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Immigration law reform and efforts to involve airlines and civil society in the surveillance of migrants.

28 March 2012

The Council of Ministers of the José Maria Aznar government approved a reform of the Ley de extranjería (immigration law) on 16 May 2003, a week before local elections were held across Spain. Aznar justified toughening the measures in the law because "the capacity for receiving (immigrants) is not unlimited". The proposed new measures include a fast-track systematic expulsion procedure for illegal residents, expanding the right to detain migrants undergoing expulsion proceedings in detention centres, and expanding the possibility of expelling foreigners against whom charges have been brought in Spanish courts. Carrier sanctions and the substitution of residence permits and employment permits by visas serving as authorisation to work and reside in Spain will also be introduced. Spanish NGO SOS Racismo criticised the "continuing electoral use of immigration by the Partido Popular (PP)" and its attempts "to reap the fruits of its xenophobic arguments". The Ley de extranjería was first introduced in January 2000, and has been subsequently been reformed on three occasions (this will be the fourth) which have made its provisions tougher. The latest proposed reform follows rulings by the Supreme Court, that annulled 11 articles of the Regulation implementing the Ley de extranjería, because they affect fundamental rights which cannot be regulated by decree (see Statewatch vol 13 no 2). The government´s response to this ruling was that the annulled articles would be included in the Ley de extranjería. Some of the measures represent the incorporation of European Council Directives into Spanish legislation; this is the case for carrier sanctions (Directive 2001/51/CE, of 28 June 2001), and the mutual recognition of decisions on the expulsion of third-country nationals (Directive 2001/40/CE, of 28 May 2001).

Expanding surveillance to airlines and civil society

Through the reform, the government will seek to force airlines to pass on passenger data to authorities on request, to toughen their visa and document checks, and to send Spanish border police passenger data before take-off as an early stage of border controls. Airlines will also be required to help immigration authorities to track down visa overstayers by compiling dossiers of passengers who fail to make use of their return ticket, as the entry requirements are possession of a visa (tourist visas are valid for three months), a return ticket and a fixed amount of money. Airlines are reportedly opposing the changes, but the draft law looks to impose carrier sanctions including fines of up to 60,000 Euros for "very serious" cases in which airlines fail to cooperate, such as the failure to provide passenger data to Spanish authorities prior to take-off. In the case of failure to control documents, visas and the validity of documents adequately fines of between 3,000 and 6,000 Euros may be imposed per person carried, or a single fine of 500,000 Euros (without taking into account the number of persons carried). Airlines, which were already responsible for taking charge of persons that they had carried to Spain without adequate documentation, will also be made to take charge of transit passengers who do not end up in their final destination, or are returned to Spain by authorities in that country.

On 15 April 2003, the Interior ministry and the International Organisation for Migrations (IOM) had signed a convention in which the IOM committed itself to creating "a network for alerting and reporting from society, with the participation of organisations and local operators" to detect the "new presence of undocumented immigrants" and to "combat illegal migration". Spanish daily newspaper El País reported that the government and IOM will seek to involve NGOs in the network, encouraging them to make available information on undocumented migrants. Funding for the scheme is expected to be obtained from the Employment ministry´s Instituto para las Migraciones y los Servicios Sociales (Institute for Migrations and Social Services) and from European funding for social assistance. The IOM will also take charge of organising "assisted voluntary returns" to migrants´ countries of origin for "immigrants who find themselves in an irregular situation in Spain, as well as refugees or asylum seekers who expressly want" to be returned.

Fast-track expulsions, detention and the expansion of sanctionable behaviour

The proposed measures in the draft reform include expanding the definition of kinds of behaviour that are subject to sanction in the context of combating illegal migration. Under the heading of "very serious" offences, article 54.1b of the law that includes "Inducing, promoting, helping or assisting the illegal immigration of persons transiting through or destined for the Spanish territory, as part of an organisation seeking to make a profit", is changed in the draft reform to carrying out the mentioned acts "either individually, or as part of an organisation seeking to make a profit". Thus, the importance of both requirements, that of being part of an organisation, and that the activity is being undertaken for profit, may be drastically limited under the proposed new wording, potentially to include humanitarian assistance.

A measure introduced in the last reform of the immigration law allowed the expulsion of migrants charged with a crime (carrying a possible punishment of under six years in prison), before they were found guilty in a court case. At the time, it was criticised by NGO´s for working against the principle of "presumption of innocence" and establishing a legal system with different values for foreigners. The new reform seeks to expand the range of offences included in this regime, from those carrying a possible prison sentence of under six years, by adding offences subject to punishment "of a different kind". On request from authorities, and after consultation with the prosecutor, the judge "will authorise" ("will" replaces "may" in the new text) the expulsion "as quickly as possible" and "in any case, in no more than three days" unless there are exceptional reasons for refusal. If the foreigner is the subject of several court cases, a simultaneous request will be directed to all the courts involved. An expanded regime for the detention of migrants awaiting decisions on their possible expulsion will be introduced to guarantee the expulsion of undocumented migrants who cannot be expelled immediately. The recognition of expulsion orders issued against migrants by other EU countries will also be introduced.

"Disposable" workers

The government presented the reform as "combating illegal migration and supporting legal migration": it is difficult to see how it fulfils the latter claim. The simplification of bureaucratic procedure, whereby a visa obtained in Spanish consulates abroad would also serve as a residence and work permit, eliminating applications for residence and work permits via police and interior ministry authorities, effectively institutes a form of bonded labour. People will only be able to receive authorisation to work and reside in Spain in their countries of origin and, if successful, they will be given a visa document that will serve for entry, work and residence purposes. The other side of the coin is the automatic rejection of applications for residence papers that are "manifestly unfounded" or presented by persons who find themselves in Spain "illegally".

This pattern follows the approach that is being taken by the Spanish government whereby migrants can only become legally employed in Spain if they are contracted abroad as part of the yearly quota system, which has been operating since 1991 and has proved a failure (see Statewatch vol 13 no 1). In 2002, out of 32,079 jobs made available by employers, only 13,633 were filled. At the same time, undocumented migrants who were already in Spain and had firm job offers were denied the opportunity to regularise their position through the so-called Regimen General (general regime) procedure, which was shut down by the government, leaving the quota system as the only means of legally securing employment for migrants. The quota system only allows jobs to be offered to migrants if there are no Spanish workers available for the position; thus, authorities will be able to limit the scope of the new visa/authorisation to work to specific areas and activities. This institutionalisation of foreigners as a disposable labour reserve will limit their possibilities of career advancement. Even the possibility of foreigners obtaining temporary residence papers for humanitarian reasons, exceptional circumstances or for having spent a long period of time in Spain, will be limited to cases where they "have an employment contract". This appears to be a particularly cynical measure that ignores, or chooses to ignore, the difficulty for refugees to obtain an "employment contract" from foreign consular bodies in their countries of origin in the midst of a humanitarian crisis.

The period during which the visa/authorisation to work will be valid will be tightly linked to the duration of the contract they have been offered and, in any case will never last less than three months or over five years (after which migrants would be exempted from the visa requirement). Renewal of the "authorisation to work" depends on the existence of "analogous circumstances to those that motivated its concession", and will take the form of a single permit for residence and employment. This will mean that the authorisation for migrants to work and reside in Spain will be dependent on their continuous employment, forcing them to leave when they are no longer in work. This will leave workers at the mercy of their employers, as complaints over working conditions or pay could see them forced to return to their countries of origin if they lose their jobs.

The full text of proposed changes to the Ley de extranjería: Full-text (pdf, in Spanish)

Sources: Propuestas de modificación de la Ley Orgánica 4/2000, de 11 enero, sobre derechos y libertades de los extranjeros en España y su integración social, en su redacción dada por la Ley Orgánica 8/2000, de 22 diciembre (Proposed amendment of Law 4/2000, of 11 January, on the rights and freedoms of foreigners in Spain and their social integracion, in the wording of Law 8/2000, of 22 December); from the immigration section of the website of the Zaragoza Lawyers Association (Real e Ilustre Colegio de Abogados de Zaragoza. www.reicaz.es/extranjería ; Interior Ministry press statement 15.4.03; SOS Racismo press statement 19.5.03; El País 16.4.03, 21.5.03, 24.5.03, 3.6.03