Castaño, M.J.: The Legal Situation of Immigrants in Spain, 2010

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THE LEGAL SITUATION OF IMMIGRANTS IN SPAIN


Article 149 (2) of Spanish Constitution of 1978 (hereinafter, EC) has always distinguished between the concepts: alien and immigration. Nevertheless, this distinction has generally being ignored by the Spanish legislation.

The term alien includes a very broad category of persons in a country which are not citizens of that country.  Each type of alien person may have a different legal status. E.g.: EU citizens, unaccompanied foreign minors, or those aliens who are legally permitted to acquire citizenship differently depending on the nationality of origin. A distinction between aliens and immigrants would be useful to distinguish the migrant worker figure from the rest of alien categories.

Immigration and Alien Spanish Legal Framework

Immigration and the alien Spanish legal system are made up of a wide set of rules from different sources. Moreover, other legal alien categories are protected under arrangements, special laws, or international treaties which Spain has signed. In the Spanish domestic legislation there are three different levels: the constitutional, legislative and regulatory implementation. Besides this, there is a fourth level, which is comprised of instructions, ministerial orders, etc.

Regarding the constitutional level, Article 13 EC grants foreigners a legal status that guarantees the enforcement of core constitutional rights. Constitutional court jurisprudence has developed this provision, by formulating in explicit terms a restricted equality between nationals and foreigners principle. In this context, legal rights issues such as health and education have been particularly relevant. Since the Organic Act 4/2000 of 11 January 2000, on Rights, Freedoms and Social Integration of Aliens in Spain  (hereinafter Organic Act 4/2000), a system where aliens, independent of their legal status, have simple access to these fundamental rights by enrolling in the municipal register. At the legislative level, the Spanish regulation of immigration is characterized by a diversity of acts that allow the Spanish legislature to give the "Guinness Record" in passing the law on aliens and immigration in the shortest period of time. Presently, the Spanish general law concerning the aliens is Organic 4/2000. The Spanish Parliament has approved last ammendment of this act on 26 November 2009, and it will enter into force one day after its publication in the Spanish official gazette, Boletín Oficial del Estado (BOE).

In the regulatory implementation level, the last development has been the Royal Decree 1162/2009, of 10 July, amending the Rule of the Organic 4/2000 of 11 January, on Rights, Freedoms and Social Integration of Aliens in Spain , adopted by the Royal Decree 2393/2004 of 30 December, in force since 24 July, 2009. As a European Union member state, citizens of the European Union (hereinafter, EU) or of the European Economic Area (hereinafter, EEA) are regulated by the Royal Decree 240/2007, of February 16. Entry, movement, and residency in Spain by citizens of the Member States of the European Union and other states parties to the agreement of the European Economic Area are controlled.

Legal Situation of Immigrants in Spain  

According to the Municipal Census advance data published by the National Institute of Statistics (hereinafter INE), the foreign population in Spain amounted to 5,598,691 persons on June 3rd,  2009.

In 2009, nationals from the European Union and the European Economic Area (2,341,801 and 18,342 persons, respectively) represented 42 per cent of the foreign population.  In this context, Romanians (757,412) are the most important collective, followed by registered foreigners from UK (355,044), Germany (174,026) and Bulgaria (157,910). Third country nationals (3,256,890 persons) represent 58 per cent the registered foreigners in Spain on June 2009. Moroccans (622,445) are the largest population group, ahead of Ecuadorians (402,088), Colombians (292,748) and Bolivians (220,150).

Legal Immigrants

An alien who has a registration certificate or a valid residence card (temporary or permanent residence permit) in Spain may be called a legal alien or immigrant. According to recent data published by the Permanent Migration Observatory, on November 6th,  2009, the number of foreigners officially residing on Spanish territory amounts to 4,473,499 people.

The Statistical Yearbook of 2008 (last update, November 6, 2009) of the Ministry of Labour and Immigration established that there are 2,341,052 aliens included in the General Residence Regime of Aliens, and 22,132,447 foreigners under the EU and EEA Residence Regime, including nationals of EU and EEA countries as well as their families. Finally, in 2008, 84,170 foreigners have acquired Spanish nationality by naturalization.

Irregular Immigrants

The percentage of foreign population in an irregular situation has been estimated by taking the difference between the registered foreign population and alien population officially residing in Spain. The number of foreigners without residence permits researched 1,125,192 people on January 1st,  2009, with 20 per cent of foreign population registered in the Municipal Census.

Organic Act 4/2000 Last Amendment

The last Organic Act 4/2000 amendment responds to the requirement of Spanish domestic legislation to fully comply with the European Union Directives and Supreme Court jurisprudence. Furthermore, given the high number of irregular immigrants (1,125,192) and the proliferation of networks of illegal trafficking, the need for tools to improve and simplify the management of migration flows was obvious. Nevertheless, this reform aroused considerable public debate. The positions of political parties radicalized to such a degree that another opportunity to consider immigration as a matter of state, an issue which should have led to the agreement of all political parties, was lost.

References

Claro, I.: La inmigración desde la perspectiva del Derecho español,  Inmigración y Asilo desde la perspectiva del Derecho español, Module C6 of University Master´s Degree in Contemporary International Migration, 2009-2010 edition, pp. 2-4. 

Organic Act 4/2000 of 11 January, on Rights, Freedoms and Social Integration of Aliens in Spain, amending Organic Acts 8/2000 of 22 December; 11/2003, of 29 September and 14/2003, of 20 November.

Reher, D./Sánchesz Alonso, B.: La excepcionalidad española, El País, 18 December, 2009. On line in Spanish: http://www.elpais.com/articulo/opinion/excepcionalidad/espanola/elpepiopi/20090218elpepiopi_13/Tes (visited on 20 November, 2009).

Ruiz de Huidobro de Carlos, J.M.: El régimen legal de la inmigración en España: El continuo cambio (Migraciones, No. 9, pág. 71, 2001).

María José Castaño Reyero, Instituto Universitario de Estudios Sobre Migraciones, Universidad Pontificia Comillas, Madrid

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