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Summary

In the last two decades Spain has evolved from a country of emigrants to a country of immigrants.  The largest number of  immigrants have come from Africa, Latin America, and Eastern Europe.  Spain’s immigration is based on a visa system, except in cases of immigrants coming from countries with which Spain has bilateral agreements or from European Union Member States.

Naturalization is available to the holders of residence permits, provided they are well-integrated, speak Spanish, and have the required number of years in residence, which vary from one to ten years, depending on the country of origin of the applicant.

Spain has enhanced its border control operations at entry points by making use of high tech tools, such as the US electronic data interchange system, known as the Advance Passenger Information System, and an advanced surveillance system called Sistema de Vigilancia Exterior (SIVE).

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Immigration System

Since the 1990’s Spain has evolved from a country of emigrants to a country of immigrants, with profound social, economic, political, legal, and cultural consequences.  The largest number of these immigrants have come from Africa, Latin America, and Eastern Europe.[1]  Many of these migrants are low-skilled and come to Spain on a temporary or seasonal work visa.[2]  Since 2010 the flow of immigrants into Spain has decreased considerably owing to the economic crisis, high unemployment, and the financial troubles that the country is still trying to overcome.[3]

In order to adapt the immigration laws to the new immigration reality and labor market, a comprehensive immigration law was enacted in 2000—Ley Orgánica 4/2000 sobre Derechos y Libertades de los Extranjeros en Espana y su Integración Social (LODLE) [Organic Law on the Rights and Freedoms of Foreigners in Spain and their Social Integration 4/2000],[4] which has been amended several times and further implemented by Real Decreto 557/2011 sobre el Reglamento de Reglamento de la Ley Orgánica 4/2000, sobre Derechos y Libertades de los Extranjeros en España y su Integración Social, tras su reforma por Ley Orgánica 2/2009 (Regulation of the Organic Law on the Rights and Freedoms of Foreigners in Spain and Their Social Integration 4/2000 (RLODLE). [5]

Spain’s immigration management policy is based on a visa system, except in cases of immigrants coming from countries with which Spain has bilateral agreements or from European Union Member States.[6]  The LODLE establishes a visa requirement to enter and stay for an intended purpose in the country, which is classified according to the following types of visas: transit; short-stay; residence; residence and work; seasonal residence and work; and study and research.[7]

The visa regime aims at restricting illegal migration and providing for the needs of the Spanish labor market.  Each type of visa specifies its pertinent rights and obligations.[8] 

The LODLE and its regulations provide that aliens entering Spain must do so through an authorized port of entry and must provide a valid passport or travel document that proves their identity under the terms of international agreements signed by Spain.[9]  The foreigners also must provide evidence of the reason for and conditions under which they are entering Spain, as well as evidence of financial support for their time of stay in the country or the ability to procure such funds legally.[10]  All visitors need to secure a valid visa to enter Spain, except in those cases where international agreements allow otherwise, or when the foreigner has a foreigner identity card or a return permit.[11]  Foreigners who do not qualify to enter the country under the conditions outlined above may still be allowed to enter on the basis of humanitarian needs, the public interest, or commitments undertaken by Spain.  In these cases, the foreigner will be given the pertinent documents provided for in the applicable regulations.[12]

The entry of non-EU foreigners into Spain may be registered by Spanish authorities in order to control the period of legal stay in the country.[13]

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Criteria for Residence Permits

An initial temporary residence permit entitles the holder to reside and work in Spain for a maximum period of three months, which may be extended for two years.[14]  Requirements for this permit include having no criminal record in Spain, the country of origin, or another country in which the individual has resided during the last five years; being free of any disease that might affect the public health; and possessing a signed employment contract.  Within one month after notification that the permit has been granted, the applicant must apply for the visa in person at the consulate of Spain in his place of residence.[15]

Long-term residence allows for indefinite residence and work in Spain.  It is available for those who have legally resided in the country for five years.[16]

The RLODLE provides for a residence authorization for social, family, or labor ties.[17]  Residence on the basis of labor ties is granted to those who can demonstrate they have stayed permanently in the country for a period of at least two years; have no criminal record in Spain, their country of origin, or the countries they have resided in during the last five years; and have proof of employment for not less than six months.[18]

 

Residence based on social roots is mainly applicable to those who can prove that they not only have ties to Spanish residents but also have engaged in cultural and social integration programs for foreigners.[19]  For this residence permit the same requirements have to be met as for the labor ties permit, except that the continuous stay in Spain must be for at least three years and the employment contract for not less than one year.  Additionally, applicants must provide proof of family ties to other legal residents or a report issued by local authorities attesting to the applicant’s established roots and social integration in the country.[20] 

The residence based on family roots may be issued to parents of Spanish children or children of parents who are Spanish by origin.[21]

 

Other residence permits may be issued on the grounds of exceptional situations for international or humanitarian protection; cooperation with authorities; national security; public interest; female victims of gender-based violence; and collaboration with authorities against organized crime and human trafficking networks.[22]  In these cases, the residence authorization is issued for a one-year period, which may be extended for another two years.  After five years of continuous legal residence, a long-term residence authorization may be issued.[23]

 

Spain began implementing measures to achieve massive regularization of irregular immigrants in 1985, with the latest enactment in 2005, Real Decreto 2393/2004,[24] aimed at providing legal status to the vast majority of irregular immigrant workers who were able to prove residence in Spain for at least six months before Real Decreto 2393/2004 took effect, who have no criminal records, and who have an employment contract for a minimum of six months.[25]  The initial temporary residence and work permit may be renewed as long as the initial conditions are still being met.[26]

 

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Path to Citizenship

An alien may gain Spanish citizenship through:

  • naturalization granted at the discretion of the pertinent authorities through a Royal decree under extraordinary circumstances;[27]
  • residence of ten years, five years for refugees, and two years for nationals of Latin America, Andorra, the Philippines, Equatorial Guinea, or Portugal;[28]and
  • residence of one year for those born in Spain; for those who have been married to a Spanish national for one year and are not separated; for widows or widowers of a Spanish national if at the time of death they were not separated; and for those born abroad of a Spanish mother or father who were originally Spaniards.[29]

Once those holding residence or work permits have fulfilled the period-of-residence requirement, they may apply for citizenship in accordance with the rules established in the Civil Code.[30]  Their residence must have been legal and permanent, and it must have lasted until immediately before the nationality petition was filed.  The petitioner must also prove good civic character and an acceptable degree of integration into Spanish society.[31]

While the residence requirement is easily verifiable, the interpretation of the “integration into Spanish society” clause has posed major difficulties for the courts.[32]  Knowledge of the Spanish language has been interpreted by the courts as a key element to prove social integration.  The Audiencia Nacional (Spain’s highest court) in a 2012 decision stated that a deficient knowledge of Spanish language and culture is evidence of a lack of integration into Spanish society and therefore grounds for denial of Spanish nationality.[33]

This judicial reasoning has been later applied in a number of court decisions that mainly conclude that a person who has been residing in Spain for a long period of time with a spouse and children who are Spanish nationals but who does not have an acceptable knowledge of the Spanish language cannot be considered to have integrated into Spanish society since, in the court’s opinion, “language proficiency constitutes the main path of communication and social integration, and [its lack] significantly limits [a person’s] inclusion in other societal and economic sectors.”[34]

 

In addition to knowledge of the language, the integration test for purposes of nationality also includes a set of cultural and social values, such as participation in educational, social, and charitable activities that are prevalent in the Spanish way of life.[35]

 

The 2011–2014 “Strategic Plan of Citizenship and Integration” (SPCI) adopted by the government provides a policy framework aimed at creating a fair and cohesive society in order to build up a general “feeling of common belonging among all the citizens.”[36]  The SPCI was the result of the government’s consultation with the main stakeholders in the social process of inclusion, such as immigrant associations, regional authorities, and humanitarian entities like the Red Cross and Caritas.  The SPCI provides policy guidelines based on the idea that integration is a two-way process that includes not only the immigrant but the national population as well.[37]  Integration is aimed at securing the economic, social, educational, and cultural development of immigrants.  The SPCI emphasizes the need to reinforce the government-promoted strategy to fight racism and xenophobia,[38] and is based on the principles of nondiscrimination, recognition of full civic participation, and interculturalism.[39]

 

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Border Control

In the last fifteen years, Spanish governments have adopted a number of strategies to fight against illegal immigration.[40]  Border security in Spain is particularly critical since most of Spain borders the sea.  Control strategies are not limited to monitoring arrivals at a linear border but also include reaching out beyond Spanish territory to coordinate with the migratory policies of the immigrants’ countries of origin.[41]  In this regard, Spain has adopted the visa system as a pre-entry control to be applied to nationals of countries with high numbers of immigrants coming to Spain.[42]

In regard to border control at entry points, Spain has not only increased the number of personnel assigned to border control operations, but also enhanced the technology used in these operations.  For example, it now employs the Advance Passenger Information System, the electronic data interchange system established by US Customs and Border Protection.  This system gives the authorities information on passengers who are about to arrive at Spanish ports and airports from outside the Schengen area of the European Union.[43]  Spain has also fortified the border surrounding the cities of Ceuta and Melilla on the border with Morocco through the use of American fence construction technology.[44]

 

In addition to border controls that are carried out by Frontex, the European Union agency on external border control, an advance surveillance system (Sistema de Vigilancia Exterior (SIVE)) [External Surveillance System] has also been installed in the coastal areas of Gibraltar and the Canary Islands.[45]  SIVE was created at the end of the ‘90s to provide information obtained through sensor stations that detect seacraft from a long distance, up to ten kilometers, and transmit a televised signal to two Central Commands, currently located in Algeciras in Gibraltar and Fuerteventura in the Canary Islands.  Rescue and interception operations are coordinated at these two centers.[46] 

 

The control of Spain’s borders is relevant not only for Spain but also for many European countries in the north because of the elimination of the internal borders within the European Union.[47]

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Unlawful Entry and Overstay

Foreigners who have illegally entered the country or overstayed their visas are subject to an administrative fine and/or expulsion.[48]  In the event that an irregular immigrant is identified, the immigrant is subject to deportation.  If it is not possible to expel him or her within seventy-two hours, the courts intervene and order the immigrant confined in a Foreigner Detention Facility.[49]

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Graciela Rodriguez-Ferrand
Senior Foreign Law Specialist
March 2013

 

[1] S. Gargante et al., La Discriminación Racial, Propuestas para una Legislación Antidiscriminatoria en España 5 & 13 (Ceres, Barcelona, 2003). 

[2] Philip Martin, Temporary Worker Programs: US and Global Experiences 11–12, (University of California, Davis, Mar. 15, 2008), available at http://canada.metropolis.net/policypriority/migration_seminar/ PhilipMartinsPaper_e.pdf.

[3] Disminuye entrada de Inmigrantes a España por Crisis, La Vanguardia (Mar. 31, 2011), http://www.van guardia.com/historico/98903-disminuye-entrada-de-inmigrantes-a-espana-por-crisis.

[4] Ley Orgánica 4/2000, de 11 de enero, sobre Derechos y Libertades de los Extranjeros en España y su Integración Social (LODLE), Boletín Oficial del Estado (B.O.E), Jan. 12, 2000, as amended by Organic Law 2/2009, http://www.boe.es/buscar/act.php?id=BOE-A-2000-544

[5] Real Decreto 557/2011, de 20 de abril, por el que se aprueba el Reglamento de la Ley Orgánica 4/2000, sobre Derechos y Libertades de los Extranjeros en España y su Integración Social, tras su Reforma por Ley Orgánica 2/2009 (RLODLE), B.O.E. Apr. 30, 2011, http://www.boe.es/buscar/pdf/2011/BOE-A-2011-7703-consolidado.pdf.

[6] LODLE art. 25.2

[7] LODLE art. 25 bis.

[8] Pascual Aguelo Navarro, Toda la Información para Trabajar, Estudiar y Vivir en España 20–21 (Oceano, Barcelona, 2008).

[9] LODLE art. 25.1.

[10] Id. art. 25.1.

[11] Id. art. 25.2.

[12] Id. art. 25.4.

[13] Id. art. 25.5.

[14] RLODLE arts. 71–72.

[15] RLODLE art. 70.

[16] RLODLE arts. 147–48.

[17] RLODLE art. 124.

[18] Id. art. 124.1.

[19] Alfonso Lluzar Lopez de Brinas et al, Régimen Jurídico del Trabajo de los Extranjeros en España, 119 (Atelier, Barcelona, 2012).

[20] RLODLE art. 124.2.

[21] Id. art. 124.3.

[22] Id. arts. 125–146.

[23] Id. art. 130.

[24] Real Decreto 2393/2004, de 30 de diciembre, por el que se aprueba el Reglamento de la Ley Orgánica 4/2000, sobre Derechos y Libertades de los Extranjeros en España y su Integración Social, BOE Jan. 7, 2005, http://www.boe.es/buscar/act.php?id=BOE-A-2005-323&p=20110430&tn=1#dttercera.

[25] Id. Disposición Transitoria Tercera [Third Transitory Provision].

[26] Id. For statistics and a detailed analysis of the regularization process, see Antonio Izquierdo et al., Políticas de Control Migratorio—Estudio Comparado de España y EE.UU. 44–101 (Ediciones Bellaterra, Barcelona, 2012).

[27] Código Civil, art. 21.1 (La Ley, Madrid, 2000), available at http://www.boe.es/buscar/act.php?id=BOE-A-1889-4763&tn=1&p=20121114#art22.

[28] Id. art. 22.1.

[29] Id. art. 22.2.

[30] RLODLE art. 124.1–3.

[31] Código Civil, art. 22.3.

[32] Sergio Carrera, in Search of the Perfect Citizen?  The Intersection between Integration, Immigration and nationality in the EU, 263 (Martinus Nijhoff Publishers, Boston, 2009).

[33] Sentencia de la Audiencia Nacional (Sala 3ª. Sección 3ª) de 2 de abril de 2012.  Naturalización por residencia: integración en la sociedad española.  Argelina que no demuestra el conocimiento de la lengua y la cultura española, Migración con Derechos, Ministerio del Trabajo e Inmigración, http://www.migrarconderechos.es/jurisprudenceMastertable/jurisprudencia/SAN_02_04_2012;jsessionid=9451541F2E816EC217A22BC94DF0DE98.

[34] Sergio Carrera, 265.

[35] Id.

[36] Plan Estratégico de Ciudadanía e Integración 2011–2014 , Ministerio de trabajo e Inmigración, http://extranjeros.empleo.gob.es/es/integracionretorno/Plan_estrategico2011/pdf/PECI-2011-2014.pdf.

[37] Sergio Carrera, 273.

[38] Plan Estratégico de Ciudadanía e Integración 2011–2014 at 8.

[39] Sergio Carrera, 274.

[40] Antonio Izquierdo et al., Políticas de Control Migratorio—Estudio Comparado de España y EE.UU. 164 (Ediciones Bellaterra, Barcelona, 2012).

[41] Id.

[42] Id. 166.

[43] El sistema de Información Avanzada de Pasajeros ha Detectado desde su Puesta en Marcha a 295 Delincuentes, La Opinión (Dec. 27, 2007), http://www.laopinion.es/tecnologia/2996/sistema-informacion-avanzada-pasajeros-detectado-puesta-marcha-295-delincuentes/120610.html.

[44] Id. 176.

[45] Id. 177.

[46] Id.

[47] Jorgen Carling, The Merits and Limitations of Spain’s High-Tech Border Control, Migration Information Source (Jun.7, 2007), http://www.migrationinformation.org/Feature/display.cfm?ID=605.

[48] LODLE art. 53.1.

[49] LODLE art. 57.

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Last Updated: 02/28/2014