Report from Spain

Summary

Introduction

The Spanish Constitution of 1978 contains only one precept on migration movements concerning Spanish emigrants. That is, Article 13, which specifies the basic constitutional regulation on aliens. The precept formulates a principle of restricted equivalence between nationals and aliens vis-à-vis the entitlement to, and exercise of, fundamental rights and public liberties. The article also constitutes the basis for Spanish legislation on aliens and immigration. The Spanish Constitution does not, however, take immigration into account. At the time of its creation, immigration was veritably non-existent, and Spain had traditionally been a country of emigrants. As the data in Tables 1 through 4 show, there has been substantial change in Spain's migratory flows during the last 30 years.

Spain's emigration-to-immigration metamorphosis provides rich fodder for describing the evolution of the country's legal regime. While the country's legislation has been adapted to European Union legislation and policies, and it must therefore be understood in the greater European context, this chapter's analysis takes a stricter national perspective. The chapter underscores the vacillation that Spain experienced in the legislative and political process during years of intense change. Revealed here are the difficulties that were involved in the creation and execution of the new policy on immigration.

Organic Law 7/1985 on the rights and liberties of aliens in Spain

Organic Law 7/1985 develops Article 13 for the first time. Its content can be classified as ‘net aliens’: it stressed the control of aliens – their entry, stay and work – and the restrictive regulation of rights was based on the distinction between legal and illegal aliens and, within the legal group, aliens on temporary stays and residents. This law did not provide for aspects of immigration. For example, it did not take into account residence or work permits for an indefinite period of time, nor did it regulate family reunification. The Spanish legislator was thus short-sighted, being well aware of the immediate reality of Spain's incorporation into the European Community, while nevertheless being unable to foresee Spain's transformation from a country of emigrants to a country of immigrants.

During the years following Organic Law 7/1985, the situation was characterised by a constant increase in migratory flows, which gave rise to a growing number of irregular immigrants.