In a recent ruling, the Spanish Supreme Court has clarified what should be understood as supervening illness in residence permits for humanitarian reasons and whether the scope of application includes consideration of the place and time in which the diagnosis is made or the treatment is decided.
Article 126 of the Immigration Law (LOEX) allows for the granting of a residence permit for humanitarian reasons to foreigners who are in Spain in an irregular situation, that is, without a residence permit or only in a temporary stay situation, when certain exceptional circumstances apply. Article 126 of the LOEX regulates residence permits for humanitarian reasons, stipulating that “a permit may be granted for humanitarian reasons in the following cases.” Among these, the second paragraph lists as one such case “foreigners who prove they suffer from a serious, sudden illness requiring specialized medical care not available in their country of origin, and whose interruption or lack of such care would pose a serious risk to their health or life.” To demonstrate the need, a clinical report issued by the relevant health authority will be required.
The purpose of the appeal was to determine whether, for the purposes of granting temporary residence authorization for exceptional humanitarian reasons due to a supervening illness, consideration should be given not only to the time and place of diagnosis, but also to the time and place where treatment is decided upon, or where the need for it arises.
The State Attorney’s Office argues that a supervening illness should be understood as one contracted or manifested in Spain, and not one that has simply worsened during a stay in the country, in order to prevent foreigners from attempting to enter Spain to receive treatment after having been previously diagnosed.
The Supreme Court, in its ruling (STS 859/2026), states that, for the purposes of determining the supervening nature of the serious illness that qualifies for authorization for humanitarian reasons as provided for in the 2011 Immigration Regulations, this nature must be understood to exist when the illness is diagnosed and, furthermore, requires Specialized healthcare not available in the applicant’s country of origin.
In short, the Supreme Court determined that the need must arise during the applicant’s irregular stay in Spain and that that the need cannot be met in the applicant’s country of origin because it requires specialized care.