i INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Spain was once predominantly viewed as a country of emigrants and thus focused on the regulation of nationals leaving the country, while immigration legislation remained fragmentary. This trend reversed over the 20th century, as Spain saw more immigration than emigration and, since the turn of the century, four immigration laws have been introduced and the regulatory framework has changed.
On 11 January 2000, Organic Law 4/2000 on the Rights and Freedoms of Foreign Nationals in Spain and their Social Integration (Organic Law 4/2000) was introduced, expanding the rights of immigrants and establishing a general principle of equality with Spanish citizens. This was a significant change to the law. Accordingly, non-European citizens must have a work and residence visa to reside and work in Spain. The following are the main types of visa provided under Article 25 bis of Organic Law 4/2000 and its implementing regulations, adopted by Royal Decree 557/2011:2
- transit visa, which enables transit through the international transit area of a Spanish airport or through Spanish territory;
- short-stay visa, for an uninterrupted stay or successive stays for a period or sum of periods not exceeding three months per term from the first date of entry;
- residence visa, which enables residence only, with no exercise of work or professional activities;
- residence and work visa, which enables working residence for up to a maximum of three months;
- residence and seasonal work visa, which enables working residence for an employee for up to nine months in a period of 12 consecutive months;
- study visa, which enables residence for study, research or training purposes, student exchanges, non-work placements or volunteer services with no remuneration for work; and
- research visa, which enables residence while carrying out research projects within the framework of a hosting agreement signed with a research organisation.
On the other hand, for nationals of EU Member States and associate countries of the Schengen Agreement, Regulation (EC) No. 810/20093 regulates the Schengen visa, which enables entry into, exit from and free movement within the Schengen Area from any of the Schengen Area Member States.
In addition, Law 14/2013 of 27 September 2013 on Supporting Entrepreneurs and Their Internationalisation (Law 14/2013) introduced new types of visa, including residence visas for the following:
- capital investors;
- acquisitions of real estate;
- entrepreneurs and business activity;
- highly qualified professionals;
- training or research purposes;
- business transfers; and
- family members.
i Legislation and policy
The Spanish legal system follows a hierarchical order in which any inferior law cannot contradict a superior law. The Spanish Constitution is the highest law, followed by international treaties (including European law); state laws, which can be organic or ordinary depending on the significance of the matter (a qualified majority is required to adopt the law); royal decree-laws; royal legislative decrees; government regulations; autonomous community laws; and community regulations.
According to Article 149.1.2 of the Spanish Constitution, immigration matters are reserved to central government and therefore governed only by state laws. A non-exhaustive list of the main laws governing immigration includes the following:
- Agreement on Accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement;
- Organic Law 4/2000;
- Organic Law 1/1992 of 21 February 1992 on the Protection of Public Safety;
- Law 14/2013;
- Royal Decree 557/2011;
- Royal Decree 240/2007 of 16 February 2007 on the Entry, Free Movement and Residence in Spain of Citizens of EU Member States and Other States Parties to the Agreement on the European Economic Area (EEA);
- Royal Decree 1325/2003 of 24 October 2003 on the Regulation of Temporary Protections in the Event of Mass Influxes of Displaced Persons;
- PRE/1490/2012 Order of 9 July 2012 on Rules for the Application of Article 7 of Royal Decree 240/2007;
- INT/3321/2011 Order of 21 November 2011 on Issuance of Travel Documents to Foreign Nationals;
- PRE/1803/2011 Order of 3 June 2011 on Fees for Processing Administrative Permits, Visa Applications and Immigration Identity Documents;
- PRE/1282/2007 Order of 10 May 2007 on the financial resources that foreign nationals must prove are available to them to be able to enter Spain;
- PRE/237/2002 Order of 8 February 2002 on General Instructions on Visa Application Reference Numbers;
- Order of the Minister of the Interior of 7 February 1997 on Foreign Identity Cards; and
- Resolution of 26 January 2012 by the Undersecretary of the Ministry of the Presidency, publishing the Agreement between the Ministry of Foreign Affairs and Co-operation and the Ministry of the Interior on the issue of visas at points of entry and the extension of visas in Spain.
ii The immigration authorities
There are three levels of government in Spain: central, regional (at the level of the autonomous communities) and local (at the level of the provinces and municipalities).
Responsibility for immigration under the central government falls to the Ministry of the Interior. Royal Decree 400/2012 of 17 February restructured the Ministry of the Interior into the Secretariat of State for Security and the Undersecretariat of the Interior, which are in turn structured as general directorates and secretariats.
The Secretariat of State for Security is responsible for directing and organising international police cooperation, including the Schengen Information System. One of the Secretariat's directorates is the Directorate General for International Relations and Immigration. The Secretariat also coordinates the implementation of EU directives and regulations, with implementation of some aspects of immigration law carried out at a lower administrative level.
The Ministry of the Interior, through the police authorities, enforces immigration legislation (Royal Decree 400/2012 of 17 February). The Directorate General of Police is responsible to the Secretariat of State for Security and has the duty to direct, organise and enforce immigration regulations.
The General Commissariat for Customs and Immigration has responsibility for:
- controlling the entry into and exit from Spanish territory of Spanish and foreign citizens;
- preventing, prosecuting and investigating illegal immigration cartels; and
- generally overseeing the immigration police regime, refugees and asylum and immigration matters.
The Directorate General of the Civil Guard collaborates with the Ministry of Employment and Social Security through the General Secretariat for Immigration and Emigration.4
In 2007, the Council of Ministers set up a new institution, the Unit for Large Companies and Strategic Economic Sectors (UGE-CE), which handles business immigration. This organisation facilitates the entry into the country of investors, entrepreneurs, highly skilled workers, research workers and their relatives.
iii Exemptions and favoured industries
The following are exempt from obtaining work permits to perform a professional or remunerative activity:5
- technicians, researchers, scientists and professors, invited or hired by the General State Administration, the autonomous communities, universities, local entities or organisations whose purpose is the promotion and development of research;
- teachers, technicians, researchers and scientists invited or hired by a Spanish university;
- management personnel or teaching staff of cultural institutions, or teachers either foreign-state-sponsored or private, of accredited prestige and officially recognised by Spain, who develop in Spain cultural and educational programmes for their respective countries, provided they limit their activity to the execution of such programmes;
- civil or military officials of foreign state administrations that come to Spain to develop activities under cooperation agreements with the Spanish administration;
- correspondents of foreign media;
- members of international scientific missions carrying out work and research in Spain authorised by the Ministry of Education and Science or by the Ministry of Industry, Tourism and Commerce; and
- artists who come to Spain to perform specific actions that do not involve a continuing activity.
As mentioned above, Law 14/2013 introduced new visas with more responsive application procedures and established a general resolution period of 10 days for all visas specified in the Law. The main objective of this Law is to introduce mechanisms specifically designed to attract investment and talent, and characterised by agile procedures and specialised channels.6
ii INTERNATIONAL TREATY OBLIGATIONS
Spain is a member of the EU and the EEA, which grants employment benefits to nationals of Member States of those institutions. The freedom to work in another EU country without a work permit is a right of all EU citizens. Although Iceland, Liechtenstein and Norway are not Member States of the EU, they belong to the EEA and therefore their nationals are admitted on equal terms to the citizens of the EU.
Under the Agreement on Free Movement of Persons between the EU and Switzerland, Swiss citizens have the right to reside and work in the EU. The majority of EU citizens do not need permission to work in Switzerland. Only Croatian nationals need a work permit.
However, Spain is also party to the Schengen Agreement, whose members have abolished internal borders and instead established a single external border. Within this space, there are common procedures and rules for issuing visas. The Schengen Area works like a single country in migratory matters, so once a person crosses the border of any country in this area, he or she can move freely through the Schengen Area and remain until his or her visa expires, without being forced to obtain a different visa for each country that he or she intends to visit in the Area.
Further, Spain has signed bilateral agreements on the regulation of migratory flows with Bulgaria, Colombia, the Dominican Republic, Ecuador, Morocco, Poland and Romania. These agreements are especially important in view of reforms made to Spanish immigration law: Law 14/2003 modified Article 39.3 of Organic Law 4/2000, establishing that seasonal work offers will be oriented preferentially towards those countries with which Spain has signed an agreement on the regulation of migratory flows.7 Notably, Spain has also adopted several framework cooperation agreements in immigration matters with a number of African countries to promote orderly immigration.
Following the United Kingdom's departure from the EU, Regulation (EU) 2018/18068 was amended on 10 April 2019 to add the United Kingdom to Part 1 of Annex 2 of the Regulation, and Gibraltar and other British oversea territories to Part 3 of Annex 2.
iii THE YEAR IN REVIEW
In last year's edition, we anticipated that there would be no changes on immigration law during 2019 and this prediction has been confirmed. Currently, because of the covid-19 pandemic, Spain's frontiers are closed to foreign nationals and non-Spanish resident citizens; immigration-related applications are therefore on standby until the lockdown measures can be lifted. Equally, at the time of writing, because Spanish consulates are closed until further notice, no visa-related or other immigration-related matters can currently be submitted or processed.
iv EMPLOYER SPONSORSHIP
i Work permits
To work in Spain, a work permit, obtained with the residence permit, is required. The types of permit vary depending on whether the migrant will be working for himself or herself, or for others. Visas are essential for non-EU citizens and must be processed in the foreign national's country of origin; visas are requested at and produced by the Spanish consulates of relevant countries abroad.
Decisions refusing the granting and the renewal of work permits may be open to administrative or judicial review. In accordance with Law 39/2015 of 1 October on the Common Administrative Procedure of the Public Administrations, there are two types of administrative appeal: an appeal for review by the institution that issued the decision and an appeal to a higher authority. The final administrative decision shall be subject to jurisdictional review pursuant to Law 29/1998 of July 13 on the Contentious-Administrative Jurisdiction.
Classes of work permits
Working for others
Initial authorisation of temporary residence and paid employment will enable foreign nationals residing outside Spain who have obtained the corresponding visa to start a relationship of employment for others.
Types of work permits for work employed by others include:
- Type B (initial), which is for a specific sector or activity and geographical area, valid for one year, after which it is possible to obtain a Type B (renewed) permit;
- Type B (renewed), which authorises the exercise of any activity throughout the national territory and is valid for two years; and
- Type C, which authorises the exercise of any activity throughout the national territory.
The holders of a Type B (renewed) permit may obtain a Type C permit at the end of the Type B (renewed) permit's two-year term.
Types of work permits for self-employed individuals by others include:
- Type D (initial), which may be limited to the exercise of a specific activity and for a specific geographical area, and which is valid for one year, after which the holders of a Type D (initial) permit can obtain a Type D (renewed) permit;
- Type D (renewed), which authorises the exercise of any activity throughout the national territory and is valid for two years; and
- Type E, which authorises the exercise of any activity throughout the national territory.
The holders of a Type D (renewed) permit may obtain a Type E permit at the end of the Type D (renewed) permit's two-year term.
Other permits and authorisations
Other types of permits include:
- Type F for cross-border workers, employed by others or self-employed;
- Type G for work within the framework of transnational services; and
- Type A for seasonal work.
ii Labour market regulation
The main state employment laws in Spain are:
- Spanish Constitution of 1978;
- Royal Legislative Decree 2/2015 of 23 October 2015 Approving the Revised Text of the Workers' Statute;
- Law 31/1995 of 8 November 1995 on the Prevention of Occupational Risks;
- Organic Law 11/1985 of 2 August 1985 on Freedom of Association;
- Royal Legislative Decree 1/1994 of 20 June 1994 on Social Security and Protection of the Labour Market; and
- Law 23/2015 of 21 July 2015, on the Labour and Social Security Inspection System, assigning monitoring of compliance with social security regulations to the Labour and Social Security Inspectorate.
In accordance with Law 23/2015, the inspection function is carried out by officials of the Superior Corps of Labour and Social Security Inspectors and of the Corps of Labour Sub-Inspectors. Labour and social security inspectors have competence in labour relations, prevention of labour risks, social security, employment, migration (work of foreign nationals and migratory movement) and technical assistance.
The Labour and Security Inspectorate has the authority to investigate workplaces employing illegal immigrants through dawn raids, to request from the acting official (or representative of the duly obliged persons) to make visits, provision of documentation or of pertinent clarifications, or by means of administrative files. Depending on the outcome of the investigation, public proceedings may be instigated. Inspection proceedings may be carried out by one or more officials and extended as necessary.9
iii Rights and duties of sponsored employees
Foreign sponsored employees have the same rights as Spanish workers; however, those workers bear autonomous responsibility for their situation and for renewing their work permit when appropriate. Foreign workers who are employed by others and have not renewed their work permit or do not have a valid work permit, may have their employment contract terminated. If the work permit is lost in the course of work undertaken, with a current employment contract, this may result in loss of employment or termination by the company, which would be characterised as objective dismissal, pursuant to the Workers' Statute. In a situation of this type, the employer would be obliged to compensate the worker for dismissal for objective reasons.10
After five years living legally and continuously within Spanish territory, foreign employees can apply for a long-term residence permit authorising them to reside and work in Spain indefinitely under the same conditions as Spaniards, so long as they:
- are not citizens of a Member State of the EU, of the EEA or Switzerland, or family members of citizens of these countries to whom the regime of citizen of the EU applies;
- are not residing illegally or without the necessary permission from the immigration authorities within Spanish territory;
- have no criminal record in Spain;
- are not prohibited from entering Spain;and
- are not returning during a period in which returning to Spain is forbidden on account of the foreign national having voluntarily returned to his or her country of origin.
Further, to be granted nationality by way of residence, continuous residency in excess of 10 years is required; five years will suffice for those who have obtained refugee status, and two years in the case of nationals from Ibero-American countries, Andorra, Equatorial Guinea, the Philippines, Portugal or of Sephardi origin. One year will suffice in special cases,11 such as:
- those born in Spanish territory;
- those who did not exercise the right to opt for Spanish nationality in good time;
- those who have been the legal subject of guardianship or fostering by a Spanish citizen or institution for two consecutive years, even if they continue in this situation at the time of the request;
- those who at the time of the application have been married to a Spanish citizen for more than one year and are not legally or de facto separated;
- the widow or widower of a Spanish citizen if on the death of the spouse there is no legal or de facto separation; and
- those of Spanish descent by second or third generation.
In all cases, the residence must be legal, continuous and have occurred immediately prior to the request.
v INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
Law 14/2013 enables investors and entrepreneurs to set up in economic activity in Spain without the support of a sponsor.
Foreign persons wishing to make a significant investment in Spain can apply:
- to the Spanish consulate corresponding to his or her domicile for a residence visa that lasts for one year; or
- to the UGE-CE for residence authorisation for two years.
A significant investment of capital is understood as an initial investment of a value equal to or greater than the following: €2 million in Spanish public debt; €1 million in shares, social participations in Spanish companies or banking deposits in Spanish financial institutions; or €500,000 in Spanish real estate.
In addition to the established general requirements, the applicant must prove having made the investment in the minimum amount required within a period not exceeding 60 days prior to the submission of the application, as follows:
- Investment in unlisted shares or social participations: the copy of the investment statement made in the Registry of Foreign Investments of the Ministry of Economy and Competitiveness must be presented.
- Investment in listed shares: a certificate from the financial intermediary, duly registered with the National Securities Market Commission or Bank of Spain, must be presented stating that the interested party has made the investment for the purposes of the standard.
- Investment in public debt: a certificate from the financial institution or the Bank of Spain must be presented stating that the applicant has been the sole owner of the investment for a period equal to or greater than five years.
- Investment in a bank deposit: a certificate from the financial institution must be presented stating that the applicant is the sole owner of the bank deposit.
- Investment in real estate: a land registry certificate showing continuous ownership must be presented. This certification will have to be issued within 90 days prior to the presentation of the residence visa application. If, at the time of the visa application, the acquisition of the property is in the process of being registered with the Property Registry, it will be sufficient to produce documentation certifying the acquisition document, accompanied by the documentation accrediting the payment of the corresponding taxes. The minimum €500,000 must be free of any charge or lien.
Foreign nationals from outside the EU can apply for temporary residence for entrepreneurial purposes provided their business demonstrates innovative character and a special economic interest for Spain. To demonstrate this, the investor must present the visa application to the relevant Economic and Commercial Office of the Diplomatic Missions of Spain (the Commercial Office) and, in the first instance, the business interest must be approved in a favourable report from the relevant Commercial Office.
On this basis, investors who present a business project to be developed in Spain that is considered and accredited as being of general interest can apply for this type of visa, as can those who have planned to enter and remain in Spain for a period of one year with the sole or main purpose of carrying out the above-mentioned procedures to be able to develop an entrepreneurial activity.
Capital investment is admissible when the investment is carried out by a legal entity, provided that, in accordance with Spanish regulations, it is not established in a tax haven state and the foreigner holds directly or indirectly the majority of the voting rights and the power to appoint or assign the majority of the members of its administrative body.
In the case of entrepreneurs, as noted above, the proposed entrepreneurial activity must be of proven innovative character and of special interest and significant benefit for Spain, and this should be supported by a favourable report from the relevant Commercial Office.
Skilled migrants may obtain temporary residence and work authorisation to perform a work activity for which a higher education qualification or, exceptionally, a minimum of five years of comparable professional experience is required; however, it is an essential requirement to produce a contract signed by the worker and the employer guaranteeing the worker continuous employment during the period of validity of the authorisation to reside and work in Spain.
vi OUTLOOK AND CONCLUSIONS
As we noted in 2019, the current government has proposed legal instruments to help match labour supply with demand at the immigration level in relation to visas for job search, collective management of contracting in the country of origin, and recruitment of individuals, especially for small and medium-sized enterprises in need of staff.
However, quite apart from the border closures necessitated by the covid-19 pandemic, the current political scenario in Spain, with multiple parties and a coalition government, means that it remains unlikely that the Congress of Deputies will achieve consensus on the adoption of new immigration laws in the coming year, particularly as the current mainstream political parties have opposing points of view on immigration matters.
1 Antonio Arenas López is a managing partner and Beatriz Leiva Baeza is an associate at Scornik Gerstein LLP.
2 Royal Decree 557/2011 of 20 April 2011 on the Implementing Regulations of Organic Law 4/2000.
3 Regulation (EC) No. 810/2009 of the European Parliament and the Council of 13 July 2009 establishing a Community Code on Visas (the Visa Code).
4 Antonio Ernesto Arenas Lopez and Adriana Agudo Martin (2016). Business Immigration. Thomson Reuters. 254–255.
5 Article 117 of Royal Decree 557/2011.
6 The Explanatory Memorandum of Law 14/2013 of 27 September on Supporting Entrepreneurs and Their Internationalisation.
7 Article 17 of Law 14/2003.
8 Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement.
9 Article 21 of Law 23/2015 of 21 July.
10 Sentence of the Labour Chamber of the Spanish Supreme Court of 16 November of 2016.
11 Article 22 of the Civil Code.