DISCLAIMER:
This article is only for orientation purposes and it does not represent any official sources of information. Please bear in mind that criteria may be different from an Immigration Office to another. For specialised advice on this matter, you may wish to seek individualised legal advice from an expert lawyer in the immigration field, or from the immigration department at your local town hall, at different organisations providing legal advice to third-country nationals, or at the Immigration Office (Oficina de Extranjería).
Please be aware that Asociación Babelia is gathering information through this anonymous survey on residency applications that have been rejected, to raise with the British and the Spanish authorities. Please help us by completing it.
If your application for residency under the Withdrawal Agreement (EX20, EX21, or EX22) has been rejected, you may wish to submit a second application with further evidence or submit a different application under the Immigration General Regime instead of the Withdrawal Agreement options, but you also have the right to appeal that rejection as long as:
- You understand the reasons why the Immigration Office decided to reject your application (see our post ‘Why has my residency application been rejected?‘).
- You hold sufficient proof to challenge this decision (see our post on applying for residency under the Withdrawal Agreement after 2020).
- You are able to submit a properly presented appeal or that you have a solicitor to do it on your behalf.
If you decide to appeal, please be aware that there are two stages / kinds of appeals (recurso):
a. ‘Recurso de Alzada’ or ‘Recurso Potestativo de Reposición’
This appeal is submitted to and reviewed by the same authority that has rejected your residency application. You have one month to submit this appeal starting the day after you receive your rejection letter (resolución). The appeal should explain, in a clear and systematic way, the different reasons why you disagree with the Immigration Office’s decision, along with official proof supporting each and every one of your arguments.
You can prepare and present this appeal yourself free of charge through a public register, such as your town hall register if it is certified (ventanilla única), or at the register of the Subdelegación del Gobierno of your province. But you can also do it through the electronic platform Red SARA, using your own digital certificate or a third-party’s (provided you are able to show a representative form authorising this) following our step-by-step tutorial below, or you can do it in person, submitting the appropriate documentation through any official registry, such as the town hall register. However, we would strongly recommend that you seek legal advice from an expert solicitor in the immigration field to help you with this process.
b. ‘Recurso Contencioso-Administrativo‘
This appeal CANNOT be submitted by the applicants themselves; it has to be presented by a registered solicitor through the court. If the rejection letter indicates a ‘Recurso de Alzada’, then the ‘Recurso Contencioso-Administrativo‘ can only be submitted once the outcome of the ‘Recurso de Alzada‘ is also denied. If the rejection letter indicates that the decision can be challenged through a ‘Recurso Potestativo de Reposición‘, then your solicitor will be able to submit the appeal to the court directly during the two months following the reception of the rejection letter, with no need to go first through the ‘Recurso Potestativo de Reposición‘ if that’s advisable.
If you are confident submitting the first appeal (‘Recurso de Alzada‘ or ‘Recurso Potestativo de Reposición‘) yourself or through a third party, here are the steps to follow for an online presentation using your own digital certificate or a third-party’s:
STEP-BY-STEP GUIDE ON HOW TO APPEAL A RESIDENCY APPLICATION REJECTION
- First, access the RedSARA platform available at this link: https://rec.redsara.es/registro/action/are/acceso.do
- Then, select whether you are submitting the application as the applicant (‘Interesado‘) or as a representative (‘Representante‘). If the applicant and the representative (person submitting the application) who is the Digital Certificate or Cl@ve holder are NOT the same person, then you will need to attach in the following steps an authorisation such as this one, which has to be signed by the applicant to allow the Digital Certificate holder or representative to submit the application on behalf of the applicant.
- Then, accept the selected Digital Certificate by clicking in ‘OK‘
- The following screen will show the data of the digital certificate holder, where the address needs to be completed. If the appeal is submitted by a representative, then they will need to introduce the applicant’s details as well just below.
- The next step consists on searching for and selecting the authority (Organismo destinatario) you are communicating with; in this case, the Immigration Office of your province. We have selected Alicante’s as an example.
- To do that, you will need click on ‘Buscador‘ to introduce the exact name of the authority or part of the name. In this case, we have introduced the expression: ‘Oficina de Extranjería‘, click in ‘Filtrar‘ and then select the appropriate option.
- Click on ‘Aceptar‘.
Then, you will need to complete the three following boxes.
- Introduce the title in the first box. That could be for example: ‘Recurso de alzada’ or ‘Recurso potestativo de reposición‘ and the number of your rejected application that appears in the resolution letter starting with the same two digits of your poste code (número de expediente).
- In the second box, you can provide the necessary details of your application, the date of it’s submission and the date of the rejection, and a general presentation of the the reason of the appeal.
- The third box is for you to express your objective through this appeal, for instance, to revoke the previous rejection and to grant you the residency authorisation after reviewing all the proof attached in the following section.
- The next step is for you to upload the necessary documentation bearing in mind that the maximum number of documents you are allowed to submit is 5, with a maximum size less than 15 Mb in total; 10 Mb maximum for a single document.
- Our advice is that you submit the following documents:
- Authorisation form in case the appeal is submitted by a third party.
- The document containing the text of the appeal, where you list all your arguments against the Immigration Office decision, adding a reference to the official proof linked to every argument.
- One or two documents containing all the proof properly enumerated according to the text of the appeal.
Bear in mind that the documents have to be properly scanned in PDF format.
- To upload a document, you neet click on ‘Añadir documento‘, then complete the field ‘Extracto del documento‘ with a title of the document. The click on ‘choose file’ to select the document from your computer.
- Repeat the same steps to uploaded other documents.
- To delete a document, click on ‘Borrar documento‘
Once you have submitted all the documents needed (maximum of 5 documents),
- check the box to receive notifications by email and complete the email address field as shown on the screenshot below.
- Click on ‘siguiente‘.
- Confirm by clicking on ‘OK‘
- Review that everything is ok on the next screen and then click on ‘Siguiente’.
- Click on ‘Open autofirma’ if required
- Click on ‘OK’ to confirm your digital certificate.
- Now that the appeal has been signed and submitted, click on the PDF symbol as shown on the screenchot to download the receipt of the appeal submission and save in your computer.
Well done!
GOOD LUCK!
