Lawyer Specialising in Spanish Immigration Law
Marta specialises in immigration procedures, visas and Spanish nationality applications. Her previous experience at legal services firms enables her to provide rigorous and efficient assistance when dealing with administrative authorities.
The Consulate’s Suspicions Seek to Replace the Law: Madrid’s High Court of Justice Overturns the Denial of Three Non-Lucrative Residence Visas and Recognises a Family’s Right to Reside in Spain
A mother and her two daughters saw their plans to move temporarily to Spain frustrated after the Spanish Consulate in Lima questioned their personal motivations, despite acknowledging that they had sufficient financial resources. A recent judgment by the High Court of Justice of Madrid puts an end to that administrative decision and reaffirms a fundamental principle of the rule of law: suspicions are not proven facts, and conjecture cannot serve as grounds for refusing a visa.
A Peruvian Mother and Her Two Daughters: Their Plans to Reside in Spain
The Right to Choose Where and How to Live, Versus the Administration’s Judgment
Some decisions belong to the most personal sphere of individual freedom. Leaving behind a familiar routine for a time, moving to another country, offering one’s children a different cultural experience or simply allowing oneself the opportunity to live differently. These are choices that do not always arise from economic necessity, professional ambition or a plan to emigrate permanently.
When such decisions involve settling in another country, they necessarily become subject to that country’s legal system. The State has the authority to regulate the entry and residence of foreign nationals, establish requirements and verify compliance with them. However, legitimate as that authority may be, it does not empower the Administration to replace the conditions established by the legislature with its own assessments of what a person should want, do or plan for their life.
This is essentially the dispute recently resolved by the High Court of Justice of Madrid in a judgment secured by Sterna Abogados. The Court upheld the judicial appeal brought on behalf of a Peruvian citizen and her two minor daughters against the refusal of their non-lucrative residence visas by the Consulate General of Spain in Lima, annulled the contested decision and recognised the right of all three family members to obtain the visas they had applied for.
The dispute dates back to July 2025, when a mother and her two minor daughters submitted separate applications for non-lucrative temporary residence visas to the Spanish Consulate General. Their purpose was specific. They intended to settle in Spain for approximately one year, without undertaking any employment or professional activity, in order to enjoy a period of family life, cultural discovery and personal enrichment. The family had prepared their applications, submitted the relevant documentation and demonstrated that they had sufficient financial resources to cover their stay without needing to work or rely on public assistance.
The applicant also explained the reasons behind her decision in a letter addressed to the Consulate. The family did not conceal its circumstances or present a contrived account intended to… On the contrary, the applicant openly
explained the nature of her decision and the temporary nature of the intended residence.
Why Did the Spanish Consulate in Lima Deny the Non-Lucrative Residence Visas?
A Refusal Based on What the Applicant Might Potentially Do
The Consulate, however, considered that the reasons given by the mother appeared more consistent with a holiday than with a genuine residence project. It also expressed reservations about the minor children temporarily interrupting their education in Peru and remaining in Spain while their father continued to reside in their country of origin.
The Consulate added further concerns of a financial nature. Although it acknowledged that the funds demonstrated exceeded the minimum amounts required by law, it attached negative significance to two circumstances: that a substantial portion of the family’s assets came from the sale of a property and that the applicant had no previous employment history.
Based on this combination of considerations, the consular authorities asserted that there were insufficient guarantees of return and that the visa could potentially facilitate a medium-term migration plan.
None of these circumstances demonstrated a failure to comply with the legal requirements.
Consular Suspicions Versus the Legal Requirements for Non-Lucrative Residence
Non-Lucrative Residence Does Not Require Applicants to Justify Their Life Plans to the Administration
The legal framework governing non-lucrative temporary residence provides for foreign nationals and, where applicable, their family members to reside in Spain without undertaking employment or professional activities. Among other conditions, the regulations require applicants to demonstrate sufficient financial means to support themselves and their families, hold health insurance and comply with the remaining legally established requirements.
Naturally, the Administration retains its powers of verification. It may examine the authenticity of documents, verify the actual availability of funds and assess their origin when circumstances justify doing so. What it cannot do is automatically treat the absence of an employment history as evidence of non-compliance, nor replace the legal assessment of financial sufficiency with a judgment about the appropriateness of the financial decisions made by someone seeking to reside in Spain.
Madrid High Court Overturns the Refusals and Recognises the Family's Right to the Visas
The High Court of Justice of Madrid Rejects the Consulate’s Speculation
The central issue in the dispute ultimately came down to one question: whether the personal circumstances described by the applicant provided sufficient grounds to conclude that her true intentions differed from the non-lucrative temporary residence she had declared.
After examining the letter submitted to the Consulate, the Court found that the applicant had explained sufficiently clearly the personal and family reasons for her move, the initially intended duration of her stay and the circumstances of her relationship with her husband, the children’s father, who would remain in Peru. The Court also noted that no interview had been conducted with the applicant to explore the matters that had raised doubts within the Administration. Under these circumstances, it considered it inappropriate to infer that the family’s true objective was different from the one expressly declared.
Particularly significant was the Court’s observation that the consular authorities’ assertions lacked objective evidence to support them, even by way of inference.
On the basis of the established facts and the applicable regulatory framework, the High Court of Justice of Madrid concluded that the applicants met the requirements for obtaining non-lucrative temporary residence visas.
Consequently, the judgment upheld the contentious-administrative appeal, annulled the contested consular decision and declared that all three members of the family were entitled to obtain their respective visas.
Thus, where compliance with the regulatory requirements has been established, that compliance cannot be disregarded on the basis of unsupported hypotheses about an applicant’s future intentions.
Why Having a Specialist Immigration Lawyer Can Change the Outcome of an Immigration Application
A refusal does not always mean that a legal requirement has not been met. Sometimes, a document has been incorrectly assessed, a personal circumstance has been interpreted out of context or an administrative conclusion, under the appearance of reasonableness, introduces requirements that the law does not establish. Identifying that distinction is one of the most important tasks in specialist legal representation.
The case examined by the High Court of Justice of Madrid illustrates this particularly clearly. The importance of specialist legal representation lies not only in knowing the law, but also in recognising when an administrative decision departs from it, identifying the evidence needed to demonstrate this and determining which legal remedy is genuinely appropriate to restore the rights and interests affected.
In immigration matters, this work takes on a particularly sensitive dimension. Administrative decisions do not affect abstract situations but families who have organised their lives, committed financial resources, planned relocations and developed legitimate expectations based on an established regulatory framework.
For this reason, legal advice should not necessarily begin only when a refusal is received. Proper planning of an application makes it possible to anticipate potential objections, thoroughly document the origin and availability of financial resources, substantiate family circumstances and provide the Administration with a coherent, precise and sufficiently supported explanation of the intended residence arrangements.
At Sterna Abogados, we approach every immigration procedure from a comprehensive perspective, encompassing not only the preparation of application documents but also the legal analysis of each case’s particular circumstances, the prevention of potential complications and, where necessary, the defence of our clients against decisions made by the Administration.
Based on this analysis, we develop the most appropriate strategy, both through administrative procedures and before the contentious-administrative courts, assessing the prospects of obtaining the annulment of a refusal and, where legally appropriate, the direct recognition of the right to the authorisation requested.