Constitutional Court recognises collective labour rights of illegal migrant workers

In December 2007, the Spanish Constitutional Court ruled as unconstitutional the article of the Law on foreign persons, which prevents illegal migrant workers from exercising their right to unionisation and strike action. The court thus confirmed the unconstitutional nature of the law’s provisions, which were the result of a reform in 2000. The trade unions and civil rights associations welcomed the ruling, which comes at a time of rising unemployment among migrant workers.

The ruling of the Constitutional Court (Tribunal Constitucional de España) of 19 December 2007 resolved the appeal lodged by the regional government of Andalusia in southern Spain against the reform of the Law on foreign persons (Ley de Extranjería). The reform had been initiated by the conservative People’s Party (Partido Popular, PP) after coming into power in March 2000 and was approved by parliament in December of the same year. The court’s most recent ruling follows a previous one in November 2007, which recognised the right of non-resident migrant workers to assemble, associate and join trade unions.

In all, nine appeals of unconstitutionality were presented against this reform of the Law on foreign persons (ES0008104N); virtually all of the appeals alleged that articles limiting rights, such as the possibility of uniting families and free legal aid for illegal migrant workers, were unconstitutional. Some of these appeals concerning family reunion and sanction procedures applied to migrants have not yet been solved, so it is too early to conclude the debate on the constitutionality of the law.

Constitutional Court ruling

The reform of the Law on foreign persons involved a clear restriction of many of the universal rights recognised in Spain’s Constitution and international treaties. Collective labour rights, such as the right to associate and strike, were denied to migrant workers without an authorisation to stay in the country or to those without a residence permit. The court’s most recent ruling stipulates that nationality or the lack of a work permit can in no way invalidate the collective labour rights of migrant workers. It made its ruling on the basis that these rights arise from the fact of working and the universal nature of work; hence, collective labour rights can be enjoyed by all persons at work regardless of their nationality.

To determine the unconstitutionality of the law’s provisions which concern workers’ rights to assemble, associate and join trade unions, the court established that, although the government can introduce additional conditions to the exercising of these rights by foreign people, these should never prevent migrants from enjoying their full rights at work. On the other hand, the Spanish Attorney General argued that there is no reason for recognising the right to unionise for those people who are not allowed to work in Spain.

Moreover, the law’s references to nationality or residence in relation to the right of access to non-compulsory education and free legal aid were also found to be unconstitutional by the Constitutional Court. However, it accepted the current wording of the articles on the priority nature of deportation processes and immediate deportation orders.

Nevertheless, it should be noted that in Spanish legislation, a sentence establishing the unconstitutionality of a law does not necessarily mean its annulment or extinction. Instead, the Constitutional Court requested the parliament to draw up new provisions which guarantee the right of illegal migrant workers to unionise.

Commentary

Trade unions in Spain have welcomed the court’s ruling, as they have always claimed that illegal migrant workers should be granted full trade union rights. Trade unions, together with civil rights associations, had campaigned against the reform of the Law on foreign people since it was enacted in 2000.

According to a report drawn up by the Trade Union Confederation of Workers’ Commissions (Confederación Sindical de Comisiones Obreras, CC.OO), some 1,105,000 illegal foreign persons were working in Spain in the first half of 2007. The number of non-EU migrant workers entering Spain has continued to rise in the past year, despite some signs of a slow-down in the economic sectors in which migrant employment is concentrated – notably, in the construction and services sectors.

The CC.OO report underlines that the integration of migrant workers in the Spanish labour market is characterised by a lack of recognition of their legal rights and guarantees. The number of work permits applied for in the first half of 2007 was equivalent to 32.4% of the total number of persons joining the active population of non-EU migrants in the same period. This means that most migrant workers in the labour market are vulnerable as they do not possess a residence permit. The ruling of the Constitutional Court is important for two reasons: firstly, it recognises the basic collective rights of migrant workers and, secondly, it comes at a time of increasing unemployment among this group of workers – amounting to 24.5% in 2007.

Juan Arasanz Díaz, QUIT, University Autònoma of Barcelona (UAB)

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