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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 Labour and Immigration, Ministry of Interior, Ministry for 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 Labour and Immigration. 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@mtin.es This document is available from:

3 Annual Policy Report on Migration and Asylum Spain 2009 This Nacional Report provides an overall insight into the most significant political and legislative developments, as well as public debates in the area of immigration and asylum that took place in Spain during the year This Report has been produced by the, and was completed by the Spanish EMN National Contact Point. July 2010

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5 Index Executive summary General structure of the legal and political system in Spain General Structure of the Political and Institutional System relating to Immigration and Asylum General Structure of the Spanish Legal System relating to Immigration and Asylum New Political, legislative and institutional developments relating to Immigration and Asylum New political developments relating to immigration and asylum Political and legislative debates on immigration and asylum New institutional developments relating to immigration and asylum Specific developments with regard to immigration and asylum by policy areas Immigration control and supervision European Pact on Immigration and Asylum Complementary Activities Asylum and the Protection of Refugees European Pact on Immigration and Asylum Complementary Activities Unaccompanied minors and other vulnerable groups Complementary Activities Economic immigration European Pact on Immigration and Asylum Complementary Activities Family reunification European Pact on Immigration and Asylum Complementary Activities Other aspects of legal migration

6 European Pact on Immigration and Asylum Complementary Activities Integration European Pact on Immigration and Asylum Complementary Activities Nationality and naturalisation Complementary Activities Irregular immigration European Pact on Immigration and Asylum Complementary Activities Actions against human trafficking European Pact on Immigration and Asylum Complementary Activities Return European Pact on Immigration and Asylum Complementary Activities Foreign relations/overall approximation European Pact on Immigration and Asylum Complementary Activities Other Policy Areas Domestic Violence Participation Implementing legislation from the European Union Transposing European Union legislation Experiences and debates on the transposition of European Union legislation Annex. Methodology, terms and definitions A.1. Methodology A.2. Terms and definitions

7 Executive summary Without doubt the main issue in 2009 was the serious economic situation and its consequences, which have affected not only Spain, but also other Member States of the European Union and the entire international community. Thus, in Spain, as in so many other countries, the economic crisis had a clear impact on immigration, in that the number of immigrants arriving on Spanish territory fell as the year went by. In 2009, Spain continued to make significant efforts in the area of immigrant integration. In that regard, in February some 200 million euros were allocated to the Support Fund for the Reception and Integration of Immigrants and their Educational Support. The purpose of this was top enable regional and local authorities to receive and integrate immigrants, thereby continuing the policies of previous years. Furthermore, throughout 2009 the Council of Ministers approved the signing of agreements for nationals from the relevant countries to participate in municipal elections; these agreements were signed with Colombia, Peru, Argentina, Iceland, Trinidad and Tobago, Ecuador, Cape Verde, Chile, Paraguay, New Zealand, Bolivia and Uruguay. The agreements were signed with these countries in the course of 2009, and they will come into force once they have been ratified by the signing parties. The Council of Ministers also approved the signing of agreements with Burkina Faso and South Korea, although this did not take place in As regards the 2008 Return Plan, the balance from its first year in operation revealed that the forecasts were met, as 8,724 applications from unemployed people were re- 7

8 ceived, plus 1,581 from family members. Furthermore, an additional 3,549 people were returned in 2009, under the Humanitarian Return Programme of the State Secretariat for Immigration and Emigration. Despite the adverse economic situation, Spain s policy on immigration in 2009 is clearly aligned with the European Pact on Immigration and Asylum (EPIA). In particular, the reform of the Aliens Law and the new Asylum Law both of which were passed and enacted in 2009 clearly show that Spain has adopted the five key areas on which the EPIA is based. Consequently, Spain s policy on immigration achieved the following in 2009: It sought to respond to the needs of the employment market, whilst guaranteeing the rights of immigrant workers and their families. It adopted a firm position on promoting the integration of legal immigration, both temporary and long-term (reform of the Aliens Law). It worked hard to strengthen control over the EU s external border (reform of the Aliens Law). It improved the mechanisms available to prevent irregular immigration (transposition of community directives and reform of the Aliens Law). That concern over controlling irregular immigration was demonstrated by the collaboration with the countries of origin through the signing of two types of agreements: principally, readmission agreements and cooperation agreements. These deal specifically with promoting development in those countries and with the return of their nationals. This also resulted in greater control of borders and visas. It completed the first phase of the CEAS (Common European Asylum System), and its new Asylum Law 12/2009 has already taken up some of the challenges that are to be met in the Second Phase of the CEAS. It has helped promote synergies between immigration and development. In this regard, it is committed to creating facilities for temporary and circular employment immigration. All this is in line with the common philosophy of EU Member States and their institutions which manage migrations from a global perspective. In this regard, it promotes the co-development of the idea that migrations are beneficial to the country of origin, the country of destination and, of course, to the migrants themselves. 8

9 1 General structure of the legal and political system in Spain 1.1. General Structure of the Political and Institutional System relating to Immigration and Asylum The general structure of the political system and of the Spanish institutional context relating to immigration and asylum 1 are contained in the previous annual reports submitted as part of the. This general structure was not modified in 2009, although some detailed changes were made 2. The Ministry of Labour and Immigration continues to be responsible for proposing and implementing Government policies on employment, organising and regulating employment and social security and developing Government policies on foreign nationals, immigration and emigration. Its structure has been maintained, and within it the State Secretariat for Immigration and Emigration occupies a central position, in that it is responsible for implementing the Government s policy on migration. Maintaining the 2008 structure, the State Secretariat is subdivided into three General Directorates: the General Directorate for Immigration, the General Directorate for the Integration of Immigrants and the General Directorate for Spanish Citizenship Abroad. The Ministry of Foreign Affairs and Cooperation is responsible for directing foreign policy and international development cooperation policy, in accordance Government guidelines. In 2009 its structure and functions remained the same. This was also the case for the Ministry of Justice and the Ministry of the Interior, both of which have retained the same functions in relation to immigration, asylum and nationality. It should be noted that elections to the European Parliament took place in , and in Spain, there were also elections to the regional authorities in the Basque Country 1 English versions of Spain s 2007 EMN Annual Policy Report and its 2008 EMN Annual Policy Report can be accessed on the web link of the Ministry of Labour and Immigration: RedEuropeaMigraciones/Informe_Anual_Politicas_Inmigracion_Asilo/; and in the web page of the European Migration Network: 2 In 2009 there was the enactment of Royal Decree 542/2009, of 7 of April 2009, which restructured the ministerial departments, Official State Gazette no. 85, dated 7 April There were also other subsequent royal decrees, although these provisions did not amend the structure of the ministries responsible for immigration and asylum. 3 The results can be found in the web page of the European Parliament in Spain: elecciones_2009.php?opcion=4 (last visit 21 December 2009). 9

10 and Galicia. All the elections resulted in significant changes from the previous compositions of the different parliaments. These changes have not resulted in any modification to the initiatives on immigration and asylum, due to the current distribution of powers in Spain. However, in September of 2009, there was a variation in the devolution of powers between the State and the autonomous region of Catalonia after the enactment of Royal Decree 1463/ This decree provides for the transfer of functions and services to the Generalitat (autonomous government) of Catalonia in relation to initial permits for self-employment and salaried employment for third country nationals working in Catalonia. It is now possible to book an appointment via the internet to complete the relevant formalities General Structure of the Spanish Legal System relating to Immigration and Asylum The general structure of the legal system was modified by the enactment of the two most significant laws on immigration and asylum: Law 12/2009, of 30 of October 2009 (the Asylum Law), governing the right of asylum and subsidiary protection 6 ; this law repeals the earlier Asylum Law, by introducing important reforms, and it fully implements the European Union s legislation and policy on asylum; Organic Law 2/2009, of 11 of December 2009 (the Aliens Law), reforming Organic Law 4/2000, of 11 of January 2000, on the rights and freedoms of foreign nation- 4 Royal Decree 1463/2009, of 18 September 2009, on the transfer of functions and services relating to immigration to the Generalitat (autonomous government) of Catalonia: initial permits for self-employment and salaried employment for foreign nationals working in Catalonia, Official State Gazette no. 229, dated 22 September Correction of errors in Royal Decree 1463/2009, of 18 of September 2009, on the transfer of functions and services to the Generalitat of Catalonia in relation to permits for self-employment and salaried employment for foreign nationals working in Catalonia, Official State Gazette no. 262, dated The Ministry of Territorial Policy provides information on the particular procedures that can be dealt with by the Generalitat of Catalonia, together with a link to the autonomous government to request its involvement. Web page of this Ministry: (last visited 11 January 2010). 6 Law 12/2009 of 30 October 2009 governing the right of asylum and subsidiary protection (Official State Gazette no. 263, dated

11 als in Spain and their social integration 7 ; this law makes significant changes to the current Aliens Law. Although both laws are referred to later in this report, it is worth highlighting here that they have incorporated European legislation on asylum and immigration from the last few years. Thus, they have complied with the obligations to transpose Directives, and they have brought Spanish policy and structures into line with European policy and legislative guidelines. Prior to this, in July 2009, two important Royal Decrees were enacted, relating to the special regulations regarding EU citizens (community system) and the general aliens regulations (general system). These were, respectively: Royal Decree 1161/2009, of 10 July 2007, on the entry, free movement and residence in Spain of citizens from Member States of the European Union and other States which are party to the Agreement on the European Economic Area 8. Royal Decree 1162/2009, of 10 July 2009, amending the Implementation Rules of Organic Law 4/2000, of 11 January 2000, on the rights and freedoms of foreign nationals in Spain and their social integration, as enacted by Royal Decree 2393/2004, of 30 December Thus, in 2009, the Spanish regulatory framework on immigration and asylum is for the most part made up of the following legal provisions: 1. The Spanish Constitution; 2. General aliens regulations (general system); Aliens Law 4/2000, of 11 of January 2000 note 7 above as amended by Organic Laws 8/2000, 11/2003, 14/2003 and 2/2009; The Aliens Implementation Rules, as amended by Royal Decree 1162/ ; 7 Organic Law 2/2009, of 11 of December 2009, reform of Organic Law 4/2000, of 11 of January 2000, on the rights and freedoms of foreign nationals in Spain and their social integration, Official State Gazette no. 299, dated Royal Decree 240/2007, of 16 February, on the entry, free movement and residence in Spain of citizens from Member States of the European Union and other States which are party to the Agreement on the European Economic Area, Official State Gazette no. 177, dated Royal Decree 1162/2009, of 10 July 2009, amending the Regulation of Organic Law 4/2000, of 11 January 2000, on the rights and freedoms of foreign nationals in Spain and their social integration, as enacted by Royal Decree 2393/2004, of 30 December 2004, Official State Gazette no. 177, dated Royal Decree 2393/2004, of 30 December 2004, approving the Regulation of the Organic Law 4/2000, of 11 January 2000, on the rights and freedoms of foreign nationals in Spain and their social integration, 11

12 3. Special regulations regarding EU and other states of the EEA, and their families (community system); Royal Decree 240/2007, on the entry, free movement and residence in Spain of citizens from Member States of the European Union and other States which are party to the Agreement on the European Economic Area, as amended by Royal Decree 1161/ System for asylum, subsidiary protection and temporary protection; Law 12/2009, governing the right to asylum and subsidiary protection (note 6 above); The Implementation Rules of the Asylum law. To the extent that it does not contradict the new law, and while an implementing regulation is being adopted, Royal Decree 203/1995, of 10 of February 1995, remains in force; this enacted the Implementation Rules for Law 5/1984, of 26 of March 1984, regulating the Right of Asylum and Refugee Status, as amended by Law 9/1994, of 19 of May 1994; The Regulation on the system for temporary protection in the event of a massive influx of displaced persons: Royal Decree 1325/2003, of 24 of October 2003, which enacted the Regulation on the system for temporary protection in the event of a massive influx of displaced persons; Other Provisions: The Civil Code; Royal Decree of 24 July 1889, as last amended by Law 15/2005, of 8 July 2005, amending the Civil Code. The Criminal Code; Organic Law 10/1995, of 23 of November 1995, on the Criminal Code. As we shall see in the section on legislative and political debates, there is an initiative, which is still going through Parliament, proposing to reform the Penal Code. This reform intends to amend some matters relating to immigration. Official State Gazette no. 6 dated 7 January 2005 hereafter the Aliens Implementation Rules. Please note that new Implementation Rules to Law 2/2009 is awaiting approval. In the meantime, the previous Regulation (Royal Decree 2393/2004) remains in force in so far as it does not contradict the new law. 12

13 2 New Political, legislative and institutional developments relating to Immigration and Asylum 2.1. New political developments relating to immigration and asylum As was already mentioned, the structure of the ministries responsible for immigration did not change in In July, Agustín Torres Herrero replaced Marta Rodriguez- Tarduchy y Díez as Director General for Immigration. Similarly, Pilar Pin replaced Agustín Torres Herrero as Director General for Spanish Citizenship Abroad. In the same month, the composition of the Forum for the Integration of Immigrants was changed. It now has the following representatives from the State s Public Administration: a) On behalf of the Ministry of Foreign Affairs and Cooperation, the Director General of Consular Affairs and Assistance; b) On behalf of the Ministry of the Interior, the Director General for Domestic Policy; c) On behalf of the Ministry of Education, the Director General for Evaluation and Territorial Cooperation; d) On behalf of the Ministry of Labour and Immigration, the Director General for the Integration of Immigrants; e) On behalf of the Ministry of the Office of the Prime Minister, the Director General for Administrative Organisation and Procedures; f) On behalf of the Ministry of Equality, the Director General for Combating Discrimination 11. Law 12/2009, of 30 October 2009, regulating the right of asylum and subsidiary protection, stated that the Inter-Ministerial Commission for Asylum and Refuge a collegiate body responsible for considering applications for international protection, which have been admitted for processing, and for the corresponding draft decision sent to the Ministry of the Interior includes a representative from the Department of Equality, in addition to 11 Royal Decree 1164/2009, of 10 July 2009, amending Royal Decree 3/2006, of 16 January 2006, regulating the composition, competencies and operational framework of the Forum for the Integration of Immigrants, Official State Gazette no. 167, dated 11 July

14 representatives from the Departments responsible for foreign and domestic policy, justice, immigration and reception Political and legislative debates on immigration and asylum In 2009, the legislative and political debate centred on the following issues: The integration of immigrants from third countries as a principal theme on which the different normative proposals for this period revolved, both in terms of legislative reform and the political measures adopted in that regard. The reform of Spanish legislation on asylum and foreign nationals: There is a need for a new Asylum Law in the context of new challenges to be met and the European legislation to be transposed (especially, on the status of subsidiary protection); With regard to the reform of the Aliens Law, the amendments comply with the commitments made within the European Union, and they transpose a significant number of Directives. Furthermore, the changes are in line with the doctrine of the Spanish Constitutional Court regarding certain rights of third country nationals, even where they are illegally present in Spain. In addition, the reform meets the need to adapt immigration rules to the new characteristics of immigration in Spain which have produced a different scenario compared with the situation that existed at the time of the last reform of the Aliens Law. As is now the norm in both Spanish and EU policies, in addition to integration and the regulation of migration flows, there is constant concern over the control of irregular immigration; this has resulted in collaboration with the countries of origin and transit, both as regards returns and the development of their communities. The Aliens Law, enacted at the end of 2009, and already mentioned as a draft law in the 2008 Annual Policy Report, has been the subject of intense public debate. The mass media and the different organisations and associations involved and academics have all voiced their proposals for amendments to the draft reform or indeed their critical opinions throughout After incorporating a lot of the amendments proposed by the different parliamentary groups who, in turn, paid particular attention to the suggestions and reports from the 14

15 different entities and from civil society the draft law finally completed all the Parliamentary procedures and became an Organic Law in December of Indeed, the period for partial amendments to the legislative text was extended in order to debate this law. Different reports on its content, of varying impact, were produced by the Economic and Social Council, the Forum for the Integration of Immigrants, the Immigration Sub-Committee of the Spanish Bar Association and the General Council of the Judiciary, among others. In addition, the Council of State s opinion on the draft reform was also taken. After the period for debating the amendments to the main body of the text and after the text was debated in the Senate, the draft reform was sent back to the Congress of Deputies (Lower House) and the final text was approved on 26 November and published in the Official State Gazette on 12 December The legislative text, once finally approved, introduced the following new provisions: 1. It transposed the European Directives awaiting transposition, including the most recent, for which the transposition period is not yet close to an end (see point 4 of this Report); 2. It complies with the obligations arising out of the case law of the Spanish Constitutional Court in decisions 236/2007, of 7 November 2007 and 259/2007, of 19 December 2007, concerning an appeal on the grounds of unconstitutionality relating to various questions, now covered in the new reform act, namely, free legal aid, non-compulsory education and the rights of assembly, association, demonstration, joining a trade union and striking of third country nationals found to be illegally present; 3. It amends the maximum retention period in a Foreigner Detention Facility from 40 to 60 days. The rights of detainees have been extended by allowing NGOs to have access to those facilities and by ensuring judicial protection of detainees rights; 4. As regards family reunification, this right has been updated, and now permits the reunification of unmarried couples and grants work permits to family relatives who are of working age (spouse and children older than 16). Similarly, the group of family members in ascending line who can be reunited have been reduced to those over the age of 65, save where there are humanitarian reasons; 5. Residence permits due to exceptional circumstances for illegally present foreign women who are the victims of domestic violence are now regulated; 6. Unaccompanied foreign minors, who are over 16, have been accorded the right to take part in the return process, both at the administrative level and before the courts, 15

16 where they can intervene personally or through a representative of their choice. Minors under 16 years, with sufficient understanding and who express an opinion that is contrary to that of their guardian, shall have a legal representative appointed for them; 7. Furthermore, the interest in controlling irregular immigration has also been implemented. The Return Directive and the Sanctions Directive have been applied to employers of illegally present immigrants. The submerged economy has also been tackled by the amendment of the law, including sanctions for workers as well as for business owners who do not register workers with Social Security. 8. Efforts to control illegal immigration have been extended by creating new offences, such as those relating to marriages of convenience, and by increasing the financial penalties For the first time, a period of recovery and reflection of at least thirty days has been granted to the victims of human trafficking. During this time, the victim is granted temporary residence, and there will be a suspension of any punitive administrative process that might have been brought or, if appropriate, the implementation of the removal or return. During this period the competent government bodies will provide basic welfare and ensure that the person in question is protected and secure. The relevant authority may declare the victim to be exempt from any of administrative liability and may facilitate his/her assisted return to the country of origin, if the victim so wishes. The authority may also grant a residence and work permit due to exceptional circumstances, when it considers this to be necessary, because of the victim s cooperation in an investigation or in any criminal proceedings, or because of the victim s personal circumstances. In those situations, it will also facilitate the victim s integration into society, in accordance with the provisions of the law. Other issues and those referred to above will be dealt with in more depth in the next section relating to the most concrete aspects of policy and legislation. As regards the new law on asylum and subsidiary protection, it should be pointed out that the legislative text submitted by the Government to the Cortes Generales (Spain s Upper and Lower Houses) has been extended as a result of the intense political debate during its passage through Parliament. The initial text was improved by the contributions from those involved in defending people in need of international protection. The final 12 Although not covered by the draft reform, in the end, it was considered that the activities of NGOs and people or groups who help irregular immigrants should not be covered by this control, where their activities are for purely humanitarian reasons. 16

17 text was approved on 15 October 2009 and published in the Official State Gazette on 31 October. The main novelties are as follows: 1. The Law transposed the Qualification Directive 13, the Procedures Directive 14 and Chapter V of the Directive on Family Reunification 15. With this, what is known as the first phase of the Common European Asylum System has been completed. 2. Without doubt, the most notable aspect is the introduction into Spanish law of the concept and status of subsidiary protection, mentioned explicitly for the first time in the Preamble to the new Asylum Law. This is an improvement on the previous situation, when this protection was afforded through generic provisions on humanitarian protection. Thus, the law itself provides that anyone who received authorisation to remain in Spain for humanitarian reasons, under former Section 17(2) of the old Law 5/1984, and under Section 31(3) of its Implementation Rules, shall be entitled to subsidiary protection. Although this transposition to EU law was carried out late, it should be pointed out that, as regards subsidiary protection, the New Asylum Law embodies a collection of similar rights and guarantees than for protecting refugees. This means that the minimum requirements established by the Qualification Directive have been surpassed. The Preamble to the Law explains why: beyond the reasons that may justify one or other status, the purpose of both is that people receive protection from risks to their life, their physical integrity or their liberty, which they cannot find in their country of origin. 3. In addition to the usual guarantees under international protection, the following rights are included: the right to legal aid, the right to an interpreter, and the right to healthcare, etc. It also worth highlighting the recognition of the significant intervention on the part of the UNHCR in the procedure, to which the law dedicates a Chapter, thereby reinforcing the guarantees in the procedure. 4. A protection framework has been created, dealing with minors and other people in a situation of vulnerability who will be treated differently using the necessary measures. 5. The law places special emphasis on maintaining the family unit, it incorporates the extension of subsidiary protection to the family of the beneficiary and, for the first time, it regulates family reunification, both for refugees and people with subsidiary protection. 13 Council Directive 2004/83/EC of 29 April 2004, on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. OJ L 304/12 of Council Directive 2005/85/EC of 1 December 2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status. OJ, L 326/13, 13, Council Directive 2003/86/EC of 22 September 2003, on the right to family reunification. OJ L 251/12 of

18 6. Finally, we should emphasize that the law makes provision for the elaboration of resettlement programs. This is an expression of the Spanish State s will to commit itself to protecting refugees by providing sustainable solutions and acting in solidarity with the receiving countries. At the time of writing, the approval of the implementing regulations for the Aliens Law and the Asylum Law is pending. Nevertheless, in order to implement the Aliens Law, some instructions have already been approved, in particular the following: Instruction DGI/SGRJ /08/2009, on the implementation of Organic Law 4/2000, on the rights and freedoms of foreign nationals in Spain and their social integration, following the Reform introduced by Organic Law 2/2009, of 11 of December 2009, on family reunification. This instruction defines which family members may be reunited. As this part of the law was amended, the instruction affects residence and work permits, independently of the family member sponsor, and it makes special reference to the victims of domestic violence. Added to this instruction was a note from the General Directorate for Immigration, explaining that there was no need to apply for a new card for family members who can work and reside in Spain under this law. Instruction DGI/SGRJ/09/2009, on the implementation of Organic Law 4/2000, on the rights and freedoms of foreign nationals in Spain and their social integration, following the Reform introduced by Organic Law 2/2009, of 11 of December 2009, as regards long term residence permits. Added to these Instructions was Generic Provision 36/2009, on the Principal New Provisions in Organic Law 4/2000, following its reform by Organic Law 2/2009, as regards efficacy and the scope of the initial residence and salaried work permit. This text also refers to the fees, an issue which was amended by the new law, and they are set out in detail in a Ministerial Order dated 11 January In addition to these new legislative texts, there are various draft amendments to other legal provisions, which are expected to have an impact on immigration and asylum. Among these, we should highlight the proposal to reform the Criminal Code, which would enable a judge to substitute custodial sentences of less than six years with a removal order. 18

19 2.3. New institutional developments relating to immigration and asylum In 2009, no new institutions, organizations or other players directly connected with immigration and asylum or any other issues, such as the integration of immigrants, were created. One institutional initiative worth noting is the 16 : this is an internet portal for job searching on the Internet, and it allows people to consult the Catalogue of Difficult to Cover Occupations. 3 Specific developments with regard to immigration and asylum by policy areas 3.1. Immigration control and supervision European Pact on Immigration and Asylum 17 II(c) Ensure that risks of irregular migration are prevented In order to transpose the directive of the EP and the Council providing for sanctions against employers of illegally staying third-country nationals, the reform of Spanish legislation on foreign nationals introduces measures aimed at preventing illegal immigration by creating new offences against unduly attempting to obtain a right to remain in the State legally. As a result, new administrative offences, which are either serious or very serious, have been created relating to various activities, namely: Providing false information in the declaration of compulsory information for the Municipal Population Register; 16 (last visit on 12 January 2010) 17 From 2011 the tracking method should be extended to cover commitments made under the Stockholm programme that will follow on from the Hague Programme and under its accompanying Action Plan. The heading of the sub sections and their content may, therefore, be adapted in the specifications for future EMN Annual Policy Reports. 19

20 Consenting to the registration of a foreign national in the Municipal Population Register by the owner of a dwelling, when that dwelling is not the actual address of the foreign national; Entering into a marriage, simulating an analogous emotional relationship or becoming the legal guardian of a minor, when such conduct is carried out for financial gain or with the aim of unduly obtaining a right of residence; Simulating an employment relationship with a foreign national, when such conduct is carried out for financial gain or with the aim of unlawfully obtaining rights, provided the conduct does not amount to a criminal offence. As regards marriages of convenience, it is possible to provide an approximation of the number of cases which occurred in the last few years. This is based on the number of appeals submitted by the interested parties when they were not permitted to enter into marriage because it was considered to be a marriage of convenience. The estimated number of cases is based on the number of rejected appeals. Marriage Appeals Accepted and Rejected * * Total number of appeals Accepted Rejected (estimated number of marriages of convenience) * The statistics for 2009 relate to the first six months. Source: Sub-directorate General for Nationality and Civil Status. Directorate General for Registers and Notary Offices (Ministry of Justice) II(h) An Expulsion Decision taken by one Member State (MS) should be applicable throughout the EU and entered into the SIS/ implementation of Directive 2001/40/EC It is not possible to provide information on this subject. 20

21 III(a) More effective control of the external land, sea and air borders: Spain has created contacts with key African countries in order to achieve closer cooperation in tackling irregular immigration and human trafficking, based on cooperation agreements and memoranda of understanding which have provisional application. In the same way, detailed information is provided on the objectives of the fight against irregular immigration in point , commitment II(e), including cooperation with countries of origin on border control, in the context of Framework or Second Generation Agreements for Cooperation. Moreover, between 2003 and 2008 there was a 53.4% increase in the number of police officers dealing with immigration and border control. Provision has been made for the gradual extension of the Integrated External Surveillance System (SIVE) to other areas of the Mediterranean. III(b) Generalise the issue of biometric visas, improve cooperation between MSs consulates and set up joint consular services for visas: It is not possible to provide information on this subject. III(d) Solidarity with MS subjected to disproportionate influxes of immigrants In 2009 no action was taken with regard to this commitment. III(e) Deploy modern technological means for border control: In Spain, provision has been made for the gradual extension of the Integrated External Surveillance System (SIVE) to other areas of the Mediterranean. Spain, which is closely following the implementation of the EUROSUR integrated surveillance system for external borders, has deployed a large amount of human and material resources to gradually extend the SIVE on a national level. Spain is developing a national automated border control system which will enable citizens with the new European biometric passport (in use since June 2009) to cross external borders more easily and more securely. The aim is to ensure a system that is interoperable 21

22 with other systems already in use in other Member States based on the same biometric indicators. III(f) Intensify cooperation with the countries of origin and of transit in order to strengthen border control Spain is actively participating in and supporting the Seahorse Project which provides a secure communications network via satellite between Spain, Portugal, Mauritania, Senegal and Cape Verde. In 2009, Morocco, Gambia and Guinea Bissau joined this project. In addition, police cooperation with Mauritania was strengthened through the creation of specialised police cooperation teams Complementary Activities In support of the commitments made in the context of the European Pact on Immigration and Asylum, the Spanish Government s efforts have centred on, inter alia, managing immigration through regular methods which control and then prevent illegal immigration. As in previous years, legal immigration was channelled through the workers contingent, proposed each year for hiring workers in their country of origin, and through the general immigration system. As for irregular immigration, this is prevented by greater border control and by the rules on issuing visas. All this is tied in with better cooperation with the countries of origin and transit. The frame of reference for controlling immigration is not excessively different from what was contained in previous Annual Policy Reports. That is to say, although 2009 did not produce major changes, improvements were continuously being made to existing mechanisms. In turn, the most significant developments, both in promoting channels for legal immigration and in preventing irregular immigration, are embodied in the amended Aliens Law. Immigration control in the law is concerned with penalising different conduct. On the one hand, the Aliens Law considers an illegal presence in Spain or working without a 22

23 permit (offences which already existed under the old legislation) as serious offences; on the other hand, other offences are contained ex novo in the legislation, including: Not registering a foreign worker with Social Security (offence on the part of the employer); Entering into a fraudulent marriage (marriage of convenience); Abetting an irregular immigrant to remain illegally in Spain, or consenting to his/her registration in the Municipal Register using a dwelling that is not the real address of the foreign national (offence on the part of the dwelling owner). In the same vein, and as has already been pointed out, there are plans to reform the Criminal Code which could affect certain conduct on the part of foreign nationals in Spain. In addition to the offences stipulated, the amount of the penalties has been increased. As regards the serious offences mentioned above, the penalties will range from 501 to 10,000 euros, compared with fines of between 301 and 6,000 euros under the Aliens Law before the amendment. As regards very serious offences, the law has extended these and the corresponding penalties, which may be up to 100,000 euros. For the purposes of implementing the Aliens Law, and specifically to tackle criminality, the General Directorate of the Police and the Civil Guard issued an instruction clarifying the scope of the police s activities when enforcing the Aliens Law 18. With regard to border control and in line with EU policy one aspect of the control of irregular immigration has been strengthened thanks to Spain s efforts to have dialogue with the countries of origin with a view to entering into cooperation agreements and agreements for regulating migratory flows. These include implementing return programmes and agreements dealing specifically with readmission and/or the prevention of irregular emigration by third country nationals, especially unaccompanied minors. This logically goes hand in hand with greater physical control of the border by strengthening the means and the tools for implementing this control and the procedures for returning foreign nationals who have illegally entered Spanish territory. Collaboration between public bodies and the computerisation of procedures play an important part in the control and supervision of immigration. Thus, the processing of 18 Press release available on the web site of the Ministry of the Interior: Prensa/PDF_notas_de_prensa/2009/np pdf (last visit on 18 January 2010) 23

24 immigration procedures arising out of the implementation of the new text of the Aliens Law will be carried out using a common IT tool, and the Ministry of Labour and Immigration will be responsible for installing and coordinating this IT application for the other Departments concerned. This application will record information and data on third country nationals and European Union citizens residing in Spain and their permits. The law also makes provision for the transfer of data between the relevant government bodies using this ongoing procedure. On the other hand, the Aliens Law stipulates that one of its objectives is to increase the effectiveness of the fight against irregular immigration, by strengthening control measures and penalties, especially against those who make it easier to enter or remain illegally in Spain 19. This objective is being developed as the regulatory principle for exercising powers connected with immigration for all pubic bodies Asylum and the Protection of Refugees European Pact on Immigration and Asylum IV(c) Solidarity with MS which are faced with specific and disproportionate pressures on their national asylum systems In 2009 no action was taken with regard to this commitment. IV(e) MS are invited to provide the personnel responsible for external border controls with training in the rights and obligations pertaining to international protection The Asylum Law passed in Spain provides that public employees and others working with applicants for international protection, refugees and beneficiaries of subsidiary protection receive proper training. 19 Preamble to the Aliens Law. 20 Section 2. bis of the Aliens Law: this is a new section dealing with migratory policies. It was introduced in the reform of the Law enacted in

25 Complementary Activities The enactment of Law 12/2009 of 30 October 2009 completes the tasks of the First Phase of the Common European Asylum System. It also reflects the latest criteria from the Court of Justice of the European Communities and the European Court of Human Rights. The Preliminary Title stipulates that international protection shall consist of two statuses: one for the right of asylum (or the recognition of refugee status) and the other for subsidiary protection. As regards the recognition of refugee status, one of the most innovative aspects of Law 12/2009 is the inclusion of gender. Depending on the prevailing circumstances in the country of origin, the concept of a social group shall include people who flee because of well-founded fears of suffering persecution on the grounds of gender, sexual orientation or age. Furthermore, for the first time, Law 12/2009 lists the elements that make up the definition of a refugee: persecution, reason for persecution, persecuting agent, etc. All this is in line with the Qualification Directive. As regards subsidiary protection, it should be emphasised that Law 12/2009 regulates subsidiary protection by offering international protection when there is a real risk of suffering serious harm (Section 4 of Law 12/2009) through a death sentence or its implementation, the torture or inhuman and degrading treatment or punishment of an applicant in his/her country of origin, or serious threats 21 against the life or physical integrity of a civilian motivated by indiscriminate violence in situations of international or internal armed conflict. Up to this point there is no difference from the Directive on Definitions or Qualification, save that: Law 12/2009 goes further by establishing a status for subsidiary protection that is similar to that of a refugee in terms of the rights afforded. Another difference is the treatment given by the law to applications for protection in Embassies and Consulates. Provided the applicant is not a national of the country where the diplomatic mission is located, and his/her physical integrity is in danger, Spain s Ambassadors may ask for the transfer of the interested party to Spain in order to submit that person s application. As regards matters included in the new Asylum Law, which caused controversy in the public debate, the following points should be noted: 21 It is important to note that the finally approved text removes the expression serious and individual which appeared in earlier versions of the text: Thus, Spain applies the doctrine, established by the CJEU on 17 February 2009, that there is no need to provide proof of specific individual impact as this would be in evidence when the violence is indiscriminate and the conflict is evident. 25

26 1. The new Law 12/2009 concerns the international protection (whether through refugee status or the status of subsidiary protection) of third country nationals or stateless persons. This is different from the old Asylum Law, which protected people with well-founded fears of persecution without any exception. It is clear that Law 12/2009 sought to comply with the letter and the spirit of the Qualification Directive and the Protocol on Asylum annexed to the Treaty of Amsterdam, which also appears in the Treaty of Lisbon. Community legislation starts from the principle that the European Union is made up of democratic States where there is no unjust persecution. Nevertheless, this restriction with regard to the hypothetical protection of EU citizens was perhaps the most disputed by some specialised NGOs during the law s passage through Parliament. 2. Another part of the new text which has been the subject of intense debate in its passage through Parliament is the reasons for refusing refugee status or subsidiary protection: In any event, the right to asylum (or subsidiary protection) 22 shall be denied to: a) those who, for well founded reasons, constitute a threat to Spain s security; b) those who were convicted of a serious offence and who constitute a threat to the community. These sections transcribe verbatim community legislation in this area, despite what was argued by some people who do not agree with the community provision. 3. Finally, the provisions relating to applications made at border posts were also debated during the law s passage through Parliament, although these are entirely separate from community legislation and in significant areas they provide more guarantees than the Procedures Directive Unaccompanied minors and other vulnerable groups Complementary Activities The reform of the law elevates the importance of processing unaccompanied foreign minors by including aspects previously covered by the Regulation. Like the Regulation, the law devotes an entire section to minors. Its entire focus of attention is on the minor child, as was the case previously. This means that situations are dealt with on an individual basis from the possibility of returning [the minors] to their place of origin, and when this is not the ideal response, to guaranteeing the best conditions for ensuring 22 Sections 9 and 12 of Law 12/2009, respectively. 26

27 their integration into Spanish society; this must be the express objective of all policies implemented by the different public bodies 23. As regards Integration, in its Preliminary Title, the amended law introduces a change which strengthens the role for the social integration of minors, by expressly making provisions to incorporate the long-term plans for integrating UAMs as an objective. It consolidates the previous policy and acknowledges the obligation to provide the legal and social care and protection due, in accordance with the Law on the Legal Protection of Minors. It should be pointed out that although the law previously recognised the right of foreign minors, regardless of their administrative circumstances, to education and healthcare in the same circumstances as Spanish minors, there is now express recognition of the right of disabled minors, who are habitually resident in Spain, to receive special treatment, services and care, as required by their physical or psychological state. The previous provision only recognised this right for foreign nationals with residence permits and left out the provision of basic services for those who did not have permits. In order to facilitate this integration, important measures have been taken at policy level. This is the case for the granting of financial aid to the regional and municipal authorities with most immigration (Andalucía, Ceuta y Melilla) and particularly the Regional Authority of the Canaries for the transfer to other regional authorities of foreign unaccompanied minors for reception and protection. This, to a certain degree, highlights the measures which would later be adopted through legislation. Section 35 of the Aliens Law is devoted to the issue of unaccompanied minors, and the principal new provisions are as follows: In the main body of the law, it introduces the practice, which has already been initiated, of concluding Agreements between Spain and the countries of origin in order to prevent irregular immigration and to bolster the care, protection and assisted return of UAMs. The law grants regional authorities the power to instigate court proceedings to award ordinary guardianship of unaccompanied minors to foundations, non-governmental organisations and other entities and for those entities to reach agreements between themselves for that purpose. It reinforces the role of regional authorities and provides for the possibility of agreements being concluded on the care and integration of minors in their country of origin. 23 Preamble to the Law on Foreign Nationals. 27