The new Immigration Regulation, Royal Decree 1155/2024, published in November last year, introduced significant changes regarding residence based on arraigo (‘residence under exceptional circumstances or roots cause‘). Since its publication, one of the aspects that has generated the most doubts and debates is the Fifth Transitional Provision (DT 5ª), which establishes a transitional regime for certain applicants for international protection whose application has been definitively denied.
Given the multiple inquiries and the debate regarding the applicability of this provision in cases of withdrawal of the application or a presumed denial due to administrative silence, the Secretaría de Estado de Migración (‘State Secretariat for Migration‘) has recently issued a clarifying note. Below, we detail its content (attached in Spanish):
Who can benefit from the Transitional Regime of the Fifth Transitional Provision?
To benefit from this special regime, the applicant must be in an irregular situation as a result of a final denial or rejection of their asylum or international protection application. Specifically, they must fall under one of the following cases:
- Have received a final denial decision on their international protection application.
- Have received a final rejection of an administrative or judicial appeal against the denial of their international protection application.
- If an administrative or judicial appeal against the denial of international protection is still pending, voluntarily withdraw from the appeal.
However, this transitional regime will not apply to individuals who, as of May 20, 2025, have not received an explicit decision on their international protection application. It will also not be available for those who request the withdrawal of their international protection application or those who withdraw from an appeal against a presumed rejection by negative silence.
Deadlines and key dates
To apply for this authorization under the transitional regime, the following deadlines must be met:
- Before May 20, 2025: The applicant must be in an irregular administrative situation in Spain, meaning their asylum request has been denied by a final resolution or they have withdrawn from an appeal against the denial before this date.
- At least six months of irregular status: The applicant must have been in an irregular administrative situation for at least six months immediately before submitting the application.
- From May 20, 2025, to May 20, 2026: During this period, those who meet the requirements may submit their application for authorization under the transitional regime.
The clarification note states that, for an asylum rejection to be considered final, two months must pass after notification without an appeal being filed. In our opinion, this criterion is problematic, as it may exclude many individuals from the transitional regime if their decision is not notified before March 20, 2025.
What happens if the Transitional Regime requirements are not met?
Those who do not qualify for this special regime may explore other regularization options. The most viable alternative in these cases is applying for a residence permit based on arraigos (‘roots cause‘), which requires:
- Having resided in Spain in an irregular administrative situation for at least two years.
- Meeting the specific requirements set by the new Immigration Regulation for each type of arraigo (‘roots cause‘).
Conclusion
The new instruction on the Fifth Transitional Provision of RD 1155/2024 aims to provide greater clarity in the application of this transitional regime, setting precise criteria on who can benefit and under what conditions. If you have applied for international protection and your application has been denied, it is essential to be well informed about your options and deadlines to take advantage of this regime.
At ARC Legal, we can advise you on the best strategy for your specific case and guide you throughout the entire process.
If you need more information or legal advice on immigration matters, do not hesitate to contact us.