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African migrants, Teneriffa, Spain



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Immigrants detention centre of Las Raices, Spain



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Boat laden with migrants, Island of Teneriffa, Spain



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© Netzwerk Migration in Europa e.V.



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Detention Camps in Europe, 2005


MIGRATION POLICY IN SPAIN


In the mid-1980s, Spain 'unexpectedly' (Izquierdo, 1996) went from being a country of emigration to having a positive balance in the migratory flow. The question that arises from this, as Cachón (2002b) suggests, is not only how this change occurred but also why it did not happen earlier. Historic ties with Morocco and Latin America, geographic and cultural proximity, or economic inequality between the countries (in terms of both economic growth and wages) could have triggered significant inwards migratory flows much earlier. The question, then, is why now and not before? Faced with this conundrum, many authors coincide in signalling that what made Spain a country of immigration in the mid-1980s were precisely the changes that had come about in Spain (rather than in the countries of origin) and, in particular, the changes in the labour market (King, Fielding and Black, 1997:10; Cachón, 2002a: 111; Oliver Alonso, 2005:8; Calavita, 2005: 52).

With regard to Southern Europe as a whole, King et al. (1997: 10) suggest the coexistence of sectors of high and low productivity as the prime explanatory factor (or precondition) for this ‘unexpected immigration’. Along the same lines, Cachón (2002b: 12) suggests that the main factor triggering the migratory phenomenon was the growing imbalance between an native labour force that had been slowly raising its ‘job acceptability level’ and the demand for workers in sectors or branches of activity that local workers were less and less inclined to accept. After the 1990s, this imbalance in the labour market was further aggravated as a result of two factors related with labour supply and demand. First, economic growth entailed an increased demand for labour involving almost 670,000 new jobs per year (Oliver Alonso, 2007: 46). Second, with the entry into the job market by the cohorts of those born after 1976 (and, to be specific, the non-entry of those who were not born after this date because of the sharp decrease in the birth rate), the offer of new native workers declined after 1992 by approximately two million people, the equivalent of 160,000 fewer workers each year (Oliver Alonso, 2007: 35).

Due to this imbalance, immigration figures rose to almost 900,000 foreign residents (2.18 per cent of the total population) in 2000, 1.3 million (3.10%) in 2002, 1.9 million (4.48 per cent) in 2004, 3 million (6.7 per cent) in 2006 and 3.9 million (almost 10 per cent) in 2007. In these years, one observes a growth in the number of immigrants coming from the countries of Eastern Europe and Latin America and in a smaller scale from Africa and Asia. If we observe the distribution by nationalities, it is important to indicate how the countries of Europe of the Fifteen (and specifically Great Britain, Germany, France, Portugal and Italy) are losing presence with respect to countries of Eastern Europe (Romania and Bulgaria) and Latin America (Ecuador, Colombia, Peru and Argentina). In terms of labour market, the majority of migrant workers from outside the European Union are concentrated in services (58.1%), construction (24.6%), industry (11.1%) and agriculture (6.2%) (Pajares, 2007: 52). If we analyse these figures by gender, we find that 42.3% of the total of male foreign workers had jobs in construction while 89.7% of the total of female foreign workers were in the service sector, more than half of them in domestic employment and somewhat less in commerce (Pajares, 2007: 52). 

Towards an Immigration Policy

It was not until Spain entered the European Economic Community (EEC) in 1986 that the need arose to unify and give the status of law to the different regulations, decrees and bilateral agreements on immigration. This need materialised later with the urgent promulgation of the Ley Orgánica de Extranjería (LOE – Organic Law on Foreigners, which was also known as the Organic Law on Rights and Liberties of Foreigners in Spain). As López Sala (2000: 258) indicates, Spain’s entry to the EEC not only determined the timing of the law but also its content. Since Spain was not then perceived as a country of immigration, the LOE appeared to aim at trying to prevent Spain from becoming a transit or ‘immigrant sieve’ country for people heading for the countries of northern Europe (Aja, 2006: 21). The result was a restrictive policy that regulated the entry, residence and expulsion of foreigners.

As for regulation of entry and residence, the LOE (and the follow-up post-1986 regulation) introduced the requirements of an entry visa as well as residence and work permits. This meant that the entry of foreigners was now subject to regulation (basically at border posts) while their access to the labour market was conditioned by the country’s economic conditions. Furthermore, the situation of foreigners in Spain was restricted by short-residence permits and the non-recognition of the right of family regrouping. While legal migrants had some of their rights restricted and others recognised, illegal migrants were given the bottom-line treatment of detention and expulsion. As a lawyer interviewed by Suárez Navaz (1997: 7) observed at the time, ‘[…] those immigrants [illegal immigrants] do not have a single right in Spain. The law anticipates any circumstance. Basically, the message is that if you are “illegal”, the state has only one responsibility: to deport you.'

Nonetheless, the tightening on the conditions of legality and illegality had its limits in Spain. These limits were imposed, initially, by rule of law and, more specifically, by the courts. The dubious constitutionality of the LOE gave rise to complaints being filed by early immigrants’ associations, different NGOs and Lawyers’ Colleges. They asked the ombudsman to intervene by lodging an appeal based on the unconstitutionality of the articles that affected the right of meeting and association, the internment prior to deportation and the legal prohibition against judges suspending the expulsion orders. As Aja (2006: 23) points out, the ensuing Constitutional Court (1987) ruling meant not only the suppression of these clauses but also the start of a progressive recognition of rights that the Constitution appeared to reserve exclusively for Spaniards.

Apart from the limits set by the Constitution, reality also swiftly overtook the framework imposed by law. First, the imbalance between a restrictive approach to the entry and stay of foreigners in Spain and a growing demand for migrant workers resulted in the emergence of what can only be described as a model of illegal immigration throughout the 1990s (Izquierdo, 1996). Denounced by immigrants’ associations, NGOs and opposition parties during the course of this decade, the manifest policy flaws made it necessary to open up new channels for legal immigration into Spain (by quota) and the periodical regularisation (by ordinary means or extraordinary regularisation processes as in 1991 and 1996) of illegal immigrants. Second, immigration was not as temporary as expected. Hence, and once again as a result of pressure exerted from civil society and opposition parties, the law had to be modified on several occasions in order to regulate the right of family reunification (1994 and 1996), extend the duration of permits, improve renewal procedures and introduce, for the first time, the permanent residence permit (1996).

The different decrees and regulations that were introduced over the 1990s soon made reforming the LOE essential. Hence, after different bills were presented by the opposition parliamentary groups, Law 4/2000 (Organic Law on the Rights and Liberties of Foreigners in Spain and Their Social Integration) was promulgated early in 2000. This law, deemed by some to be ‘the most liberal law on the rights of foreigners in Europe’ (González & MacBride, 2000: 171), introduced the right of family regrouping in terms that were coherent with the jurisprudence of the European Court of Human Rights and held out equality of rights between legal residents and Spanish nationals but not the right to vote or appointment to public office. Moreover, the Law 4/2000 gave illegal immigrants access to health and education facilities in tying these rights to the municipal register (census registration, called el padrón), opened up the way for ordinary individual regularisation (known as arraigo, or taking root) and closed the possibility of applying the measure of expulsion because of illegality in work or residence.

This law on foreigners was passed with the general consensus of all the parties in Parliament, unions, immigrants’ associations and NGOs (which led to its detractors calling it ‘the NGO Law’) but with notable reluctance from the Partido Popular government, which then was in government but with a parliamentary minority. After achieving an absolute majority in the March 2000 general elections, the Partido Popular set about a drastic modification of the legislation, or ‘counter-reformation’, that ended up with the passing of a new law (Law 8/2000) at the end of that same year. The result was a much more restrictive law that cut back the bounds of legality and illegality as defined by Law 4/2000. In the case of legal immigrants, limits were imposed on the questions of permanent residence, representation at municipal level and the right to family regrouping. As for illegal immigrants, they retained rights such as documentation, education, and complete health care, but were denied others such as political and union rights of meeting, demonstration, association, unionisation and striking. Moreover, expulsion was reinstated for illegality of either residence or work. 

Regularisation: An Entry Policy?

Until 2005 entry policies in Spain have been rather restrictive. There are several reasons for this. First, for a long period, contracting foreign workers was subject to very strict evaluation of the national labour market. Second, when prior evaluation of the demands for foreign workers started to be carried out after 2000, the proposed annual quotas tended to be particularly low. This is explained, on the one hand, by the unions’ fearful attitude vis-à-vis the entry of new foreign workers and, on the other, by lack of foresight on the part of businesspeople with regard to needs of medium-term contracts and under-representation of small and medium-sized companies (the majority after all) in the process of determining quotas. Third, and finally, entry policies ended up being more restrictive than initially envisaged due to the complexities of entry procedures and the difficulty of contracting immigrants in their countries of origin.

Indeed, the policy of 'contracting in the country of origin', which requires a job contract prior to arrival, has been one of the great obstacles to legal entry into Spain. In the 1990s, the main reason for this was a lack of mediation mechanisms. If the worker did not have some acquaintance in Spain or the employer in the country of origin, the employment of migrant workers was practically impossible. After 2002, when the Spanish government set about trying to manage this mediation with the collaboration of the governments in the countries of origin, there were still several other reasons. First, not all governments in the countries of origin, which were ultimately responsible for recruitment, were capable of fulfilling this function. Second, even in those cases where mediation functioned properly, not all employers were willing to approve such contracting of their workers. In sectors such as domestic service, small business and the hotel and catering trade, the importance of the previous relationship and trust between employer and worker made contracting through governments an especially difficult process.

As said before, the main effect of these restrictive entry policies (restrictive on paper and in practice) has been the creation of a true model of illegal immigration in Spain. This means that, even though legal entry of immigrant workers was restricted, migrants kept coming in anyway to cover the increasing labour demands. In this context, the regularisation procedures functioned as corrective measures a posteriori to immigration policies that had failed in their most basic aim. Each occasion was an attempt to achieve what the immigration policies had as of yet been unable to do. In the processes of 1989, 1991, 1996, 2000 and 2001, duration of residence rather than having a job was the main requisite for regularisation. Those people who were unable to produce a receipt of their inscription in the municipal census tried to produce as many bits of paper as they could as proof of the length of their stay. In many cases, then, regularisation depended on this amassing of supporting documents and the willingness (or otherwise) of the provincial administrations to recognise them as valid.

In comparison with these processes, the regularisation process of 2005 was different. After five years of a particularly restrictive entry policy (which coincided with the second mandate of the right-wing party Partido Popular), this time the aim was to regularise those workers with a job and even, it might be said, their employers. Moreover, it was the result of a clear agreement between the government, employers and the trade unions. With this regularisation, the government sought to gain more capacity of control – when, at the time, it was calculated that there were more than a million illegal immigrants – and to ensure that more people would be paying Social Security contributions. The employers saw in this regularisation a form of recognition of their demands for foreign workers and a way of having them within the law and therefore in more stable terms. Finally, the trade unions pushed for this regularisation process with the aim of stamping down on the informal economy.

Along with this final regularisation campaign that involved almost 700,000 applications, the Spanish government finally switched to a relatively open entry policy. The main reason for this, as had repeatedly been proclaimed by the government (of different political parties) in the previous few years, was the aim of legally channelling immigration so as to cut down the numbers of illegal migrants. In short, in order to avoid what we might define as continuous correction of a non-functioning migratory system, the government at last opted for an entry policy that was more visibly in keeping with demands for foreign workers.

However, the economic crisis that started in 2007 and 2008 reduced dramatically the demand for migrant workers. This has had a twofold effect. First, as entry has always depended on a specific employment offer, this led to a sharp decrease on (legal) immigration. Second, it has left part of the foreign population unemployed. As had happened decades earlier in Western Europe, this placed policies of returning immigrants to their homelands and possible restrictions on the rights of family regrouping at the very heart of the political debate on immigration. Moreover, since legal residence during the first five years depends on formal integration in the labour market, labour precariousness has translated in many cases into legal precariousness. More specifically, migrants in the first years of legal residence and without a (formal) job are losing (again) their legal status.

Integration Inside, Exclusion Outside

As immigration in Spain was becoming more stable and permanent, integration policies were introduced. This occurred mostly at the regional and local levels since, firstly, the state's main preoccupation was for a long time immigration control and regulation and, secondly, regional and local governments are the ones responsible for those measures involved in integration (health care, education, social assistance, labour and housing) (see Bruquetas, Garcés-Mascareñas, Morén-Alegret, Penninx y Ruiz-Vieytez, 2008: 15). In practice, this has led to a considerable diversity. In terms of content, there is a clear inequality between regions: the more empowered autonomous communities have tended to develop their own policies while others did not (Diez Bueso 2003). This means that immigrants' place of residence has had a direct bearing on their access to welfare services (Martínez de Lizarrondo 2006). In terms of policymaking, Zapata-Barrero (2003) has shown a great diversity as well. While in some regions the public administration has clearly dominated the process of integration policymaking (e.g. Andalucia), in others pressure groups have played the most important role, followed by NGOs and immigrant organisations (e.g. Catalonia).  

While developing a more comprehensive integration policy, the role of Spain as custodian of the southern frontier of Europe led its government to intensify border control measures. This meant, first, to extend the visa requirements to countries such as Morocco, Tunisia and Algeria (1991), the Dominican Republic (1993), Cuba and Peru (2001), Colombia (2002), Ecuador (2003) and Bolivia (2007). Second, greater border control has been implemented at the Spanish enclaves of Ceuta and Melilla, the Canary Islands and, in the last years, in international waters and the countries of transit and origin (see López Sala, 2009). With this purpose, since 2006 a series of bilateral agreements with such countries as Senegal, Mali, Ghana, Cameroon, Ivory Coast, Cape Verde, Guinea-Conakry and Gambia were signed. These agreements have made it possible, on the one hand, to displace migratory control beyond the Spanish border by focusing this control more on blocking exit than preventing entry. On the other hand, they have offered the possibility of repatriating illegal immigrants trying to enter from sub-Saharan Africa. In this policy Spain seems to play for the first time the role of driving force behind new immigration policy at the European level.

References

Aja, E.: 'La evolución de la normativa sobre inmigración' in E. Aja and J. Arango, Veinte Años de Inmigración en España. Perspectiva Jurídica y Sociológica (1985-2004), Barcelona: CIDOB, 2006.

Bruquetas-Callejo, M./Garcés-Mascareñas, B./Morén-Alegret, R./Penninx, R./Ruiz-Vieytez, E.: ‘Immigration and integration policymaking in Spain’, IMISCOE Working Paper No. 21, IMISCOE: Amsterdam, 2008.

Cachón, L.: 'La formación de la 'España Inmigrante': Mercado y Ciudadanía', Revista Española de Investigaciones Sociológicas, 97, p. 95-126, 2002a.

Cachón, L.: 'Inmigración y segmentación de los mercados de trabajo en España', Documentos de Trabajo, 2003/2002. Fundación Centro de Estudios Andaluces, 2002b.

Calavita, K.: Immigrants at the Margins. Law, Race and Exclusion in Southern Europe (Cambridge: Cambridge University Press, 2005).

Diez Bueso, L.: ‘El marc competencial i legal de les politiques migratories’, in J. Guillot, (ed.), Immigració i poders locals. Barcelona: Institut de ciencies polítiques i socials, 2003.

González, L.E./MacBride, R.: 'Fortress Europe: Fear of Immigration? Present and Future of Immigration Law and Policy in Spain', UC Davis Journal of International Law and Policy, vol. 6, no. 2, 153-191, 2000.

Izquierdo Escribano, A.: La inmigración inesperada (Madrid: Trotta, 1996).

King, R.,/Fielding, A./Black, R.: ‘The International Migration Turnaround in Southern Europe’ in R. King & R. Black (eds) Southern Europe and the New Immigrations. Sussex: Sussex Academic Press, 1997.

López Sala, A.: Inmigrantes y Estados: la respuesta política ante la cuestión migratoria. El caso español en el contexto de las democracias occidentales. Universidad Complutense de Madrid, PhD Thesis, 2000.

López Sala, A.: 'El control de flujos migratorios y la gestión política de las fronteras en España', en R. Zapata-Barrero (ed.) Políticas y gobernabilidad de la inmigración en España. Barcelona: Ariel. pp. 31-51, 2009.

Oliver Alonso, J.: 'Efecto llamada e inmigración: razones del choque inmigratorio e impacto en el mercado de trabajo español 1995-2005', Índice Laboral Manpower, 2005.

Oliver Alonso, J.: ‘Inmigración y mercado de trabajo en 2006: Razones de la acentuación del choque inmigratorio’, in E. Aja and J. Arango (eds.) La inmigración en España en 2006. Anuario de inmigración y políticas de inmigración. Barcelona: Edicions Bellaterra, 2007.

Pajares, M.: 'Inmigración y mercado de trabajo. Informe 2007. Análisis de datos de España y Cataluña', Madrid: Documentos del Observatorio Permanente de la Inmigración, 2007.

Suárez-Navaz, L.: 'Political Economy of the Mediterranean Rebordering: New Ethnicities, New Citizenships', Standford Electronic Humanities Review, vol. 5.2., 1997).

Zapata-Barrero, R.: ‘Cambio estructural y redes de actores en las políticas de acomodación de los inmigrantes en España: una perspectiva desde el territorio’, in G. Aubarell (ed.), Perspectivas de la inmigración en España, 327-348. Barcelona: Icaria, 2003. 

Blanca Garcés-Mascareñas, Institute for Migration and Ethnic Studies (IMES), University of Amsterdam, 2010

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