by Jesús Alamo Ascencio, Spain & EU
Last updated Tuesday, March 11, 2018
Regarding the Spanish nationality, the Constitution of Spain makes a reference that a separate law will contain provisions about the acquirement or the loss of it (11th article from the Spanish Constitution). This separate law is actually the Spanish Civil law which has a special part, Book I, Title one, named ”On Spaniards and foreigners”.
The 17th article starts enumerating which persons are Spaniards by birth:
a) Those born of Spanish mother or father. b) Those born in Spain of foreign parents if at least one of them should also have been born in Spain (Exception: the children of diplomatic or consular officer credentialed in Spain). c) Those born in Spain of foreign parents if both of then should be without nationality or if the legislation of neither should grand nationality to the child. d) Those born in Spain of uncertain filiation.
Also, the law provides explications about the filiation or birth in Spain determined after the person is eighteen. In this case, the interested party shall be then entitled then to opt for Spanish nationality by birth within two years from such determination (2nd paragraph of the 17th article). This is considered to be the rule of jus sanguinis and it is granting Spanish nationality by origin.
The nationality via possession of status is treated in the 18th article from the Spanish Civil Code. So, ” The possession and continued use of Spanish nationality for ten years, in good faith and based on a title registered in the Civil Registry shall constitute grounds for the consolidation of Spanish nationality, even if the title which originated should be annulled.”. Individuals concerned must have maintained an active attitude regarding said possession and use of Spanish citizenship, which means they must have behaved and considered themselves as Spaniards, both in exercising their rights and in fulfilling their duties as regards the authorities of Spain (1)
There is also the situation of the foreign person that is adopted by a Spaniard. So, if the adopted person is a minor at the time of the adoption (the person isn’t eighteen years old), then he will acquire Spanish nationality by birth as of the adoption. The other situation is when the adoptee is older than eighteen. In this case, he will have to opt within 2 years, if he wants the Spanish nationality or not. Also the law says, if the minor will maintain his previous nationality, the Spanish state will acknowledge it.
The 20th article from the Spanish Civil Code talks about the category of persons which can opt to obtain the Spanish nationality (in this case, the nationality can be obtained by option). Are included here:
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 (parents which lost their Spanish nationality).
Those individuals mentioned in the second bullet-point in article 17, and adopted foreigners of 18 years of age or more (2)
The second paragraph of the 20th article regulates some cases regarding the declarations’ formulation. For this matter, the declaration of option shall be formulated:
a) By the legal representative of the person who makes the option when the latter is younger than fourteen or incapacitated. b) By the interested party, assisted by his legal representative, if he is older than fourteen or in spite of his incapacity, he should be allowed to do so by the incapacitation judgement. c) By the interested party, by himself, if he is emancipated or older than eighteen (the right to opt for the Spanish nationality will expire after 2 years, but if he is not emancipated by his personal law upon turning eighteen, the period to exercise the option shall be extended until two years after his emancipation).
Some people can acquire the Spanish nationality by naturalization, under exceptional circumstances. This one can be granted by the Government, through a Royal Decree, after the examination of the exceptional circumstances.
The 22th article states that ” Granting of nationality pursuant to residence shall require ten years’s residence. Five years shall be sufficient for persons who have obtained asylum or refugees, and two years for citizens by birth of Latin-American countries, Andorra, the Philippines, Equatorial Guinea or Portugal, or for Sephardic Jews.”.
Those countries with historical ties to Spain and where Spanish or Portuguese is the official language have signed conventions which allow for double nationality and a shortened period of residency as a pathway to citizenship. The Latin American / historial ties countries are: Andorra, Argentina, Bolivia, Brazil, Chile, Cuba, Columbia, Costa Rica, Ecuador, El Salvador, Equatorial Guinea , Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Portugal, Puerto Rico, the Dominican Republic, the Philippines and Venezuela. (3)
Besides that, there are another situations:
1. One year’s residence shall be sufficient for:
a) A person born within Spanish territory. b) A person who has not exercised his option right in due time. c) A person who has been legally subject to guardianship, custody or care by a Spanish citizen
2. or institution for two consecutive years, even if such situation should persist at the time of the application.
d) The person who, at the time of the application, has been married to a Spaniard for one year and is not legally or de facto separated. e) The widow or widower of a Spaniard if, upon the death of the spouse they should not be legally or de facto separated. f) The person born outside of Spain from a father or mother who were originally Spanish. The second paragraph of the 22th article says that in all cases residence must be legal, ongoing and immediately prior to the application. Also, the interested person must evidence good civic conduct and sufficient degree of integration in Spanish society in the proceedings regulated by the Civil Registry legislation (22nd article,4 th paragraph). The party has a contentious administrative appeal for the situation of refusing or granting of the nationality pursuant to residence.
In both cases, naturalization or residence, the application may be formulated by:
a) the interested party who is emancipated or older than eighteen. b) The person older than fourteen assisted by his legal representative. c) The legal representative of a person younger than fourteen. d) The legal representative of the incapacitated person, or the incapacitated by himself, duly assisted, as result from the incapacitation judgement (4)
It’s important to know that the applications shall be processed and resolved at the Civil Registry of the place of residence (5) .
The following provision presents that the granting of nationality from naturalization or residence case shall expire after one hundred and eighty days if the interested party does not appear within such period before a competent officer to comply with the requirements provided in the 23rd article.
The 23rd article presents some common requirements for the validity of the acquisition of Spanish nationality by option, naturalization or residence:
a) for the person older than fourteen and capable of issuing a statement by himself, to swear or promise fidelity to the King and obedience to the Constitution and the law; b) or the same person, to declare that he renounces his prior nationality (except the ones from 24th article, second paragraph); c) for the acquisition, to be registered with the Spanish Civil Registry (6)
The Spanish Civil Code presents in the 24th article the situations when a person can lose the Spanish nationality. For the emancipated persons habitually resident abroad, who voluntarily acquire another nationality or who exclusively use their foreign nationality prior to their emancipation shall lose their Spanish nationality (first paragraph from the 24th article). The loss will be produced after the lapse of three years, counting from the acquisition of the foreign nationality or from the emancipation. Some exceptions are enumerated. The acquisition of Latin American countries, Andorra, the Philippines, Equatorial Guinea, or Portugal shall not be sufficient to cause the loss of the Spanish nationality by origin. The emancipated Spaniards who expressly renounce their Spanish nationality shall lose it if they have another nationality and have the residence abroad.
Spanish citizens who didn’t obtained the nationality by birth shall lose their it:
a) when for a period of three years they exclusively use the nationality which they should have declared to have renounced upon acquiring Spanish nationality. b) When they voluntary enter the armed forces or exercise public office in a foreign country, against the Government’s express prohibition (25th article).
Those persons can’t recover Spanish nationality without the Government’s prior authorisation.
Even if a person has lost the Spanish nationality, may recover it, but needs to follow some requirements.
a) Being a legal resident in Spain b) Declaring before the officer in charge of the Civil Registry his intention to recover the Spanish nationality c) Registering the recovery in the Civil Registry.
It’s important to mention that the Civil Registry sets some rules for the foreigners which want to acquire the Spanish nationality. Regarding of the birth registration, the interested party has to specify the name that appears on the foreign certificate, unless the usual use of a different name is proven. Also, if the name from the foreign certificate or the name commonly used is included in any of the established limitations, it must be replaced, in accordance with Spanish regulations, by the one chosen by the interested party or its legal representative or the imposed by the office. For names that are from another writing system different from the one in Spain, they will be consigned through their transcription or transliteration, in order to achieve graphic adaptation and phonetic equivalence. Also, in proper names written with Latin characters could be made spelling adaptations at the request of the person, to facilitate their writing and phonetics.
The foreign person which wants to acquire Spanish nationality needs to present the following documents:
The official application form
The original and photocopy of the foreign identity card
The original passport and a photocopy of every page of it.
Birth certificate, printed within the last 90 days and legalized with a sworn translation attached.
Marriage certificate, if the person is married.
A criminal record or background check from the country of origin, printed within the last 90 days and legalized with sworn translation of both documents attached.
Spanish criminal record certificate, printed within the last 90 days.
Government registration certificate, printed within the last 9 days.
A DELE certificate showing a minimum CEFRA2 in Spanish (only for applicants whose native language isn’t Spanish)
A CCSE exam certificate (prueba de conocimiento constitutionales y socioculturales), which consists in an exam with 25 question multiple choice. This will test the general knowledge of Spanish culture and laws. The testing is conducted by Cervantes Institute, in their examination centers, once every month.
The proof of application payment (tasa)
Documents which must accompany the request of the minors or with legally modified capacity:
1. Persons under 14 years old or the ones with legally modified capacity that must act through a legal representative:
a) Application form signed by the legal representative b) Birth certificate from the country of origin legalized and translated in accordance with International Agreements. c) Passport or identity card for the persons from the countries that are members of the Schengen area. d) Proof of the payment of the fee. e) Authorization from the person in charge with the Civil Registry from the minor’s residence or of the person with modified capacity. f) Identification documents of the representatives or legal representatives. g) A certificate of the training center which can certify the sufficient degree of integration, mandatory in the case of children of school age. h) Foreign identity card i) Certificate o registration.
2. For persons over 14 years of age but under 18 years old, which are not emancipated or with the legally modified capacity that can act on their own, assisted by their legal representative
a) The application model that needs to be signed by the interested party and the legal representative. b) Birth certificate from the country of origin, legalized and translated in accordance with International Conventions. c) Passport or identity card for the persons which are from the countries members of the Schengen area. d) Proof that the fee was paid. e) Certificate of training center, that certifies the sufficient degree of integration. This one is compulsory for the minor applicants od school age and provides that the minor or the person with the legally modified capacity is enrolled in one of these centers. f) Document accrediting the legal representation g) Foreign identity card, residence card of relative, citizen of European Union or the Certificate of registration of a citizen of the Union. h) Certificate of registration.
We will continue with some additional documents for some specific cases:
a) Identity card that proves that are foreigners and also that will prove their refugee status. b) Blue passport of the 1951 Geneva Convention if it’s available. c) Certificate from the Asylum and Refugee Office of the Ministry of the Interior. It will be valid for six months from the date of its issuance and it will state: the name and surname, the date of birth and the place of birth, names of the parents, that he maintains his refugee status.
2. Born in Spanish territory
a) Literal certificate of birth of the interested party registered in the Spanish Civil Registry.
3. Those who have not exercised the right to opt opportunely
a) Certification of birth of the Spanish father / mother. b) Literal certification of birth of the interested party registered in a Spanish Civil Registry or judicial resolution stating the adoption by Spanish or recognition of the filiation.
4. Married with Spaniards.
a. Literal certification of birth of the Spanish spouse, issued by Spanish Civil Registry. b. Literal certificate of marriage issued by Spanish Civil Registry. c. Cohabitation certificate or joint enumeration with the spouse.
5. Widowed from Spaniards.
a. Literal certificate of birth of the spouse issued by Spanish Civil Registry. b. Literal certificate of marriage issued by updated Spanish Civil Registry, that is, issued on dates close to the nationality application. c. Certification of death of the spouse. d. Certificate of joint enumeration or cohabitation at the date of death of the spouse.
6. Descendant of Spaniards
a) Literal certification of birth of the Spanish parent. b) Literal certification of birth grandpa / grandmother, only when one of them, or both, are Spanish ascendants. In this case, the birth certificate of the father / mother of Spanish descent must also be presented, even if he / she was Spanish or not.
a. Documentation accrediting the status of Sephardic according to the provisions of article 1.2 of Law 12/2015, of June 24, regarding the granting of Spanish nationality to Sephardic Jews from Spain (7)
(1) To be seen https://www.exteriores.gob.es/embajadas/ottawa/en/informacionparaextranjeros/pages/nacionalidad.aspx
(2) To be seen https://en.wikipedia.org/wiki/Spanish_nationality_law
(3) To be seen https://comoconsultingspain.com/how-to-apply-for-spanish-nationality/
(4) To be seen https://www.wipo.int/wipolex/en/text.jsp?file_id=221319#LinkTarget_6334
(5) To be seen https://www.exteriores.gob.es/embajadas/ottawa/en/informacionparaextranjeros/pages/nacionalidad.aspx
(6) To be seen https://www.wipo.int/wipolex/en/text.jsp?file_id=221319#LinkTarget_6334
(7) To be seen https://www.mjusticia.gob.es/cs/Satellite/Portal/es/ciudadanos/tramites-gestionespersonales/nacionalidad-residencia