It appears that the average time it takes to get a reply on your Spanish nationality application (yea or nay), having put in all the relevant paperwork, is over two years. However, in some cases the whole process can take up to five years. Because of this some EuroCitizens have gone down the route of legal action, taking the Spanish government to court for 'silencio administrativo'. This might seem a somewhat extreme action to take, but it can work if you are prepared to spend the money.See below a detailed description of the process of lodging a lawsuit in the form of an administrative appeal (demanda contencioso administrativo) which has been written by a EuroCitizen who was brave enough to go down this route. His appeal was successful and he gained Spanish nationality in a matter of months.
* EuroCitizens cannot give legal advice, but merely inform our members about issues. If you have lodged an appeal (successful or otherwise), write to us at eurocitizens2016@gmail.com and tell us about your experiences.
The use of a Demanda Contencioso
Administrativo (DCA) in the process of applying for Spanish nationality.
The DCA is a relatively simple
process with the following main features:
1.
When
applied to the nationality procedure the DCA can only be presented one year
after the application for nationality was presented.
2.
This
is because the demand is based on Silencio Administrativo which applies when
the Ministerio de Justicia has not given a resolution one year after the
application. This theoretically means that the application has been
refused although in practice it usually means that it has been delayed because
of the backlog in the Ministerio.
3.
If
it is decided to present a DCA the first action is to appoint a lawyer with DCA
experience preferably related to nationality applications.
4.
The
lawyer’s minimum costs are quoted in the colegio de abogados of the province
where he/she practices but the costs are negotiable, and the lawyer will
usually require fees higher than the minimum. A fee of 2000 euros per case
seems to the around the average.
5.
As
well as the lawyer a procurador is needed to liaise with the court. The lawyer
provides all written material to the procurador. Usually the lawyer will
appoint the procurador, but the client can also do it directly. The
procurador’s fees are around 372 euros per case.
6.
DCAs
are always hear in the Audiencia Nacional in Madrid because that is where the
Ministerio de Justicia is based, so the procurador must practice in Madrid.
7.
The
first thing the lawyer will do is check the documentation because one error can
cause the DCA to fail and therefore the application would be refused
definitively. If there are any doubts about the accuracy and completeness of
the documentation presented it is probably not advisable to proceed with a DCA.
8.
If
the documentation presented is accurate and complete the lawyer will instruct
the procurador to present the DCA. The judge will then admit or reject the DCA.
It is very rare that he/she would reject it.
9.
The
judge will then send a requirement to the Ministerio de Justicia asking them to
send him or her the documentation of the person making the demand.
10. The Ministry then has to reply
within 20 days, but they usually take longer.
11.At this stage the funcionario at the
Ministerio will review the documentation before sending it to the judge. If he
or she sees that everything is in order the application may be just approved
basically to avoid the costs of a court case. In my case this appears to be
what happened and I received the approval of the application 3 months after
presenting the DCA
12.It’s interesting to note that the
approval or not of the application is not discretionary. If the documentation
is accurate and complete, they are obliged to approve the application.
13.If the Ministerio decides to dispute
the demand it has to go through the whole court process which can take up to 18
months. For this to happen the lawyer of the Ministerio will have written to
the giving their reasons for refusing the application. The judge then must
consider the arguments of the two parts before making the final decision. With
the workload they have to clear the backlog they have at present it seems
unlikely that most DCAs will get to that stage.
14.Note that even though a DCA is
presented the normal approval process continues without interruption.
