Spain

SPAIN

General information

Spain, traditionally a country of emigration, has become a country of immigration over the past 15 years. Since 1998, it has been one of the countries in Europe which has received the highest number of migrants. Owing to a period of unprecedented economic growth (due in large part to these very migrants), Spain has ceased to be a country of emigration and transit and has become a receiving country.

As a result of its geographical situation, which makes it the main southern entry point to Europe, Spain has become one of the countries most involved in European policies designed to control, dissuade and prevent the arrival of migrants, mainly coming from Africa. These policies are based upon the closure and the drawing back of external borders, and pay little heed to the causes of this migration, nor indeed to the loss of human life provoked by these repressive policies [1].

The main aim of Spanish migration policy is to “fight clandestine immigration” by containing African migrants, mainly those from Sub-Saharan Africa. It consists of legal (toughening of immigration law), diplomatic (Plan Africa) and military means (FRONTEX/SIVE/SIRGA…) to prevent potential immigrants from leaving their countries, to prevent them from reaching Spanish soil if they do manage to leave, and to quickly return them to countries of transit or origin if they do arrive, with little concern for the respect of their fundamental rights on the other side of the border.

Currently, an estimated one million irregular migrants are living in Spain, suffering the non-respect of their rights, social marginalisation and makeshift accommodation, constant fear of the police and of expulsion, and exploitation. Indeed, many of them work clandestinely, in often shocking conditions which native workers would not accept.

Legislation on immigration

Spain has signed the main international conventions on the protection of migrant rights, with the exception of the UN Convention on the Rights of All Migrant Workers and Members of Their Families. At the national level, it is the « Ley de Extranjería » (LOEX), organic law 4/2000 of January 11th on the Rights and Freedoms of Foreigners in Spain and on Their Social Integration [modified by law 8/2000 of December 22nd, law 11/2003 of September 29th and law 14/2003 of November 20th], which regulates the entry and stay of foreigners in Spain. On June 26th 2009, the LOEX reform project was passed in the Council of Ministers [2] ; its approval by Congress and the Senate are necessary for the legislative reform to be implemented.

This bill proposes primarily : the prolongation of the maximum detention period from 40 to 60 days with the possibility of reducing this period in the instance of an asylum or habeas corpus claim ; the increase of punishable behaviours and of the quantity of sanctions applicable in the fight against clandestine immigration and those who promote it [3] , including in the relevant case of simple humanitarian cooperation ; the rise of preventive measures [4] , and the “heightened efficiency of repatriation operations” ; the introduction of a period of “voluntary return” (between 7 and 30 days) in expulsion orders ; the lengthening of the ban on return from 3 to 5 years ; the restriction of family reunification [5] ; the inclusion of unaccompanied minors in repatriation procedures ; the granting of residence permits to female migrants who are victims of gender violence ; the recognition of the right of assembly, of striking, of association, of unionisation and of protest for irregular migrants, as well as free legal assistance, the right to education for all migrants aged under 18 and the establishment of an integration fund for migrants of a total of 200 million euros.

It should be noted also that Spain has for a long time assumed a ‘utilitarian’ position in questions of migration, with migrants considered first and foremost as bodies useful to the economic interests of the State, translating into a policy which renders the delivery of a residence permit dependent upon possession of a work contract [6] .
Despite this, irregular migrants can access free healthcare, education and legal assistance and may in certain exceptional cases receive a one-year, renewable residence permit as a result of arraigo social [7] , ‘humanitarian reasons’ or ‘exceptional circumstances’.

Asylum

The normative basis for asylum in Spain is twofold : at the international level, the 1951 Geneva Convention (which came into force in 1954) and the 1967 New York Protocol which complements it.

At the national level, Asylum Law 5/1984 of March 26th (BOE N°74), partially modified by Law 9/1994 of May 19th (BOE N°122) and modified by the new proposed reform of the Law Regulating the Right to Asylum and Subsidiary Protection, passed by Congress on July 25th 2009 [8] (+ Implementing Regulation on the Asylum Law, R.D. 203/1995, of February 10th).

In Spain, the right to asylum is very difficult to access [9]. On the one hand, very few potential refugees [10] manage to enter Spanish territory, as shown by the low number of asylum claims (4,517 in 2008 compared to 35,200 in France), while on the other hand, it is very difficult to access effective protection (151 people were granted refugee status in 2008, a success rate of 2.91%, and 126 were granted subsidiary protection, a status offering a lower degree of protection).
In fact, despite the positive evaluation of the 2007 modification of the Asylum Law by the Equality Law, which explicitly considers persecution due to gender, identity and sexual orientation as criteria providing access to refugee status in Spain, many organisations are concerned that the right to asylum in Spain is increasingly threatened [11].

Despite the recognition of new rights [12] , these organisations denounce the fact that the reform bill “brings together the most restrictive part of European directives and links asylum to migration control and to the closing of borders” [13]. In fact, although the text of the reform bill reinforces the protection of women, children, disabled and trans/homosexual migrants, it remains deplorable that citizens of the European Union are forbidden from making an asylum claim, that more reasons for exclusion from the right to asylum have emerged as a result of legally unclear policies, that the granting of refugee status is decided by a single ambassador in each country, and that the amount of time a migrant may be detained at the border has been extended.

Detention and confinment

Centres for the Internment of Foreigners (CIE) were created by the first « Ley de Extranjería » in 1985 [14] . In Spain, there are 9 CIEs, located in the provinces of Barcelona (Zona Franca), Málaga (Capuchinos), Madrid (Aluche), Valencia (Zapadores), Murcia (Sangonera la Verde), Las Palmas (El Matorral in Fuerteventura, Barranco Seco in Gran Canaria and the airport facilities at Lanzarote), Tenerife (Hoya Fría), and Algeciras (La Piñera). These are closed centres run by the Interior Ministry. There are also two CETIs (Temporary Holding Centres for Immigrants) in Melilla and Ceuta (Spanish enclaves on the Mediterranean coast of Morocco), which are run by the Labour Ministry and which are semi-open. Finally, there are several informal detention centres in the Strait of Gibraltar [15] and in the Canary Islands [16]

The CIEs are intended for non-EU irregular migrants who have been served notice to leave Spanish territory. If the length of this notice exceeds 72 hours (retorno, devolución), the immigrant may not be held in detention at the Police Station and must appear before a judge who will decide, if necessary, on his preventive internment in a CIE for the period strictly necessary in order to execute the expulsion, without ever exceeding forty days (NB. The reform bill of the Ley de Extranjería extends the length of detention to sixty days). If, beyond this period, the expulsion has not been carried out (due to the impossibility of establishing the identity of the person concerned or to a lack of bilateral agreements with the country of origin), the immigrant must be released and may not be held in detention for the same reasons again.

The preventive detention of individuals who have committed no crime, contrary to the rights to freedom and security guaranteed by the Universal Declaration of Human Rights (Art. 3) and by the Spanish Constitution (Art. 17-1), has been declared constitutional [17] in the case of the detention of irregular migrants waiting to be served notice to leave the territory.

However, the constitutionality of this measure is subject to a number of basic guarantees, which are not respected :

1. The places in which immigrants are detained must not be run as prisons. However, foreigners held inside CIEs report worse treatment even than that of a first degree prison, as illustrated in numerous reports (cf. LIBE Committee of the European Parliament [18], the Public Advocate, NGOs). Indeed, in the majority of the CIEs, which are often ‘recycled’ former prisons, the conditions in which migrants are held are deplorable. Moreover, although the Organic Law guarantees the possibility to contact family members and legal representatives as specific rights of the detainee, these possibilities are in fact extremely limited. On top of this, on the pretext of avoiding rebellion, resistance and escape, the information provided to the detainee on his administrative and legal situation is very limited, and indeed often perfunctory.

2. Preventive detention must be an exceptional measure, resulting from a reasoned judicial resolution which respects the fundamental human rights of the defence.
The placing of a migrant in detention is carried out under judicial control by the examining magistrate, who does not have the authority to enforce compliance with the expulsion order, and this produces numerous malfunctions. Besides, although the law states that the migrant “will be detained only for the period strictly necessary in order to compile his case”, the period of detention currently of 40 days (and soon of 60) is applied automatically, as if it were a punitive measure, even in cases where the impossibility of carrying out the expulsion order is obvious.

Concerning legal assistance, it is notable that lawyers (often court-appointed) do not exercise their function of defence, nor enter in contact with their clients after the first few days of detention to inform them of their situation or to study all the possibilities of defence.
Besides, although article 60-2 of the Organic Law 4/2000 states that : “The places in which immigrants are detained will have no penitentiary element, and will contain social, legal, cultural and sanitary services. The detainees will be deprived only of the freedom of movement”, it is clear that access to health services is in practice extremely limited.

Finally, human rights organisations have experienced great difficulty in accessing the CIEs to assess in situ the reality of conditions in the centres. Although in the majority of ‘criminal’ prisons, access by NGOs, international organisations and the media is authorised, it is effectively forbidden in CIEs, despite article 6.2 of the Ministerial Order of February 22nd 1999 on the norms of service and the internal regime of the CIEs which stipulates that : “The Administration will facilitate especially the collaboration of institutions and associations working to assist foreigners, which must in all cases respect the norms of the internal regime of the Centre”. It must be noted, however, that a limited right of access is granted to certain associations, such as the Spanish Commission for Assistance to Refugees (CEAR), which is authorised to enter the CIEs on certain conditions in order to provide legal assistance to asylum seekers.

As for the CETIs, which are theoretically the Temporary Holding Centres for Immigrants in Melilla (with 480 spaces and 100 in tents) and Ceuta (450 spaces) run by the Ministry for Labour and Immigration, these are managed by Provincial Delegations of the Institute of Migration and Social Services (IMSERSO). Although they were initially conceived to accommodate migrants arriving in these 2 autonomous towns during the period required to process their cases and for a maximum period of six months (renewable by six months), in practice it has been noted that the CETI have been transformed into closed centres, stripped of the internal regime of the CIEs which adhere to a maximum length of detention. Thus, we note that detention in a CETI may effectively last for years [19].

The situation of minors

Minors in Spain are covered by a triple legal framework : the international (the 1989 Convention on the Rights of the Child, the 1997 European Council Resolution on unaccompanied minors who are nationals of third countries), the national (the Law on the Legal Protection of the Minor 1/1996) and the regional (according to articles 39 and 53.3 of the 1978 Spanish Constitution, responsibility for the protection of minors is delegated to the autonomous communities. In fact, each of the 17 autonomous communities has developed its own standard regarding this matter, of which that of Andalucia is currently the most comprehensive). In Spain, any minor not accompanied by an adult providing for his or her material and emotional needs is considered a lone minor (or unaccompanied, MIE), who must be declared in danger and protected by the relevant regional services. The administration in charge of the child’s protection must regularise his or her legal status in a maximum period of 9 months following entry onto Spanish territory. Minors are (almost) never placed in detention centres. Although the Law created this possibility, Spain has not – for the moment- detained minors while awaiting the execution of their expulsion orders. However, cases of minors treated and detained as majors have been reported, mainly in the Canary Islands [20].

Lone minors – foreign or otherwise – who require protection are placed in open reception centres, while minors in breach of the law are placed in disciplinary centres (open, semi-open or closed).

However, a minor may be deported or repatriated from Spanish territory, either because he or she is considered a potential irregular migrant (status as a minor contested following wrist bone test), or in order to benefit from ‘family reunification’ in his or her ‘best interest’, after appearing at a hearing [21]. The current reform bill of the Ley de Extranjeria restricts the rights of minors in a worrying fashion by providing for the possibility to return the minor to the relevant protection services of his or her country of origin (which will be financed by Spain if they do not already exist) on the one hand, and on the other, by stipulating that the granting of a residence permit will not rule out the possibility of repatriation in the future, as long as this measure is in the ‘best interest’ of the minor, and that the minor has been heard in the process of repatriation.

Finally, it remains to be emphasised that until a short time ago, a certain conflict of interest arose from the double role granted to the Administration, which was simultaneously charged with the protection of minors and with their potential repatriation, as in addition to the absence of a tutelage judge, minors do not benefit from any independent legal representation. However, in a recent decision [22], the Spanish Constitutional Tribunal (TC) granted a migrant minor the possibility to legally contest the expulsion order with which he had been served.

Externalisation and border control

Following the militarisation of the Strait of Gibraltar (SIVE, three-dimensional SIRGA), and to the closing of entry points in the north of Morocco (the enclaves of Ceuta and Melilla), more and more migrants are now choosing the ports of Sub-Saharan Africa (Senegal, Mauritania, Gambia…) as points of departure for the journey to Europe and, the most direct route, the Canary Islands.

In 2006, following the arrival in small boats of around 32,000 Sub-Saharan nationals in the Canary Islands, Spain displayed a sudden interest in Africa, to which it had until then paid little attention [23]. The country began to implement unprecedented security (European missions, FRONTEX [24] ) and diplomatic measures (the creation of embassies in the principal sending countries – Mali, Senegal, Gambia, Niger…).

These measures are contained in ‘Plan Africa’ [25], admittedly presented as a plan of solidarity for African development, but which is in reality intended to promote Spanish economic and commercial interests on the African continent, as well as its security and migration control objectives.

In 2008, the APDHA [26] counted at least 581 people who had died on the sea route (Atlantic and Mediterranean) leading to Spain, with the actual figure estimated at around 2900 people.

Readmission agreements

Since October 6th 2006, ‘second-generation’ agreements (entitled “Cooperative agreements on immigration”), combining the promotion of circular labour migration, the strengthening of border control and the readmission of irregular migrants (originating from or transiting these territories), have begun to replace the former “Readmission agreements” or “Immigration agreements” (primarily those from the end of Aznar’s legislation in 2003).

Agreements of this type have been signed particularly with Algeria, Morocco, Mauritania, Senegal, Guinea-Bissau, Equatorial Guinea, Mali, Cape Verde, Ghana and Gambia [27].

Brigitte Espuche – 2009

Translation Eleanor Staniforth – 2011