Country Update 2022: SPAIN

Contributed by: Andrés de Ceballos Cabrillo

June 2022

1. Legislative Changes

The legislative actions by the Spanish Parliament or Government are minimal in recent years. Only some instructions issued by lower-level administrative bodies have been issued. These instructions are compulsory for the administrations but not for individuals, who can challenge their outcome in court. Usually, they are issued after a judgement by the ECJ or the Supreme Court.   

The main change has been a consequence of the Supreme Court ruling on the labour "arraigo" procedure. The "arraigo" procedures are mechanisms that allow a foreign national in an irregular situation to regularise their status in Spain after a certain period and/or under specific conditions. The main types are social, labour and family.

Regarding labour "arraigo", a foreigner can regularise their status if he/she could demonstrate a year of residency and six months of work. Here was the problem because only a court judgement or a labour inspectorate report was accepted as proofe of employment.

This has changed with the sentence of the Supreme Court of March, 25th, march, 2021 which allows all kinds of evidence to prove the employment relationship, including the social security work history. This has been an important resource, for example for asylums seekers, who after being rejected their asylum application, they can try to regularise their status in Spain.

In January 2022, the administration issued an instruction, limiting the possibilities of this system, but it has been rejected by many lower courts. The Supreme Court has not ruled on the matter yet.

There have also been other administrative instructions in relation to foreign women victims of gender violence.

2. Business Immigration

There have been no legal changes in this area, only some informal instructions regarding Russian citizens, aimed at making residence more difficult, and an instruction regarding workers in the audiovisual sector.

3. Family based immigration.

No changes in this area.

4. Asylum

The Asylum Office is still collapsed, and its rationale continues to increasingly be more political and less legally grounded. Protection is granted on humanitarian grounds to every Venezuelan national with no criminal record, while applications from Colombian nationals who are not social leaders are all denied.

Ukrainians and legal residents in Ukraine before the invasion can apply for temporary protection, which is granted in 24h and gives them the right to work.

The Administration does not allow asylum seekers to work while appealing the rejection at first instance, in contravention of the European Directive 2013/33/EU and the ECJ ruling C-181/16. Social Security is removing from the database the periods of legal employment during appeals once detected, following a procedure that the Supreme Court has said several times that is unlawful.

5. Deportation

Finally, all the problems created by the Zaizoune case, ECJ C-38/14) judgement of 23 April 2015 have ended. Due to this case, or the interpretation given by the Spanish administration and courts, it was established that economic penalties were incompatible with the EU deportation system. Therefore, deportation became the only response to illegal residence. This principle meant that no voluntary exit was possible in Spain.

This interpretation was rejected by the ECJ judgement in case C-568/19 MO, 8 October 2020, which stated that Directive 2008/115/EC had not been properly incorporated into Spanish law and that it has no direct effect when it is contrary to the interest of a citizen.

This judgement led to a new doctrine by the courts (STS 17th March 2021) under which economic penalties were not accepted, and deportation was only possible in certain cases when there was an aggravating factor. This was later confirmed by another case.

Finally, judgement in case C-409/20 UN, 3 March 2022, declared the compatibility of the Spanish system prior to Zaizoune with EU law (penalty + compulsory exit or expulsion).

Despite this, the Supreme Court has continued with its doctrine prior to the latest ruling (compulsory exit or expulsion only).

Regarding the southern border in Ceuta and Melilla, occasional jumps over the fences in both cities have continued with the usual problems. The border was partially reopened on May 17th, after being closed for two years. There is a project to withdraw from the international agreements with Morocco on the free movement of residents between Ceuta/Province of Tangier, and Melilla/Province of Nador.

6. Citizenship

There have been no changes, except some updates to the online application system. The collapse in recent years continues, but the situation has improved slightly.