Spain's Supreme Court trims the immigration regulation: families of Spaniards, dependent parents and children born in Spain

On 22 September 2026 the Official Gazette published two Supreme Court rulings that take a list of sentences and phrases out of Spain's immigration regulation, in force since 20 May 2025. The regulation was not rewritten: the Court dismissed most of what eight organisations had challenged in two appeals. But the pieces that fell are the ones families meet at the counter: the foreign guardianship the office would not recognise, the dependent parent who was already living in Spain, the criminal record that closed a file without anyone weighing it, the child born here who spent a summer abroad, the application that could only be filed online. This piece reads the two operative parts as the Gazette printed them, the reasoning of the main ruling and the regulation's consolidated text as it stands at the start of October 2026.

Two rulings, one Gazette: what was decided, and from when

The main ruling is number 868/2026, of 8 July 2026 (appeal 19/2025), completed by a rectifying order of 1 September 2026. The second, number 998/2026, of 29 July 2026 (appeal 21/2025), repeats one of its annulments and dismisses the rest of what remained in dispute. Both were brought against Royal Decree 1155/2024, of 19 November, which approved the regulation of the Immigration Act (Ley Orgánica 4/2000).

A ruling that annuls part of a regulation does not wait for anyone to apply it. The Act on the administrative courts says such rulings tendrán efectos generales desde el día en que sea publicado su fallo y preceptos anulados en el mismo periódico oficial en que lo hubiera sido la disposición anulada — they have general effects from the day their operative part and the annulled provisions are published in the same official journal as the regulation (article 72.2 of Ley 29/1998). That day was 22 September 2026. The Gazette's consolidated text already carries a note under each article affected, so what is left of each one can be checked by anyone.

What fell: ten points

The operative part of ruling 868/2026 has ten points, lettered a) to j). In the order a family would meet them:

Families of Spanish citizens: the frame the Court kept

Since May 2025 the non-EU relatives of a Spanish citizen have had their own residence regime (articles 93 to 99 of the regulation): an authorisation of up to five years that allows work, employed or self-employed, anywhere in Spain (article 95). Before it, they were handled by analogy with the decree for families of EU citizens. The associations argued that the new regime treats the family of a Spaniard worse than the family of a German who lives in Spain. The Court did not accept the argument as a whole: the Directive on free movement does not govern Spaniards who have never moved to another Member State, and Spain may design their regime. What it set is a floor. Article 20 of the Treaty forbids national measures that would, in practice, oblige a Spanish citizen to leave the territory of the Union because a relative is refused residence, and the three annulments in this chapter rest on that floor or on a convention Spain has ratified.

One change came before the rulings. Royal Decree 316/2026, in force since 16 April 2026, rewrote article 97 while the case was pending: when the Spaniard and the relative are both in Spain, the application can be filed here, by either of them, for every relative of letters a) to h) of article 94.1, children and parents included, and once it is admitted the applicant is provisionally authorised to live and, if of working age, to work until the decision (article 97.1.c and 97.5). Partners are in letters b) and c); what a registered or a stable partnership requires is in our piece on the pareja de hecho in the Canary Islands.

The guardian of a Spanish child: a guardianship from abroad counts

Letter f) of article 94.1 covers the father, mother or guardian of a Spanish minor who has the child in his or her care and lives with the child, or is up to date with the obligations towards the child. It ended with a sentence that is now gone: Esta relación deberá haber sido constituida conforme al ordenamiento jurídico español — this relationship must have been constituted under Spanish law. The Court sets it against the Hague Convention of 19 October 1996 on the protection of children, under which las medidas tomadas por las autoridades de un Estado contratante serán reconocidas de pleno derecho en los demás Estados contratantes — the measures taken by the authorities of one contracting State are recognised by operation of law in the others — and recalls that the Court of Justice of the European Union took a guardianship under the Algerian «kafala» into account for residence rights (case C-129/18).

What the office keeps is a check, not a veto: it may verify, case by case, that the foreign guardianship does not offend public policy or the child's best interests. The same condition fell, for the same reason, in article 160.2, on the wards of foreign residents.

Dependent parents: dependency can be proved in Spain

A Spaniard's parents, and those of the spouse or partner, qualify when they live «a su cargo» and have no family support in their country, or for humanitarian reasons (article 94.1.e). Article 196 defines what being dependent means, and for economic dependency it sets three conditions: that it be real, stable and sustained; that it exist before the application; and, between the two, Que se produzca en el país de origen o de procedencia — that it arise in the country of origin or of provenance. The Court struck that condition en la medida en que impide su acreditación cuando el ascendiente se encuentre ya en España — insofar as it prevents its proof when the ascendant is already in Spain. The case it describes is the parent who was living here before the son or daughter became Spanish or obtained papers: the dependency exists, but it arose in Spain.

The rest of article 196 stands. Dependency is still assessed person by person and cannot have been created in order to obtain the authorisation; it is presumed when, for at least the year before the application, the parent has received funds, or had expenses paid, worth at least 51 % of the per-capita gross domestic product of the country he or she comes from; and it is presumed in any case for ascendants over 80 and for those with serious chronic illness.

A criminal record: no automatic refusal where a Spanish citizen would have to leave

For most relatives the regulation already said the right thing. A refusal on grounds of public policy must rest on personal conduct that is una amenaza real, actual y suficientemente grave que afecte a un interés fundamental de la sociedad — a real, present and sufficiently serious threat to a fundamental interest of society — and a previous conviction no constituirá, por sí sola, razón automática para acordar la denegación de la autorización o del visado — shall not, by itself, be an automatic reason to refuse the authorisation or the visa (article 98.1). The automatism came in through two doors: the same paragraph demands a clean record in every case from the relatives of letters c), g), h) and i), and article 97.4 sends applications filed in Spain to the general visa requirements, which include having no criminal record in the countries of residence of the last five years (article 38.e).

The Court annulled both, but only for one group of cases: those in which refusing the relative would, in practice, privar a ese ciudadano del disfrute efectivo de la esencia de los derechos inherentes a su ciudadanía de la Unión — deprive that citizen of the effective enjoyment of the substance of the rights attached to citizenship of the Union. The example in the case law it cites is the non-EU parent on whom a child of Spanish nationality depends. There a record cannot decide the file sin ponderación individualizada — without an individual weighing: the office has to consider the nature and seriousness of the offences, the time that has passed, the person's conduct since, the ties with Spain and the interests of the children. Outside that group the requirement stands, and the Court leaves disproportionate results to be corrected case by case by the lower courts.

Children born in Spain: married minors, journeys abroad and the six months

Article 159 gives a five-year residence authorisation, with no visa, to minors born in Spain whose parents hold a residence authorisation. Three things were in dispute. The word «solteras» is gone: a minor who has married is no longer excluded, and the same word, «solteros», fell in article 160.1. The Court accepts that fighting child and forced marriage is a legitimate aim, but finds the exclusion useless for it, because it penaliza al menor por haber sido sometido a él — penalises the minor for having been subjected to it.

The condition that the child no se haya ausentado del territorio nacional desde su nacimiento — has not left the national territory since birth — is gone too, together with the automatic transfer of those children to the heavier rules of family reunification. In its place the order of 1 September 2026 wrote the Court's reading into the operative part: what can be required is that the child has kept his or her habitual residence in Spain, sin que las ausencias temporales y justificadas determinen por sí mismas la inaplicación del precepto — without temporary and justified absences excluding the article by themselves. The ruling's own examples are an urgent medical journey, a visit to close relatives and a return to the country of origin to obtain documents.

The six-month window survived. The parents must still apply en el plazo de los 6 meses siguientes a la fecha del nacimiento — within the six months following the date of birth — or following the day one of them obtains residence, if that is later. The Court refused to annul it, and the order of 1 September refused to add anything about it to the operative part. The reasoning says, though, that the administration must weigh the reasons for a late application under the article itself, and the dismissal is expressly made with the interpretive effects of that reasoning. The practical rule has not changed: apply within the six months and, if the date has passed, apply with the proof of why.

Children not born in Spain, and wards

Article 160 is the route for minors who were not born here and already live in Spain with a resident parent: two years of continuous stay, schooling when the child is of school age, and parents who meet the income and housing conditions of family reunification. Those requirements are untouched. What fell is the word «solteros» in paragraph 1 and, in paragraph 2, the condition that opened the route to a resident's ward only siempre y cuando esta relación haya sido constituida conforme al ordenamiento jurídico español — provided that the relationship had been constituted under Spanish law. As with the guardian of a Spanish child, a guardianship validly constituted abroad now has to be examined on its merits.

Young people whose age is in doubt: care comes first

When the police find an undocumented young person whose minority cannot be established with certainty, the Immigration Act says se le dará, por los servicios competentes de protección de menores, la atención inmediata que precise — the competent child-protection services shall give him or her the immediate care needed (article 35.3). The regulation said that those services would be informed so that they gave that care «en su caso», where appropriate. Two words, the Court holds, that ended up convirtiendo en potestativa una obligación que la Ley configuró como imperativa — turning into an option an obligation that the Act made mandatory. With them gone, the duty of the regional services opera con carácter imperativo e incondicionado — operates imperatively and unconditionally — from the moment the police report where the young person is. The ruling leans on the Constitutional Court's judgment 43/2025, which, as the Supreme Court recounts it, partly annulled a protocol of the Canary Islands' Government for denying or deferring that care.

At the counter: paper is back, and agencies may hire for the season

Article 197.2 obliged individuals to use the electronic channel for seven applications: extensions of stay for studies, renewals of non-lucrative residence, initial residence and employed work, renewals of self-employed work and of residence with an exemption from the work permit, and the initial authorisations for seasonal work and for collective hiring at origin. It has been annulled whole, and the second ruling repeats the annulment. The Procedure Act starts from the opposite rule, Las personas físicas podrán elegir en todo momento si se comunican con las Administraciones Públicas para el ejercicio de sus derechos y obligaciones a través de medios electrónicos o no — individuals may choose at any time whether or not they deal with the administration by electronic means — and lets a regulation impose the screen on a group of individuals only when quede acreditado que tienen acceso y disponibilidad de los medios electrónicos necesarios — it is shown that they have access to the necessary electronic means (article 14 of Ley 39/2015). The regulation gave no such reasons.

What applies now is paragraph 1 of the same article: in person at the immigration office or electronically, as the applicant prefers. Anyone renewing a non-lucrative residence may again do it on paper. Two cautions. Companies, and professionals who must belong to a professional body, are obliged to file electronically by the Procedure Act itself, so a file handled through a representative of that kind still travels online. And the Court leaves the door open: the Government may impose the electronic channel again for specific procedures if it justifies why.

The other change at the counter concerns employers. The third paragraph of article 101.1 said Las empresas de trabajo temporal no podrán ser titulares de esta autorización de residencia y trabajo para actividades de temporada — temporary work agencies may not hold this authorisation of residence and work for seasonal activities — nor take over workers on a change of employer or in a chain of contracts. The Court found no statute behind the ban and a European directive against it (Directive 2008/104/EC), and annulled the paragraph.

What the Court left standing

Point three of the operative part matters as much as point two: Desestimar las restantes pretensiones anulatorias deducidas en el recurso — to dismiss the remaining claims for annulment made in the appeal. Among them:

• The spouse must be over eighteen. Article 94.1.a stays as it was; the Court accepts the aim of preventing forced and child marriage.
• The visa route from abroad. A relative who is outside Spain still enters with a residence visa (article 41); the regime is not the automatic one of the families of EU citizens.
• Arraigo and asylum. A person whose application for international protection is pending cannot apply for arraigo, and that time does not count towards the two years (article 126). Both rulings uphold it.
• Nationality. Time spent under the provisional authorisations given to victims while their file is decided does not count towards nationality by residence.
• Students under eighteen. The age requirement for long-stay visas for upper-secondary studies and training activities (article 35.f) stands.
• The rest of the regulation. Everything that is not on the list of ten, including the requirements, documents and deadlines of each authorisation.

If you were refused under one of the struck phrases

The first question is whether the refusal is final. The Act does not reopen closed files: rulings of this kind no afectarán por sí mismas a la eficacia de las sentencias o actos administrativos firmes que lo hayan aplicado antes de que la anulación alcanzara efectos generales — shall not by themselves affect the final judgments or administrative acts that applied the provision before the annulment took general effect (article 73 of Ley 29/1998).

A refusal that is still within its time limits is another matter. Decisions on residence authorisations end the administrative route (ninth additional provision of the regulation): they can be challenged before the office that issued them within one month, or directly before the administrative courts within two months of the notification, and the challenge can now rest on the ruling.

A final refusal does not prevent a new application under the text as it stands today. The Immigration Act lets the office decline to process the repetition of an application already refused siempre que las circunstancias que motivaron la denegación no hayan variado — as long as the circumstances that led to the refusal have not changed; an annulled requirement is, in our reading, a circumstance that has changed, and the new application should say so on its first page. One warning from article 97.5: the provisional permission to live and work while a family application is decided is not given where an authorisation of the same type was refused on substantially the same facts.

What our immigration team does

Our immigration team at the Costa Adeje and Corralejo offices prepares family and residence files and reworks or appeals the ones that were refused: which sentence the office applied, whether the decision can still be challenged and what the family can prove today. The consultation is a paid one, quoted in advance, and nobody can promise what an office or a court will decide. For those not yet in Spain, our guide to EES, ETIAS and the routes for staying longer is the place to start. The service is described on our immigration page, and the contact page has both offices' hours.

Common questions

Since when do the annulments apply?

Since 22 September 2026, the day the operative parts were published in the Official Gazette, and for everyone, not only for the organisations that went to court. Files decided and closed before that day are not reopened by the rulings themselves.

I am the guardian of a Spanish child and my guardianship was constituted abroad. Can I apply now?

Yes. The sentence that required a guardianship constituted under Spanish law has been annulled in articles 94.1.f and 160.2. The office may still check that the foreign guardianship does not offend public policy or the child's interests, so the foreign decision, duly legalised and translated, remains the centre of the file.

My mother already lives with me in Spain. Can she qualify as a dependent parent?

The fact that the dependency arose in Spain no longer excludes her. It still has to be real, stable and earlier than the application, and it is presumed for ascendants over 80. The parents of a Spaniard can apply from inside Spain since April 2026.

Do I still have to file my renewal online?

No. The paragraph that imposed the electronic channel on seven applications, renewals of non-lucrative residence among them, has been annulled; you may file in person or electronically. If a lawyer or another member of a regulated profession files for you, the file goes online.

Our child was born in Spain and we missed the six months, or travelled abroad. Is the route closed?

Not by that alone. The six-month window stands, but the administration must weigh the reasons for a late application; and temporary, justified absences no longer take the child out of article 159, provided the child's habitual residence has been in Spain.

General information on Spanish immigration law as it stands on 2 October 2026 (Real Decreto 1155/2024 in its consolidated text; Supreme Court rulings 868/2026 and 998/2026, published on 22 September 2026), not advice on your case: the Government may redraft the annulled provisions, and each file depends on its own facts and dates.