This is a foreigner from a non-EU country who is not registered in any municipality and only has the identity card of his country. He does not have a passport and will not be registered without a passport. In the Consulate of your country they do not give you a passport without being registered but they tell you to go to the Notary. To the Notary, to what?
Can anything be done?
From the first I take the following:
Article 163 Notarial Regulations: “It will not be necessary to provide identity documents when the person appearing states that he/she does not have them and the purpose of the document granted is exclusively and precisely to make statements or grant powers in relation to an administrative or judicial file of asylum, reception of refugees, repatriation or other similar, provided that the fingerprint and photograph of the person appearing is recorded”.
So with a photograph (the finger is already on the finger), and as long as it is to make such declarations or grant powers of attorney in connection with such proceedings, persons in such situations can appear in a Spanish notary’s office. Although it is not necessary for them to appear in a notary’s office for such purposes, in Spain these persons are issued the so-called “Documento acreditativo de la condición de solicitantes en tramitación de protección internacional” (Document accrediting the condition of applicant in the process of international protection). I have seen a couple of them and it would be necessary to think about what to do if someone would pretend to grant something other than a document related to the mentioned files by presenting only that document. In the case of Venezuelans, this information (residence for humanitarian reasons) and this other one (expired passports of Venezuelans in Spain) should be taken into account.
In my case today, I would say that we would be beyond the limits of 163, but there is a Circular (7/2020) of the CGN that seems to extend the 163 RN to the cases of 211.3 of the Reglamento de Extranjería.
What does 211.3 say?
Well, it says this:
“Article 211. Requirements and procedure for documentation. 1. In the cases of undocumented foreigners, provided for in Article 34.2 of Organic Law 4/2000, of January 11, shall proceed in the manner provided in this chapter. 2. The request for documentation must be made as soon as the undocumented status has been produced, in person and in writing, at the corresponding Alien’s Office or Police Station. 3. The interested party shall exhibit the documents of any kind, even if they have expired, that could constitute indications or proof of identity, origin and nationality, if applicable, so that they may be incorporated into the verifications that are being carried out. Likewise, he/she shall accredit that he/she cannot be documented by the corresponding diplomatic mission or consular office by means of a notarial act that allows to record the request made and not complied with, without prejudice to the provisions of section 5. 4. The interested party shall also provide the documents, statements or any other appropriate means of proof that serve to accredit the existence of exceptional reasons of a humanitarian nature, public interest or, if applicable, the fulfillment of Spain’s commitments, which justify their documentation by the Spanish authorities. In the case of applicants for temporary residence authorization due to exceptional circumstances, the applicant shall be exempted from the presentation of a notarial act to prove that he/she cannot be documented by the corresponding diplomatic mission or consular office, in those cases in which serious reasons are alleged that prevent his/her appearance therein, for which purpose a report from the Asylum and Refuge Office may be requested”.
Let’s examine what it says:
- Undocumented aliens: This is our case.
- The application must be made as soon as the undocumentation occurs: You have never had a passport from your country. You did not legally enter Spain.
- Exhibiting documents of any kind: You have your country’s identity card. I do not know if it is valid and I would bet that something from Spain will have (health card, for example).
- Accreditation that you cannot be documented in the embassy or consulate of your country: Well, I don’t know if they will give you something in writing.
- Exceptional reasons of humanitarian nature, public interest, fulfillment of commitments in Spain?
- Temporary residence due to exceptional circumstances: You would not need a certificate but you would need a report from the Asylum and Refuge Office.
To my modest understanding (the immigration regulations are difficult to master), this gentleman is not in this case.
And 34 of the LO 4/2000, what does it say? Well, it says this:
Article 34. Residence of stateless, undocumented and refugees.
- The Minister of the Interior will recognize the stateless status to those foreigners who, stating that they lack nationality, meet the requirements foreseen in the Convention on the Statute of Stateless Persons, made in New York on September 28, 1954, and will issue them the documentation foreseen in article 27 of the mentioned Convention. The stateless status shall entail the specific regime to be determined by regulation.
- In any case, the foreigner who presents himself at the offices of the Ministry of the Interior accrediting that he cannot be documented by the authorities of any country and that he wishes to be documented by Spain, once the pertinent information has been verified and provided that exceptional reasons of a humanitarian nature, public interest or compliance with commitments acquired by Spain concur and are accredited, may obtain, under the terms to be determined by regulations, an identification document accrediting his registration at the aforementioned offices. In any case, the requested documentation will be denied when the petitioner is involved in any of the cases of article 26, or when an expulsion order has been issued against him/her.
- The favorable resolution on the request of asylum in Spain will suppose the recognition of the refugee condition of the applicant, who will have the right to reside in Spain and to develop labor, professional and mercantile activities in accordance with the provisions of Law 5/1984, of March 26, regulating the right of asylum and the refugee condition, modified by Law 9/1994, of May 19, and its development regulations. Such status shall imply their non-refoulement and non-expulsion under the terms of article 33 of the Convention Relating to the Status of Refugees, done at Geneva on July 28, 1951.
Are we in the case indicated by these standards?
- Stateless is not. He is not a refugee either, but he is undocumented. At least he does not have a passport, which is what he would have to have to be in Spain.
- Can’t he be documented by the authorities of any country? He has an identity card from his country but they do not give him a passport.
- Again there are no exceptional reasons, no public interest, no commitments. Can they give him anything?
- There is no request for asylum or refugee status.
In short, these rules could be used for undocumented persons who wish to obtain a document in Spain and it does not seem that the certificate can be used to prove the impossibility of obtaining documentation in the corresponding diplomatic mission because precisely the theoretical certificate would be to prove that in the diplomatic mission they do not give you the documentation of your nationality, not the opposite (that they give it to you). We are in a different situation.
In the INFORMATIVE CIRCULAR 7/2020, of NOVEMBER 7, 2020 of the CGN ON THE NOTARIAL ACTION IN THOSE DOCUMENTS THAT AFFECT THE GUARDIAN FUNCTION OF MINORS OF MINORS mention is made to the minutes of article 211. 3 of the Aliens Regulations to prove the impossibility of obtaining documentation at the corresponding diplomatic mission: “This procedure is provided for in the Aliens Regulations for the undocumented foreigner to obtain the registration certificate and often affects both minors and young people formerly under guardianship. To this end, and given the possible lack of original identification documents, it is possible to resort to the means of identification provided for in the third paragraph of Article 163 of the notarial regulations (fingerprint and photograph of the person appearing). In these cases, the practice and requirement of some public administrations advises the convenience of the Notary practicing the corresponding diligence in person of the diplomatic mission accompanying the undocumented person, witnessing his request and offering the delivery of the certificate to make effective the right to answer”. This is not the case either.