementioned Law 39/2015, empower to file an administrative appeal to force the administration to resolve the file. This appeal is called "de alzada" and must be filed once the 15 months have elapsed.
Q. Why should we now file this appeal against the silence? Why not wait for our applications to be resolved and then appeal only if the resolution is negative?
R. This question is very common. It is in your interest to file it now mainly for four reasons.
First. Because as we have said before, perhaps the administration never resolves and they remain in a situation of indefinite (negative) silence.
Second, because they have the right to a reasoned resolution of their requests by the administration. In the event of a denial, these reasons can be argued before a reviewing court to determine whether the administration has acted in accordance with the law or not. If you do not know the reasons why your application is being rejected, you cannot defend yourself.
Third. Because you can take advantage of the appeal to submit other documents and improve or correct your initial application.
Fourth (and most importantly), because if the administration does not respond to your appeal within 3 months and again leaves your claim in silence, this second silence would be positive. That is to say, it would suppose the concession of the nationality. This by virtue of the general theory of DOUBLE POSITIVE SILENCE contained in Art 24.1 of Law 39/2015, where it is stated that: "The sense of silence will also be dismissive in the procedures for challenging acts and provisions and in those of ex officio review initiated at the request of the interested parties. However, when the appeal has been filed against the rejection by administrative silence of an application due to the expiration of the term, the same shall be deemed to be upheld if, once the term for resolution has expired, the competent administrative body does not issue and notify an express resolution, provided that it does not refer to the matters listed in the preceding paragraph of this section".
The manner in which the application of this positive silence must be claimed will be the subject of a later entry in this website. But as a summary of the above, suffice it to say that, by filing an appeal in time, it is possible to make the administration pay with its own medicine and turn its negligence or malice into a legal advantage, in this case the presumptive recognition of the right to Spanish nationality.
P. We are a family of five. Two of us received three months ago the confirmation of the granting of our nationality by the Spanish Consulate in Bogota. One of them already has his Spanish passport. The other three members of our family are still waiting for more than twenty months. According to the platform, the files are still "in process". What should we do, appeal or wait?
R. Do not trust the messages that appear on the electronic platform of the notary's office, since many times they are not updated. We have clients who have been granted nationality for months and whose files are still with the note "in process". In your case, I believe that you should appeal without delay. Experience tells us that in most of these cases, when they are similar files and there are already concessions made to direct relatives, the administration usually responds by granting the nationality within 3 months. If it does not respond, in any case, the right is consolidated. These delays are usually due to delays in receiving the corresponding reports from other administrations on the applicants or because the processing has suffered some type of delay attributable to a specific official.
Q. I received an email communication from the Spanish Consulate in Mexico to pick up a notification. What could it be about?
R. In this process, when the Dirección General de Seguridad Jurídica y Fe Publica (DGSJFP, the former DGRN) approves the granting or denial of an application for nationality, it does so by issuing a resolution. This resolution is transferred to the competent civil registry, which is that of the applicant's domicile. As most of the applicants are residents abroad, the resolution is forwarded to the Ministry of Foreign Affairs, which in turn forwards it to the civil registry of the Spanish consulate of the applicant's domicile. In practice, we have found that each consulate has its own notification processes. It is usual that the communication is sent by email to the address that appears in the electronic application (not in the certificate of notoriety), and in the case of a favorable resolution (granting of the nationality) they indicate it in the body of the email indicating the rest of the steps that must be taken to conclude the process (oath or promise and inscription in the central civil registry). If, as it seems in your case, you are only summoned to receive a notification, it is possible that it is a denial, in which case you should act quickly, since the legal deadlines to appeal begin to count at the time of collection.
P. I have received a notification granting me the nationality but it was sent to me by the Spanish Consulate in Casablanca (Morocco) when I am a Peruvian citizen and resident in Panama. What should I do?
R. This type of errors are happening very frequently. We have quite a few clients who are receiving notifications of the granting of nationality from consulates other than the ones that correspond to them due to their residence. Sometimes it is the consulate of birth, or sometimes it happens that the applicant has changed address. This is something important for the process, especially for the deadlines, since the term to complete the oath and registration is of one year from the notification of the concession and if they have not been carried out in that term, the concession of nationality would expire. In your case, since you are a legal resident in Panama, you must complete the process of swearing and registration of the birth at the consular section of the Spanish Embassy in Panama City. To do so, you must complete a process of communication and change of consulate in Casablanca, and the file must be forwarded to the competent consulate to carry out the registration. These procedures are sometimes slow and complex.
2. FINALIZE AN APPLICATION FOR SPANISH NATIONALITY THAT IS INCOMPLETE.
Q. If I did not sign before the notary before September 2021, can I no longer finalize my nationality application?
R. It is still possible to finalize the process, since the platform is still active for the choice of notary and in principle, there is no deadline to appear and sign before that notary in Spain.
Q. What if essential documents have not been included in my electronic application? Can I provide them in any other way?
R. This is a somewhat complex question. It depends on what documentation is missing. If all the essential documents are missing, such as the birth certificate and passport, and above all the language and socio-cultural tests, it will be very difficult to complete the application. We have seen completely empty files. This is not remedying, it is making the application from scratch.
If the platform is missing documents for the process, many notaries will not agree to sign the notarial deed. However, in reality there is no legal impediment for the notary to accept new documents in the signing process and incorporate them into the deed. If there are documents such as criminal record certificates that may have expired and must be brought up to date at the signing, why would it not be possible for the notary to accept other documents such as certificates of Sephardic origin or proof of ties with Spain that could not be uploaded to the electronic platform at the time or that were issued after the platform was blocked?
Q. What new documents can I add to the notarial act?
R. In principle, except for those acts or certifications subject to the fulfillment of a specific deadline, or essential documents such as passport, birth certificate or the completion of language tests or socio-cultural knowledge, any type of document relevant to the process could be provided or updated.
Q. Will my notary agree to include new documents in the notarial act?
R. In our experience, there are many notaries who will not accept the inclusion of more documents in the notarial act than those included in the electronic platform, but this does not mean that these documents cannot be included in the process. Law 39/2015 of the Common Administrative Procedure of Public Administrations (Art 53.1.e, Art 76 and others) allows documents to be provided at any time during the procedure before the hearing. It must be remembered that this is a live procedure.
Q. What can I do if the notary does not want to accept these new documents?
R. In principle, you could file a complaint with the corresponding Notary Association for the damage caused by the notary's refusal, but in practice it is much simpler to try to change the notary, a process that can be complex due to the electronic nature of the procedure.
Q. How can I change the notary assigned in the platform if it is blocked?
R. Once a notary has been assigned in the notary platform, the user will no longer be able to change it. And in this process of application for nationality, which is electronic, changing the notary's office is a complicated procedure. But do not forget that the free choice of notary is an essential principle of the consumer, so if you are in this situation and your current notary does not respond or refuses to sign, contact us. Our firm has performed dozens of notarial changes and we can help you complete your Spanish nationality file.
Q. How long do I have to finalize my application for Spanish nationality?
R. As we have already said, there is no deadline for the signing of the notary deed, but the Spanish administration could communicate at any time to the notaries to demand the appearance of the applicants pending signature, for which there would be a maximum period of 3 months to appear before the notary. Therefore, our advice is to sign as soon as possible.
P. Once signed before the notary, how long will I have to wait for the resolution?
R. Once the deed is signed, the notary will send it telematically to the Ministry of Justice. At that moment, the calculation of the deadlines for the administration to resolve the case begins. These resolution periods are very variable and are very difficult to predict. Some clients have obtained a resolution in less than a year and other clients have been waiting for more than 3 years for a resolution. In these cases of prolonged silence, it is advisable to take legal action as indicated in this guide.
Contact us now for a review of your nationality file.
