The judge presiding over the Contentious-Administrative Chamber of the Court of Instance of Bilbao has annulled the resolution by the Government Sub-delegation in Bizkaia that denied temporary residence to a foreign citizen. This individual was acting as the legal guardian for two minors, daughters of a Spanish woman who is a recognized victim of gender-based violence and with whom he lives.
The man had applied for temporary residence in Spain as a «family caregiver» for the woman, who was recognized as a victim of gender-based violence by a court in Mexico, and for her two minor daughters. A court in Getxo had previously granted him guardianship responsibilities due to the woman's need to undergo medical treatment requiring temporary hospitalization.
The Administration had rejected the residence permit, arguing that no family ties between the applicant and the Spanish citizen were proven, nor was any dependency established.
The magistrate has now ruled to grant the temporary residence permit as a relative of a Spanish citizen, deeming the Administration's assessment «inadequate to provide a just response to the case presented».
The judge maintains that the core issue is not the man's request to care for the mother, but rather his legal obligation, imposed by the Getxo court, as the de facto guardian with tutelary powers over the two Spanish minors. The court stated it would be «unusual for him to be able to fulfill such a significant role while in an irregular situation due to lacking a legal permit to reside in Spain».
«From this perspective, the requested permit is not for caring for the minors' mother, but for fulfilling his obligations as the de facto guardian of the minors», the ruling states. Therefore, «the provision applied by the Administration as grounds for denial is not appropriate, as it does not align with the facts presented».
The judge noted that the family unit, comprising the mother and children, would be «clearly affected», given «the vulnerable situation they are experiencing», if the requested permit were not granted.
Consequently, the applicant would be in an irregular status, subject to deportation, and the minors would be deprived of the judicial protection established. The magistrate pointed out that these circumstances «have not been analyzed in the contested administrative act, which resolved the issue by applying a legal provision that does not fit the case, disregarding the one that does».
The judge recalled that Organic Law 4/2000 stipulates that a foreign woman reporting gender-based violence may apply for exceptional residence and work permits from the moment a protection order is issued in her favor or, failing that, a report from the Public Prosecutor's Office indicating evidence of gender or sexual violence. These measures can also apply to the minors.
In this specific case, the ruling adds, the woman, recognized as a victim of gender-based violence by a Mexican court, is the mother of two Spanish minors and does not require a residence permit to be recognized in Spain.
The magistrate emphasized that the crucial factor is that the «comprehensive protection of the minors and the support measure for the mother depend on maintaining the guardianship system agreed upon» by the Getxo court, and «the execution of what was resolved there depends on the de facto guardian residing legally in Spain».
«If the minors' best interests are to be protected and the support the mother receives is to be maintained, granting the requested residence permit is an appropriate and protective decision for the interests at stake», the judge concluded.
This ruling is not final and can be appealed before the Contentious-Administrative Chamber of the High Court of Justice of the Basque Country.
