The new Law on Foreign Persons: a difficult but necessary beginning

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On 1 February 2000, the new "Law on the Rights and Freedoms of Foreigners in Spain and their Social Integration", better known as the Law on Foreign Persons, came into force. The one-off process that will legalise the situation of thousands of immigrants without proper documentation began on 21 March. Meanwhile, the People's Party, which unexpectedly voted against the law, is already preparing a new reform after obtaining an absolute majority in the March general elections.

Amid an unexpected controversy, the new "Law on the Rights and Freedoms of Foreigners in Spain and their Social Integration" (Ley sobre derechos y libertades de los extranjeros en España y su integración social), better known as the Law on Foreign Persons (Ley de Extranjería), was passed in December 1999, but its future is far from certain. It seeks to put an end to 15 years of restrictive policies and police action on immigration from outside the EU, and to introduce a more integrative policy that provides immigrants with rights – and not only obligations – and goes some way towards solving the problem of illegal immigration.

The bill seemed to obtain a wide consensus. It had been a basic point of the demands of the associations of immigrants and solidarity groups, trade unions and left-wing political parties, who in the past few years had called for radical changes to the law of 1985 promulgated by the Socialist Party (Partido Socialista Obrero Español, PSOE). However, the reform of this law also met with increasing support among employers, which also wanted a less restrictive and – in certain aspects more integrative – immigration policy to respond to an increasing demand for immigrant labour and to avoid the social conflicts that may arise from this situation. The initiative of the United Left party (Izquierda Unida, IU) to reform the law thus met with the support of the right-wing Catalan nationalist party (Convergència i Unió, CiU) and a working party on the Foreign Persons Law was set up in parliament, in which all the parliamentary groups participated. After 18 months of work, a new bill was drawn up by consensus and it was agreed to put it to parliament through the emergency procedure before the general elections of 12 March 2000 (ES9911262F).

However, at the last moment the People's Party (Partido Popular, PP), which at the time formed a minority government, and which had participated with the other parliamentary groups in drawing up the law, changed its voting intentions unexpectedly. When it was left in a minority in the parliamentary vote which adopted the new law, it announced its intention to reform the law if it won the general elections. This sudden change of opinion was due to pressure from the Ministries of the Interior, Foreign Affairs and the Economy, which claimed that the law was incompatible with the immigration policy of the European Union and that it would have excessive social repercussions. In this interim situation, the coming into force of the new law on 1 February 2000 was marked by a lack of information and administrative chaos, which caused long queues of immigrants, discontent, and in some cases allegedly heavy-handed action by the police. It seemed to many commentators no coincidence that in this atmosphere of political dispute, in which some political leaders and media claimed that there would be "avalanches" of immigrants attracted by the "benevolence" of the new law, the most violent racist incidents in the recent history of Spain took place in El Ejido, a small town in Andalucia (ES0004184F).

A step in the right direction

The new Foreign Persons Law seeks to deal with two basic facts. The first is that many non-EU immigrants want to stay in Spain for a long time, if not permanently. The number of immigrants is still relatively small, but they are no longer mainly immigrants "passing through" toward other European countries. There was therefore an urgent need to establish the rights and freedoms of people – and their families – who reside and work in Spain on a regular and permanent basis but do not have Spanish nationality. The new law gives resident immigrants practically the same rights and freedoms as Spanish citizens, with the exception of the right to vote (which they can only do in municipal elections). The law also establishes the right to unite families, affecting spouses, under-age offspring, dependent parents and any other relatives for humanitarian reasons.

On the second fact it was more difficult to reach a minimum consensus, and this is the point that has generated the greatest controversy. In Spain, a large number of immigrants do not have work permits (known as "workers without papers" or "illegal workers"). This number is calculated by some sources as 80,000 people, though others claim that it is two or three times this figure. It cannot be ignored that many immigrants are willing to work in Spain illegally. Many companies that want to hire immigrants can only do so illegally, and some companies take advantage of this situation to employ workers with no rights and with the permanent threat of repatriation. Under the law of 1985, there were no options: illegal immigrants were either repatriated or their existence was simply ignored.

The new law does not alter the restrictive policy as regards immigration flows: as previously, the quota of non-EU foreigners with work permits will be approved annually by the government, depending on the foreseeable need for labour. However, it does modify the previous situation substantially: first, illegal immigrants can no longer be punished with repatriation; second, immigrants can automatically legalise their situation if they can prove that they have resided in Spain for two years and have a means of subsistence; third, the new law gives illegal immigrants a large number of political and social rights (the right to assemble, to demonstrate, to associate, to join trade unions and to strike, and the right to education, healthcare, services and basic social benefits). In some cases, the rights are extended if the illegal immigrants are registered (for example, non-registered immigrants are entitled to emergency healthcare, but registered residents are entitled to healthcare under the same conditions as Spanish citizens; children and pregnant women have full rights to healthcare whatever their situation).

The law also establishes a process of extraordinary legalisation for all immigrants who can prove that they were in Spain before 1 June 1999 and who have applied for a work or residence permit in the past three years. The deadline for counting these three years was 31 March 2000, because time was given for them to apply for the permits after the law came into force. The period for processing this one-off extraordinary legalisation procedure is from 21 March to 31 July 2000.

What the law does not change is that illegal entrance into Spain will continue to be a cause for repatriation, although slightly more legal guarantees are granted to immigrants in the process of entering and leaving Spain. At least it eradicates a sad practice: that of the Internment Centres for Foreigners (Centros de Internamiento de Extranjeros), jails for immigrants who entered Spain secretly without papers or without a means of living.

Commentary

The March elections gave the People's Party an absolute majority, but meanwhile the law and its regulations have come into force and the extraordinary process that will legalise the situation of thousands of immigrants "without papers" has begun. It will be impossible, or at least difficult, to reverse this situation. The associations of immigrants, solidarity groups and trade unions are making an enormous effort to provide information on the law and to facilitate the legalisation process by demanding that the government provide the necessary human and material resources. It seems that the People's Party, which initially promised an immediate reform of the law, has now opted for a slower reform process that will receive greater support from the other parliamentary groups. The time may have come to deal with immigration policy with the same rigour as that applied to major questions of state. Events such as those of El Ejido show that there is not much time in which to do this. (María Caprile, CIREM Foundation)

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