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The Immigration Regulations (Royal Decree 2393/2004, of 30 December) set out a comprehensive framework governing the labour aspects of immigration, drawn up with a very high degree of consensus among different political forces, social partners and non-governmental organisations.
These Regulations reflect a concerted effort to prioritise legal immigration, complemented by new instruments to combat irregular immigration more effectively. The amendments were introduced to bring the Regulations into line with relevant EU Directives, and to ensure consistency between the rules on humanitarian leave to remain, as provided for in asylum legislation, and the exceptional-circumstances residence permit framework established under general immigration law.
The new structure of the Regulations reflects the need for a more systematic and logical organisation that better mirrors reality and is therefore more accessible to those it concerns. The procedures governing both the granting of permits and the imposition of sanctions are designed to provide stronger guarantees for individuals and, accordingly, to reduce the scope for discretionary decision-making by the authorities.
In substantive terms, the Regulations introduce significant changes to the requirements and circumstances under which a foreign national may be authorised to live and work in Spain. The aim of the reforms is twofold: on the one hand, to streamline the granting of authorisations for vacancies that employers are unable to fill with resident workers; and, on the other, to strengthen oversight in the issuing of such authorisations.
Under the current immigration system, the admission of new immigrants is fundamentally based on the need to fill job vacancies. Except in cases involving exceptional circumstances, or where an individual transitions from a study or research residence status to a combined work and residence permit, immigrants wishing to take up employment must arrive from their country of origin holding a visa that authorises them to work or to seek employment. However, given the significant number of foreign nationals currently in Spain without the requisite authorisation, the standard channels for admitting workers must be temporarily set aside to allow for a regularisation measure, one that, in all cases, is contingent on the existence of a future employment relationship.
During the period from 7 February to 7 May, foreign nationals who can demonstrate that they meet certain conditions will be able to obtain an initial residence and employment authorisation.
The requirements are essentially as follows:
· The employee must be registered on the municipal census (empadronamiento) in a Spanish municipality (for at least 6 months prior) and must be physically present in Spain at the time of application.
· The business owner or employer must have signed an employment contract with the employee, the terms of which will be contingent on the residence and work authorisation applied for entering into force.
To ensure that this process is restricted to those with a genuine and verifiable connection to the labour market, it will be required, except in the case of hourly domestic service, that employers themselves submit the authorisation request and present the contract that will bind them to the foreign national whose regularisation is being sought.
Once the normalisation process is concluded, the only mechanisms for obtaining a residence authorisation will be those permanently established under the Regulation. Within the framework of permanent regulation, covering the management of legal immigration and the regulation of migration flows, the assessment of the national employment situation has been reformulated to produce a more rigorous and effective diagnosis of the labour market. In this regard, the fact that both autonomous communities and social partners will directly inform, in advance, decisions on catalogues of hard-to-fill occupations will help to provide a perspective more closely aligned with the reality of the labour market.
Across the various residence and work authorisation procedures, the commencement of the employment relationship, verified through the employee's affiliation and registration with Social Security, serves as a safeguard against fictitious job offers. These measures will help prevent authorisations from being sought and obtained by those who have no genuine intention of entering into an employment relationship.
With regard to the control of irregular immigration, throughout the entire regulatory framework, safeguards are strengthened to prevent legal instruments from being used fraudulently, so that procedures designed to channel legal immigration cannot be used as a mechanism for the covert regularisation of individuals who are in Spain in an irregular situation.
Within the framework of infringements and penalties, the aim has been to strengthen the effectiveness of the legal enforcement mechanisms, including the various repatriation procedures, while providing stronger safeguards for individuals who are subject to penalty proceedings or are being held in immigration detention centres.
Regarding administrative procedures, with the goal of maximising transparency and speeding up the process whilst achieving better coordination between the ministries involved, the reform will promote the use of a shared IT platform across all departments that play a role at any stage of the process.
In short, efforts are focused on tightening controls to prevent irregular immigration, facilitating the entry of authorised legal migrants, and raising the level of protection afforded to individuals dealing with the administration.
Finally, it is important to remind readers that hiring undocumented workers can prove extremely costly, and that there is everything to gain from using this opportunity to regularise the status of your employees. The Spanish Law on Social Order Infringements and Penalties establishes that it constitutes a very serious infringement for employers (including those in the domestic service sector) to engage foreign workers without having first obtained the mandatory work permit, or its renewal, with a separate infringement recorded for each foreign worker employed in such circumstances. Equally, it is a very serious offence to fail to pay Social Security contributions to the General Social Security Treasury within the prescribed deadline without submitting the corresponding contribution documents.
Each of these infringements carries a fine that may be imposed at the following levels: standard grade, from €3,005.07 to €12,020.24; intermediate grade, from €12,020.25 to €48,080.97; and maximum grade, from €48,080.98 to €90,151.82.
Our firm specialises in employment law and is able to answer any legal questions you may have regarding this new legislation, in particular, we can advise you on the hiring of migrant workers and their regularisation. Please do not hesitate to get in touch with us.
