New rules on labour immigration

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In October 2004, the Spanish government issued a new regulation on immigration, which came into force at the beginning of 2005, with the aim of directing immigration towards legal channels. It establishes an 'extraordinary' process of legalisation of registered immigrant workers with work contracts, who will obtain residence permits for a limited period, after which the conditions of entry will be toughened. The reform, which has obtained wide support, is based on consultations with the social partners and other interested parties.

In November 2003, the conservative Peoples’ Party (Partido Popular, PP) government of the time reformed the Law on Foreign Persons (Ley de Extranjería) once again (ES0209204F), following several changes over previous years (ES0012224N and ES0004183F), including the introduction of new, more restrictive regulations on the entry of (non-EU/EEA) foreign workers. The issue was a constant source of political dispute due largely to an increase in the number of illegal immigrants, estimated at 1 million people. 'Extraordinary' legalisation exercises were carried out for illegal immigrants, and entry was severely restricted.

The 'organic' Law 14/2003 of 20 November 2003 provided for the development of a further regulation on the issue of immigration. This regulation was agreed on 26 October 2004 by the current Socialist Party (Partido Socialista Obrero Español, PSOE) government, together with transitional arrangements, following a process of dialogue. It came into force at the beginning of 2005 and its aim is to direct immigration towards legal channels. It also establishes an extraordinary process of legalisation for registered immigrant workers with work contracts, who will obtain residence permits for a limited period, after which the conditions of entry will be toughened. The new rules may affect 800,000 immigrants and have obtained wide support, except from the PP.

The reform seeks to rationalise the previous model of immigrations and combines in a single process restrictions on entry, extraordinary specific legalisation exercises affecting a large number of immigrants, and consensus with the social partners and other actors. It also links immigration to the dynamics of the labour market.

The government sought consensus on immigration policy by consulting political parties, trade unions, employers, the regions (autonomous communities), town councils, the Forum for the Integration of Immigrants (Foro para la Integración de los Inmigrantes), professional associations (Colegios Profesionales) and non-governmental organisations. It also consulted a newly-created body made up of the social partners and the Secretariat of State for Immigration and Emigration (Secretaría de Estado de Inmigración y Emigración) - the Tripartite Labour Commission on Immigration (Comisión Laboral Tripartita de Inmigración).

Content of the regulation

The new regulation attempts to give priority to legal immigration and to combat illegal immigration by combating the underground economy. A 'national employment situation' (Situación Nacional de Empleo) assessment, in the form of provincial 'lists of hard-to-fill occupations', has also been endorsed by employers and trade unions as an indicator of the need to recruit foreign nationals.

The systems of entry for immigrant workers under the new system are:

• a 'general system' for the individual recruitment of workers. This will not be used as a means of covert legalisation.

• a 'quota system' for programmed recruitment of workers (ES0112244F) who are required in some sectors. This will include visas to seek employment in certain sectors where direct contact between employers and worker is fundamental. A limited number of visas will also be granted for children and grandchildren of Spanish citizens to seek work in any sector; and

• 'seasonal work'. Applications to recruit such workers must be made available to the public employment services of the relevant region 15 days before they can be processed. The aim is to ensure that the job offers made to foreigners cannot be covered by any workers already residing in the country.

Resident aliens may apply for family reunification together with their application to renew their permit. This procedural simplification will also involve stricter requirements for eligibility for this right, such as the need for a certificate from the relevant local council that the applicant has suitable accommodation.

According to the government, the clandestine underground economy attracts illegal immigration. The activity of the Labour Inspectorate (Inspección Laboral) will be reinforced in order to prosecute behaviour linked to exploitation of workers and illegal recruitment. Work permits awarded will only come into force if the workers concerned contribute to the social security system, in order to avoid the 'purchase' of job offers by organised crime groups. Permission to stay on grounds of 'settlement' in work and society will still be granted, but under stricter rules.

The initial specific conditions of legalisation for immigrant workers are that:

• they must have been employed for a minimum of six months. The hotels/catering and construction sectors must guarantee six months of work in a period of 12 months, agriculture must guarantee a minimum of three months, and domestic service a minimum of six months, though this may be spread over several contracts with a weekly average of 30 hours of work;

• the legalisation process will be open for only the three months following the approval of the regulation;

• only those who came to Spain at least six months before the coming into force of the regulation and have no criminal record may apply;

• the employers (except in the domestic service sector, in which the workers apply for the permit) must apply for the permit for the foreign worker, enclosing a contract signed by both, which will remain without effect until the permit is granted. The worker must have been registered as a resident in Spain for six months;

• in less than a month from notification of recruitment, the employers must register the worker in the social security system with a contract of a minimum duration of six months; and

• if the application is successful, a conditional residence and work permit will be granted. When it comes into force, the foreign worker may apply for a 'foreigner's identity card' (Tarjeta de Identidad de Extranjero).

After a transitional period, legalisation will be based on:

• being a registered resident for two years;

• demonstrating an employment relationship of at least one year; and

• demonstrating settlement in society, family reunification etc.

According to the government, the reform attempts to overcome a perceived 'strangulation' of channels for legal immigration that came about under the previous government.

Social dialogue

The reform of the labour immigration rules is the result of a consensus produced through social dialogue.

The Spanish Confederation of Employers' Organisations (Confederación Española de Organizaciones Empresariales, CEOE) takes a positive view of the reform and of the receptiveness of the government, which it believes has introduced a scheme that will bring the underground economy to the surface, create jobs (ES0302205F) and put an end to the 'chaos' inherited from the previous government.

The trade unions share this positive view, because of the high level of concertation, the greater legal guarantees and the linking of the approach to the labour market. They are pleased that the concept of settlement in society has been maintained. However, they feel that there has been a step backward in terms of family reunification (ES0409209F) and the system of quotas, and that there are gaps (references in the new scheme to regulations that have yet to be defined) and restrictive elements that are difficult to justify from the viewpoint of integration. Furthermore, the original 2003 law was not to the liking of the unions.

The tripartite Economic and Social Council (Consejo Económico y Social,CES) (ES0410203F) supports the reform, though it calls for more funding for its application. It seems that funding will not be increased overall, but extra funds will be provided for the extraordinary legalisation process. According to the CES, the Labour Inspectorate, the public employment services, the offices for aliens and Spanish consulates must be reinforced.

Commentary

The government has initiated a positive, exceptional process involving the legalisation of many foreign workers with regular jobs, thus contributing to the legalisation of a large number of people who previously had neither work permits nor residence permits. These workers will pay taxes and social security contributions (ES0401204F), and will have better chances of achieving economic and social integration. The reform also represents a closing of the borders, and the imposition of strict entry requirements.

Though this legalisation is positive overall: it is subject to the initiative of employers that provide a work contract; the working conditions are dictated by the employers; and it affects only sectors that do not tend to attract Spanish nationals. It also fails to cater for important groups of foreigners in Spain by limiting the offer of residence permits on grounds of social settlement or political asylum. However, the seriously ill and (subject to strict conditions) exiles will receive favourable treatment.

The closing of borders is an arguably futile attempt to stop the constant flow of immigrants. This policy must be coordinated, at least at a European level, in order to be effective and, though it relates to some aspects of international treaties, some points are not homogenised. More importantly, the reason for migration is the unequal development between countries of the global North and the South, and as long as this persists the phenomenon will continue.

According to the United Nations Organisation (UNO), in the 40 years up to 2000 the number of emigrants worldwide rose from 76 million to 158 million (plus 16 million refugees and 1 million asylum-seekers), 39 million of them residing in Europe, which has been the main destination in the last decade. This phenomenon is comparable to the 52 million Europeans who emigrated to the American continent between 1820 and 1932 (particularly to the USA), which was also for economic reasons and proved impossible to contain by force or by law. What experience shows is that the only issues that can be controlled are how the immigrants enter and at what rate. Immigrants will continue to arrive by many routes, with inferior citizenship rights (see the provisions of the EU constitutional Treaty on this point) if they obtain permits, and no rights at all otherwise. This process will not be normalised, unless a clear policy of international solidarity is applied to correct the underdevelopment of the countries of the global South, which leads their inhabitants to migrate. (Daniel Albarracín, CIREM Foundation)