Amendments to Immigration Law

A reform of the Organic Law governing the Rights and Freedoms of Foreign Nationals in Spain and their Social Integration has been tabled.

Written by Josep Conesa

Employment and insolvency lawyer

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Given the changes in the nature of immigration to Spain, it has become necessary to amend the Law to bring it in line with developments over the past five years.

This Law applies to foreign nationals with regular status residing in Spain, excluding nationals of EU member states. Indirectly, it also affects foreign nationals residing in Spain without legal status, since this bill grants them certain rights that had previously only been recognised through case law of the Constitutional Court but had never been enshrined in positive legislation.

This reform has several core objectives, which we set out below:

• Safeguarding fundamental rights. These are rights understood to be inherent to every person simply by virtue of being human. Accordingly, as Constitutional case law had already established, it was untenable that the Law did not recognise such rights for undocumented foreign nationals present in Spain.
• The aim is to build a pathway to long-term residence through a graduated system of rights based on the legal residence of foreign nationals arriving in the country.
• To establish a genuine link between immigration flows and the real needs of the labour market, with a view to ensuring that incoming foreign nationals match the profile required for existing job vacancies.
• To promote the better integration of immigrants. This requires that the authorities responsible for implementing integration policies be given adequate resources.

The main actions set out in this legislative proposal are as follows:

• Defining the priorities of immigration policy — covering the integration of immigrants, the legal and orderly management of migration flows, and the fight against irregular immigration — and establishing its development, in accordance with the common European immigration policy, through cooperation with third countries of origin and transit, and by coordinating action among the public authorities with competence in this area.
• It lays the groundwork for the proper management of the comprehensive, inclusive and sustainable immigration policy that Spain will need in the coming years.
• Strengthening the protection of fundamental rights for all foreign nationals.
• It places the integration of immigrants at the heart of immigration policy.
• Enshrining in statute the existing agreements with social partners that link the arrival of immigrants to the state of the labour market.

It includes measures to increase control over irregular immigration and improve the effectiveness of repatriation systems, without compromising the high level of guarantees and legal certainty that characterise Spanish legislation.

Specific measures across different areas:

Social Integration

The new Act seeks to give the highest priority to the integration of immigrants and is committed to building a social model in which different identities and cultures can coexist.

The only limit to this diversity must be respect for the law and the Constitution. To that end, the new legislation must include measures capable of conveying Spain's constitutional values to foreign nationals. Some of the measures to promote integration include: supporting the learning of Spanish as well as the other co-official languages, ensuring school attendance for minors, and providing access to employment.

Family Reunification

This is perhaps the area where we find the most noteworthy changes, given the significant developments it will bring. There are three main new features:

• There is an increased level of scrutiny applied to verifying the economic circumstances and housing conditions of the person applying for family reunification.
• All reunified family members of working age will receive, from the outset, a work authorisation.
• Relevant educational authorities will be notified in advance of cases involving the reunification of school-age minors, so that appropriate arrangements can be made.

On the one hand, this reform will allow unmarried partners to be treated on an equal footing with spouses for the purposes of family reunification. On the other hand, the law introduces a restriction on the existing conditions for the reunification of ascendants (parents and grandparents).

Reunification of ascendants will only be permitted where the sponsoring resident has acquired the right to long-term residence, the ascendant is financially dependent on them, is over 65 years of age, and there are justified reasons supporting the need to authorise their residence in Spain.

Legal and Orderly Management of Migration Flows

The legal reform builds on the agreements reached between the Government and social partners in 2004, with the aim of developing a labour immigration policy that links the arrival of new migrants in Spain to the needs of the labour market, and requires that workers travel from their country of origin legally and with an employment contract. Specifically, the reform:

• Links the commencement of a residence and work authorisation to an actual employment contract and registration with Social Security.
• Establishes a framework for assessing the national employment situation through the catalogue of occupations that are difficult to fill.
• Limits initial authorisations to a specific occupation and geographical area, in accordance with the grounds on which they were granted.
• Creates a specific residence procedure for the purposes of scientific research.
• Regulates the mobility of long-term residents from other EU countries who wish to reside in Spain, linking it to engagement in a productive activity.
• Modernises the public administration to streamline procedures through electronic communication.
• Introduces new infringements applicable to those who initiate an authorisation process for a foreign national but subsequently fail to employ them, and to those who simulate an employment relationship for the purpose of obtaining an authorisation.

Combating Irregular Immigration

The Law sets out a series of improvements in the area of combating irregular immigration, aimed at strengthening preventive mechanisms, increasing the effectiveness of repatriation procedures, in accordance with EU Directives, and enhancing safeguards in the various situations outlined below:

The following Directives are incorporated:

• The Directive on the issuance of a residence permit to third-country nationals who are victims of human trafficking or have been the subject of an action to facilitate illegal immigration, provided they cooperate with the competent authorities.
• The Directive on the obligation of carriers to communicate data on the persons transported.
• Assistance in transit cases for the purposes of repatriation or removal by air.
• The Directive on common standards and procedures in EU Member States for returning third-country nationals who are in an irregular situation.

The legal reform will strengthen preventive mechanisms, including:

• Entry and exit may be recorded by the Spanish authorities for the purposes of monitoring the lawful period of stay in Spain.
• Transport companies will be required to communicate to the authorities a list of the persons transported, handled in accordance with personal data protection rules.
• Greater facilities are introduced to enable victims of human trafficking to cooperate in dismantling networks that promote illegal immigration and the exploitation of migrants.

The Law also incorporates the common EU Member State framework for the treatment of third-country nationals in an irregular situation. As previously noted, transposing these rules into Spanish law brings solutions that increase legal certainty and improve the efficiency of procedures. Specifically, the legislation will introduce an express reference to principles such as proportionality and non-refoulement, along with the possibility of granting the individual subject to an expulsion order a voluntary departure period of between 7 and 30 days, and a reduction in the re-entry ban, which will be reduced from a maximum of 10 years to a maximum of 5 years.

The Directive on the return of third-country nationals in irregular situations establishes maximum detention periods of eighteen months. In our view, this represents an improvement for certain EU Member States that previously operated under indefinite detention periods, as they will now be required to comply with a common standard. In Spain's case, with or without the Directive, it has become clear that current detention periods are, in certain circumstances, insufficient to carry out specific deportations. The proposal is therefore to increase them in a measured way — from 40 to 60 days.

Voting rights for foreign nationals and unaccompanied minors

The reform seeks to give political momentum to the recognition of voting rights for foreign nationals, although what is regulated in the Law does not, in itself, constitute any obstacle to Parliament's future decision on the scope of those voting rights.

The repatriation rules for unaccompanied foreign minors who arrive in Spain irregularly are being amended. The reform includes the possibility of repatriation, in accordance with the best interests of the child, so that the minor may be taken into the care of the child protection authorities in their country of origin.

New offences and increased penalties

• To prevent "over-registration" at residential addresses — and the private trafficking of fraudulent municipal registrations — for the purpose of obtaining existing or future benefits available under Spain's system.
• To introduce sanctions for marriages entered into in fraud of the law (so-called marriages of convenience).
• To prevent family reunification outside the legally established channels, sanctions may be imposed on those who facilitate the irregular stay of family members.

An increase in financial penalties is proposed across all categories of offence. Minor infringements will carry a maximum fine of €500; serious infringements, a maximum of €10,000; and very serious infringements may attract fines of up to €100,000.