On September 20th, a year will have passed since the Spanish Ombudsman, Francisco Fernández Marugán, recommended and suggested to the Autonomous City of Melilla (applicable as well to Ceuta given that the same situation occurs) that the citizens who live there must be registered, regardless of the type of property they live in, as well as people of non-Spanish nationality who have the specific visa exemption regime, as is the case with the citizens of the Moroccan provinces of Nador (in Melilla) and Tetuán (in Ceuta).
This recommendation provides that the autonomous city must adapt the rules on the census, not only to what Spanish law provides, but also to the provisions of the ruling of the Administrative Chamber of the Seventh Section of the National Court dated December 28th, 2018, regarding the possibility of registration of those nationals of the provinces mentioned.
Despite the fact that the Autonomous Cities have a special regime with the neighbouring Moroccan provinces, this does not prevent them from proceeding with the registration of those persons who actually reside in the municipality, after verification. The well known fact is that many families have been living in the cities of Ceuta and Melilla for many years and are still unable to regularise their situation, largely due to the refusal to register.
The Ombudsman, in his recommendation a year ago, reminded the public that registration on the census is an obligation for all those people (regardless of nationality or administrative status) who actually reside in the city, and that this benefits the municipality, which receives a financial allowance from the state for the number of citizens registered.
It therefore determines that the refusal to register people from these provinces, although it is done under the protection of the law, contradicts the will of the law.
The Ombudsman states that: " (...) the joint interpretation of Articles 16 and 18 of the LRBRL leads to the conclusion that there is a contradiction between them. Thus, if the census does not constitute proof of legal residence in Spain as provided for in Article 18 of the LRBRL, but is merely a record of factual situations, it makes no sense to require a visa as required by Article 16 of the LRBRL. This requirement introduces into the census regulations an element of the law on foreigners which limits access to the census to certain residents and therefore alters the nature and purpose of the census. In addition, Article 6 of the Organic Law 4/2000, of January 11th, on the rights and freedoms of foreigners in Spain and their social integration, establishes in its section 3 that the Municipalities will include in the register those foreigners who have their habitual residence in the municipality and will keep the information relating to them up to date, without any reference to the requirement for a visa, residence permit or any other instrument specific to foreigners".
Likewise, with regard to the denial of registration due to lack of proof of availability of housing, the Ombudsman recalls that the Resolution of January 30th, 2015, on technical instructions for the management of the municipal census clarifies that the possibility of the Municipality requesting from the neighbour the "title that legitimizes the occupation of the dwelling" does not attribute to the Local Administrations any competence to judge questions of property, of urban rentals or, in general, of a legal-private nature, but that it has the sole purpose of serving as an element of proof to accredit that, effectively, the neighbour lives in the address that has been indicated.
Thus, it is understood that this title can be, the title deed, the current contract for the rental of the home or other documents such as electricity and water supplies.
This instruction, and the recent one dated April 29th, 2020, which reiterates the same, is forceful in stating that the verification of the residence can be done through the documentation provided or through the inspection of social services or the Local Police. Likewise, both instructions make it possible to register at a fictitious address in the case of homeless people, expressly stating that the registration is completely independent of the physical, hygienic and sanitary circumstances or of any other kind that affect the address.