PRACTICAL MEASURES TO REDUCE IRREGULAR IMMIGRATION

Transcription

1 PRACTICAL MEASURES TO REDUCE IRREGULAR IMMIGRATION SPAIN December 2011 MINISTERIO DE ASUNTOS EXTERIORES Y DE COOPERACIÓN MINISTERIO DE JUSTICIA MINISTERIO DEL INTERIOR MINISTERIO DE EMPLEO Y SEGURIDAD SOCIAL N.I.P.O.:

2 The (EMN) is an initiative of the European Commission. The EMN has been established via Council Decision 2008/381/EC and is financially supported by the European Union. Its objective is to meet the information needs of Community institutions and of Member States authorities and institutions by providing up-to-date, objective, reliable and comparable information on migration and asylum, with a view to supporting policymaking in the European Union in these areas. The EMN also serves to provide the general public with such information. To that end, the EMN has a network of National Contact Points (NCPs). In Spain, the NCP is composed of experts from four ministries (Ministry of Employment and Social Security, Ministry of the Interior, Ministry of Foreign Affairs and Cooperation and Ministry of Justice) and is coordinated by the Permanent Observatory for Immigration, a collegial body attached to the Ministry of Employment and Social Security. The NCP also collaborates with independent experts for the elaboration of EMN studies and reports. Contact Permanent Observatory for Immigration (Co-ordinator of the National Contact Point for the ) José Abascal, Madrid opi@meyss.es This document is available from:

3 Practical Measures to Reduce Irregular Immigration Spain This national report provides a general overview of the response of Spanish public institutions to the challenge of irregular immigration. To this end, this document provides a detailed overview of the legislative and policy framework of the fight against irregular immigration in its various phases. This Report has been developed by the Spanish National Contact Point of the and the researchers Carmen González Enríquez and María Miyar. December 2011

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5 INDEX Executive summary Introduction: objectives, methodology and definitions Objectives Definitions Methodology Legal and political framework related to irregular immigration in Spain National policy and legislation regarding irregular immigration Measures against irregular immigration Legislative framework Recent amendments Other policies and regulations affecting the status of irregular immigrants Institutional framework State institutions Other relevant stakeholders Interaction between state institutions Practical measures to reducing irregular immigration Pre-entry measures Preventing the entry of false tourists: visa requirements Strengthening the surveillance of the maritime border Network of Liaison Officers and Attachés Measures in the field of regular migration Entry measures Measures during stay Immigrants found to be illegally present Employment Inspection

6 Marriages of convenience Dismantled networks Pathways out of irregularity Transnational cooperation Cooperation Agreements Other forms of cooperation with third countries Cooperation with the European Union and international organisations Impact of european legislation and policy Estimates and statistics on the irregular immigration Eurostat Statistics related to irregular immigration Other statistics and estimates Conclusions Annex: Bibliography on irregular immigration in Spain

7 Executive summary In recent years Spain has made great efforts to reduce the volume of irregular immigrants arriving or residing in the country, putting measures in place that encompass the entire migratory process, from pre-entry, entry, stay and regularising their status. In pre-entry and entry, it has achieved a reduction in the number of immigrants who arrive posing as tourists, through the expansion of the number of countries from which visas are required, a measure that has been very effective in reducing the number of entries of false tourists from some Latin American countries, and through increased entry requirements for tourists and visitors. At the border, Spain has increased its police presence, and is the only European country that has implemented the Advanced Passenger Information System (API) in both ports and airports. Furthermore, the signing of agreements with the countries of West Africa and the Maghreb has enabled the presence of National Police and the Civil Guard personnel and resources within their territory, for joint patrols to curb the irregular exit of ships and for the readmission of immigrants coming from the coasts of these countries. These measures, together with improved coasts monitoring through SIVE and the SEAHORSE Project, have reduced arrivals in the Canary Islands from 31,678 in 2006 to 196 in The reduction of this form of irregular immigration is a major achievement in terms of its impact on combating human trafficking and labour exploitation, avoiding the risk involved. Within the country, Spain has strengthened workplace inspections to detect irregular employment, has increased penalties for employers of immigrants without residence or work permits and has increased law enforcement personnel presence for combating irregular immigration; this has enabled greater control at borders as well as the dismantling 7

8 of human trafficking and smuggling networks. It has focused its efforts on the detection and expulsion of irregular immigrants with criminal records, while protecting the rights of those most vulnerable, including victims of human trafficking or gender-based violence or irregularly-employed workers. In 2010, criminal legislation was amended to include human trafficking and smuggling of immigrants (illegal immigration) as fully-differentiated crimes, as the latter had been penalized since In addition, in 2009 immigration legislation was amended with the introduction of marriages of convenience as a punishable offence. In 2010, access to residence permits for exceptional circumstances was provided for victims of gender-based violence and human trafficking. Spanish law provides pathways out of irregularity on a case-by-case basis through the temporary residence permit for exceptional circumstances. It is granted for the exceptional circumstances of certain cases that, according to the Aliens Act, are: having labour, social or family roots, international protection, humanitarian grounds, collaboration with public authorities, reasons of national security or public interest, foreign women who are victims of gender-based violence, collaboration against organised crime networks and third country nationals victims of human trafficking, the requirements established therein. It also amended the Aliens Regulation to avoid an increase in overstay, facilitating permit renewals for unemployed immigrants based on time worked and family financial resources. This set of measures has achieved a remarkable reduction in the volume and percentage of irregular immigrants. However, the crisis has played a dual role in this development, because although the flow of immigrants entering has been reduced and the exit flow has increased, it has probably also led to an increase in overstayers due to high immigrant unemployment rates, despite the regulatory efforts undertaken to facilitate permit renewals for unemployed immigrants. Spain s fight against irregular migration has been characterized by the application of the Global Approach to Migration adopted by the European Council in December 2005 and promoted by the Spanish government, which suggests action on various fronts: increasing operational cooperation between EU Member States and strengthening the coherence of European migration policies, encouraging partnership with third countries of origin or transit of migrants to Europe, providing frameworks for legal migration, fighting irregular immigration, improving the integration of immigrants and strengthening the impact of migration on development in countries of origin 1. In this regard, a substantial element of Spanish policy has been the effort made to secure the cooperation of countries of 1 Conclusions of the European Council of 15/16 December See also the Communication of the Commission to the Council and to the European Parliament, COM(2006)

9 origin of immigrants, as well as the investments made in joint operations on the African coast, in the implementation of the SIVE and API system. In this effort, European funding has played a major role. Continued progress requires further EU support in both the negotiation of joint agreements with the countries of origin of irregular migration, and in the co-financing of all the efforts made to combat it. Evidence of the existence of stocks of migrants in West African countries with intentions of migrating irregularly highlights the need for continued efforts to control the southern border of Europe. 1 Introduction: objectives, methodology and definitions 1.1. Objectives This national report provides a general overview of the response of Spanish public institutions to the challenge of irregular immigration. To this end, this document provides a detailed overview of the legislative and policy framework of the fight against irregular immigration in its various phases. To do this, a detailed analysis has been performed of the policy and legislative changes that have affected irregular immigration over the past five years, as well as cooperation with third countries and the influence of European policy and legislation on national policy and its consequences at the operational level. It also describes and analyses the different types of measures implemented to prevent, detect and reduce irregular immigration before, during and after entry. It analyses the effectiveness of each type of action taken and its contribution to the reduction of irregular immigration in Spain Definitions The following definitions have been taken from the Glossary on Migration and Asylum 2 of the, and otherwise, from national legislation. In order to facilitate the interpretation of some terms in the national context, information about them provided by the Spanish legal system has been added. Border Crossing Point: any crossing point authorised by the competent authorities for crossing external borders. 2 Available at: 9

10 Detention: restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: a) there is a risk of absconding; or b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. Under Spanish law, the precautionary measure of preventive detention must be authorized by a court. This detention shall continue for as long as required for the purposes of the investigation, with a maximum duration of 60 days. Entry Ban: an administrative or judicial decision or act preventing entry into and stay in the territory of the Member States for a specified period, accompanying a Return Decision. In the Spanish legal system expulsion shall involve a prohibition of entry into Spanish territory. The duration of the ban shall be determined in consideration of the circumstances surrounding each case and its validity shall not exceed 5 years (except in the event that the foreigner poses a serious threat to public order, national security or public health, in which case a prohibition on entry for a period of 10 years may be imposed). EU External Border: a Member States land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders. Illegal Entry: the entry of a third-country national into an EU Member State who does not satisfy Article 5 of Schengen Border Code. Illegal Stay: the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 10

11 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State. Immigration Liaison Officer: a representative of one of the Member States, posted abroad by the immigration service or other competent authorities in order to establish and maintain contacts with the authorities of the host country with a view to contributing to the prevention and combating of irregular immigration, the return of irregular migrants and the management of legal migration. Irregular Migrant: a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State. Marriage of Convenience: a marriage contracted for the sole purpose of enabling the person concerned to enter or reside in a Member State. Municipal Population Register: administrative register where the municipality neighbours are registered. Its data constitutes proof of residence in the municipality and usual domicile in the same. Overstayer: a person who has legally entered but then stayed in an EU Member State beyond the allowed duration of their permitted stay without needing a visa (typically 90 days or six months), or of their visa and/or residence permit. Re-admission Agreement: an agreement between the EU and/or a Member State with a third country, on the basis of reciprocity, establishing rapid and effective procedures for the identification and safe and orderly return of persons who do not, or no longer, fulfil the conditions for entry to, presence in, or residence on the territories of the third country or one of the Member States of the European Union, and to facilitate the transit of such persons in a spirit of cooperation. As of October 2011, Re-admission Agreements were in force with Albania, Bosnia & Herzegovina, FYROM, Georgia, Hong Kong, Macao, Moldova, Montenegro, Pakistan, Russia, Serbia, Sri Lanka and Ukraine and were under negotiation for Turkey. Refusal of Entry: refusal of entry of a third-country national at the external EU border because they do not fulfil all the entry conditions laid down in Article 5(1) of Schengen Borders Code 3 and do not belong to the categories of persons referred to in Article 5(4) of that Regulation. 3 Regulation (EC) No 562/

12 Regularisation: state procedure by which irregularly staying third-country nationals are awarded a legal status. In the Spanish legal system, ordinary regularisations are made case by case. The Aliens Regulation, in its Title V. Temporary residence for exceptional circumstances, provides that temporary residence permits may be granted to foreigners in Spain in situations of special bonds (labour, social or family roots), international protection, humanitarian reasons, collaboration with public authorities, reasons of national security or public interest, foreign women victims of gender-based violence, cooperation against organised crime networks and foreign victims of human trafficking. The regularisation of irregular foreigners is allowed under these situations. Removal: the enforcement of the obligation to return, namely the physical transportation out of the country. Removal Order: an administrative or judicial decision or act ordering a Removal. Under Spanish law, the removal order is issued by an administrative body which shall notify such decision to the interested party, with indication of the appeals that can be brought against it, the body to which they would be submitted and the deadline for their submission Methodology This report has been prepared by the National Contact Point of the European Migration Network and the researchers Carmen González Enríquez (Professor of Political Science at UNED and Principal Investigator at the Real Instituto Elcano) and María Miyar (Assistant Professor of Sociology, UNED). Four types of sources have been used for the preparation of this report: 1) the statistics provided by Eurostat and various Spanish Administrations, 2) interviews with officials from various national agencies with competence in the matter, 3) a review of previous studies on immigration in Spain and, 4) consultation of national and European legislation regarding irregular immigration. In terms of statistical sources, apart from Eurostat, indicators have been used from reports produced by the Public Administration, such as the Overview of the fight against illegal immigration from the Ministry of the Interior, reports on Employment and Social Security Inspectorate Activities from the Ministry of Employment and Social 12

13 Security 4, and the Annual Report of the Prosecutor General s Office. In addition, data has been used from the Continuous Municipal Register (National Institute of Statistics) and the statistics of Foreigners holding a valid registration certificate or residence permit (Ministry of Employment and Social Security). In addition, previous studies have been consulted on irregular immigration, such as the report of the CLANDESTINO European project. On the other hand, we have benefited from the collaboration of various Public Administration authorities, which have facilitated interviews, in person or by telephone. The units interviewed in the Ministry of the Interior are the General Directorate for International Relations and Immigration, the General Sub-directorate for Planning and Managing Infrastructure and Security Means (both from the State Secretariat for Security), the Headquarters of Air Borders, the Centre for Risk Analysis and Intelligence of the Unit Against Immigration Networks and Document Counterfeiting (all of the National Police Force) and the Civil Guard s National Surveillance Centre of coasts and borders. Interviews have also been conducted or consultations have been made with the General Directorate of Registries and Notaries, the General Sub-directorate of Nationality and Civil Status (Ministry of Justice) and the General Prosecutor s Office. Information has also been obtained from the Permanent Observatory for Immigration and the recently suppressed General Directorate for Immigration and the General Directorate for the Integration of Immigrants 5, from the Ministry of Employment and Social Security. The Ministry of Foreign Affairs and Co-operation has collaborated through the General Directorate for Spanish citizens abroad and Consular Affairs and Immigration 6. 4 Former Ministry of Labour and Immigration (Royal Decree 1823/2011, of 21 st December, restructuring Ministerial Departments). 5 Royal Decree 1887/2011, of 30 th December, establishing the basic organic structure of the Ministerial Departments. This same Royal Decree creates the General Directorate for Migrations, which will assume the competences of the mentioned General Directorates. 6 Former General Directorate for Consular Affairs and Immigration (Royal Decree 2/2012, of 5 January, amending Royal Decree 1887/2011, of 30 th December, establishing the basic organic structure of the Ministerial Departments). 13

14 2 Legal and political framework related to irregular immigration in Spain 2.1. National policy and legislation regarding irregular immigration Measures against irregular immigration Since 2001, after the end of the first major extraordinary regularisation, the fight against the irregular arrival of immigrants has been one of the pillars of Spanish immigration policy and, regarding arrivals by sea, has received special attention from the media and public opinion. Significant progress has been made in this area over the decade. The elements shaping this policy have been: In connection with pre-entry controls: the imposition of visas on nationals of countries where there is statistical evidence of a high level of arrivals of irregular immigrants. In connection with entry: a substantial increase in the efforts devoted to border control, both in terms of people assigned to this work and in terms of the technical means used. These include the implementation of the Border Surveillance and Control System 7 (SIVE, Spanish acronym) in the south of the Iberian Peninsula and in the Canary Islands, and the Advanced Passenger Information System (API) that provides authorities with information about passengers who are to arrive at Spanish ports or airports from outside the Schengen area. In connection with stay: a steady increase, although still insufficient, in the number of labour inspectors. Another important element of Spanish policy has been the opening of channels for labour migration, supplementing the measures to combat irregular immigration by allowing potential immigrants a route of entry into Spain. For this purpose, bilateral migration agreements have been signed, principally with the major countries of origin Legislative framework Irregular immigration is laid down in the Organic Law 4/2000, on the rights and freedoms of aliens in Spain and their social integration 8 (henceforth, the Aliens Act), 7 More information about SIVE can be found in section Organic Law 4/2000, of the rights and freedoms of aliens in Spain and their social integration, as amended by Organic Laws 8/2000 of 22 December, 11/2003 of 29 September, 14/2003 of 20 November and 2/

15 as an administrative offence that is punishable by a fine or removal and an entry-ban (Article 53). In turn, the law provides exceptional ordinary regularisation mechanisms on a case-by-case basis in circumstances assessed and comprehensively regulated therein 9. The Penal Code punishes those who directly or indirectly encourage, promote or facilitate the illegal immigration of people by helping immigrants reach Spain or another country of the European Union. The penalty is four to eight years in prison. This penalty is extended to six to eight years in prison when the perpetrators act with the aim to profit by charging for their transport services or by using violence, intimidation, deception or abuse of a position of superiority or the vulnerability of the victim, or endangering the life, health or safety of the individuals (Article 318 bis of the Penal Code). The Penal Code also punishes by two to five years in prison and a fine those who employ foreigners without a residence and work permit in conditions that suppress, disadvantage or restrict the rights recognized by law, collective agreement or individual contract, thus placing the immigrants in exploitative labour situations (Article of the Penal Code). Recently a new article has been added to the Penal Code, 177 bis, introducing human trafficking as a specific crime, punishable with minimum imprisonment of five to eight years. With it, Spain applies the United Nations Palermo Protocol and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. The contracting of irregular immigrants and the simulation of a working relationship with a foreigner are prosecuted under immigration and labour law and are punishable by fines of between 10,000 and 100,000 euros. In 2010, 5,821 sanctions were imposed for these reasons, for an amount of 46 million euros. In its attempt to tackle other channels of illegal entry or fraudulent regularisation, the latest reform of the Aliens Act (OL 2/2009) includes as serious offences, in Article 53, marriages of convenience aimed at facilitating the residence permit of a foreigner, the promotion of illegal entry by way of an invitation or consent to fraudulent municipal registration (in a home owned by the offender in which the foreigner does not actually reside). Serious offences are sanctioned with fines between 501 and 10,000 euros. The latter offence becomes very serious when it is done with the intention of earning a profit (Article 54), punishable by a fine between 10,001 and 100,000 euros. of 11 December. 9 Section 3.4 details the assumptions and requirements for regularisations on a case-by-case basis. 15

16 Recent amendments The Spanish regulations and policies regarding irregular immigration have changed over the last five years (since 2006) in several aspects: the maximum stay in a Detention Facility has been extended from 40 to 60 days; marriages of convenience, invitations for facilitating irregular immigration or the facilitation of fraudulent municipal registration have been classified as serious or very serious offences and the fines for employers who hire irregular immigrants have been increased; protection for immigrant victims of human trafficking and victims of gender-based violence have been improved; progress has been made in the signature of agreements on readmission and on police cooperation with the countries of origin in West Africa; maritime surveillance has been extended with the deployment of SIVE (Spanish acronym of the Border Surveillance and Control System) in new areas of the Mediterranean; the API (Advanced Passenger Information System) has been implemented at airports and ports, and progress has been made on European collaboration for forced return. These changes have been the result of the following contributing factors: The sharp influx of irregular migrants to the Canary Islands from the west coast of Africa, which peaked in 2006 (that year, according to Ministry of the Interior data, 31,678 irregular immigrants arrived to the islands). The existence in countries like Mauritania, Morocco and Senegal of stocks of sub- Saharan migrants in transit, awaiting to sail to Spain irregularly 10. The difficulty of completing all the necessary procedures for the identification of individuals and their removal within 40 days that the Aliens Act (before its most recent reform) provided as a maximum stay for irregular immigrants in Foreigner Detention Facilities (CIE, Spanish acronym). The transposition of EU directives (regarding Sanctions for employers 11 and Return 12 ). The economic crisis and its consequences on the employment of immigrants. Employment among immigrants has suffered more damage from the economic crisis 10 See, for example, the study on the sub-saharan population in Mauritania waiting for the opportunity to sail to the Canary Islands. Nouadhibou Municipal Immigration Office (2011). 11 Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals. 12 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. 16

17 than native employment for several reasons: because of their greater concentration in the construction sector, which was the most affected by the crisis; because their social network in Spain is less developed; and because of their being in the weakest segment and with the lowest cost of dismissal, hired with low seniority in business and on temporary contracts. As a result, the unemployment rate among third-country nationals has gone from 12.8% in the fourth quarter of 2007 to 35.3% in the third quarter of , with even higher levels in groups who worked in the construction sector, like Moroccan nationals (47% unemployed in 2010) 14. The deterioration of public opinion towards immigration, detected in polls showing an increasing rejection of immigration in recent years. In 2010, the last year in which the Centre for Sociological Research (CIS) surveyed attitudes to immigration, 79% of respondents considered that the number of immigrants in Spain was excessive or high, compared to only 17% who thought it acceptable. These values were 46% and 18%, respectively, in Over the course of the new century there has been a significant shift to more restrictive positions on immigration policy: If at the beginning of the decade of 2000, 39% felt that the immigration laws were correct or were too strict, this group was reduced to 17% in 2010, while in the past year three out of four respondents (75%) thought that the rules governing the arrival of the immigrants were rather tolerant or too tolerant (CIS, Study no. 2846) Other policies and regulations affecting the status of irregular immigrants With its approval in 2000, the Aliens Act established the rights of immigrants, whatever their documentary situation therefore including those who were illegally resident access to all public health services and basic social services in the same manner as Spanish nationals, with the sole condition that they register in their city of residence. Registration in the Municipal Register is the immigrant s right and obligation, regardless of their legal status. The reform of the Aliens Act passed in 2003, by consensus between the two main political parties, provided that the General Directorate of Police would access data from the Municipal Register of foreigners in order to perform their duties in monitoring the foreigners stay in Spain. At the time, this provision caused protests from NGOs and various 13 Labour Force Survey, National Institute of Statistics. 14 IOE Collective (2010) The impact of the economic crisis on the employment situation of Moroccan immigrants in Spain, Casa Arabe Socio-economic Notes 11/ Furthermore, analysis can be found on the evolution of Spanish public opinion toward immigration in «Evolution of racism and xenophobia in Spain» 2010 Report, Maria Ángeles Cea D Ancona and Miguel S. Valles Martínez. Spanish Observatory of Racism and Xenophobia, (MTIN). 17

18 city councils and, ultimately, it was not implemented except in rare individual cases, and never in a general way to identify and locate irregular immigrants. Therefore, registration in the Municipal Register involves no risk for the irregular immigrant, but it is a requirement for accessing public health and free school education for their children. Organic Law 4/2000 established free compulsory public education for foreigners, regardless of their legal status, with the right to non-compulsory education for legally resident foreigners only. However, a judicial ruling of the Constitutional Court 16 forced the removal of this limitation, and the last reform of the Aliens Act (Organic Law 2/2009) includes the right to post-compulsory education in accordance with the provisions of education legislation 17. Irregular foreigners also enjoy access to the public scholarship and grant system under the same conditions as Spanish nationals in the case of compulsory education; this is limited to legally staying foreigners in the case of post-compulsory education. Access to some services, such as public nurseries, depends on the regulations of the regional authorities. With regard to civil rights, Organic Law 8/2000, reforming Organic Law 4/2000, excluded irregular immigrants rights to assembly, association, demonstration and strike, an exclusion that was widely criticized by the unions and, in general, by the areas of social support for immigrants. Finally, this exclusion was overturned in the reform of the Aliens Act in 2009, after several rulings of the Constitutional Court 18 that found this reduction of the civil rights of irregular immigrants to be unconstitutional. Finally, unlike some other European countries, in Spain an irregular immigrant can rent an apartment, obtain a transport pass and, in general, legally buy and sell real estate or property. The irregular immigrant in Spain is supported by unions and NGOs financed by public funds that offer services such as Spanish lessons, assistance finding accommodation and advice on regularising their situation. The unions in particular have been very active in this last task through the two major unions immigration centres: the Foreign Worker Information Centres (CITE) of the Comisiones Obreras union, and Immigrant Service Centres of the Unión General de Trabajadores union. 16 The Judgement of the Constitutional Court STC 236/2007 of 7 th November. 17 Thus this right is linked to the legislation of the regional authorities, as part of their competence in educational matters. 18 Judgements of the Constitutional Court STC 236/2007 of 7 th November and STC 259/2007 of 19 th December. 18

19 2.2. Institutional framework State institutions Most of the competencies regarding irregular immigration lie within the Ministry of Interior, the department responsible for border surveillance, border inspections, the fight against trafficking and immigrant smuggling networks and immigration control. Organising and managing the fiscal security of the State, the actions aimed at preventing and combating smuggling, drug trafficking and other illegal trafficking, custody and surveillance of the coasts, borders, ports, airports and territorial waters, and irregular immigration control in this field are the responsibility of the Civil Guard, a police force with military status. The Fiscal and Border Department and the Coordination Centre for Maritime Surveillance of coasts and borders, among others, are responsible for carrying out these functions. Meanwhile, the National Police Force is responsible for border controls at legally-authorised posts for crossing external air borders (airports), maritime borders (ports) and land borders, and has a General Commissariat for Alien Affairs and Borders that manages and centralises activities in this field. Its subsidiary bodies include the Unit for Combating Immigration Networks and Document Counterfeiting (UCRIF, Spanish acronym), the Central Borders Unit, which in turn is part of the Response Brigade for and the Central Unit for Expulsion and Repatriation. The Brigade for the Expulsion of Foreign Offenders (BEDEX, Spanish acronym) was created within the Central Unit for Expulsion and Repatriation in November The Ministry of Employment and Social Security (hereon MEYSS), through the General Secretariat for Immigration and Emigration 19, is responsible for the preparation of draft legislation relating to immigration and foreigners, in coordination with the other ministries with competencies in this area. It also carries out the functional coordination of the immigration offices and the areas or work units and is responsible for issuing instructions on this matter to the peripheral organisms of the Central Administration. Finally, the MEYSS is active in the integration of immigrants, developing the Strategic Plan for Citizenship and Integration, which includes recommendations and funding for local and regional governments (which have competence in most of the services related to integration, such as education, health, welfare, etc.) and supporting the dissemination of best local practices. Moreover, the main institution dedicated to fighting irregular employment, 19 Former State Secretariat for Immigration and Emigration (Royal Decree 1887/2011, of 30 th December, establishing the basic organic structure of Ministerial Departments). 19

20 the Employment and Social Security Inspectorate, is also a part of this Ministry. Two commissions were recently created within it one on the Clandestine economy and another on Shell companies in order to detect false companies created to provide immigrants with fictitious contracts and thus allow fraudulent entry or regularisation. The Ministry of Foreign Affairs and Co-operation is involved in the fight against irregular immigration in several ways. First, with their proposals to the European Union regarding the imposition of visas on nationals of countries where there has been evidence of a significant influx of irregular immigrants posing as tourists. Second, through consular activity in the granting of visas, which is a very important filter to prevent the arrival of irregular immigrants. And third, through the development and management of readmission agreements with countries of origin within the framework of the Global Approach to Migration and especially within the context of the Rabat Process, always in consensus with the other ministries involved in the fight against irregular immigration. The Judiciary also participates in irregular immigration control tasks in several ways. Within the State General Prosecutor s Office, Immigration Prosecutors have specialised in prosecuting crimes related to irregular immigration and human trafficking, and networks dedicated to marriages whose purpose is to circumvent immigration rules. Moreover, regarding marriages of convenience, it exercises significant control through imposing the obligation to register marriages of Spanish citizens performed abroad in the Civil Registry and the requirement for authorisation to recognise them in Spain. This control rests with the Civil Registries, who must order the registrations and grant the permits, and who are functionally dependent on the Ministry of Justice. Moreover, the removal orders issued by the governmental authority are subject to judicial review by the courts, within the legality control they exercise over the activity of the Public Administration. Thus, the judges are involved on a different level than the administrative bodies because they are responsible for the confirmation or revocation of the removal orders issued by the governmental authority when they are appealed to the competent jurisdiction. Finally, the regional authorities, although lacking competencies in irregular immigration, also exert an important role to the extent that some of them have their own police forces operating in the detection of irregular immigration in the interior, as it is the case with local police forces. Moreover, the regional authorities most affected by the influx of irregular immigration by sea, such as the Canary Islands, Andalusia, and the autonomous cities of Ceuta and Melilla, are particularly active in the political debate in this area. 20

21 Other relevant stakeholders In Spain there are no non-state organisations involved in any way in the fight against irregular immigration. However, the trade unions conduct campaigns against the illegal employment of immigrant workers while, as already said, advising irregular immigrants on the means of accessing legal employment. Similarly, immigrant associations and a number of NGOs dedicated to these groups also offer them legal advice Interaction between state institutions In June 2008, the Government s Delegate Commission for immigration policy was established 20, which had, until the ministerial restructuring of December 2011, the following composition 21 : a) Vice President of Regional Policy and the Minister of Territorial Policy and Public Administration, who preside; b) the Ministers of Foreign Affairs and Co-operation, Interior, Development and Labour and Immigration; c) the Director of the Prime Minister s Cabinet and the Secretaries of State for Foreign and Latin American Affairs, for the European Union, of Defence, of Security, of Immigration and Emigration and of Equality. This Commission is the principal body of cooperation and information exchange between the Ministries with competence in this area. The Sectoral Immigration Conference, established in 2007, is the main coordination mechanism for migration policy between the Central Government and the regional authorities. It deals with aspects concerning the management of legal migration (some regional authorities have competency in the granting of the initial work permit) and the integration of immigrants, as well as other matters related to the immigration of unaccompanied minors and the nationwide distribution of irregular immigrants who for some reason can not be returned to their country of origin. The main interaction of non-state institutions with the Government Authorities is brought by way of grants to projects presented by these institutions, as well as through their participation in the Forum for the Integration of Immigrants, a national advisory body involving trade unions, business associations, immigrant associations and the ministries with competences in immigration. 20 Royal Decree 680/2008 of 30 th April, determining the composition of the Government s Delegate Commissions. 21 Royal Decree 1025/2011 of 15 th July, establishing the Government s Delegate Commissions. 21

22 3 Practical measures to reducing irregular immigration 3.1. Pre-entry measures Much of the work done by Spain in the fight against irregular immigration has consisted of the implementation of measures to prevent the arrival of irregular immigrants. In this regard, the pre-entry measures can be divided into two types: those that prevent entry of false tourists (such as the imposition of visas) and those related to the prevention of illegal entry across the maritime border by strengthening surveillance and cooperation with countries of origin and transit. In this section we will analyse the progress made in this area, although cooperation with countries of origin will be described in section Preventing the entry of false tourists: visa requirements The arrival of false tourists constitutes one of the main sources of irregular immigration in Spain, and the imposition of visa requirements on some countries has been a remarkably successful preventive measure. The competence on which countries the short-term visa requirement is imposed does not belong to the national authorities, but rather to the European Union. In the 1990s, the visa requirement was imposed for nationals of Peru and Morocco (1991), countries with significant migratory flows to Spain, but from which very intense flows concentrated over a short period of time have never been received. In the 2000s, when very large flows of immigrants posing as tourists were being received, the visa requirement was extended to Colombia (January 2002), Ecuador (June 2003) and Bolivia (April 2007). In all three of these cases, entries of new immigrants fell substantially following the imposition of the visa. New registrations in the Municipal Population Register 22 were reduced by almost a third in all three cases. Despite having no information on the legal status of those registered, the decline in registrations is a strong indication of decreasing arrivals of people without residence permits. Because false tourism is the primary gateway for irregular immigrants, a visa requirement, which assumes a prior check in the country of origin, is the main preventive measure. 22 Administrative registry in which all residents of a municipality are required to register, including irregular immigrants. 22

23 Table 1. Average monthly entries, before and after the visa requirement 6 months prior 6 months after Colombia (January 2002) 12,885 4,510 Ecuador (June 2003) 12,132 4,903 Bolivia (April 2007) 8,665 3,178 Source: Municipal Population Register (National Statistics Institute), based on authors compilation Meanwhile, improvements in the visa system are expected at the European level through the introduction of common reporting mechanisms for Schengen countries. As early as 2002 the Common Visa System was created, in order to incorporate and update data and consult them electronically. In addition the implementation of the Visa Information System (VIS) is taking place, and its first part came into force on 11 th October 2011; it is a database with photos and fingerprints of visa applicants from third countries, including the visas requested, issued, refused, cancelled, revoked or extended. This database will improve the common visa policy and facilitate repatriation, since having information available on the identity of individuals who have entered the country with a visa facilitates the identification of persons in an irregular situation through fingerprints, the location of their entry visa and therefore, their country of origin. Thus, the visa functions range from the prevention of the irregular migration of false tourists to the identification for return of those who have overstayed the duration of their visa or residence permit Strengthening the surveillance of the maritime border In the prevention of illegal entry, Spain makes a great effort to guard its maritime border with Africa through a fourfold strategy: the implementation of technological improvements in the detection of vessels, the provision of human and material resources for the surveillance of the African coast, the training of a network of Liaison Officers and Attachés in the countries of origin and the signing of readmission agreements with third countries to discourage irregular migration (the last aspect is discussed in section 4). This set of measures has had a substantial and demonstrable effectiveness in reducing the number of people who come to the Spanish coast on board of illegal vessels. In the specific case of the Canary Islands, while 31,678 irregular immigrants came to its shores by boat in 2006, in 2010 the figure dropped to 196 people Overview of the fight against illegal immigration, 2010 (Ministry of the Interior). 23

24 The great technological breakthrough in controlling the maritime border has been the creation and deployment of SIVE (Spanish acronym of the Border Surveillance and Control System) along practically the entire Spanish coast. The main functions of this system, developed and managed by the Civil Guard, are the long-distance detection of vessels approaching the Spanish maritime border and their identification, the coordination with other competent services, such as Maritime Rescue Agency, for monitoring vessels, the vessels interception and rescue and assistance to the irregular immigrants. This system is not only used to prevent irregular immigration, but also for the prevention of crimes such as drug trafficking. The system has been implemented on several territorial extensions since 2002, starting at Algeciras and later deployed along most of the Mediterranean Sea border. From 2012, with the inclusion of Barcelona, Girona and A Coruña, the SIVE will have covered the entire Spanish Mediterranean coast including the Balearic Islands, the Canary Islands and Ceuta, in addition to the two Atlantic provinces of Galicia. In turn, SIVE is integrated into the European Border Surveillance System, EUROSUR, which integrates all the national maritime surveillance devices of Europe s western and southern borders, increasing the available information, and therefore the response capacity of each national system. SIVE has very substantially reduced the influx of irregular immigration from Morocco, since the irregular immigrants of this nationality who are intercepted upon reaching the Spanish coast are immediately returned to their country of origin. Moreover, since 2004, as a result of Spanish and European Union efforts, Morocco has been cooperating effectively in the surveillance of its coasts to prevent them being a departure point for irregular immigration. This collaboration, along with the implementation of SIVE in the south of the peninsula, as well as the strengthening of the border perimeter fence in Ceuta and Melilla, led in 2005 and the following years to a decline in immigrant flows along the traditional North Africa route. A West Africa route opened up as a result, giving rise to a large increase in departures of boats carrying irregular immigrants to the Canary Islands, coming from Mauritania, starting a trip that is much longer and more dangerous than crossing the Strait of Gibraltar. In response to this redirection of flows, another programme to strengthen the surveillance of the African coast was implemented: the Atlantic SEAHORSE program. The SEAHORSE project has been one of the most ambitious and effective efforts in preventing the arrival of illegal boats to the Spanish coast. It began in 2006, following its approval by the European Council in December The project is led by Spain s Ministry of the 24

25 Interior and is operationally managed by the Civil Guard. The initial membership of Spain, Portugal, Morocco, Mauritania, Senegal and Cape Verde were later joined by Gambia and Guinea Bissau. SEAHORSE has created a network of satellite communications, so that each participating African country, as well as Portugal, has a national centre (two in Mauritania). The Regional Coordination Centre is located in Gran Canaria, supported by the Maritime Surveillance Coordination Centre in Madrid. Through this network, the vessels countries of origin and destination can share information in real time, cooperating in its distribution, the location of suspect vessels and in rescue and interception tasks. The network also integrates with external information systems such as the aforementioned SIVE and the maritime automatic identification systems (AIS), which enables the geo-located display of the vessels in real time. Within the framework of this project, courses have also been given to agents of the participating countries on irregular immigration and training courses for skippers, marine mechanics, scuba diving activities specialists and network operators. In the subsequent phases of the project, new countries have been incorporated and the command and control capabilities of the existing national centres have been expanded. Furthermore, the organisational development of Atlantic SEAHORSE is being planned, through the creation of different bodies, such as an Executive Committee, an Operations Committee and a Technical Committee. Although European funding ended in 2010, the communications centres continue to operate. It is also envisaged to bring this project to the Mediterranean with the creation of the Mediterranean SEAHORSE project. Meanwhile, in the context of collaboration with the countries of the West African coast, Spain has made great efforts in the provision of human and material resources from the Law Enforcement agencies. Particularly relevant in this regard is the permanent provision to Mauritania of a helicopter, an aircraft and two 30m in length patrol boats, and the provision to Senegal of two 30m in length patrol boats, an ocean vessel and a helicopter. Also worth noting in this collaborative framework is the existence of the HERA operation, financed by Spain, and to a lesser extent by FRONTEX (European Patrol Network Program), which has been operating since its inception in the year 2006 off the African coast of Mauritania and Senegal. Its aim is to control the flow of migrants from West Africa and to foster cooperation with authorities from Senegal and Mauritania, to permanently establish a regional security concept in the EU s external border, to increase situational 25