Government toughens policy on labour immigration

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In autumn 2002, the Spanish government is seeking to introduce a tougher immigration policy and a reform of the Law on Foreign Persons. It aims to restrict the granting of residence permits for settled immigrants, reduce immigration for family reunification purposes and increase penalties for trafficking in labour and the recruitment of illegal immigrants. However, the evidence suggest that the government's current policy of quotas for immigrant workers has failed to control illegal immigration.

The subject of immigration from outside the European Union was not a priority on the agenda of the Spanish Presidency of the EU during the first half of 2002. The priorities of the Presidency programme were the fight against terrorism, the introduction of the euro single currency, economic and social reforms, enlargement, EU foreign policy and the future of Europe (EU0201232N). However, from May, immigration became a priority and played a central role in the European Council summit held in Seville on 21-22 June.

Three events may have contributed to this change of approach: the rise in support for the extreme right in the French elections in April-May 2002 (FR0205106F); draft Italian legislation on immigration; and the general strike in Spain on 20 June (ES0207201N). These events led to Spain's conservative People's Party (Partido Popular, PP) government taking a tougher approach on immigration (and on industrial conflict). The government thus proposed during summer 2002 a new reform of the Law on Foreign Persons (Ley de Extranjería), on the grounds that such measures are the only way to avoid the rise of extreme right-wing parties in Spain and Europe.

Reform of the Law on Foreign Persons

The reform of the Law on Foreign Persons that the government is currently considering is the third since 1999 (ES0012224N and ES0004183F), which some critics feel indicates the failure of previous reforms. Others feel that it is still too soon to see the results of the previous reform. The proposed reform of the legislation would end any possibility of legalising their position for foreign workers who are currently in Spain without documentation. On 14 January 2002, the general system that allowed people from outside the EU with a job offer in Spain to apply for work and residence permits was abolished. Now the government wishes to abolish 'legalisation' for settled illegal immigrants, regardless of how long they have been in the country. Its draft bill would also drastically reduce the amount of immigration allowed for the purposes of family reunification and prohibit 'extraordinary' legalisation.

The government's draft amended Law on Foreign Persons contains four new features that have given rise to particular debate:

• the abolition of legalisation for settled immigrant workers. There would no longer be automatic legalisation for illegal immigrants, regardless of their number of years of residence in Spain. This would involve the abolition of the current system which provides temporary residence permits to foreigners 'who prove that they have been on Spanish soil for a period of five years'. Furthermore, the government can at present issue a temporary residence permit 'when there are humanitarian reasons, exceptional circumstances or when it is proven that immigrants have settled, in the situations provided by law' (Article 31 of the Law on Foreign Persons). The current regulations also provide for a reduction from five years to three years in the residence requirement if there are proven circumstances such as real integration into the labour market and family ties with resident foreigners or Spanish people (Article 41);

• people smuggling. The draft provides tougher penalties for those who smuggle illegal immigrants into the country. The current law considers participation in such clandestine immigration to be 'a very serious offence' (Article 54.1b) and provides for penalties of two to five years' imprisonment and fines for people who 'traffic in illegal labour' (Article 312.1), six months' to three years' imprisonment and fines for 'those who promote, favour or facilitate the illegal conveyance of persons', and two to four years' imprisonment and higher fines for those who do so 'for profit, using violence, intimidation or deceit, abusing a situation of need of the victim' (Article 318 bis, 1 and 2);

• recruitment of illegal immigrants. The government aims to introduce penalties for such illegal recruitment in the Penal Code (Código Penal). At present, the recruitment of each illegal immigrant is considered as a 'very serious offence' (Article 54.1 d), and sanctions are imposed by the provincial authorities, which may close the employer's establishment for a period of six months to five years (Articles 55.2 and 55.6); and

• family reunification. The government's aim is to limit immigration for reunification purposes to parents and children up to the age of 16. Today foreign residents can bring to Spain their spouses, their children and those of their spouses (including adopted children providing they are under the age of 18 or are disabled), persons under the age of 18 or disabled persons when the resident is their legal representative; and dependent parents or grandparents of the resident, and their spouses (Article 17).

In addition to this draft reform of the Law on Foreign Persons, the government has also been stiffening immigration policy through a system of quotas and bilateral agreements.

Immigration policy

The government has made quotas the fundamental element in its labour migration policy (ES0112244F), having closed the general system and the possibilities of applying for a work permit and residence for workers who are already in Spain illegally. The aim of this policy is to promote legal immigration based on employment estimates proposed by provincial commissions formed by business and trade union representatives, and approved by the government. The government has sought to channel this policy through bilateral agreements with countries such as Morocco, Ecuador and the Dominican Republic.

However, the provisional figures on the 2002 immigration quotas for non-EU workers have led critics to claim that:

• the quota policy has failed, in that the employment forecasts are not being filled. For 2002, the government set a figure of 10,885 long-term jobs (2,243 in domestic service) and 21,195 seasonal jobs to be filled by immigrants. Of the long-term jobs, so far only 353 have been filled, plus 27 in domestic service, which is only 3.2% of the total. Of the seasonal jobs, 9,146 have been covered. These figures are low in the light of the fact that it is calculated that there are 300,000 illegal immigrants in the country, a figure similar to that in other European countries (in France there are 300,000; in Italy 235,000 and in Greece 350,000);

• the offers of employment under the quota scheme are not being directed to those countries with which bilateral agreements have been reached, but to countries in central and eastern Europe, such as Poland and Romania - see the table below - with which there are no such agreements. This is leading in practice to the replacement of North African and South American workers by Poles and Romanians. This happened during the strawberry harvest in Huelva, leading to a major dispute. Ecuador has a quota agreement under which which 30,000 people have applied for jobs in Spain, but only four of them have obtained one of the 21,195 jobs offered on seasonal permits in 2002; and

• the use of seasonal permits is a way of lowering employment costs. They are more profitable or employers than stable permits because a) seasonal workers are not subject to unemployment insurance contributions, b) they return to their country of origin at the end of the contract, c) there are no bilateral agreements with some countries on social security, so when the workers return to their country of origin they lose their contributions and rights, and d) using 'type A' seasonal permits for contracts with a maximum duration of one year that can be renewed is seen as a way of converting employment that should be on stable, one-year contracts into more precarious temporary employment.

In short, the figures show a rise in the number of seasonal permits and a significant change in the nationality of the workers contracted, as can be seen in the table below.