Spanish nationality law

Spanish nationality law refers to all the laws of Spain concerning nationality. The 11th article 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 historical constitutions in Spain have had an article that defines Spanish nationality, even those constitutions that never came into effect.^[2] The current constitution of 1978 is the first that does not define Spanish nationality, but establishes that a separate law is to define and regulate it entirely, which is the Spanish Civil Code.^[2] Moreover, it is the first constitution that emphatically establishes 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—which was in fact an amendment to the Spanish Civil Code in effect—was approved. This law has been reformed on 17 December 1990, 23 December 1993, 2 November 1995, and most recently 2 October 2002.

The approval of the 11th article of the constitution was somewhat controversial, mostly due to the possible confusion it would cause with the term "nationalities"—referring to those communities or regions with a special historical and cultural identity^[3] that constitute the Spanish nation— which had been used in the second article of the constitution.^[4] It was suggested that the 11th article 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 was due to the creation of the European Union citizenship, whereby 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

The 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 the 17th article 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 adopted by a Spanish national acquire, from the moment of adoption, the Spanish nationality by origin.^[6] If the adoptee is 18 years or older, he or she can apply (lit. "opt") for the Spanish nationality by origin within two years after the adoption took place.^[6]

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

Spanish nationality by option

The 20th article of the Spanish Civil law, established that the following individuals have the right to apply (lit. "to opt") for the 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 (e.g. those individuals that were born after their parent(s) had lost the Spanish nationality).
• those individuals mentioned in the second bullet of the 17th article above, and those 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 the 17th article, and temporarily those who obtain it through the Law of Historical Memory).

Spanish nationality by naturalization and residence

Spanish nationality can be acquired by naturalization, which is given at the discretion of the government through a Royal Decree, and under exceptional circumstances.^[8] The Spanish nationality can also be acquired by residence in Spain. To apply for nationality by residence it is necessary for the individual to have lived in Spain for:^[9]

• 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 Sephardic (i.e. a descendent of the Spanish Jews, expelled in 1492), 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).

Though not specified in the Civil Code, in practice, 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 naturalization would still have to live ten years in Spain before applying for nationality by residence.^[10]

Loss of Spanish nationality

Spanish nationality can be lost under the following circumstances:^[11]

• 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 the 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 the 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 the Spanish nationality if they also possess another nationality and reside outside Spain will lose the Spanish nationality;
• Those minors born outside Spain that have acquired the 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 the 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 in war.

In addition, Spaniards "not by origin", will lose their nationality if:^[12]

• 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;
• they had lied or committed fraud when they applied for the Spanish nationality.

Spanish nationality can be "recovered" by legal residence in Spain, except for those Spaniards "not by origin".^[13]

Spanish nationality by the Law of Historical Memory

For a period of two years—with the possibility of being extended for a third year—starting on 27 December 2008, the Law of Historical Memory, grants the Spanish nationality by origin to:^[14][15]

• Those individuals born of a parent that was Spanish by origin (i.e. regardless of the place of birth), 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 born in Spain, and the Spanish nationality "not by origin" to those minors born of a Spanish national that was not born in Spain if they apply for it prior to the second year after their 18th birthday or emancipation);
• 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 prove that the grandparent had left Spain as a refugee or that the grandparent left Spain between 18 July 1936 and 31 December 1955.
• 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 the 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 the Spanish nationality "not by origin" by option (art. 20) can request his or her nationality to be changed to nationality "by origin", if he or she chooses to do so within the time period established by the law.^[14]

References

1. ^ Artículo 11, Título 1. De los derechos y deberes fundamentales. Capítulo primero: de los españoles y los extranjeros. Constitución Española de 1978
2. ^ ^{a b c d} Sinópsis artículo 11. Constitución Española de 1978.
3. ^ Nacionalidad. Real Academia Española.
4. ^ The second article reads: The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all.
5. ^ Artículo 17. Código Civil Español
6. ^ ^{a b} Artículo 19. Código Civil Español
7. ^ Artículo 20. Código Civil Español
8. ^ Artículo 21. Código Civil Español
9. ^ Artículo 22. Código Civil Español
10. ^ Spanish Citizenship and Two-Stage Schemes Fraud
11. ^ Artículo 24. Código Civil Español
12. ^ Artículo 25. Código Civil Español
13. ^ Artículo 26. Código Civil Español
14. ^ ^{a b} Ley de Memoria Histórica. Concesión de la nacionalidad española a descendientes de españoles. Ministerio de Justicia de España
15. ^ Ley de Memoria Histórica. Concesión de la nacionalidad española a los Brigadistas Internacionales. Ministerio de Justicia de España