Do you know the legislative supports regarding gender-based violence?

A foreign woman who has suffered gender-based violence may apply for a residence and work permit for exceptional reasons, provided that there is a protection order in her favour or that the Public Prosecutor's Office has issued a report indicating indications of gender-based violence.

The woman can request this authorization not only for herself, but also for her minor children or for her children over 16 years of age who are in Spain at the time of the complaint. If the children are minors, they will be granted a residence permit, and if they are over 16 years old, they will be granted a residence and work permit. This authorization for the children will have the same duration as that of the mother.

During the duration of the criminal proceedings, no penalty proceedings will be initiated for their irregular situation, and if one has already been opened, it will be suspended. The processing of the application will be treated with priority.

Documents to be submitted:

1. Model (Ex 10).

2. Copy of full passport of the woman and her minor daughters, with a minimum validity of four months.

3. Model Fee 790, Code 052, Heading 3: “Residence and work authorisation due to exceptional circumstances”. This fee is paid by the foreign woman and must be paid within 10 working days after the application is accepted.

4. Proof of having reported gender-based violence. Accepted documents can be:

1. 1. Order of protection or report of the Public Prosecutor's Office. With these documents, a provisional residence and work authorization will be automatically granted.

   2. Conviction or a court decision confirming that the woman has been a victim of gender-based violence, or the closure of the case because the accused is unaccounted for or the provisional dismissal for expulsion of the accused. In this case, a definitive residence and work authorization may be granted.

Deadlines for submitting the application:

1. If the criminal proceedings are not over: It can be submitted at any time, as soon as the protection order or the report of the Public Prosecutor's Office is issued.

2. If the criminal proceedings are over: There is a period of six months from the notification of the conviction, or the judicial decision indicating that the woman has been a victim of gender-based violence, the closure of the case because the accused is unaccounted for, or the provisional dismissal for expulsion of the accused.

The residence and work authorization will allow women to work in any occupation and place in Spain.

The authorization shall be valid for one year and shall be provisional until the end of the criminal proceedings. This document will indicate that it authorizes women to work and reside in Spain, but it will not specify that it is a provisional authorization or that women are victims of gender-based violence.

Completion of Criminal Procedure and Consequences:

After the conclusion of the criminal proceedings, the provisional authorisation shall cease to be valid.

1. If there is a conviction or a court decision confirming that the woman has been a victim of gender-based violence, or if the case is closed because the accused is unaccounted for or is provisionally terminated due to the expulsion of the accused, the woman will receive a final residence and work permit. This authorisation shall be granted within 20 days of the Aliens Office becoming aware of the judgment. The duration shall be five years.
   If the authorization had not been requested, the Public Prosecutor's Office will inform the woman about this option, and will have a period of six months from the notification of the sentence to make the request.
   In addition, any ongoing penalty proceedings against foreign women will be closed.

2. If the criminal proceedings end with a non-conviction sentence or with a court decision stating that the woman was not a victim of gender-based violence, the following effects shall occur:

   1. If the residence and work permit had been applied for, it will be refused, as well as applications for the applicant's minor children.

   2. The validity of the provisional authorisation that had been granted will automatically be lost and cannot be used as a basis for obtaining long-term residence.

   3. The sanctioning procedure that was previously suspended or not initiated will be resumed.

The exceptional circumstance that must be mediated for this type of authorization of temporary residence is that the foreigner is a victim of trafficking in human beings, so, verified the assumption, the Spanish authorities are called by law to provide help and even to minor or disabled children and, in the event of being over 16 years old, they could even opt for a work permit.

The interesting thing in these cases is that any person, who is aware that a foreigner is being trafficked, must immediately inform the competent police authority or the Government Delegation or Subdelegation of the province where the victim is located.

Initiation of the procedure:

The procedure begins when the police authorities have indications of the existence of a potential victim of trafficking in human beings who is a foreigner and, in addition, is in the country in an irregular situation. Those will inform the alleged victim in writing, in a language that is understandable to them, about the provisions contained in article 59 of Organic Law 4/2000 and the respective Regulations, that is, the possible cooperation to be provided, their rights, and the process to be followed in terms of regularization for this type of situation.

Then, the identification of the victim is extremely important and this will be the responsibility of the police authorities with training in the investigation of trafficking in persons. Within 48 hours of doing so, the proposal on the granting of a so-called resettlement and reflection period, lasting at least 30 days, shall be submitted to the appropriate authority and shall be sufficient to enable the victim to decide whether he or she wishes to cooperate with the authorities.

It should be noted that, both during the phase of identification of the victims and during the period of re-establishment and reflection, a penalty file will not be processed or the one that has been initiated will be suspended, as well as the execution of the expulsion or return eventually agreed. Likewise, in that time temporary stay will be allowed and the competent administrations will ensure the subsistence and, if necessary, the safety and protection of the victim and their minor or disabled children.

The special case of disclaimer:

The next step will be the exemption from liability for the alleged violation of article 53.1.a of Organic Law 4/2000 that will be determined by the Government Delegate or Subdelegate, either ex officio taking into account the personal situation of the victim or at the request of the authority with which it is collaborating in the investigation of the crime.

In the event that the exemption from liability does not apply, the suspension of the sanctioning procedure or of the execution of the expulsion or return measure will be lifted and will continue its course. If the decision is granted, the body which issued the decision shall inform the foreign national of the possibility of submitting an application for a residence and work permit or the option of returning to his country of origin in an assisted manner.

Application for residence and work authorisation:

The foreign national must go personally (or through a representative) to the Delegation or Sub-delegation of the Government that had determined the exemption from liability and address such request to the Secretary of State for Security, or to the General Secretariat for Immigration and Emigration, or both, which will depend on whether the reasons for this state:

1. In the cooperation of the victim in the investigation of the crime,

2. In your personal situation,

3. Or in both cases.

As in the rest of the cases of authorization of temporary residences for exceptional reasons, the interested party must comply with the presentation of the following requirements:

• Form/application EX10 duly completed and signed by the foreign applicant.

• Passport full, travel document or valid registration certificate and, if applicable, the public document granting legal representation in favour of the natural person making the application.

Once the application has been accepted, a fee will be payable immediately and will have to be paid within 10 working days (Model 790 code 052, subsection 2.5).

The Delegation or Sub-delegation shall forward the request to the competent body, attaching a report on the administrative and personal situation of the foreign national. In the event that it includes a favourable report, this will entail the achievement of the provisional residence and work authorization.

The refusal of the said authorization will mean the loss of validity of the provisional authorization that could have been granted, without the need for an express administrative pronouncement.

In case they approve the provisional residence authorization and work permit, what should you do?

The provisional authorization shall imply for the foreigner the possibility of working, as an employed or self-employed person, in any occupation, sector of activity and territorial scope, and shall be effective from the moment of notification of its granting and until a decision is taken on the application for authorization made.

In addition, you have one month from your notification, to go personally and require the Foreigner Identity Card, which will prove your legal stay in Spain. At that time you must submit the application contained in the official form EX17, accompanied by your passport, travel document or registration card; proof of payment of the card fee and current photographs of card size, in colour and with a white background.

This Identity Card must be renewed annually and, in any case, until a final resolution is issued.

And if a favorable final decision is made, it will have a validity of five years and the need to process, in a month from the granting, a new Foreigner Identity Card is required.