ANNUAL POLICY REPORT ON MIGRATION AND ASYLUM

Transcription

1 ANNUAL POLICY REPORT ON MIGRATION AND ASYLUM SPAIN 2007 European Migration Network Project co-financed by the European Comission MINISTERIO DE ASUNTOS EXTERIORES Y DE COOPERACIÓN MINISTERIO DE JUSTICIA MINISTERIO DEL INTERIOR MINISTERIO DE TRABAJO E INMIGRACIÓN N.I.P.O.:

2 The (EMN) is an initiative of the European Commission. 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 co-ordinated 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 2007 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. January 2009

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5 INDEx Executive Summary Political Developments in Spain General Structure of the Political System and the Institutional Context Relevant to Immigration and Asylum General Political Developments Institutional Developments Policy and Legislative Developments in the Area of Immigration and Asylum General Structure of the Legal System in the Area of Immigration and Asylum General Overview: Set of Main Policy and/or Legislative Debates on Immigration and Asylum Issues Developments in policy areas Refugee Protection and Asylum Unaccompanied Minors and other vulnerable groups Control and Monitoring of Immigration Economic Immigration Family Reunification Other legal immigration Citizenship and Naturalisation Integration Illegal Immigration Return Immigration Other areas: Agreements with third countries Implementation of EU Legislation Transposition of EU legislation in Annex Methodology, concepts and definitions

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7 Executive Summary The year 2007 stands out for its stability and continuity as regards both the policymaking bodies and institutions responsible for immigration matters, as well as the Government s political focus, which began in The activities of the Government and the Administration concerning immigration matters focus on three basic lines of action: reinforcing the fight against illegal immigration, consolidating the link between immigration and the labour market, and promoting an integration strategy for immigrants in keeping with the country s reality. The fight against illegal immigration has been reinforced through a significant stiffening of border controls (especially along the North African coast) and an increase in the removals of illegal immigrants. The signing of agreements with third countries on alien affairs and immigration matters has constituted a significant advance in this field. These include agreements to regulate and plan migratory flows and readmission agreements (including Migratory Co-operation Framework Agreements). Linking immigration to access to the labour market, which was already initiated through the Regularisation Process for illegal immigrant workers in 2005, has been driven forward through the renewal of the public instruments aimed at managing migrations to encourage hiring in the country of origin. As regards integration, the Government s actions have materialised through: The drawing up of a Strategic Plan for Citizenship and Integration (Plan Estratégico de Ciudadanía e Integración ), which is meant to be 7

8 a co-operation framework for joint action by all the actors holding responsibility for integration policies aimed at the immigrant population, including both the different tiers of the Public Administration as well as civil society. The plan has been earmarked with 2 billion euros of funding for the whole period it will be in place and is structured around twelve areas of action, of which reception, education and employment have been allocated the most funding. The distribution of an integration fund, allocated with 200 million a year, as an agreement mechanism for immigrant integration policies among the State, regional governments and local authorities. The granting of subsidies to local authorities for innovative programmes in the area of integration, in addition to social and employment allowances for immigrants, asylum seekers and other people under international protection. In the institutional sphere, these basic policy lines have also led to institutional promotion in specific areas. Thus, in 2007: A new stage for the Forum for the Social Integration of Immigrants (Foro para la Integración Social de los Inmigrantes), initially set up in 2005, was consolidated. The Forum enjoys a greater degree of independence (as it now has the capacity to draw up reports on its own initiative) and relevance (it has to issue statutory reports on nationwide projects, plans and programmes that have a bearing on the integration of immigrants). The setting up of a new Sectoral Immigration Conference (Conferencia Sectorial de Inmigración) was approved, the purpose of which is to reinforce co-ordination among the public administrations in order to enhance the State and the regional authorities in the exercise of their competencies. The former Spanish International Co-operation Agency (AECI - Agencia Española de Cooperación Internacional) was replaced by the new Spanish International Co-operation Agency for Development (AECID Agencia Española de Cooperación Internacional para el Desarollo), which is equipped with a more extensive network of technical co-operation offices abroad located in the different countries, and above all with the new objective of considering Sub-Saharan Africa as a new priority region for Spanish co-operation. 8

9 1. Political Developments in Spain 1.1. General Structure of the Political System and the Institutional Context Relevant to Immigration and Asylum Migration and asylum competencies in the Spanish State are mainly shared out among three Ministries: the Ministry of Labour and Social Affairs 1 (Ministerio de Trabajo y Asuntos Sociales), the Ministry of the Interior (Ministerio del Interior) and the Ministry of Foreign Affairs and Co-operation (Ministerio de Asuntos Exteriores y Cooperación). The first of these has been assigned with the greatest number of responsibilities on immigration matters, in addition to being charged with the political management and co-ordination of the policies that have to be drawn up transversally in conjunction with the other ministries. The bodies and institutions charged with executing and managing the Government s policies are set out below. Firstly, the highest-ranking body charged with managing immigration is the State Secretariat for Immigration and Emigration (Secretaría de Estado de Inmigración y Emigración), which depends on the Ministry of Labour and Social Affairs and has Ms María Consuelo Rumí Ibáñez at the helm. The Secretariat has a support and assistance Office and three executive bodies: the General Directorate of Immigration (essentially in charge of co-ordinating the State Secretariat s involvement in the EU and in other international forums, managing and co-ordinating migratory flows and modernizing management), the General Directorate of the Integration of Immigrants (in charge of social intervention policies and of institutional relationships within the country), and the General Directorate of Emigration (which guides action programmes for Spanish emigrants). There are five other collegiate bodies that complete the organisation chart, which carry out different support tasks to guide and define policy-making. Four of these depend directly on the State Secretariat for Immigration and Emigration and one on the General Directorate of Integration. The four bodies that depend on the State Secretariat are: the Council for Immigration Policy [Consejo Superior de Política de Inmigración] (in charge of ensuring adequate coordination as regards the integration of immigrants and designing overall policy); the Permanent Observatory for Immigration [Observatorio Permanente de la Immigración] (which is mainly responsible for gathering, analysing and disseminating information on migration in Spain); the Inter-Ministerial Commission for Alien Affairs [Comisión Interministerial de Extranjería] (charged with analysing, debating and reporting on any proposals from ministerial 1 Currently Ministry of Labour and Immigration (Ministerio de Trabajo e Inmigración). 9

10 departments having an incidence on the status of aliens, immigration and asylum); and lastly the Tripartite Labour Commission [Comisión Laboral Tripartita], which was set up by an order issued by the Ministry of Labour and Social Affairs on 3 June The latter Commission is consultative and permanent discussion body among the General Administration of the State, the trade union organisations and the most representative nationwide employers organisations for matters having to do with the management of migratory flows. The collegiate body dependent on the General Directorate of the Integration of Immigrants is the Forum for the Social Integration of Immigrants (Foro para la Integración Social de los Inmigrantes). The Forum is the Government s consultative, information and advisory body on matters connected with the integration of immigrants and its aim is to serve as a channel for participation and dialogue to jointly seek with other organisations and institutions the solutions required by immigrant population. Its composition is tripartite and balanced, with representation of the Public Administration, migrant and refugee associations, and social support organisations, among which are included the most representative trade union and business associations. Consulting this consultative body is statutory for any draft law or the design of any policies connected with the integration of the immigrant population. The overall organisation chart for policy-making on immigration matters appears below: Chart 1. Organisation chart of the State Secretariat for Immigration and Emigration 10

11 The Ministry of the Interior has also been entrusted with specific management functions for security, migratory control and asylum policies, which are exercised through three General Directorates: the General Directorate of International Relations and Alien Affairs (Dirección General de Relaciones Internacionales y de Extranjería), the General Directorate of the Police and the Civil Guard (Dirección General de la Policía y de la Guardia Civil) and the General Directorate of Internal Policy (Dirección General de Política Interior). The first of these distributes its functions through two General Sub-Directorates: The General Sub-Directorate of International Police Co-Operation [Subdirección General de Cooperación Policial Internacional] (in charge of defining the actions and programmes of the Ministry of the Interior s technical bodies in Diplomatic Missions) and the General Sub-Directorate of International Relations, Immigration and Alien Affairs [Subdirección General de Relaciones Internacionales, Inmigración y Extranjería] (which has co-ordination functions concerning the participation of the ministry s representatives in the groups and committees commissioned by the European Council, organising the Ministry s relations in such matters and relations with the Ministry of Foreign Affairs). The General Directorate of the Police and the Civil Guard exercises its competencies concerning alien affairs and immigration in co-ordination with the Ministry of Labour and Social Affairs through the State Secretariat for Immigration and Emigration. Within the sphere of the National Police Force s competencies and under the management, supervision and co-ordination of its Attached Management Body, the police s operational functions at a central level are carried out by the General Commissariats, more specifically the General Commissariat for Alien Affairs and Documentation (Comisaría General de Extranjería y Documentación), as regards organising and managing the services connected with issuing national identification cards, passports and aliens documents; controlling the arrivals and exits of both Spanish and foreign nationals from Spain; preventing, pursuing and investigating illegal immigration gangs and, in general, terms holding responsibility for police functions dealing with aliens, refuge, asylum and immigration. Likewise, as regards the functions the Civil Guard has been entrusted with, the Tax and Border Department (Jefatura Fiscal y de Fronteras) depends on its Attached Management Body, which is under the command of a General of the Civil Guard on active service. It is responsible for organising and managing the State s customs and excise service, pursuing and avoiding customs evasion, protecting and keeping surveillance over the coasts, borders, ports, airports and territorial waters and, in this regard, controlling illegal immigration, among others. The General Directorate of Internal Policy is responsible for the application of the International Protection system. More specifically, determining the right to asylum, the legal status of refugees, displaced persons and stateless persons, as well as the socalled subsidiary international protection, which together constitute what is known as International Protection, are included within the sphere of its competencies. Nevertheless, 11

12 as was mentioned above, reception and integration policies depend on the Ministry of Labour and Social Affairs. The Asylum and Refuge Office (Oficina de Asilo y Refugio) is the specialised body responsible for dealing with asylum matters. It is headed by the General Sub-Director of Asylum and depends on the Ministry of the Interior s General Directorate of Internal Policy The granting of the right to asylum, as well as the granting of other kinds of protection for humanitarian reasons (subsidiary protection) are carried out through an individualised procedure allowing the applicant s condition as a refugee or his/her right to any other kind of subsidiary protection to be recognised. The drafting of the relevant proposal for resolution to the Ministry of the Interior lies within the competence of the Inter-Ministerial Commission of Asylum and Refuge, which is comprised of representatives of the Ministries of Justice, of Labour and Social Affairs, of External Affairs and Cooperation and of the Interior. It is chaired by the General Directorate of Internal Policy. The United Nations High Commission for Refugees (UNHCR) is invited to attend all its meetings. Chart 2. Organisation chart of the Ministry of the Interior concerning its competences on Immigration, Alien Affairs an Asylum 12

13 The Ministry of Foreign Affairs and Co-Operation has a General Directorate of Consular Affairs and Assistance (Dirección General de Asuntos y Asistencia Consulares), which is in charge of co-ordinating and supervising all the actions of Spanish consular offices in the management of the General Administration of the State s services that occur abroad. It is also responsible for proposing, drawing up and applying policies on the protection and assistance of Spanish citizens abroad, as well as for immigration and asylum matters within the Ministry of Foreign Affairs and Co-operation s sphere of action and without prejudice to the competencies granted to other ministries in such matters. It also has an Agency that is ascribed to the State Secretariat for International Co-Operation (Secretaría de Estado de Cooperación Internacional), the Spanish International Co-operation Agency for Development (AECID - Agencia Española de Cooperación Internacional para el Desarrollo). Despite not being a specific body, the AECID is taking an ever more participative role as regards immigration issues, essentially through international co-operation programmes to encourage development in the countries of origin/transit of immigration. The Agency is responsible for designing, executing and managing co-operation projects and programmes for development, either directly with its own resources or through collaboration with other Spanish and foreign entities and non-governmental organisations. Placing it all into context, we could say that the institutions in charge of policy-making on immigration matters in themselves express the approach taken by the Government, especially within the framework of linking immigration to the labour market, with an explicit concern for social and welfare matters, for issues having to do with security, particularly focused on borders, and with an ever greater emphasis placed on linking the management of borders with co-operation for development. As regards the granting and denial of Spanish citizenship due to residence, which corresponds to the Ministry of Justice, this competence is delegated to the General Director of Registries and Notaries (Directora General de los Registros y del Notariado) General Political Developments From a political standpoint, 2007 stands out as a year of stability and continuity in all the policy-making bodies responsible for immigration matters. The bodies of the political immigration system have carried out their functions without any great conflicts. In general terms, 2007 consolidated the political approach initiated by the Government in 2004, which follows two major strategies. One of these is geared to the international sphere, getting Europe involved in controlling Spanish borders, particularly the Canary Islands sea borders, and the other geared internally to Spain, linking immigration to access to the labour market. 13

14 This desire to introduce the issue of sea border controls into the EU agenda is also helping to Africanise the issue in Europe by raising awareness among European policymakers of the importance of having a common overall policy to manage the causes of immigration, particularly due to the third world situation of Africa 2. The strategy of linking immigration to the labour market as the main framework of reference to generate policy criteria and approaches was also consolidated in This focus began to materialise in the regularisation of illegal immigrant workers in If we analyse political actions, we can highlight three dimensions that constitute their overall policy. These included, as regards integration, the drawing up of a Strategic Plan and the distribution of a fund for integration; concerning European issues, the gradual normative transition of the status of immigrants who were initially third country nationals to Union citizens (especially Rumanians and Bulgarians); and lastly, continuity in the management of sea borders, especially North African borders. We will now have a look at each action individually. Within Spain, the Government made great efforts to support two basic strategic pillars. On the one hand, the Government designed a regularisation process for illegal immigrant workers at the beginning of the legislature and, on the other, it involved the regional governments, local authorities, social agents, migrant associations, NGOs and the Forum for the Social Integration of Immigrants in the drawing up of the Strategic Plan for Citizenship and Integration The Government s actions and institutional practice enable us to affirm that, although the management of borders and migratory flows is the exclusive competence of the central Government, many sectoral policies related to the integration of the immigrant population such as education, health, housing and social services lie mainly in the hands of the regional authorities (there are 17 regional authorities and two autonomous cities, Ceuta and Melilla, in Spain) and local authorities. Hence, the Government has sought to support the integration actions carried out by the local and regional authorities through the creation of a Support Fund for the Reception and Integration of Immigrants and to Reinforce their Education (Fondo de apoyo a la acogida y la integración de inmigrantes así como el refuerzo educativo de los mismos), which has been allocated 200 million a year. Said Fund is distributed on the basis of objective criteria linked to the number of immigrants in each territory and the policies to be carried out. 2 Conclusions of the European Council held in Brussels on 21 and 22 June 2007 (Points ): La Moncloa Press Release: 19 December The President assures that the European Council s conclusions are very positive for Spain 14

15 A second area of action that characterised Spanish policy in 2007 arose as a result of the effective accession of Rumania and Bulgaria to the European Union as full members. Spain passed a two-year transition period for these recent incorporations in order to move forward as quickly as possible toward the full implementation of all the Community acquis on the free movement of workers to the nationals of these Member States. As a result, the citizens of Rumania and Bulgaria were placed on an equal footing as regards the rights of citizens of all the other EU Members States to enter, work, study and reside in Spain as from 1 January However, due to the transition period, any Bulgarian or Rumanian citizens wishing to work as employees and who were not Spanish residents on 1 January 2007, or those who were but did not have a work permit on 1 January 2007 lasting at least a year or more, are applied the General Aliens Scheme (Régimen General de Extranjería) as regards access to lucrative activity as an employee. They, however, enjoy some advantages like the national employment situation not being taken into consideration. Lastly, a third dimension that characterises Spain s overall policy has been the consolidation of a new Spanish strategy based on combating illegal immigration from the African continent at source by means of reaching development co-operation and migratory cooperation agreements with the West African countries from whence migrants issue forth 3. This strategy has, on the one hand, contributed to reducing the immigration coming from Africa 4 and, on the other, it has also contributed to Africanising the issue in Europe. In this regard, the political development is that Spain is an innovative and pioneering country in the management of immigration, seeking to overcome one of the great political dilemmas affecting policy on migratory flows: combining human rights with strict control over the arrival of immigrants. It is undoubtedly a fact that Spain has not been accused of violating human rights despite the great difficulties involved in managing borders and the evidently dramatic images of many news items from the Canary Islands. On the contrary, Spain is being viewed as an actor that contributes to giving immigrants humane treatment 5. 3 Official Gazette of the Spanish Parliament (Boletín Oficial de las Cortes Generales), no. 381 of 25 May 2007 Framework Co-Operation Agreement between the Kingdom of Spain and the Republic of Mali, done in Madrid on 23 January Framework Co-Operation Agreement on Immigration Matters between the Kingdom of Spain and the Republic of Gambia, done Ad referendum in Banjul on 9 October La Moncloa Press Release: 20 March Meeting of the Minister of Foreign Affairs and Co-operation with the Prime Minister of Cape Verde, Jose Maria Pereira Neves and the Minister of Foreign Affairs, Victor Manuel Barbosa Borges. Ministry of Foreign Affairs and Co-operation, June 2006: Plan Africa Book (Libro Plan África ). 4 El Mundo 01/04/2007 The arrival of cayucos to the Canary Islands falls by 60% in the first quarter of 2007, according to the data provided by the Government Delegation in the Canary Islands to Europa Press. 5 R. Zapata-Barrero y N. de Witte (2007) The Spanish governance of EU borders: Normative questions Mediterranean Politics, vol.12, nº 1;

16 1.3. Institutional Developments Stability, continuity and innovation would be the words that sum up the actions in the institutional sphere. As we have already pointed out, there were no great changes in the institutional organisation chart as regards migration and asylum in In spite of the stability and continuity of the existing bodies, new bodies have, however, been set up and another body has been reinforced to enhance some aspects of the management of immigration that have up to now suffered certain administrative deficiencies. One of these developments was the approval, through an Agreement of Ministers of 2 March 2007, of the setting up of a new Sectoral Immigration Conference (Conferencia Sectorial de Inmigración), the purpose of which is to strengthen co-ordination among the public administrations in order to enhance the State and the regional authorities in the exercise of their competencies. In addition, the Council for the Promotion of Equal Treatment and Non-Discrimination of People due to Racial or Ethnic Origin (Consejo para la Promoción de la Igualdad de Trato y no Discriminación de las Personas por el Origen Racial o Étnico) was set up in September. This Council is a collegiate body ascribed to the Ministry of Labour and Social Affairs through the General Directorate of the Integration of Immigrants. Its aim is to promote equal treatment and non-discrimination of people despite their racial or ethnic origin in education, health, social services and allowances, housing and, in general terms, the supply of and access to any goods and services, including access to employment. As regards the Ministry of Foreign Affairs and Co-operation s institutions, the former Spanish International Co-operation Agency (AECI - Agencia Española de Cooperación Internacional) was replaced in October 2007 by the new Spanish International Co-operation Agency for Development (AECID Agencia Española de Cooperación Internacional para el Desarollo), which is equipped with a more extensive network of technical co-operation offices abroad located in the different countries, and above all with the new objective of considering Sub-Saharan Africa as a new priority region for Spanish co-operation and with its own department allocated with 150 million of funding for next year 6. Concerning the Ministry of the Interior, during 2007 it has been created the General Directorate of International Relations and Alien Affairs (Dirección General de Relaciones Internacionales y de Extranjería), with the main objectives of defining the actions and programmes of the Ministry of the Interior s technical bodies in Diplomatic Missions, 6 Press Release: The new Spanish International Co-operation Agency for Development approved at the Cabinet Meeting. Madrid, 26 October

17 co-ordination functions concerning the participation of the ministry s representatives in the groups and committees commissioned by the European Council and organising the Ministry s relations in such matters and relations with the Ministry of Foreign Affairs and Co-operation). 2. Policy and Legislative Developments in the Area of Immigration and Asylum 2.1. General Structure of the Legal System in the Area of Immigration and Asylum Article 13.1 of the Spanish Constitution sets forth that in Spain foreigners shall enjoy the public freedoms guaranteed by this Chapter (Chapter I on Fundamental Rights and Duties) under the terms laid down by Treaties and the Law. The basic law that develops that constitutional mandate is Organic Law 4/2000 of 11 January on the rights and freedoms of foreigners in Spain and their social integration (Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social), which was amended by Organic Laws 8/2000 of 22 December, 11/2003 of 29 September and 14/2003 of 20 November. This law brings together the constitutional mandate and the international commitments taken on by Spain, especially as a member state of the European Union 7. The Regulations to implement the aforementioned Organic Law were approved by Royal Decree 2393/2004 of 30 December, which was amended by Royal Decree 1019/2006 of 8 September. In addition, the Supreme Court (Tribunal Supremo) has issued a ruling on certain articles of the Royal Decree, thereby endorsing these Regulations compliance with the Law. There is also another piece of legislation that governs the conditions for European citizens and citizens of the member states of the European Economic Area to exercise the rights of entry and exit, free movement, stay, residence and work in Spain: Royal Decree 240/2007 of 16 February on the entry, free movement and residence in Spain of citizens of the Member States of the European Union and of the other States that are a party to the Agreement on the European Economic Area (Real Decreto 240/2007, de 16 de febrero, sobre entrada, libre circulación y residencia en España de ciudadanos de los Estados miembros de la Unión Europea y de otros Estados parte en el Acuerdo sobre el Espacio Económico Europeo). The contents of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 were incorporated into the Spanish legal system 7 For all the jurisprudence, see the Ministry s website ( ) under the section entitled Regulations and Jurisprudence. 17

18 through the approval of this Royal Decree. This new legislative text repeals Royal Decree 766/1992 of 26 June on the entry and stay in Spain of citizens of the Member States of the European Communities, Royal Decree 737/1995 of 5 May which amended it, Royal Decree 1710/1997 of 14 November and Royal Decree 178/2003 of 14 February on the entry and stay of citizens of the Member States of the European Union and of other States that are a party to the Agreement on the European Economic Area. The Spanish legislation that governs the right of asylum in Spain, set forth in Article 13 of the Constitution of 1978, include: Law 5/1984 of 26 March governing the right of asylum and the status of refugee, which was amended by Law 9/1994 of 19 May and by Organic Law 3/2007 of 22 March 2007 on the effective equality of men and women ; the Regulations for Implementing Law 5/1984 of 26 March governing the right of asylum and the status of refugee, approved by Royal Decree 203/1995 of 10 February, and the Regulations on the Temporary Protection System in the Event of a Massive Influx of Displaced Persons, approved by Royal Decree 1325/2003 of 24 October. The naturalisation process to acquire Spanish nationality in Spain is governed by the Civil Code (Articles 17 to 26). The Civil Code constitutes legal regulations approved by the State. Sub-national entities do not have any competencies in naturalisation matters. There are several ways to acquire Spanish nationality. Some of these are automatic (attribution of the Law without the will of the interested party needing to intervene) and others are not (the will of the interested party intervenes). Naturalisation due to residence supposes that, once a person has resided in Spain during the period laid down by the Civil Code, he/she may apply for Spanish nationality. It is the most common non-automatic way of acquiring Spanish nationality and it has been used by thousands of immigrants over the past few years. Residency has to be legal, continuous and immediately prior to the application. Generally speaking, the residency period is of ten years; however, shorter periods have been set forth: Five years: for anyone having the status of refugee. Two years: for nationals of Latin American countries, Andorra, the Philippines, Equatorial Guinea, Portugal or Sephardic Jews (descendants of the Jews expelled from Spain in the 15th century). One year: whenever the applicant was born within Spanish territory, whenever the applicant did not exercise the power to choose in a timely manner, whenever the applicant has been married or been the widow(er) of a Spaniard, whenever the applicant 18

19 was born outside Spain to a mother, father, grandfather or grandmother that was originally Spanish. Should Spanish nationality be acquired due to residency, applicants have to renounce their previous nationality, except in the case of it being from a Latin American country, Andorra, the Philippines, Equatorial Guinea or Portugal. The granting of nationality must be registered in the Civil Registry. The tables below sums up the legal system governing aliens and other legislative developments of 2007 have been added. Table 1. Legal Framework on Aliens in Spain in Force in 2007 Spanish Constitution: Article 13. Civil Code (Articles 17 to 26). Organic Law 4/2000 of 11 January on the rights and freedoms of foreigners in Spain and their social integration, which was amended by Organic Laws 8/2000 of 22 December, 11/2003 of 29 September and 14/2003 of 20 November. Royal Decree 2393/2004 of 30 December, amended by Royal Decree 1019/2006 of 8 September, approving the Regulations on Organic Law 4/2000. Royal Decree 240/2007 of 16 February on the entry, free movement and residence in Spain of citizens of the Member States of the European Union and of the other States that are a party to the Agreement on the European Economic Area. Law 5/1984 of 26 March governing the right of asylum and the status of refugee, amended by Law 9/1994 of 19 May and by Organic Law 3/2007 of 22 March. Regulations Implementing Law 5/1984 of 26 March governing the right of asylum and the status of refugee, approved by Royal Decree 203/1995 of 10 February. Regulations on the temporary protection system in the event of a massive influx of displaced persons, approved by Royal Decree 1325/2003 of 24 October General Overview: Set of Main Policy and/or Legislative Debates on Immigration and Asylum Issues In order to provide a general overview of debates during 2007, the main issues of the political and social agendas are presented in this section and the main social and political conflicts are identified. 19

20 Briefly, the Government s actions were characterised by their capacity to react rapidly in the face of the emergencies and challenges posed by the different conflicts related to immigration. The most prominent issues were centred on the international management of migratory flows, social and employment accommodation and integration, the fight against illegal immigration and against the discrimination suffered by immigrants in the various facets of daily life. These challenges were basically focused on three aspects: dealing with cultural (and religious) diversity, issues linked to racism and xenophobia, and last but not least the politicisation of immigration in so far as the issue of immigration is exploited to obtain the support of specific sectors of society. This politicisation of immigration has two ways of being expressed: arguments based on security and others based on welfare, in other words a discourse that relates immigration with our capacity to continue distributing social benefits and welfare and ensuring the social protection of citizens. Taking the report issued by the Forum for the Social Integration of Immigrants as a basis, we can highlight the social agenda s terms of reference, centred on the following categories: reception, education, employment, housing, social services, health, infancy and youth, equal treatment, women, participation, raising awareness, co-development and asylum. In general terms, greater administrative capacity was called for to deal with the issues linked to immigration, as were following approaches of equal rights and duties and providing the necessary resources to ensure greater participation by migrant groups. For instance, emphasis was placed on the fact that immigrants, apart from being economic agents, are also social and political agents. In addition to linking immigration to the labour market, as it already does, the Government was recommended to also concentrate its efforts on these aspects that have a direct bearing on improving immigrants social and political conditions and opportunities. On the basis of the debates and parliamentary actions in the Congress of Deputies (Congreso de Diputados), the political agenda s most relevant issues continued to be focused around the management of borders concerning both control mechanisms and the role of the Security Forces 8, as well as on aspects of agreements with third countries and co-operation and development 9. To a lesser extent, issues connected with the affiliation of 8 Oral questions to the Government in Committee: The Government s forecasts in order to achieve the permanent operations by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) in international waters. (181/003111) Questions to the Government with a written reply: The Government s forecasts in order to achieve the permanent operations by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) in international waters. (184/123951) 9 The parliamentary debate was about the agreements mentioned in Section

21 immigrants to the social security system were also discussed 10. Of particularly importance was the Government s parliamentary appearance to explain the management carried out as regards the arrival of immigrants to the Canary Islands 11. Lastly, the most important social conflicts that have occupied a large part of the media s agenda and public speeches have continued to focus on the issue of the entry of immigrants in cayucos to the Canary Islands 12 with an interest in involving the EU and placing the issue on the European agenda 13. The big issues that have led to social campaigns continue to be the call for the right to vote by migrant organisations and NGOs 14 and the moratorium imposed on Rumanian and Bulgarian citizens Developments in policy areas Refugee Protection and Asylum Pursuant to the obligations it has taken on by its accession to the different International Instruments to protect Human Rights, Spain has an International protection system, which is implemented by the General Directorate of Internal Policy dependent on the Ministry of the Interior. A total of 7,664 applications for asylum were filed in Spain in 2007, a figure which represents 44.7% more applications over the 5,297 filed in This increase is due to the applications filed before Diplomatic or Consular Missions. There has been a spectacular increment of applications by Iraqi citizens 15 in particular: from 42 applications in 2006 to 1,598 in 2007, of which 1,474 were filed before the Spanish Embassy in Egypt. Given that this country, according to all the reports, including those issued by the UNHCR, guarantees the protection of Iraqi refugees pursuant to the terms set forth in Article 5.6.f) of the Asylum Law, these applications were rejected. 10 Questions to the Government with a written reply: Number of foreigners in Spain affiliated to the Social Security System and the same data in the prior ten years corresponding to the same month. (184/113579) 11 Government s appearance in Commission (Art. 44). Request for appearance from the Minister of the Interior before the Interior Committee in order to explain the current influx of illegal immigrants to the Canary Islands. (213/000983) 12 EL País. 05/11/ immigrants arrive to the Canary Islands in cayucos over the weekend / El País 18/11/2007 Sea Rescue Service intercepts 19 north Africans on their way to the Canary Islands by boat 13 R. Zapata-Barrero y N. de Witte (2007) The Spanish governance of EU borders: Normative questions Mediterranean Politics, vol.12, nº 1; For instance, El País. 19/05/2007. Immigrants want to vote 15 The crisis affecting Iraq has produced a great amount of internally and externally displaced persons, and this has been reflected in our asylum system. 21

22 Additionally, the increase in the number applications for asylum from Colombian citizens registered at border posts stands out. During 2007, a total of 2,498 applications for asylum from Colombian citizens were received, of which 2,224 were registered at border posts, primarily at the Barajas Airport (Madrid). This represents an increase of 354 compared with those presented at border posts in This phenomenon, which is not recent, became more evident in the last quarter of 2007, but already since 2005 there has been a steady increase in the number of applicants of this nationality that use asylum as a means of trying to enter Spain. The national groups having the greatest number of applications in 2007 included: Colombia (2,498), Iraq (1,598), Nigeria (680), the Ivory Coast (336), Morocco (263) and Algeria (247). The distribution of asylum seekers by place of application is: within Spanish territory, 3,296; at border posts, 2,644; and at Diplomatic Missions, 1,724. Legislative Developments As a legislative development to the Spanish legal framework in 2007, it is worth mentioning the second amendment of Law 5/1984 of 26 March governing the right to asylum and the status of refugee, which was carried out through the Twenty-Ninth Additional Provision of Organic Law 3/2007 of 22 March 2007 on the effective equality of men and women. The amendment consists of adding a new Third Additional Provision to the Asylum Law, which sets forth that: The provisions set forth in Section 1, Article 3 shall apply to foreign women that flee from their countries of origin due to a well-founded fear of suffering persecution due to gender-related reasons. In other words, such women will be granted the status of refugee and right to asylum within the framework laid down by the Geneva Convention of 1951 on the status of refugees. Other Questions of Interest The 3rd European Asylum Conference under the aegis of the GDISC (General Directors Immigration Services Conference) and organised by the General Directorate of Internal Policy was held in Madrid on 25 and 26 October. During the two days of the conference, interesting studies on the latest advances in the process of harmonising and constructing the Common European Asylum System were presented, in which more than sixty participants from over thirty European countries took part. The General Directorate of Internal Policy in collaboration with the Spanish International Cooperation Agency organised a seminar on The Right to Asylum and Recognition of 22

23 Refugees, which was held in Cartagena de Indias, Colombia between 12 and 15 June. This was the first time that asylum policy was the purpose of a training activity within the framework provided by Spanish co-operation with Latin American countries. Further information can be found in the bibliography: Statistical Report of the Asylum and Refuge Office Madrid: Ministry of the Interior, General Technical Secretariat: 2008 (in press). Statistical Asylum Bulletins. Monthly. January-December Legislation on Asylum and Stateless Persons.- 3rd Edition - Madrid: Ministry of the Interior, General Technical Secretariat, Unaccompanied Minors and other vulnerable groups An unaccompanied foreign minor (MENA) is any underage citizen who enters Spain illegally, without the company of an adult family member. These minors are in a situation of abandonment and family exclusion. Legislation Regulating the Situation of MENAs in Spain Foreign minors who arrive in Spain alone are subject to the protection of both international and Spanish legislation from two standpoints: one related to the rights of children and adolescents and the other related to carrying out and applying alien policy and migratory flow management and control measures. One of the international legislation documents of reference is the United Nations Convention on the Rights of the Child, adopted on 20 November 1989, which promotes and protects the fundamental rights of minors. It was ratified by Spain in November This mechanism was included specifically in the Spanish Constitution, in article 39.4, which states that children shall enjoy the protection set forth in the international agreements that guarantee their rights. One of its general principles is that the supreme interest of the minor must prevail in all actions and decisions that affect minors. Another reference document is the European Council Resolution of 26 June 1997, which establishes that the minor may only be returned to their country of origin or to a third country prepared to accept him if on arrival therein - depending on their needs in light of age and degree of independence - adequate reception and care are available. 23

24 The domestic legislation that regulates the situation of unaccompanied foreign minors in Spain is managed through two legal frameworks: Child Protection Legislation and Aliens Legislation. Child protection is regulated by Organic Law 1/1996, dated 15 January, the Child Protection Act, which establishes the framework for action by the public administrations in the area of child protection. This Law is governed by the higher interest of the child, including the international concept of the rights of children and regulating the principles that must govern the different cases of abandonment that may affect them. Organic Law 5/2000, dated 12 January, which regulates the Criminal Responsibility of the Child, includes the principles of the child protection legislation. The Aliens Legislation, regulated by Organic Law 4/2000, on the rights and freedoms of foreigners in Spain and their social integration, as well as its Executive Regulations, regulate the legal status of abandoned foreign minors. Administrations responsible for child protection Pursuant to the applicable legislation, the regional authorities are responsible for the guardianship and protection of unaccompanied foreign minors and have the specialised resources required by law to take care of the minors. The protection of abandoned minors is entrusted to the protection entities established by each of the regional authorities. The General Administration of the State, in accordance with the principle of the child s best interest, takes the steps necessary to reunite the minor with their family when the conditions so allow. It also provides financial support to the regional authorities in which the number of unaccompanied foreign minors requires a greater number of resources, and it creates programmes that enable collaboration amongst the regional authorities in protecting MENAs transferred from regions with exceptional needs. For example, as a special measure related from the exceptional circumstances that arose due to the increase in the number of unaccompanied minors arriving on the Canary Island coasts during 2006, Royal Decree 868/2007, dated 2 July, was passed to regulate the direct granting of subsidies to the entities responsible for caring for unaccompanied foreign minors within the framework of the Special Programme for the transfer and care of unaccompanied minors from the Canary Islands Region. 24

25 Actions regularly taken regarding unaccompanied foreign minors The normal intervention model with the MENAs is based primarily on activating guardianship and social and educational intervention resources with the minors by the Institutions entrusted with their care; guardianship is exercised through either public centres or those subsidised by the child protection entities. At the same time, the administrative procedures are started to return the minor to their country of origin, either to their own family or to the institutions responsible for caring for the minors. Towards a global focus on handling MENAs In order to tackle the handling of MENAs in a more integrated way, progress has been made towards a global focus, considering the prevention of illegal emigration by these minors, their protection and their assisted return home. Favouring this global focus requires: Establishing close co-operation with the minors countries of origin. Providing technical support to the children s countries of origin to contribute to the creation and development of intervention strategies for children at risk, as well as to generate opportunities in those countries and prevent the illegal immigration of children. The bilateral agreements with the countries of origin formally indicate their obligations and actions in prevention, protection and assisted returns for these minors. A co-operation agreement was signed in December 2005 between Romania and Spain on the protection of unaccompanied Romanian minors in Spain, their return and the fight against their exploitation. The protocol for the application of this agreement was signed in November Similar agreements are currently in the works with Morocco and Senegal. As regards unaccompanied minors who seek asylum, their situation is the object of constant concern by the institutions that work in the area of asylum and, consequently, for the General Directorate of Internal Policy and the General Sub-Directorate of Asylum (Subdirección General de Asilo). 25