Spanish nationality for children born in Spain to foreign parents

Obtaining Spanish nationality for children born in Spain of foreign parents is a simple procedure if the requirements are known. In Spain there is a legal system with its own criteria and different from those of other countries to grant nationality.

What is Ius Sanguinis and why does Spain not apply pure Ius Soli?

In general, legal systems use two criteria to attribute nationality to those born in the territory of their State, namely: the so-called Ius Soli or Law of Soil and the so-called Ius Sanguinis or Law of Blood: according to the Law of Soil, the countries that are governed by it, attribute nationality by the place of birth. So if you were born in the territory of the State of Colombia or the USA, by the mere fact of having been born there, you are already Colombian or American.

Thus, the right of U.S. citizenship is provided for in the Fourteenth Amendment to the Constitution, ratified in 1868, which states that: <<“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Therefore, if you were born in a country that applies Ius Soli, you automatically have the nationality of that country, regardless of the nationality of your parents.

Cases in which a child born in Spain acquires nationality automatically.

Spain is governed by another legal criterion, namely the so-called Ius Sanguinis, or Blood Law, so that the child born in Spain of foreign parents acquires the nationality of the parents, whether they are Venezuelan, Colombian, French, German or Chinese. To explain why in one place it is one way or another, would lead us to analyze the historical reasons, which is not the purpose of this article in which we seek above all to inform in a practical way. Therefore, in principle, in Spain, Spanish nationality is not attributed to those born in Spanish territory, except when there are particular circumstances such as the following: the parents do not have any nationality (stateless), or the legislation of neither of them attributes a nationality to the child. Or, if one of the parents was born in Spain, although this case is of residual application. In these three cases, the child born in Spain would acquire Spanish nationality.

As a general rule, Spanish nationality is acquired by being the child of Spaniards (Spanish nationality of origin, in application of the Ius sanguinis), as indicated in art. 17 of the Spanish Civil Code: <<1. The following are Spaniards of origin: a. Those born of Spanish father or mother.>>. However, this criterion of “being the child of” is combined with another criterion such as residence.

In other words, by having resided in Spain for a certain number of years, one can also acquire Spanish nationality.

For this reason, in my opinion, this principle of Ius Sanguinis that is applied in Spain is applied in an attenuated way. That is to say, being born in Spanish territory does provide a very notable advantage when it comes to acquiring Spanish nationality: what does this advantage consist of? In that the minor born in Spain only needs to have reached one year of age to be able to acquire Spanish nationality, as provided for in Article 22.2a) of the Spanish Civil Code, according to which: <<The period of residence of one year shall be sufficient for: a) A person born in Spanish territory.>>. This right must obviously be exercised by the parents, as legal representatives of the minor and who have parental authority over the minor, and it is required that the residence in Spain has been legal, i.e., it would not be useful if the child were in an irregular situation. Therefore, the Spanish State does grant Spanish nationality to those born who have resided legally in Spanish territory for one year, although, as we have indicated, this is not automatic, but rather a procedure must be initiated by the parents claiming the nationality of the minor child from the Ministry of Justice. It seems a very reasonable position, but what would be the logic of attributing the nationality to the child of some people who may be passing through Spain, and decide after a few months, that it would be more convenient for them to settle in another different country? With the requirement of one year, the Spanish authorities make sure that there is a minimum will to live and integrate in Spain. One year of residence is a short time, compared to the 10-year residence requirement as a general rule to obtain the nationality. It is true, however, that for nationals of certain countries, two years of residence is sufficient.

Residency periods for other cases (10, 5 and 2 years)

Article 22 of the Spanish Civil Code states that: <<1. For the granting of nationality by residence, it is required that it has lasted ten years. Five years will be sufficient for those who have obtained refugee status and two years in the case of nationals of origin of Latin American countries, Andorra, Philippines, Equatorial Guinea or Portugal or Sephardic. >>. Therefore, it is undoubtedly worth insisting on this idea: the fact of having been born in Spain already gives one an important advantage in obtaining Spanish nationality. We consider, therefore, that the Spanish system is not governed by a strict right of blood (Ius sanguinis) but, in my opinion, it introduces a way to acquire Spanish nationality by residing in the territory within a certain period of time, which in the case of those born in Spain is one year. And this undoubtedly supposes a correction of the Ius sanguinis, that is to say, a nuanced right of blood would be applied in Spain, or combined with a right of soil, or Ius soli, by allowing the fact of being, or rather of living – as long as it is a legal, continuous and immediately previous residence to the petition– in Spanish territory to be by itself, fulfilling certain requirements, a way of access to the Spanish nationality.