Modification from Community Regime to General Regime

Immigration law is fundamental in the current context of migratory flows. Its regulation must guarantee the rights of foreign citizens and maintain the balance of the State. Although it may seem strict in some aspects, good faith and compliance with obligations and rights help prevent and resolve issues with the administration.

In this article, we address a common situation in immigration law: the transition from the community regime of legal residence as a family member of a European Union citizen to the general regime of residence and work as an employee. In other words, moving from being a family member of a Spanish or EU citizen to having an employment contract.

How to Change from the Community Card to the General Regime?

This modification occurs when the status of community resident or family member of a community resident is lost, for example:

• Separation or divorce from a Spanish or EU spouse.
• Children over 21 years old who start working.

The deadline to request the modification is three months from the moment the event causing the loss of community status occurs (e.g., from the notification of the divorce decree).

Changing the Community Card for Not Living at the Expense of the EU Family Member

The residence card for family members of EU citizens is designed for individuals who are economically dependent on the EU or EEA citizen with whom they have a family relationship. If this situation of economic dependence changes, you may lose the right to keep this card in its current form. However, in some cases, you can opt to change it to another type of legal residence in Spain. Here, we explain the key aspects of this situation:

What Does “Living at the Expense of the EU Family Member” Mean?

Economic dependence means that the holder of the card does not have sufficient personal resources for their livelihood and directly depends on the EU citizen to cover basic needs such as accommodation, food, or medical care. If this condition is no longer met, it is considered that the basis for maintaining the community card is no longer valid.

Requirements for Modifying from the Community Regime to Residence and Work as an Employee

1. Termination as the holder of an EU Citizen Registration Certificate or Family Member Residence Card: This means you can no longer maintain your residence in Spain under the EU regime.
2. No Criminal Record: You must not have any criminal records in Spain or in your previous countries of residence for crimes that are also recognized under Spanish law.
3. Not Banned from Entering Spain: You must not be listed as a person prohibited from entering Spain in the Schengen Area member states.
4. Registered with Social Security or Meet the Following Requirements:
   • Present a signed employment contract between the employer and the worker, guaranteeing continuous activity during the authorization’s validity. The start date of the contract must be contingent upon the approval of the authorization.
   • Labor Conditions: The contract must comply with the current labor laws, including the minimum wage, even for part-time contracts.
   • Employer Registered and Solvent: The employer must be registered with Social Security and up to date with their tax and Social Security obligations. They must also demonstrate that they have sufficient financial, material, or personal resources for their business project and to fulfill the contract’s obligations.
   • Professional Qualification: You must possess the required training and, if necessary, the legally required professional qualifications for the job.
   • Employer’s Financial Solvency (If a Natural Person)
     • Without Dependents: Must prove income equal to 100% of the IPREM (532.51 euros/month in 2011), after deducting the agreed salary.
     • With Two Family Members: Must prove 200% of the IPREM (1065.02 euros in 2011).
     • With More than Two Family Members: Must add 50% of the IPREM for each additional family member to the 200% of the IPREM (1065.02 + 266.26 euros for each additional member in 2011).

Documentation for Transition from EU Regime to General Regime

To modify your status from the EU regime to the general regime, you need to present the following documents:

1. Application Form (EX-03): Completed and signed in duplicate.
2. Copy of Passport or Valid Travel Document: The original must be shown when submitting the application.
3. Documentation to Prove Termination of EU Citizen Registration or Family Member Residence Card.
4. Criminal Record Certificate: Issued by the authorities of the countries where you’ve resided in the last five years.
5. If Not Registered in Social Security as an Employee:
   • Company Identification Documents:
     • Individual Entrepreneur: Copy of NIF or NIE, or consent to verify identity data.
     • Legal Entity:
       • Copy of the company’s NIF.
       • Copy of the incorporation deed registered with the Commercial Registry.
       • Copy of the document proving the legal representation of the person signing the application.
       • Copy of the NIF or NIE of the signer, or consent to verify identity data.
       • Signed Employment Contract.
       • Employer’s Financial Solvency Proof: Copy of the IRPF (income tax) declaration, VAT, corporate tax, or the company’s work life report (VILE) for the last three years, along with a description of the work to be performed.

Reminder for Changing from EU Card to General Regime:

• Bring the originals of all documents for inspection.
• If the documents are in a foreign language, they must be translated into Spanish by a sworn translator.
• Ensure all documents are valid and meet the specific requirements of the Foreigners’ Office.

Is a Work Permit Always Required When Changing from an EU Card to a General Work Permit?

No, it’s not mandatory to always change to an initial work permit for employed work. There are other options available for those who lose their EU resident status:

• Self-Employed Residence Card: If you intend to start a business and work for yourself in Spain, you can apply for this option. You must meet specific requirements, such as presenting a viable business plan and demonstrating the necessary investment capacity.
• Non-Lucrative Residence Card: If you have sufficient financial resources to support yourself and your family without working, you can apply for this option. You must demonstrate sufficient funds and a private health insurance policy that covers your stay in Spain.

Documentation for Non-Lucrative Residence Card Application

To apply for the Non-Lucrative Residence Card, you will need the following documents:

1. Documentation Proving Termination of Family Link: If you are applying for non-lucrative residence after losing your status as a family member of an EU citizen, you must present documents justifying it (e.g., divorce decree).
2. Application Form (EX-01): Completed and signed.
3. Criminal Record Certificate: Issued by the authorities of Spain and the countries where you’ve resided in the last five years.
4. No Ban from Entering Spain or Listed as Rejected: You must demonstrate that you are not prohibited from entering Spain or other countries in the Schengen Area.
5. Sufficient Financial Means: You must prove that you have enough financial resources to cover your expenses and those of any family members, if applicable. The minimum required amounts are:
   • For your own support: 400% of the IPREM per month (2,130 euros in 2024).
   • For each family member: 100% of the IPREM per month (532.51 euros in 2024).
   You can prove these means through property titles, certified checks, credit cards with bank certification, or certificates of shares or stakes in companies that show you are not working.
6. Health Insurance: You must have public or private health insurance contracted with an authorized entity in Spain.
7. Paid Fees: You must pay the relevant fee using model 790, code 052, section 2.1 “initial temporary residence authorization.”

Documentation for Self-Employed Residence Card

To apply for the Self-Employed Residence Card, you need to submit the following documents:

1. Documentation Proving Termination of Family Link: If applying for self-employed residence after losing your status as a family member of an EU citizen, you must present documents justifying it (e.g., divorce decree).
2. Criminal Record Certificate: Issued by the authorities of Spain and the countries where you’ve resided in the last five years.
3. No Ban from Entering Spain or Listed as Rejected: You must demonstrate that you are not prohibited from entering Spain or other countries with which Spain has an agreement.
4. Application Form (EX-07): Completed and signed.
5. Paid Fees: You must pay the corresponding fees using model 790, code 052 or model 790, code 062.
6. Registered with Social Security as a Self-Employed Worker or Meet the Following Requirements:
   • Compliance with Legislation: Comply with the legal requirements for opening and operating the business you plan to conduct.
   • Professional Qualification: You must have the required professional qualifications or accredited experience to perform the activity, including licensing if required.
   • Sufficient Investment: Demonstrate that the planned investment is sufficient and, if applicable, that jobs will be created.
   • Financial Means: Prove that you have sufficient financial means for your maintenance and accommodation, after deducting the necessary expenses for maintaining the activity.
   • Business or Activity Project: Provide details on the planned investment, expected profitability, and, if applicable, the jobs that are expected to be created.

Procedure for Modifying EU Regime Residence to General Regime

• Who Can Submit the Application: The foreigner personally.
• Submission Location: The Foreigners’ Office of the province where you reside.
• Submission Deadline: Three months from the date you stopped being an EU citizen or family member.

Fees for Changing from EU Card to Employed Work Permit

• Model 790 Code 052: 10.20 euros (paid by the foreigner).
• Model 790 Code 062:
  • 380.27 euros if the salary is equal to or greater than two times the minimum wage (paid by the employer).
  • 190.12 euros if the salary is less than two times the minimum wage (paid by the employer).

Resolution Time: 3 months from the date the application is submitted. If no notification is made within this time, it is considered denied due to administrative silence.

Validity of Authorization: Depends on the duration of your previous documentation as an EU citizen or family member.

Social Security Affiliation: If you were not previously registered, you must affiliate and register within one month from the notification of the authorization.

I Have an EU Card and Got Divorced: What Should I Do?

A divorce does not automatically mean the loss of your residence rights, but it requires an evaluation of your new situation to determine if you can continue residing in Spain with another authorization. This will depend on factors such as the length of your marriage, your economic situation, and the ties you’ve established in the country.

Possible Situations After Divorce

1. If the Marriage Lasted More Than 3 Years: If your marriage with the EU citizen lasted at least three years, and at least one year was in Spain, you can apply to continue your residence independently. You must demonstrate financial and personal stability.
2. If You Have Children in Common: If the divorce does not affect custody of children who are EU citizens, you can apply to continue your residence as a family member, as long as you have custody or contribute to their maintenance.
3. If You Meet Other Criteria: You can opt for a transition to a general regime or other available options, depending on your situation.

How to Report a Divorce to the Foreigners’ Office

When a divorce occurs and you have a residence card as a family member of an EU citizen, it is mandatory to notify this change to the Foreigners’ Office. This process is crucial to update your legal status and avoid possible sanctions or the loss of your residence.

Steps to Report Divorce

1. Obtain the Divorce Certificate: Request the divorce certificate from the corresponding Civil Registry. This document must be up-to-date and in official format.
2. Gather the Necessary Documentation: In addition to the divorce certificate, you will need:
   • Valid passport.
   • Family member residence card.
   • Current registration certificate.
   • Evidence supporting your right to maintain residence (if applicable), such as proof of income or ties to Spain.
3. Submit the Notification at the Foreigners’ Office: Go to the foreigners’ office in your province or submit the application electronically through the Ministry of Interior’s online platform. Submit all documents and request the change or maintenance of your residence.
4. Apply for a New Residence Authorization: If you no longer meet the requirements for the EU card, you can apply for a residence authorization based on personal circumstances, such as employment, ties, or long-term residence.

Applicable Regulations for Modifying from EU to General Residence Regime

The modification of EU family member residence to general residence and employment is governed by the following regulations:

• Organic Law 4/2000, January 11, on the Rights and Freedoms of Foreigners in Spain and their Social Integration (Articles 36 and 38).
• Regulation of Organic Law 4/2000, approved by Royal Decree 557/2011, April 20 (Article 200).
• Royal Decree 240/2007, February 16, on the Entry, Free Movement, and Residence of Citizens from European Union Member States and Other States Party to the European Economic Area Agreement (Article 9).

Cases for Modification to Residence and Employment

Currently, it is common to obtain legal residence in Spain through the EU family member card. However, when this family relationship ends—whether by annulment, divorce, or cancellation of a registered partnership—it is necessary to assess the time elapsed since the beginning of the union to determine residence options, typically modifying the EU card to the general regime.

Article 9.4 of Royal Decree 240/2007 establishes that, in the case of the breakdown of the family bond with an EU or European Economic Area citizen, the foreigner must notify the authorities. To maintain the right to reside, one of the following conditions must be met:

• Minimum Duration of 3 Years of the Relationship: The marriage or registered partnership must have lasted at least three years before the initiation of the annulment, divorce, or cancellation process, with at least one of those years spent in Spain.

Frequently Asked Questions about Modifying EU Residence to General Regime

1. When should I apply for the modification from EU residence to general regime? You must apply within three months from the end of your status as an EU citizen or family member. This can occur due to divorce, separation, the coming of age of a child, etc.
2. Where should I submit my application? You should submit it to the Foreigners’ Office of the province where you reside.
3. How long does the process take? The administration has a deadline of 3 months to resolve the application. If you do not receive a response within this time, it is considered denied by administrative silence.
4. What happens if my application is denied? You can file an appeal before the Ministry of the Interior within one month of receiving the denial notification.
5. Can I work while waiting for the decision on my application? If you submit your application within the three-month period from the termination of your EU status, you can continue working while waiting for the decision, as long as you meet the employment requirements mentioned above.
6. Do I need a lawyer to modify my EU family member card to the general regime? While it is not mandatory, having a lawyer specialized in immigration law can be very helpful to ensure that all requirements are met and to increase your chances of success in changing your card to the general regime.
7. Do I have to switch to a work permit? No, it is not mandatory to switch to a work permit. If you lose your EU resident status, you can opt for other alternatives, such as self-employment residence or non-lucrative residence, as long as you meet the specific requirements for each.
8. What is the deadline for applying for the modification of my EU residence? You have a three-month period from the moment your EU citizen or family member status ends to apply for the modification of your residence.
9. What happens if my modification request is denied? If your application is denied, you can file an appeal before the Ministry of the Interior within one month of the denial notification. It is recommended to seek advice from an immigration lawyer to help with this process.
10. Do I need to prove financial means to apply for modification to general residence and employment? Not directly. However, if you are not registered in Social Security as an employee, you must present an employment contract, and your employer must demonstrate sufficient financial means to support your employment.
11. What happens if I don’t modify my residence regime after losing my EU status? If you do not make the modification within the established deadline, you will be in an irregular situation in Spain, which can lead to administrative sanctions and even expulsion from the country. Additionally, you will not be able to accumulate residence time to apply for Spanish nationality or renew your permit in the future.
12. What are the benefits of modifying my residence to the general regime?
13. The main benefit is that it allows you to maintain your legal residence in Spain and continue working legally. Additionally, you can accumulate residence time to apply for Spanish nationality in the future, provided you meet other requirements.
14. Can a community worker be registered without an NIE? Yes, a community worker can be registered without an NIE, but it is advisable to obtain one soon for administrative procedures like Social Security and taxes.
15. Can I complete the process to modify my EU family member card to general regime without a lawyer? Yes, you can complete the process without a lawyer, but it can be complicated. It is important to meet all the requirements and submit the correct documentation. Having a lawyer can simplify the process and prevent mistakes that might delay or affect the outcome.
16. When does an EU family member card expire? The EU family member residence card may be lost for several reasons, including:
    • End of the Family Relationship: If the relationship that led to the issuance of the card ends (divorce, annulment of the marriage, end of the registered partnership, or death of the EU citizen), unless specific requirements are met to maintain the right.
    • Extended Absence from Spain: If the holder resides outside Spain for more than 6 consecutive months in a year, unless justified causes such as work, illness, or study are presented.
    • Failure to Renew: If the card is not renewed within the established deadlines (before the card’s expiration date).
    • Fraud or Falsehood: If it is found that the card was obtained through false statements, fraudulent documents, or a sham marriage.
    • Change in the EU Citizen’s Situation: If the EU citizen loses their right to reside in Spain, for example, by failing to meet residence requirements.
    • Expulsion or Administrative Sanction: In the case of an expulsion order from Spanish territory due to the commission of serious crimes or violation of immigration laws.