In the heading of this article we stated that the Golden Visa is the best residence that a foreigner can get in Spain. In this point we will demonstrate that this is the case. To do so, we will compare the characteristics of residence by investment in Spain with other types of authorisations. In this way, you will be able to see the great benefits that the Golden Visa will offer you compared to others that are not so advantageous.
Allows you to be absent from Spain for long periods without losing your residence.
All residence authorisations in Spain, both under the general and the EU regime, require a constant stay in the country (more than 6 months per year). If this requirement is not met, the residence will simply expire and at the time of renewal the application will be rejected (Articles 162.2 e) of the Foreigners’ Regulation and 14.3 of Royal Decree 240/2007, respectively).
However, with the Golden Visa in Spain the picture is completely different, as you and your family members will be able to be absent for almost the entire duration of the Golden Visa, without losing it. This is provided for in the sixth additional provision of Law 14/2013, of 27 September, on support for entrepreneurs and their internationalisation (hereinafter Law 14/2013), according to which “the renewal of residence may be carried out even if there are absences of more than 6 months per year in the case of residence visas and authorisations for foreign investors“.
This will allow you to travel to other countries in Europe and beyond, either for pleasure or even to attend to business you conduct in other parts of the world.
Moreover, if your nationality requires a Schengen Visa, you will no longer need to apply for it every time you want to enter Europe. In other words, you will be able to enter and leave Europe as many times as you wish without having to go through the tedious procedures at the various Consulates and Embassies.
Allow the investor’s family members to accompany the investor from the beginning.
One of the most difficult things about leaving the country of origin is precisely the fact that we are moving away from our closest loved ones.
The figure of family reunification for non-EU foreigners exists in other types of residence as well as in the Golden Visa, but the differences are abysmal. Let us look at some of the disadvantages of ordinary family reunification and the advantages of accompaniment in residence by investment:
a) In ordinary family reunification, the applicant (applicant) must be in Spain alone and after one year (at the time of applying for the renewal of his/her residence or even when the renewal is approved) he/she will have the possibility of being reunited with some of his/her family members (Article 56.1 of the Aliens Regulation).
On the contrary, the Golden Visa in Spain allows the investor’s family members to benefit from this type of residence simultaneously. In other words, there will never be a separation of the family unit as there is no need to wait 1 year to exercise this right (Article 62.4 of Law 14/2013).
b) In ordinary family reunification, children over 18 years of age cannot be reunited, unless they “have a disability and are objectively unable to provide for their own needs due to their state of health” (Article 53 c) of the Aliens Regulation).
On the other hand, the Golden Visa allows the accompaniment of children over 18 years of age, as long as they are economically dependent on the family member and have not constituted their own family unit (Article 62.4 of Law 14/2013).
c) In ordinary family reunification, the parents of the reuniting foreigner may benefit, provided that “they are dependent on them, are over 65 years of age and there are reasons that justify the need to authorise their residence in Spain” (Article 53 e) of the Aliens Regulation).
Additionally, “the applicant must hold a long-term or long-term-EU residence authorisation granted in Spain for the reunification of his/her parents” (Article 56.1 a) of the Aliens Regulation). In other words, the applicant will have to have resided at least 5 years in Spain in order to be able to reunite his or her parents.
This is not the case with the Golden Visa, as parents, even under the age of 65, can obtain a residence as accompanying persons and this can be done from the beginning, i.e. it will not be necessary to wait 5 long years to reunite them (Article 62.4 of Law 14/2013).
As previously indicated, the differences between ordinary family reunification and accompanying family members on the Golden Visa in Spain are abysmal. Therefore, whenever there is the possibility of obtaining residence by investment, one should opt for the latter and not for another type of authorisation in terms of foreigners.
Obtaining Spanish nationality by residence.
In accordance with the provisions of Article 29.1 of Organic Law 4/2000 of 11 January (hereinafter referred to as the Aliens Act), “foreigners may be in Spain in the situations of stay or residence“.
The typical cases of foreigners who are in a stay situation are tourists and students. These will never be eligible for Spanish nationality by residence because their situation in Spain is one of stay.
On the other hand, a person with a permit such as the Golden Visa is eligible for nationality because he or she has been in residence. Therefore, he or she complies with the provisions of Article 22.1 of the Civil Code for the acquisition of nationality.
Furthermore, with regard to Latin American citizens, it should be pointed out that with only 2 years of residence they are eligible for Spanish nationality, i.e. the general rule of 10 years to be able to apply for it does not apply.
If you wish to know more about the Apliccation for Spanish Nationality by Residence, the procedure and in general the requirements to obtain it, you can do so by clicking on the previous link.
Includes work permit for the investor and his/her family members.
In accordance with the provisions of Article 36.1 of the Law on Foreigners, “foreigners will require, in order to carry out any lucrative, work or professional activity, the corresponding prior administrative authorisation to reside and work“. In other words, the possibility of working is not constituted as a right for the benefit of foreigners, which is why they will have to obtain prior authorisation to carry out any work activity in Spain.
In addition, as a foreigner you are not authorised to apply for a permit to work as an employee, but instead you are always dependent on an employer who wants to hire you and is willing to go through the lengthy procedures involved in the initial residence and work permit (Article 67.1 of the Reglamento de Extranjería).
In addition to the above, based on the provisions of Article 38.1 of the Aliens Act, “for the initial granting of the residence and work permit, in the case of employed workers, the national employment situation shall be taken into account“.
The national employment situation is the “condition to be taken into account when assessing the initial granting of a residence and work permit to a foreigner, so that it is only granted when there is no unemployed Spanish or legally resident foreigner registered as a job seeker in the same activity” (LID Dictionary of Migration and Foreigners).
Considering that unemployment rates in Spain are not exactly low, it is practically impossible to overcome the requirement of the national employment situation.
The good news is that, “the granting of the residence visa for investors will constitute sufficient title to reside and work in Spain during its validity” (Article 65 of Law 14/2013). In other words, by obtaining the Golden Visa, not only you, but also all your accompanying family members of working age (from the age of 16 as provided for in Article 6.1 of the Workers’ Statute) will have the possibility to work without the need to get an employer to sponsor you or in general without having to do any additional paperwork before the immigration authorities.
2.5.- The duration is much longer than other types of residence permits.
The general rule is that all initial residence permits last for 1 year and their renewal for 2 years. Examples of this can be found in non-gainful residence, residence and work as an employed person or residence and work as a self-employed person (Articles 49.2, 51.7, 63.5, 72.1, 104 and 109.7 of the Aliens Regulation), as each and every one of them has this period of duration.
On the contrary, “the initial residence permit for investors will have a duration of 2 years” and “once this period has expired (…), they may request the renewal of the residence permit for successive periods of 5 years” (Article 67.1 and 2 of Law 14/2013).
In short, the duration of the Golden Visa is much longer, which means that you will not have to constantly be subjected to bureaucratic and complex renewal procedures.
The requirements for obtaining the Golden Visa are provided for in articles 62, 63 and 64 of Law 14/2013.
There are 8 in total and although the significant capital investment is the most important, “all the information provided in the file will be assessed, no single element alone being decisive for the concession” (Criterion 1.1. of Application of Law 14/2013). In other words, compliance with one requirement does not replace compliance with the others. Hence, each and every one of them must be complied with.
3.1.- Significant capital investment.
The most important requirement is related to having made a significant capital investment, which can be made in 6 different ways as set out in article 63.2 of Law 14/2013. One of them would be through real estate investment, another through movable investment (includes 4 scenarios) and finally investing in a business project of general interest.
184.108.40.206.- Real estate investment.
The value of the real estate investment must amount to 500 thousand euros plus tax (Article 63. b) of Law 14/2013).
Based on Article 64.b) of Law 14/2013, “the applicant must prove that he/she has acquired ownership of the real estate by means of a certificate of ownership and charges from the Land Registry corresponding to the real estate or real estate. The certification may incorporate an electronic verification code for online consultation. This certification shall include the amount of the acquisition; otherwise, it must be accredited by providing the corresponding public deed“.
There are a number of points that need to be clarified about real estate investment, which we will do in the following.
220.127.116.11.1.- Value of the property plus taxes.
The first of these is that we must add the corresponding taxes to the 500,000 euros. The general rule is that if it is a first transfer, the transaction will be subject to Value Added Tax (VAT). If it is a second or subsequent transaction (sale of second-hand property), it will be subject to Transfer Tax (ITP).
The VAT rate or percentage applicable to real estate transactions is 10%. In the case of ITP the percentage will vary depending on the Autonomous Community in question. To name but one, in the case of Madrid it is 6%.
An example of the above would be as follows: If the purchase price is 500 thousand euros and the transaction is subject to VAT, between the value of the property and the payment of taxes you will have to pay 550 thousand euros (500 thousand + 10% VAT).
Continuing with that assumption, but with the variant that the operation will be subject to ITP, an amount of 530,000 euros (500,000 + 6% of ITP in Madrid) will have to be paid.
18.104.22.168.- One or more properties.
The real estate investment must be equal to or greater than 500,000 euros plus taxes, but this can be in 1 or more assets of this nature. This has been determined numerous times by the Spanish Courts. One of the rulings that has clarified this point is the following:
“This is also derived from the literal wording of Article 63.1.b) of Law 14/2013 reproduced above, which refers to the value of the investment to “the acquisition of real estate in Spain”, in the plural, which indicates that the 500,000.00 euros need not necessarily have been invested in a single property but that it is also possible that it has been invested in more than one” (STSJ of Madrid, dated 6 June 2018, R.º 1221/2017).
An example of this would be the following: The applicant for investment residence has bought a property worth 500 thousand euros or more plus taxes or that person has bought 2 properties. One of them could be a villa for a price of 470,000 euros plus tax and a parking space for a value of 30,000 euros plus tax.
In the second case, it does not matter if the villa purchased is less than 500,000 euros plus taxes, as what is relevant is that the investment between the two properties reaches the minimum amount, i.e. 500,000 euros plus taxes.
22.214.171.124.- Pro Indiviso Real Estate Acquisition.
Immovable property may have a single owner or several owners. In the latter case, the acquisition will be acquired pro indiviso, i.e. “the ownership of a thing or a right does not belong to a single person but to several and each of these does not have an exclusive right of use and disposal over a particular part, but the property belongs to all (…) holding a share or part in the whole” (STSJ of Madrid, dated 22 June 2018, R.º 1415/2017).
Consequently, it is possible for 2 or more persons (as owners, not as accompanying relatives) to obtain the Golden Visa with a single property, as long as the percentage of ownership is equal to or greater than 500,000 euros plus taxes. This has been determined by the High Court of Justice of Madrid on several occasions as follows:
“In the Spanish Civil Code, the right of ownership is defined (Article 348) as “the right to enjoy and dispose of a thing, without any limitations other than those established by law”. It is, therefore, a real right that attributes to the owner any power over the property in question.
However, the ownership of this right in rem is not reserved in our legal system to a single person: Article 392 of the Civil Code clearly states that “there is community of ownership when the ownership of a thing or a right belongs pro indiviso to several persons”.
The reference, therefore, in Article 64.b) of Law 14/2003 to the accreditation of the “acquisition of ownership of the real estate” – since there is no exception in the provision in question – can without any obstacle be understood as being made to the right in rem in question, exercised, as in this case, in a community regime, of condominium, regulated in Articles 392 and following of the Civil Code.
Having established, therefore, that the investment by the appellant in a property under a community property regime is protected by our Civil Code, it is necessary to determine whether the investment actually made in this case was sufficient to obtain the authorisation requested. And so it is that, having reached the price of the sale and purchase of the registered properties number NUM000 and NUM001 a total of 1,600,000.00 euros, according to the public deed granted on 30 September 2015, and also being so that the participation in the condominium established by said sale and purchase between the now plaintiff, Mr. Argimiro and the other purchaser, Mr. Basilio, was set, for the plaintiff, at 31.25%, the result of said transaction is 500.500,000.00 euros, which is the amount invested by the plaintiff; a figure that is the minimum required by Article 63.2.b) of Law 14/2013, which, it should be remembered, provides that the investment must reach a “value equal to or greater than 500,000 euros” (…) and therefore the appeal must be upheld, as stated above, in this regard” (STSJ of Madrid, dated 6 June 2018, R.º 1221/2017).
Having clarified this point, let us move on to the next one.
126.96.36.199.- The minimum investment must be free of liens or encumbrances.
In order to meet the real estate investment requirement, it is not only important that the property or the sum of them (if there are several) has a value of at least 500 thousand euros plus taxes, but also that this amount must be free of any charge or encumbrance. However, it should be noted that, “the part of the investment that exceeds the required amount [500 thousand euros] may be subject to a charge or lien” (Added by us/ Article 64.b of Law 14/2013).
3.1.2.- Movable investment.
It covers 4 different cases, but they all have one thing in common, and that is that in order to obtain the Golden Visa in these cases, “the applicant must prove that he/she has made the investment in the minimum amount required, within a period not exceeding 1 year from the submission of the application“.
188.8.131.52.1.- One million euros in shares or equity investments in Spanish capital companies with a real business activity.
In accordance with article 64.a) of Law 14/2013, the form of accreditation of these shares will vary depending on whether they are listed or not. The aforementioned article states what is transcribed below:
“1. In the case of investment in unlisted shares or equity investments, a copy of the investment declaration filed with the Foreign Investment Register of the Ministry of Economy and Competitiveness shall be submitted.
2. In the case of investment in listed shares, a certificate from the financial intermediary, duly registered with the National Securities Market Commission or the Bank of Spain, shall be presented, stating that the interested party has made the investment for the purposes of this rule.
184.108.40.206.2.- EUR 1 million in investment funds, closed-end investment funds or venture capital funds incorporated in Spain.
What is important in these cases is that the investment fund must be one of those included within the scope of application of Law 35/2003, of 4 November, on Collective Investment Institutions, or Law 22/2014, of 12 November, which regulates venture capital entities, other closed-end collective investment entities and management companies of closed-end collective investment entities, and which amends Law 35/2003, of 4 November.
To prove the investment, “a certificate from the fund management company, incorporated in Spain and duly registered with the National Securities Market Commission (CNMV), shall be submitted, stating that the interested party has made an investment of at least €1 million in a fund or funds under its management” (Article 64.a) 4 of Law 14/2013).
220.127.116.11.- One million euros in bank deposits in Spanish financial institutions.
The way to prove this investment will be through the presentation of “a certificate from the financial institution stating that the applicant is the sole holder of the bank deposit” (Article 64.a) 5.º of Law 14/2013).
18.104.22.168.- Two million euros in Spanish public debt securities.
For the purpose of accrediting the public debt investment, “a certificate from the financial institution or the Bank of Spain shall be submitted stating that the applicant is the sole holder of the investment for a period equal to or greater than 5 years” (Article 64.a) 3 of Law 14/2013).
3.1.3.- Business investment.
Unlike other investments, no minimum amount is set in this case. However, a series of criteria are established for it to be considered a valid investment for the purposes of obtaining the Golden Visa. To this end, article 63.2.c) of Law 14/2013 establishes that the business project must be “considered and accredited as being of general interest, for which the fulfilment of at least one of the following conditions will be assessed:
1. Creation of jobs.
2. Investment with a significant socio-economic impact in the geographical area in which the activity is to be carried out.
3. Relevant contribution to scientific and/or technological innovation“.
In order to prove that the business project meets the criteria to be considered a valid investment for the purpose of obtaining the Golden Visa, “a favourable report must be submitted to confirm that the business project submitted meets reasons of general interest. The report shall come from the Economic and Commercial Office of the geographical demarcation area where the investor submits the visa application” (Article 64.c) of Law 14/2013).
3.2.- Not to be in Spanish territory illegally.
Unlike the vast majority of immigration procedures, which must be initiated from the Spanish Consulate in the country of origin or previous residence, the Spanish legal system allows the procedure for obtaining the Golden Visa to begin directly from Spain.
In other words, it is perfectly possible for you to enter Spain as a tourist (whether or not you are required to have a visa to enter Schengen territory) and then apply for your Golden Visa. However, in order for it to be valid and not be inadmissible (rejected in advance for failure to comply with a formal requirement) or rejected (rejected for failure to comply with a substantive requirement), your situation at the time of filing the application must be one of regularity (legality).
This would be fulfilled if the application is submitted within 90 calendar days of entering the Schengen territory (if you do not need a tourist visa) or within the period of validity of your Schengen visa, if your nationality requires you to obtain a Schengen visa to enter the Schengen territory.
3.3.- Be over 18 years of age.
Acdording to Article 315 of the Spanish Civil Code, “the age of majority begins at the age of eighteen“. At that moment, full capacity to contract and in general to carry out any type of legal business is acquired. For this reason, and considering that one of the requirements to obtain the Golden Visa is to make a significant capital investment, Law 14/2013 establishes that the applicant must be over 18 years of age.
It should be noted that it is the main applicant who must be over 18 years of age, but it is perfectly possible for certain family members, such as children, to benefit from residence by investment (accompanying the main applicant), even though they are still minors under Spanish law (Article 62.4 of Law 14/2013).
3.4.- Not have a criminal record in Spain or in the countries where he/she has resided during the last 5 years, for offences under Spanish law.
With regard to this requirement, it is important to note the following:
a) Spanish criminal record. It is not necessary to present the Spanish criminal record certificate to prove that you do not have a criminal record, as the immigration authorities will obtain it automatically.
(b) Age of majority. Only the criminal record certificate of the applicant and accompanying family members who are of legal age must be presented. This is due to the fact that, as previously indicated, in Spain the age of majority is reached at the age of 18 (Article 315 of the Civil Code), which is why “minors under the age of 18 shall not be criminally responsible” according to the provisions of Article 19 of the Penal Code.
c) Residence within the last 5 years. The criminal record certificate does not necessarily have to match that of the applicant’s home country, as the law requires the submission of the certificates of the countries in which the applicant has resided in the last 5 years. For example, if a Chinese citizen has resided in the last 5 years in Australia and the United States, he/she must submit the criminal records certificates of these 2 countries and not the one from China.
d) Apostille or legalisation. If the country issuing the criminal record is a party to the Hague Convention, it must be apostilled. Otherwise, they will have to be legalised. This procedure is essential for the document to be valid before the Spanish authorities. If you wish to find out whether or not the issuing country is part of the Hague Convention, you can do so by clicking on the following link: COUNTRIES THAT ARE PART OF THE HAGUE CONVENTION.
e) Sworn translation. In the event that the criminal record certificate has been issued in a language other than Spanish, it will have to be translated by a sworn translator in order to be valid in Spain.
f) Conduct classified as criminal offences in Spain. The criminal records that are relevant for obtaining the Golden Visa are those originated by actions considered as crimes in the Spanish legal system. For example, in some countries homosexuality is classified as a crime, but in Spain this is not the case. In fact, according to article 44 of the Civil Code, marriage between persons of the same sex is allowed. Consequently, if your criminal record is based on conduct that is not a criminal offence in Spain, you will be able to obtain residence by investment despite having such a criminal record.
Having clarified these points about the criminal record certificate, we will now move on to explain the next requirement.
3.5.- Not to appear as rejectable in the territorial space of countries with which Spain has signed an agreement to this effect.
Basically, this requirement consists of not having an entry ban in Spain and not being on the “inadmissible” list of any of the countries that form part of the Schengen territory, as this country has signed agreements with these States.
The cases in which a foreigner will be prohibited from entering Spain are set out in Article 11 of the Aliens Regulation and are transcribed below:
“a) They have been previously expelled from Spain and are within the period of prohibition of entry determined in the expulsion decision, or when they have been the subject of an expulsion decision, unless the procedure has lapsed or the offence or penalty is time-barred.
(b) have been the subject of a return measure and are within the period of prohibition of entry as determined in the relevant return agreement.
c) It comes to their attention, through diplomatic channels, through Interpol or through any other means of international judicial or police cooperation, that they are wanted, in relation to criminal cases arising from serious common crimes, by the judicial or police authorities of other countries, provided that the facts for which they are wanted constitute a crime in Spain and without prejudice to their arrest, in the cases in which this is appropriate.
d) They have been expressly banned from entry, by virtue of a decision of the Minister of the Interior, for their activities contrary to Spanish interests or human rights or for their well-known connections with national or international criminal organisations, or for other judicial or administrative reasons that justify the adoption of this measure, without prejudice to their detention, in the cases in which this is appropriate.
(e) are prohibited from entry by virtue of international conventions to which Spain is a party or in accordance with the provisions of Community legislation, unless an exception is deemed necessary on humanitarian grounds or for reasons of national interest.
On the other hand, the circumstances in which a person may be placed on the list of “alerts” can be found in Article 96 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders.
According to this article, a person may be included in the list of “ineligible persons” in the following cases:
a) The foreigner constitutes a “threat to public order or national security“. This is particularly the case when:
(b) the alien “has been the subject of a removal, refoulement or expulsion measure which has not been revoked or suspended and which includes or is accompanied by a ban on entry or, where applicable, on residence, based on non-compliance with national legislation on the entry or residence of aliens“.
Those who may have doubts about whether or not they comply with this requirement are foreigners who are outside Spain and who are thinking of starting the procedure while outside the country. This is because if you are in Spain, it is obviously because you do not have an entry ban and because you are not included in the list of “inadmissible persons” in the Schengen territory, otherwise you would not have been allowed to enter.
However, if you would like us as immigration lawyers to find out if you have any kind of alert in any of the Schengen countries, do not hesitate to contact us to help you with our services in this matter.
3.6.- To have a private health insurance policy taken out with an insurance company authorised to operate in Spain.
Law 14/2013 is not very expressive in describing what the suitable health insurance must be like in order to obtain the Golden Visa in Spain. However, in criterion 2.3 of application of this regulation we find a series of guidelines related to this requirement, which will help us to select the appropriate health insurance. Due to their importance, we will transcribe them immediately:
The insurance contracted must meet all of these characteristics. However, the most important of these is that the coverage provided by the private insurance should be equivalent to that provided by the National Health System.
In order to determine which of these benefits are comparable to the National Health System, it is necessary to refer to the provisions of article 7.1 of Law 16/2003, of 28 May, on the cohesion and quality of the National Health System. The aforementioned article indicates that the catalogue shall include the following benefits:
Obviously, getting private insurance that meets all these characteristics is not an easy task. In fact, many of the Golden Visa refusals are due to inadequate health insurance.
3.7.- Have sufficient financial resources for themselves and their family members during their period of residence in Spain.
Economic sufficiency is determined on the basis of the Public Indicator of Multiple Effect Income (IPREM), which is currently 537.84 euros.
In accordance with criterion 1.3 of application of Law 14/2013, “holders of visas or residence authorisations for investors must prove that they have financial resources to support themselves in Spain with an amount that represents 400% of the IPREM per month in euros“.
In addition to the above, 100% of the IPREM must be available for each accompanying family member of the main investor.
Thus, for example, 400% of the IPREM will be required if only the main applicant applies, 500% of the IPREM if the application is made by the investor plus his/her spouse or 700% of the IPREM if it is a family unit of 4 persons (main applicant, spouse and 2 children).
To conclude this point, it should be noted that, “for the accreditation of the amounts (…) an individualised analysis will be carried out” (Criterion 1.4 of application of Law 14/2013). Therefore, do not hesitate to contact us so that we can draw up a strategy based on the particulars of your case and we will help you to comply with this requirement, which is of great importance for the approval of the application for the Golden Visa in Spain.
3.8.- Pay the fee for processing the visa or authorisation of residence by investment.
We will see below that there are cases where the procedure can have 1 or 2 stages. In the case of 2 stages, the first one is related to the residence visa for investment, whose fee is 80 euros for persons aged 13 and over (from 0 to 5 years old are exempt and from 6 to 12 years old the amount will be 40 euros). The second or only one, if the procedure is initiated directly in Spain, concerns the application for the residence permit for investment. Here the amount of the fee is 71.81 euros.