Spanish Citizenship for Children of Foreigners Born in Spain

🇪🇸 Read the original in Spanish

Having a child in Spain is a vital life event that, for foreign parents, comes with a fundamental legal question: is my child Spanish simply by virtue of being born here? Contrary to what happens in countries that apply absolute "ius soli" (such as the United States), the Spanish legal system follows a mixed criterion where "ius sanguinis" (the nationality of the parents) predominates, although with important and advantageous exceptions for those born in the national territory. In this article, we will analyze in depth how the transmission of Spanish nationality works for the children of foreigners born in Spain, the existing legal pathways, the practical procedures, and how to avoid the most common mistakes that can delay or deny this right.

The Legal Framework: Why Birth in Spain Does Not Automatically Grant Citizenship

The regulation of nationality in Spain is not primarily found in the Immigration Law (Ley de Extranjería), but in the Spanish Civil Code (Código Civil español, Articles 17 and following), which determines who is Spanish by origin and who can acquire nationality at a later date.

The general rule in Spain is that birth in Spanish territory to foreign parents does not in itself attribute Spanish nationality. The minor, in principle, assumes the nationality of their parents. However, the Spanish legislator has designed mechanisms to prevent childhood statelessness and to facilitate the integration of minors who grow up and develop in Spanish society.

There are two main pathways for a child of foreigners born in Spain to obtain citizenship:

1. Nationality by value of simple presumption (nacionalidad por valor de simple presunción) to prevent the child from being left without a nationality.
2. Nationality by residence of one year (nacionalidad por residencia de un año), which is the general and fastest route for all other cases.

Pathway 1: Nationality by Value of Simple Presumption

This is one of the most advantageous options, but it is only applicable to certain nationalities. Article 17.1.c) of the Civil Code establishes that Spanish by origin are "those born in Spain of foreign parents, if both lack nationality or if the legislation of neither of them attributes a nationality to the child".

The objective of this article is to comply with international treaties for the protection of children, preventing a child born in Spain from becoming stateless (without a homeland or passport).

Which countries benefit from simple presumption?

For the minor to be recognized as Spanish under this modality, the law of the parents' country of origin must not automatically transmit nationality to children born abroad. The list of countries whose consulates do not automatically attribute nationality to those born abroad (or require procedures that allow the option of simple presumption in Spain) is variable, but historically includes:

• Argentina
• Bolivia
• Brazil
• Colombia
• Costa Rica
• Cuba
• Ecuador (with certain nuances depending on the date of birth)
• Peru
• Venezuela

If both parents belong to any of these countries (or authorized combinations thereof), they can request before the Registro Civil (Civil Registry) of the minor's place of residence that the minor's Spanish nationality be declared "by value of simple presumption".

Pathway 2: Nationality by Residence (The Reduced 1-Year Term)

What happens if the parents are from a country that does automatically transmit nationality to the minor (such as Morocco, Romania, China, or Senegal)? In these cases, the baby is born in Spain with the nationality of their parents. However, Spanish legislation offers an extraordinary benefit for these minors.

Article 22.2.a) of the Civil Code establishes that the period of legal residence required to apply for Spanish nationality is reduced to only 1 year for "one who has been born in Spanish territory".

While a general foreign citizen needs 10 years of legal residence, and nationals of Ibero-American countries need 2 years, a child born in Spain to foreign parents only needs 1 year of legal and continuous residence.

The Indispensable Requirement: Legal Residence

It is crucial to understand that the minor does not acquire nationality automatically upon reaching one year of age. The parents must actively apply for legal residence for the baby (residence authorization for the child of a legal resident) immediately after birth. Once the minor obtains their Tarjeta de Identidad de Extranjero or TIE (Foreigner Identity Card) and 1 year has passed with said residence in force and on a continuous basis, the citizenship application process can be initiated.

Practical Step-by-Step Procedure for Nationality by Residence (1 Year)

If your child was born in Spain and simple presumption does not apply, this is the legal and administrative itinerary you must follow to obtain Spanish nationality for them:

Step 1: Registration of Birth in the Civil Registry

Immediately after birth, you must register the baby in the Registro Civil (Civil Registry) of the town where they were born or where the parents reside. You will obtain the Certificado de Nacimiento (Birth Certificate) and the Libro de Familia (Family Book) or the equivalent digital registration document.

Step 2: Obtaining the Baby's Foreign Passport

You must go to the Consulate of your country of origin in Spain to register the minor as a citizen of your country and apply for their first passport. This document is essential for the next step.

Step 3: Applying for the Minor's Legal Residence (Residence Authorization)

Under the Regulations of the Immigration Law (Real Decreto 557/2011), children born in Spain to foreigners who are legally residing in the country automatically acquire the right to residence. You must submit the application to the Oficina de Extranjería (Immigration Office). The validity of the minor's residence will be linked to that of their parents.

Step 4: Waiting for the 1-Year Period of Legal and Continuous Residence

The minor must remain legally in Spain for 12 months. It is vital that the minor does not make prolonged trips outside of Spain during this year, as this could interrupt the "continuity" of residence required by law.

Step 5: Preparation of Documentation and Online Submission

The application for nationality for minors under 14 years of age must be submitted by their legal representatives (both parents). It is not necessary for the minor to take the Instituto Cervantes exams (CCSE and DELE), as they are exempt by age. The application is submitted online through the electronic headquarters of the Ministry of Justice.

Step 6: Granting, Oath, and Obtaining the DNI

Once nationality is granted, an appointment must be requested at the Registro Civil to perform the act of jura o promesa (oath or promise) of loyalty to the King and obedience to the Constitution (minors under 14 years do not formally swear, but the registration of nationality is carried out by the parents). After this, the Spanish birth certificate will be issued, which is used to go to the National Police to obtain the child's first Documento Nacional de Identidad or DNI (National Identity Document) and Spanish passport.

Key Deadlines, Fees, and Figures

To plan this process successfully, you must keep the following figures, deadlines, and economic costs closely in mind:

• 1 year: The period of legal and continuous residence that the minor born in Spain must prove before being able to submit the nationality application.
• 180 days: The maximum period that the Oficina de Extranjería usually takes to resolve the initial residence authorization of the minor born in Spain (although it is usually resolved in 30 to 90 days).
• 104.05 €: The amount of the mandatory state administrative fee (Fee 790 code 026) to submit the application for nationality by residence in the year 2024. Minors are not exempt from paying this fee.
• 0 €: The cost of the application fee for nationality by value of simple presumption (it is a completely free Civil Registry procedure).
• 3 months: The maximum period of absence from Spanish territory allowed for the minor during the required year of residence so as not to break legal continuity.
• 14 years: The age limit. Minors under 14 years do not sign the application themselves (the parents do). From the age of 14, the minor must attend in person and sign the application assisted by their parents.

Concrete Examples

To visualize how these regulations apply in day-to-day life, we will analyze two very common scenarios based on real cases:

Example 1: The Case of Simple Presumption (Family of Colombian Origin)

> Camila and Mateo, both of Colombian nationality and with legal residence in Madrid, have a child named Thiago who is born at the La Paz Hospital. Since the constitutional legislation of Colombia does not automatically grant nationality to the children of Colombians born abroad unless they are registered at a Colombian consulate, Thiago is in a situation of risk of statelessness if this registration is not carried out. > > Camila and Mateo decide not to register Thiago at the Consulate of Colombia. Instead, they request a consular certificate stating that Thiago is not registered as Colombian. With this document, they go to the Registro Civil of Madrid and apply for nationality by value of simple presumption. The Civil Registry approves the application within 4 months. Thiago is registered directly as Spanish by origin, obtaining his DNI and Spanish passport without having paid the fee of 104.05 € and without needing to wait for a year of residence.

Example 2: The Case of Nationality by Residence of 1 Year (Family of Moroccan Origin)

> Youssef and Fatima, of Moroccan nationality and legal residents in Barcelona, have a daughter named Aisha born in Spain. The legislation of Morocco transmits Moroccan nationality automatically by maternal or paternal filiation, so Aisha cannot opt for simple presumption. > > As soon as Aisha is born, Youssef applies for her passport at the Consulate of Morocco. Subsequently, he submits the application for residence for Aisha as the child of legal residents to the Oficina de Extranjería. Aisha's residence card is granted with an effective date of May 15, 2023. > > The family keeps Aisha residing in Spain continuously. On May 16, 2024 (just upon completing 1 year of legal residence), the parents electronically submit Aisha's application for nationality by residence, paying the fee of 104.05 €. After 8 months of processing, the Ministry of Justice grants Spanish nationality to Aisha.

Mistakes You Must Avoid

The immigration and nationality process for minors may seem simple, but a small formal error can lead to delays of years or the denial of the file. Pay special attention to these common mistakes:

• Not applying for the baby's residence thinking that birth is enough: Many parents assume that the baby's Spanish birth certificate already grants them legal status. If you do not formally apply for their residence authorization at Extranjería, the child will be in an irregular situation in Spain, and the one-year period for nationality will never start counting.
• Traveling outside Spain with the baby before obtaining their residence card: Leaving the country with a baby born in Spain who does not yet have their TIE or a valid passport can cause serious problems when trying to re-enter the Schengen area, in addition to interrupting the continuity of the required residence.
• Lack of signature from one of the parents: To apply for the nationality of a minor, the consent of both parents is mandatory. If one of them is absent, abroad, or does not sign the online application, the Ministry of Justice will require the signature or deny the file, unless an express notarized authorization or a court ruling granting exclusive parental authority is provided.
• Not updating town-hall registration details: The minor must be registered on the empadronamiento (town-hall registration) at the same address as the applying parents. Discrepancies in the empadronamiento history can raise suspicions about the real and effective cohabitation of the family unit.

Frequently Asked Questions (FAQ)

What happens if the parents are in an irregular situation in Spain when the baby is born?

If the parents do not have legal residence in Spain, the born baby will not be able to obtain legal residence through the fast track for children of residents either. However, if the parents are from a country that allows simple presumption (such as Colombia or Venezuela), the baby can obtain Spanish nationality directly at the Registro Civil, regardless of the irregular situation of their parents. If this is not the case, the minor must wait for the parents to regularize their situation (for example, through arraigo social or arraigo familiar) to then be able to regularize the minor and start the count of the year of residence.

Can a baby born in Spain obtain nationality if only one of the parents is Spanish?

If one of the parents is Spanish (either by origin or by having acquired nationality before the child's birth), the baby is automatically Spanish by origin by the principle of "ius sanguinis" (Article 17.1.a of the Civil Code). In this case, it is not necessary to carry out any immigration procedures or wait for deadlines; the birth is simply registered in the Spanish Registro Civil to obtain the Libro de Familia and the DNI.

Does the minor lose their nationality of origin upon acquiring Spanish nationality?

It depends on the country of origin. Spain has dual nationality agreements with Ibero-American countries, Andorra, the Philippines, Equatorial Guinea, Portugal, and France. If the parents are from any of these countries, the minor can keep both nationalities. For other countries (such as Morocco, Romania, or China), Spanish legislation formally requires the renunciation of the previous nationality during the oath ceremony, although the effective loss of the nationality of origin will depend exclusively on the internal laws of each foreign state.

What consular documents are needed for simple presumption?

Mainly, three documents issued by the Consulate of the parents' country of origin in Spain are required:

1. A certificate proving the nationality of the parents.
2. A certificate stating that the law of said country does not automatically attribute nationality to the minor born abroad.
3. A certificate of non-registration of the minor in said Consulate. All these documents must be duly legalized or apostilled.

In Summary

• Birth in Spain does not grant automatic nationality to all children of foreign parents; it is governed by the legislation of origin of the parents and by the Spanish Civil Code.
• The simple presumption pathway allows those born to parents from certain countries (such as Argentina, Colombia, Venezuela, or Brazil) to obtain Spanish nationality directly and free of charge to prevent statelessness.
• For other nationalities, those born in Spain benefit from an ultra-reduced period of only 1 year of legal residence to apply for Spanish nationality.
• It is mandatory for parents to apply for the baby's residence card immediately after birth so that the mandatory legal year begins to count.
• The application for nationality for minors under 14 years of age obligatorily requires the signature and consent of both parents and the payment of the state fee of 104.05 €.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.