Entrepreneur residence refused because of ENISA's report

The case, in five lines

What is brought

A recurso de alzada (an administrative appeal to a higher authority) against the refusal and, if it is dismissed, judicial review proceedings (recurso contencioso-administrativo) seeking its annulment and either the authorisation or a fresh ENISA report. In parallel, where advisable, a new application with a redrafted ENISA form.

Before which court

The alzada is addressed to the body that the statement of appeal rights (pie de recurso) names as hierarchically superior to the Dirección General de Migraciones, and may be lodged with the Directorate-General itself (art. 121.2 of Law 39/2015). Judicial review goes to the Sala de lo Contencioso-administrativo del Tribunal Superior de Justicia de Madrid (the administrative chamber of the Madrid High Court of Justice), at first and only instance (arts. 10.1.n and 14.1 LJCA).

Deadline

One month for the alzada from notification; once it expires, the refusal becomes final (art. 122.1 of Law 39/2015). Three months for the alzada to be decided, with negative administrative silence, and two months for judicial review from notification of the express decision on it (art. 46.1 LJCA). Before that, check one date: if twenty working days passed from filing with no decision notified, and nothing stopped the clock, positive administrative silence arose (art. 76.1 of Law 14/2013).

Who can bring it

The entrepreneur who applied for the authorisation, personally or through a representative (art. 69.1 of Law 14/2013); the firm files with its own digital certificate, without asking for yours. Each family member appeals their own decision. ENISA neither decides nor is a party: its report is challenged through the refusal.

Financial risk

The alzada carries no court costs, but it does not extend your stay: the extension in art. 76.1 of Law 14/2013 ends with the refusal. Judicial review requires formal representation in court, takes time and may end with an order to pay costs. Unless the case is won on positive silence, winning on flaws in the report is likely to lead to a new assessment, not to the authorisation being granted outright.

ENISA's report decides, but what is appealed is the refusal

Art. 70.1 of Law 14/2013 only treats as entrepreneurial an activity that is innovative and/or of special economic interest to Spain and has a favourable report from ENISA (Empresa Nacional de Innovación, the state innovation company). The report is mandatory, the UGE requests it of its own motion and it is issued within ten working days. Without it, the Dirección General de Migraciones, which art. 76.1 empowers to grant the authorisation, refuses the application.

But the report is not the decision: it is an intermediate procedural act. Art. 112.1 of Law 39/2015 only allows a separate appeal against intermediate procedural acts that decide the merits, prevent the procedure from continuing, leave the party defenceless or cause irreparable harm, and objection to the rest is raised so that it is taken into account in the final decision. It is debatable whether this report falls within the exception, but there is no need to argue the point: the refusal follows almost at once, and the law provides for an alzada against it.

What nobody tells you is that the report goes from ENISA to the UGE, not to you. You will see it if the UGE sends you a request or gives you a hearing before deciding, or in the decision itself. That earlier moment is the best one to fight it: ten days if it is a request to remedy the application, failing which you are deemed to have withdrawn it (art. 68.1 of Law 39/2015), and between ten and fifteen days if it is the hearing, to make submissions and provide documents (art. 82.2). Afterwards, art. 53.1.a gives you access to the file and a copy of the report.

Before appealing, check the dates: twenty days and positive administrative silence

Art. 76.1 of Law 14/2013 allows twenty days from electronic filing for a decision and, if none is made within that period, treats the authorisation as granted. They are working days, under the general rule in art. 30.2 of Law 39/2015, and they run from filing with the UGE, not from the arrival of ENISA's report, which is requested within the procedure.

If the refusal was notified later, and no request or other communication stopped the clock, art. 24.1 of Law 39/2015 allows you to treat your application as granted, and art. 24.2 gives that grant the status of an act that ends the procedure. Art. 24.3.a rules out going back: a later express decision may only confirm the grant. Mind which date counts: with electronic notification, it is enough that the decision was made available to you on the electronic site within the period, even if you opened it later (arts. 40.4 and 43.3).

That is why the first thing we look for is not the report but the filing receipt and the notification receipt. If the dates show positive silence, the alzada does not argue about ENISA's judgment: it maintains that the authorisation already existed. That may be proved by any means, including the certificate that art. 24.4 requires to be issued within fifteen days and that may be requested at any time.

Alzada first, then the court: no direct judicial review here

In other immigration refusals you choose between reposición (an appeal for reconsideration to the same authority) and going straight to court; not here. Art. 76.1 of Law 14/2013 provides for the alzada, and the Dirección General de Migraciones is not among the bodies that exhaust the administrative route (art. 114 of Law 39/2015). The ninth additional provision of Royal Decree 1155/2024, which does exhaust it, concerns decisions based on the immigration regulation. If the statement of appeal rights says otherwise, the appeal is still lodged within the month.

The alzada is lodged within the month after notification, with the superior body named in the statement of appeal rights or with the Directorate-General itself, which forwards it with the file (art. 121.2). There are three months to decide it; without an answer, it may be treated as dismissed (art. 122.2). If the month passes with no appeal, the refusal is final (art. 122.1), and with it the positive silence argument and any flaw in the report are lost.

Against the decision on the alzada, there are two months to seek judicial review (art. 46.1 LJCA) before the Sala de lo Contencioso-administrativo del Tribunal Superior de Justicia de Madrid. Art. 8.4 LJCA only assigns the immigration decisions of the State's peripheral administration and of the competent bodies of the autonomous communities to the secciones de lo contencioso-administrativo of the Tribunales de Instancia (the administrative-law sections of the first-instance courts); the Directorate-General is a central body that arts. 9 and 11 do not assign to any other court, so art. 10.1.n applies, and it is the Madrid court because that is where the body that issued the original act has its seat (art. 14.1). If the alzada is decided by a Secretary of State, art. 11.1.b only sends to the Audiencia Nacional the acts that rectify on appeal, and the decision must state the court (art. 88.3 of Law 39/2015): if it names a different one, that is examined before filing.

What can be held against the report, and what cannot

The refusal must state its reasons (art. 76.1 of Law 14/2013 and art. 35.1.a of Law 39/2015), and the report serves as reasons when it is incorporated into the decision's text (art. 88.6): citing an ‘unfavourable ENISA report’ without saying what is wrong is not enough. And if the decision relied on a report you could neither see nor answer, the hearing required by art. 82.1 is missing, and it may only be dispensed with where no facts or evidence count other than the applicant's (art. 82.4).

The merits are open to attack too. It is enough for the activity to be innovative or of special economic interest, and ENISA measures the latter through scalability, according to its own guide. A report that denies innovation without assessing scalability, or that demands minimum investment or job figures which the UGE publicly states do not exist, applies criteria alien to art. 70.2, which looks at the applicant's profile and involvement, the business plan and the added value for Spain.

Then there is the error of fact. According to ENISA's guide, proving a single criterion is enough for innovation to be approved directly: investment, financing or public aid for R&D&I or innovative entrepreneurship in the last three years without revocation, an award as an innovative company, as winner or finalist, of at least regional scope, the Ministry of Science's binding reasoned report, the research staff rebate, or the Sello Pyme Innovadora (innovative SME seal), AENOR's certification as a young, small or micro innovative company, or certification under the UNE 166.002 standard. If one was on record and innovation is denied, the error is clear. Mere disagreement does not succeed: technical judgment is respected unless there is error, arbitrariness or lack of reasoning.

Reapplying: faster, with a different form and your status in order

Law 14/2013 does not limit the number of applications, and a new one is decided within twenty working days with positive silence, compared with the three months and negative silence of the alzada. If the problem lay in what ENISA had before it (empty tables, unverified figures, a direct approval criterion left unticked), a properly prepared new application is the quickest route.

What nobody tells you is that your stay keeps running. The application extended it until the procedure was decided (art. 76.1 of Law 14/2013), and the refusal is that decision: the law does not prolong it while you appeal. To apply from within Spain you must not be in an irregular situation (art. 62.3.a). If your stay is still valid, the new application is filed before it expires; if not, from abroad, where the authorisation is also applied for with the UGE and, once granted, the visa at the consulate (arts. 69.1 and 70.1).

Appealing and reapplying are not incompatible, and both are often done: the alzada keeps the first application, its date and the silence argument alive; the new one seeks the fast route. But it cannot repeat the old one: every table complete, pressing ‘Añadir’ (Add) for each row, investment over 18 or 24 months, four-year forecasts, the direct approval criterion if there is one, and data ENISA can check. The 790-038 fee is paid again: €73.26 in 2026.

The consulate and the renewal: the same report, other fronts

If you applied from abroad and were granted the authorisation, the consulate decides on the visa within ten working days, unless the consultation under art. 22 of the Visa Code applies (art. 75.5 of Law 14/2013). Its refusal is a different act, by a different body, and its own statement of appeal rights governs: if it declares the administrative route exhausted, as the ninth additional provision of Royal Decree 1155/2024 does for visas under the regulation, an appeal for reconsideration (reposición) lies within one month, or judicial review within two.

Renewal is the other moment of risk: it is applied for in two-year periods and requires the conditions to be maintained (art. 76.3), and the entrepreneur fills in the ENISA form again with the company's real data. A refusal based on an unfavourable report is also appealed by alzada, but here there is something to lose, namely the authorisation that the application kept alive, and suspension is requested in the appeal itself, as with any refused renewal.

At renewal, real activity is likely to weigh most: invoices, customers, hires and investment carried out against what was forecast. The seventh additional provision requires the conditions to be maintained and any change affecting them to be notified to the UGE within thirty days, and allows the authorisation to be terminated, after a hearing, if they are not met. And check your family members' applications: filed together, they are decided together (art. 62.4), and each one needs its own appeal.

How we run the case, step by step

1. 1

   Pin down the dates that decide the case

   With the filing receipt, the notification receipt and the date your stay expires, we check whether positive silence arose, calculate the month for the alzada and work out how much time is left to reapply from within Spain.

2. 2

   Read the report and the form that was sent

   We request a copy of the report from the file (art. 53.1.a of Law 39/2015) and compare it with the form as sent: empty tables, unverified data, direct approval criteria not assessed.

3. 3

   Separate the authority's error from your own

   Positive silence, missing reasons or hearing, and criteria the law does not require ground the appeal; a thin form calls for a new application; and if the refusal rests on another requirement in art. 62.3 of Law 14/2013, such as insurance, the strategy is different.

4. 4

   Alzada within the month

   The firm lodges it as representative, with its own digital certificate, attacking the reasons point by point with evidence, and seeks annulment and, depending on the case, the authorisation won by silence or a fresh report.

5. 5

   New application with a redrafted form

   While your stay is valid, or from abroad if it has expired, a new application is filed with a form that answers the first report. You open the account in ENISA's Área privada (its private online area) with your email; we prepare the content.

6. 6

   Judicial review if the alzada fails

   If the alzada is dismissed, within two months of its notification, or after three months without an answer, the claim is brought before the Sala de lo Contencioso-administrativo del Tribunal Superior de Justicia de Madrid, with the full file.

The law that applies

• Art. 70 de la Ley 14/2013. It defines entrepreneurial activity as activity that is innovative and/or of special economic interest to Spain with a favourable ENISA report, which is mandatory, requested by the UGE of its own motion and issued within ten working days, and sets as criteria the applicant's profile and involvement, the business plan and the added value for the Spanish economy. BOE-A-2013-10074
• Art. 76 de la Ley 14/2013. The UGE handles the procedure and the Dirección General de Migraciones grants the authorisation; with no decision within twenty days of electronic filing, positive silence arises. Decisions, which must state reasons, may be challenged by alzada; the application extends the stay until the decision, and renewal is for two years. BOE-A-2013-10074
• Arts. 62 y 69 de la Ley 14/2013. They require the applicant not to be in an irregular situation, to have no criminal record and to have health insurance and sufficient means. The authorisation lasts three years, is renewed for two and is applied for with the UGE, also from abroad through a single application; family members who apply at the same time are decided at the same time. BOE-A-2013-10074
• Art. 24 de la Ley 39/2015. Once the period expires with no decision notified, the application is deemed granted unless a statute provides otherwise; the grant ends the procedure, a later decision may only confirm it, and it may be proved by any means, including a certificate issued within fifteen days. BOE-A-2015-10565
• Arts. 121 y 122 de la Ley 39/2015. The alzada is lodged with the hierarchical superior of the body that issued the act, or with that body, within one month if the act is express; after that, the decision is final. Without a decision in three months, it may be deemed dismissed. BOE-A-2015-10565
• Art. 112 de la Ley 39/2015. An appeal lies against decisions and against intermediate procedural acts that decide the merits, prevent the procedure from continuing, leave the party defenceless or cause irreparable harm; objection to the rest is raised so that it is taken into account in the decision ending the procedure. BOE-A-2015-10565
• Arts. 35, 53, 82 y 88 de la Ley 39/2015. They require reasons for acts that limit rights, give access to the file and copies, impose a hearing unless only the applicant's facts count, and require the available appeals, body and deadline to be stated; a report serves as reasons when incorporated into the decision. BOE-A-2015-10565
• Arts. 8, 10, 11, 14 y 46 LJCA. Immigration decisions of the peripheral State administration go to the secciones de lo contencioso-administrativo of the Tribunales de Instancia (first-instance courts); acts of Ministers and Secretaries of State, to the Audiencia Nacional (National High Court); whatever is not assigned elsewhere, to the Tribunales Superiores de Justicia (High Courts of Justice), as a rule the one for the place where the body that issued the act has its seat. Deadline: two months. BOE-A-1998-16718

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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