Renewal refused: the interim measure that keeps you legal

The case, in five lines

What is brought

An appeal against the refused renewal together with a request to suspend the decision in the administrative route and, afterwards, a request for an interim measure in the court proceedings.

Before which court

Suspension in the administrative route is decided by the body competent to decide the appeal; the interim measure is granted by order of the sección de lo Contencioso-Administrativo del Tribunal de Instancia (the administrative-law section of the first-instance court).

Deadline

Suspension is requested with the appeal, within the month in art. 124.1 of Law 39/2015 or the two months in art. 46.1 LJCA. Before the court, art. 129.1 LJCA allows it to be sought at any stage of the proceedings.

Who can bring it

The foreign national whose renewal was refused. Art. 129.1 LJCA entitles the parties to the proceedings to seek any measures that secure the effectiveness of the judgment.

Financial risk

Art. 133 LJCA allows security or a guarantee to be required where the measure may cause harm, and art. 130.2 allows it to be refused where serious disturbance to the general interest or to third parties would follow. If the claim is dismissed, an order to pay costs may also follow.

Appealing does not suspend, and that is the calendar trap

Art. 117.1 of Law 39/2015 says it in one line: filing any appeal, except where a provision states otherwise, does not suspend enforcement of the challenged decision. Applied to a refused renewal, that means the appeal does not give you your card back, does not revive your work authorisation, and does not stop your situation becoming irregular the next day.

That gap is the real damage in the case, and it is almost never repairable with money. The job is lost because the employer cannot keep someone without authorisation, seniority is lost, the contribution record needed for the next renewal is interrupted, and the appeal itself ends up serving no useful purpose even if it is won two years later.

Administrative suspension is requested, weighed and reasoned

Art. 117.2 allows the body competent to decide the appeal to suspend enforcement, of its own motion or at the appellant's request, after a sufficiently reasoned weighing of the harm suspension would cause to the public interest or to third parties against the harm immediate effect causes the appellant. Suspension is available where one of two listed circumstances applies.

The first is the one that serves here: that enforcement could cause harm that is impossible or hard to repair. The second is that the challenge is founded on one of the grounds of absolute nullity in art. 47.1 of that same law. The request is therefore not argued on the unfairness of the refusal, but on the damage caused by enforcing it while the matter is argued.

That means documenting the harm with papers rather than adjectives. The contract in force and the employer's letter making your continuity conditional on documents. The children's schooling. Ongoing medical treatment. Each of those documents turns a generic assertion into the harm, impossible or hard to repair, that the provision requires to be found.

One month with no answer and suspension is deemed to arise

Art. 117.3 of Law 39/2015 contains the rule that pays off most here: enforcement of the challenged decision is deemed suspended if, one month after the request for suspension entered the electronic register of the body competent to decide on it, that body has not issued and notified an express decision on the point.

That is why the request for suspension is not drafted as a closing paragraph of the appeal, but as an identifiable request, with its own heading, filed in the electronic register and with a receipt. That date is what starts the month and what, if needed, is produced to show that suspension has already arisen by operation of law.

Suspension does not fall away when the administrative route ends

Art. 117.4 solves the gap that usually ruins these cases. It provides that suspension continues after the administrative route has been exhausted where the person concerned asked for it beforehand, an interim measure exists, and its effects extend to the contencioso-administrativo route. And it adds that, if they bring a court claim seeking suspension of the decision, the suspension is maintained until the court rules on the request.

The practical consequence is simple and decisive. Someone who obtained suspension in the administrative route and then files the claim also seeking suspension is not left unprotected in the interval. Someone who did not ask for it earlier faces a period with no cover between the decision on the appeal and the court's order, which is precisely when the job is lost.

The same art. 117.4 warns of two things worth anticipating. That when suspension is granted, the precautionary measures needed to protect the public interest or third parties may be adopted. And that, where suspension may give rise to harm of any kind, it takes effect only once sufficient security or a guarantee has been provided to answer for it.

Before the court, what is measured is the purpose of the claim

Art. 129.1 LJCA allows the parties to seek, at any stage of the proceedings, any measures that secure the effectiveness of the judgment. Art. 130.1 sets the test: after a reasoned assessment of all the competing interests, the interim measure may be granted only where enforcement of the decision could deprive the claim of its legitimate purpose.

That is the whole argument of the case. If the refusal is enforced, you lose your job and the continuity of your residence, so a judgment given two years later would recognise an authorisation over a life already dismantled. Art. 130.2 marks the limit: the measure may be refused where serious disturbance to the general interest or to third parties would follow, which the court weighs in a reasoned way.

The application has a form and a clock. Art. 131 LJCA requires it to be dealt with in a separate file, with the other party heard within a period not exceeding ten days, and decided by order within the following five days. Art. 132 keeps the measure in force until final judgment and forbids modifying it because of progress in analysing the substantive issues or a change in assessment criteria.

When ten days cannot be waited: the special urgency route

Art. 135.1 LJCA provides that, where the parties plead circumstances of special urgency, the court may decide by order within two days without hearing the other side, finding urgency and granting or refusing the measure under art. 130. No appeal lies against that order, and thereafter three days are allowed for submissions, or a hearing is convened within the following three days.

The provision itself contains a rule designed for this field. Its paragraph 2 requires that, in matters concerning action by the authorities on immigration, political asylum and refugee status which involve return, where the person affected is a minor, the court must hear the Ministerio Fiscal (the public prosecutor) before making the order referred to in its first paragraph.

Once granted, art. 134.1 LJCA requires the order to be communicated to the administrative body concerned, which must arrange for its immediate compliance. And art. 133 is the reverse side: where the measure may cause harm, security or a guarantee may be required, and the measure is not carried out until that security is constituted and evidenced in the case file.

How we run the case, step by step

1. 1

   Read the refusal and set both clocks

   We identify the ground and the date of notification, on which the month in art. 124.1 of Law 39/2015 and the two months in art. 46.1 LJCA depend, and we check from exactly which day you are left without valid documents.

2. 2

   Request suspension in the appeal itself

   The request under art. 117.2 is drafted as a self-contained application, with its own heading, and filed in the electronic register of the competent body, keeping the receipt, because that date starts the month in art. 117.3.

3. 3

   Document the harm that is hard to repair

   We enclose the contract in force, the employer's letter, the children's school records and medical reports, so that the harm under art. 117.2.a) is proved by documents and does not depend on the goodwill of whoever weighs it.

4. 4

   Watch the month and assert the suspension

   Once a month has passed from the request's entry with no express decision notified, art. 117.3 deems enforcement suspended. That is communicated in writing, with the receipt, so the suspension takes real effect.

5. 5

   Court claim with a separate interim measures file

   The claim is brought before the administrative-law section of the Tribunal de Instancia seeking the measure in art. 129.1 LJCA, on the art. 130.1 argument: that enforcing the refusal would deprive the claim of its legitimate purpose.

6. 6

   Trigger special urgency if the harm is imminent

   If dismissal or removal is imminent, art. 135.1 LJCA is invoked so the court decides by order within two days without first hearing the other side, and we prepare for the later hearing the same provision requires to be convened.

The law that applies

• Art. 117 de la Ley 39/2015. It provides that an appeal does not suspend enforcement, allows suspension after a reasoned weighing where enforcement could cause harm that is impossible or hard to repair or the challenge rests on absolute nullity, deems enforcement suspended if no express decision is notified within one month of the request's entry, and extends the suspension until the court rules where it is also sought in the court claim. BOE-A-2015-10565
• Art. 129 LJCA. It allows the parties to seek, at any stage of the proceedings, any measures that secure the effectiveness of the judgment. BOE-A-1998-16718
• Art. 130 LJCA. It allows the interim measure only where, after a reasoned assessment of all competing interests, enforcement could deprive the claim of its legitimate purpose, and allows refusal where serious disturbance to the general interest or to third parties would follow. BOE-A-1998-16718
• Arts. 131 y 132 LJCA. They require the interim application to be dealt with in a separate file, with the other party heard within no more than ten days and an order made within the following five days, and they keep the measure in force until final judgment, with no modification for progress in the analysis of the dispute or a change in assessment criteria. BOE-A-1998-16718
• Art. 133 LJCA. It allows measures to avoid or mitigate any harm the interim measure may cause and the requirement of sufficient security or a guarantee, with the measure not carried out until that security is constituted and evidenced in the case file. BOE-A-1998-16718
• Arts. 134 y 135 LJCA. They require the order granting the measure to be communicated to the administrative body, which must arrange immediate compliance, and allow the court, where special urgency is pleaded, to decide by order within two days without hearing the other side, with submissions or a hearing afterwards. In immigration, asylum and refugee matters involving return and affecting a minor, they require the public prosecutor to be heard first. BOE-A-1998-16718

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

Frequently asked questions