Notarial Deed for Undocumented Foreigners

We will divide this writing considering its:

1. Regulation and legal framework
2. Requirements and Notarial Procedure
3. Content of the Letter
4. Importance and Usefulness of the Notarial Act
5. Limitations and Practical Considerations
6. Conclusion

To avoid situations of statelessness and guarantee the protection of refugees and immigrants without the possibility of obtaining or renewing identity documents, Spain has developed a regulatory framework in line with international conventions. Article 34 of the Organic Law 4/2000, of 11 January, on the rights and freedoms of foreigners in Spain and their social integration, already recognised the possibility of identifying and documenting these persons on Spanish territory.

This mechanism was subsequently regulated in the Regulation approved by Royal Decree 557/2011, of 20 April, in whose article 211 a procedure was established for foreigners in an irregular situation to prove their identity by means of a notarial deed for undocumented foreigners of notoriety. The recent 2024 regulatory reform has transferred this content to article 210 of the new Foreigners Regulation.

This regulation grants Notaries the competence to intervene in these proceedings through the formalisation of notarial deeds sent by post, intended to prove that the authorities of the applicant’s country of origin do not issue identity documents, generally the passport. This procedure serves as a complementary means of proof so that the Spanish authorities can assess the need to issue alternative documentation.

For the formalisation of the notarial deed for undocumented foreigners, the applicant must appear before a Notary, who will verify their identity through supplementary means of proof. Among these are:

• Presentation of personal documentation: Any identity document, passport or other document, even if expired, may be presented as an indication or proof of identity, origin and nationality.
• Testimonies from third parties: At the request of the interested party or the Notary, witness statements may be accepted to prove the use of a specific identity by the applicant.
• Supplementary proceedings: The Notary may require additional evidence to facilitate identification and help the consulate issue the requested document. In some cases, a photograph taken at the notary’s office is included to certify that the applicant is the same person shown in the documentation provided. Even, in certain cases, fingerprints may be taken when the consulate requires them to process the documentation.

The applicant must expressly authorise the Notary to send the letter to the consulate and, where applicable, collect the response from the consular authority within a reasonable period, usually one month. If no response is received within this period, the Notary will record this circumstance in the deed before proceeding to close it.

It is important to emphasise that the notarial action is limited to certifying the notoriety of the declared identity, without this implying an official recognition of the foreigner’s administrative status. The notarial deed, by itself, does not grant residence rights nor guarantee immigration regularisation, although it may serve as support in certain administrative procedures.

The letter sent to the consulate must include the following essential elements:

• Request for issuance of documentation: It will be addressed to the consular authority of the applicant's country of origin, expressly requesting the issuance of a passport in their favour. This request must contain the personal details of the interested party and any reference that allows their identity and their link to said country to be identified. It is advisable to base the request on the applicable regulations and on the applicant's right to obtain said document.
• Request for the response to be sent to the Notary: The consular authority will be required to send the response to the above request directly to the Notary who sent the letter. This procedure guarantees formal and reliable communication, avoiding delays and allowing the Notary to record the response received or, where appropriate, the lack of reply within the established period.

The letter must be signed by the applicant and the signature must be certified by the Notary, either by having been made in their presence or by having been expressly recognised by the interested party in case it was signed previously.

The notarial deed for undocumented foreigners can be used in administrative or judicial proceedings where it is necessary to prove the identity of the interested party and the request for the issuance of identity documents before their consulate. This documentation is a key requirement to comply with the provisions of article 210 of Royal Decree 1155/2024, of 19 November, allowing the Spanish authority to assess the possibility of issuing documentation for the benefit of the migrant.

A fundamental aspect of this notarial instrument is the legal certainty it offers. In situations where a person's identity may be questioned due to the lack of official documentation, having a act of notoriety can facilitate the obtaining of other documents and reduce the vulnerability of those in an irregular administrative situation.

The notarial deed will not be necessary to obtain documentation issued by the Spanish authority in the following cases:

• Temporary residence: Provided that the applicant alleges serious reasons preventing their appearance at the consulate, for which purpose the report of the Asylum and Refuge Office may be requested, in accordance with the provisions of the first paragraph of section 5 of article 210.
• Unaccompanied foreign minors: As regulated in articles 172 to 174 of the Regulation, in these cases the report of the public entity holding guardianship or protective measures for the minor must be submitted.

Although the notarial deed to accredit undocumented immigrants is a valuable tool in many cases, it is essential to understand its limitations. Firstly, it does not replace official identity documents, such as the passport or residence card. Its function is merely declarative and its effectiveness will depend on the procedure in which it is used.

Furthermore, the Notary must act with extreme caution, verifying the consistency of the data provided and avoiding the issuance of deeds that could lead to fraud or identity theft. Each case will be evaluated individually, and the Notary may deny authorisation of the deed if they consider that there is insufficient evidence to prove the notoriety of the alleged identity.

Notarial records for undocumented foreigners constitute a legal tool of great relevance in certain cases, but their scope is limited. The recent regulatory reform maintains the pre-existing regulation under the new article 210 of the 2024 Foreigners Regulation, which will come into force on 20 May 2025, ensuring the continuity of this mechanism previously regulated by article 211 of Royal Decree 557/2011, of 20 April.

Since these records to prove undocumented immigrants can play a key role in administrative and judicial proceedings, it is recommended that those interested consult a Notary specialised in immigration law. In this way, they will be able to assess the suitability of the mechanism in their particular case and determine the legal effects it may entail in their specific situation.