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 foreigners in Spain and their social integration 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 main types of visa regulated under Article 25 bis of Organic Law 4/2000 and its Regulation, adopted by Royal Decree 557/2011, are the:
- transit visa, which enables transit through the international transit area of a Spanish airport or through Spanish territory;
- stay visa, for an uninterrupted stay or successive stays for a period or sum of periods not exceeding three months per term from the date of the first entry;
- residence visa, which enables residence without exercising work or professional activities;
- residence and work visa, which enables entry and stay for a maximum period of three months;
- residence and seasonal work visa, which enables working 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, exchange of students, non-work placements or volunteer services, not remunerated 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, 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) regulates the Schengen visa, which enables entering, freely travelling within and leaving the Schengen Area from any of the Schengen Area Member States.
Finally, it is worth mentioning that Law 14/2013 of 27 September 2013 for supporting entrepreneurs and their internationalisation introduces new types of visa, such as the residence visa, for:
- capital investors;
- acquisition of real estate;
- entrepreneurs and business activity;
- highly qualified professionals;
- training or research;
- business transfer; and
- family members.
i Legislation and policy
The Spanish legal system follows a hierarchical order in which any inferior law can not 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 law decrees; legislative royal decrees; government regulations; autonomic communities laws; and communities regulations.
According to Article 149.1.2 of the Spanish Constitution, immigration matters are reserved for the central government and, therefore, only regulated by state laws. Without being exhaustive, the main laws governing immigration would be the following:
- the Agreement on Accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement;
- Organic Law 4/2000 of 11 January 2000 regarding the rights and freedoms of foreign persons in Spain and their social integration;
- Organic Law 1/1992 of 21 February 1992 on the protection of public safety;
- Law 14/2013 of 27 September 2013 on supporting entrepreneurs and their internationalisation;
- Royal Decree 557/2011 of 20 April 2011, which approved the Regulation of Organic Law 4/2000;
- Royal Decree 240/2007 of 16 February 2007 regarding the entry, free movement and residence of citizens from Member States of the European Union in Spain and other states party to the Agreement on the European Economic Area (EEA);
- Royal Decree 1325/2003 of 24 October 2003, which approved the Regulation on temporary protection in the event of a mass influx of displaced persons;
- PRE/1490/2012 Order of 9 July 2012, which establishes rules for the application of Article 7 of the Royal Decree 240/2007;
- INT/3321/2011 Order of 21 November 2011 on travel documents issued to foreign persons;
- PRE/1803/2011 Order of 3 June 2011, establishing the fees for processing administrative permits, visa applications and immigration identity documents;
- PRE/1282/2007 Order of 10 May 2007 on available financial resources of which foreign persons must prove to enter Spain;
- PRE/237/2002 Order of 8 February 2002, which provides general instructions regarding the designation of visa application reference numbers;
- Order of 7 February 1997, which regulates foreign identity cards; and
- Resolution of 26 January 2012, by the Undersecretary of the Ministry of the Presidency, which publishes the Agreement between the Ministry of Foreign Affairs and Co-operation and the Ministry of Interior, on the issue of visas at point of entry and the extension of visas in Spain.
ii The immigration authorities
There are three levels of government: central, autonomous and provincial.
Central government is responsible for immigration under the Ministry of Internal Affairs. Royal Decree 400/2012 of 17 February structures the Ministry of Internal Affairs into the Secretariat of State for Security and the Ministry of the Interior's Sub-Secretariat, which are in turn structured into general directorates and secretariats.
The Secretariat of State for Security has the duty to direct and organise international police cooperation, including the Schengen Information System. One of its general directorates is the General Directorate of International Relations and Immigration. It also coordinates implementation of EU Directives and Regulations.
Implementation of some aspects of immigration law can be carried out at a lower administrative level.
The Ministry of Internal Affairs, through the police authorities, enforces immigration legislation (Royal Decree 400/2012 of 17 February). The General Directorate of Police is under the Secretariat of State for Security and has the duty to direct, organise and enforce immigration regulations.
The General Commission of Customs and Immigration has the duty to:
- control entry into and exit from Spanish territory of Spanish and foreign citizens;
- prevent, prosecute and investigate illegal immigration cartels; and
- generally oversee the immigration police regime, refugee and asylum, and immigration areas.
The General Directorate of the Civil Guard collaborates with the Ministry of Employment and Social Security through the General Secretariat of Immigration and Emigration.2
In 2007, the Council of Ministers sets up a new institution, the Unit for Large Companies and Strategic Economic Sectors (UGE-CE), which handles business immigration. This organisation facilitates the entry of investor, entrepreneurs, high-skilled workers, research workers and their relatives.
iii Exemptions and favoured industries
Applicants exempt from obtaining work permits to perform a professional or lucrative activity are the following:3
- 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 dependent on other states or private, of accredited prestige and officially recognised by Spain, who develop in Spain cultural and educational programmes of 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 that carry 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 continuous activity.
As mentioned above, Law 14/2013 of 27 September 2013 introduced new visas whose procedures are more responsive and established a general period resolution of 10 days for all visas included in the law. The main objective of this law is to introduce mechanisms specifically designed to attract investment and talent, characterised by agile procedures and specialised channels.4
ii INTERNATIONAL TREATY OBLIGATIONS
Spain is a member of the European Union and the EEA, which grants employment benefits of nationals of Member States of those institutions. The freedom to work in another EU country without a work permit is a right for all EU citizens. Although Iceland, Liechtenstein and Norway do not pertain to the European Union, they belong to the European Economic Area and, therefore, their nationals are admitted on equal terms to the citizens of the European Union.
Under the Agreement on Free Movement of Persons between the European Union and Switzerland, Swiss citizens have the right to reside and work in the European Union. 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 any person crosses the border of any of 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.
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 after the latest legislative reform of Spanish immigration law. Law 14/2003 of 20 November modifies Article 39.3 and establishes that the seasonal work offers will be oriented preferably towards the countries with which Spain has signed an agreement on the regulation of migratory flows.5 It is also remarkable that Spain has adopted several framework cooperation agreements in immigration matters with different African countries to promote orderly immigration.
iii THE YEAR IN REVIEW
Owing to having two consecutive governments without a majority in parliament, there have been few legislative changes in the past year in Spain. With regard to immigration law in particular, there has been no change.
iv EMPLOYER SPONSORSHIP
i Work permits
To work in Spain, a work permit is required that is obtained with the residence permit. The types of permit vary depending on whether the migrant will be working for himself or herself, or for others. For non-EU citizens, an essential document is the visa, which must be processed in the country of origin and is requested at and produced by the consulates of Spain in the respective countries.
Classes of work permits
Working for others
The initial authorisation of temporary residence and paid employment will enable foreigners residing outside of Spain and who have obtained the corresponding visa to start an employment relationship for others.
Types of work permits to work employed by others include:
- Type B (initial) 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) authorises the exercise of any activity throughout the national territory and is valid for two years; and
- Type C 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 to self-employed individuals by others include:
- Type D (initial) may be limited to the exercise of a specific activity and for a specific geographical area, valid for one year, after which the holders of a Type D (initial) permit can obtain a Type D (renewed) permit;
- Type D (renewed) authorises the exercise of any activity throughout the national territory and is valid for two years; and
- Type E 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 work permit in the framework of transnational services; and
- Type A seasonal work permit.
Decisions refusing the granting and the renewal of work permits may be open to an administrative or judicial review. In accordance to Law 39/2015 of 1 October establishing the Common Administrative Procedure of the Public Administrations, there are two types of administrative appeal: an appeal for review by the institution that had adopted the decision and an appeal to a higher authority. The final administrative decision shall be susceptible of jurisdictional review according to Law 29/1998 of July 13 governing contentious-administrative jurisdiction.
ii Labour market regulation
The main state employment laws in Spain are:
- the Spanish Constitution of 1978;
- Royal Legislative Decree 2/2015 of 23 October 2015 approving the revised text of the Law 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 the Protection of the Labour Market;
- Law 23/2015 of 21 July 2015, on the Labour and Social Security Inspection System, which assigns the compliance monitoring of social regulations to the Labour and Social Security Inspectorate.
In accordance with Law 23/2015, the inspection function is carried out by the officials of the Superior Body of Labour and Social Security Inspectors and by the officials of the Labour Sub-Inspectorate. Labour and social security inspectors have competence in labour relations, prevention of labour risks, social security, employment, migrations (work of foreign nationals and migratory movements) and technical assistance.
The Labour and Security Inspectorate have the authority to investigate work places employing illegal immigrants through dawn raids, requesting visits before the acting official or representative of obliged persons (to provide documentation or make pertinent clarifications) or by virtue of an administrative file. 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.6
iii Rights and duties of sponsored employees
Foreign sponsored employees have the same rights as Spanish workers; however, it is the responsibility of those workers to be autonomous with regard to their situation and renew their work permit when appropriate. For foreign workers who are employed by others and have not renewed or do not have their work permit in force, it is possible that the contract of employment will be terminated. If, during the development of a work activity and a contract in force, the work permit is lost, it is possible this will result in the termination or loss of employment by the company; it would be a situation of objective dismissal, as established by the Statute of Workers. In a situation of this type, the employer should be obliged to compensate the worker for dismissal for objective reasons.7
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 European Union, of the EEA or Switzerland, or family members of citizens of these countries to whom the regime of citizen of the European Union 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;
- are not returning during a period whereby returning to Spain is forbidden, owing to the foreign national having voluntarily returned to his or her country of origin.
Further, to be granted nationality by 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,8 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 legally subject to the guardianship, or fostering of 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 for more than one year with a Spanish citizen 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
- of Spanish descent by second or third generation.
In all cases, the residence must be legal, continuous and immediately prior to the request.
v INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
Law 14/2013 of 27 September on support to entrepreneurs and their internationalisation 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:
- for a residence visa that lasts for one year, before the Spanish Consulate corresponding to his or her domicile; or
- for residence authorisation for two years, before the UGE-CE.
A significant investment of capital is understood as an initial investment for a value equal to or greater than: €2 million in Spanish public debt; €1 million in shares, social participations of Spanish companies or banking deposits in Spanish financial institutions; or €500,000 in Spanish real estate.
In addition to the requirements established generally, the applicant must prove to have made the investment in the minimum amount required, in 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 in 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 is 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 at the Property Registry, it will be sufficient to produce the certification stating the validity of 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 European Union can apply for temporary residence for entrepreneurial purposes provided their businesses demonstrate innovative character and a special economic interest for Spain. To demonstrate this, a favourable report from the Commercial Office, where the investor presents the visa application, will be necessary.
Under this assumption, investors who present a business project that is to be developed in Spain and is considered and accredited as a general interest can apply for this type of visa, as well as 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 previous procedures to be able to develop an entrepreneurial activity.
In the first case, the interest is translated into a favourable report from the Commercial Office of the Geographical Demarcation Area.
Capital investment is admissible when the investment is carried out by a legal entity, so far is not to be found within a tax haven state in accordance with Spanish regulations, 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, the proposed entrepreneurial activity will require to prove that has innovative character with special interest for Spain and a great effect with a favourable report from the Commercial Office.
Skilled migrants may obtain temporary residence and work authorisation to perform a work activity for which a higher education qualification is required or, exceptionally, with a minimum of five years of professional experience that can be considered comparable. However, it is an essential requirement to produce a contract signed by the employer and worker that guarantees the worker a continuous activity during the period of validity of the authorisation to reside and work in Spain.
vi OUTLOOK AND CONCLUSIONS
The current government has proposed legal instruments to promote the meeting between labour supply and demand at an immigration level in respect of visas for job search, collective management of contracting at origin and individual selection of people, especially for small and medium enterprises that need labour. However, owing to the current political scenario in Spain, with multiple parties and coalition governments, it is unlikely that in the forthcoming year, the Lower House or Congress of Deputies will achieve consensus to adopt to renew immigration laws, as current mainstream political parties have opposing points of view on immigration matters.
1Antonio Arenas López is a managing partner and Beatriz Leiva Baeza is an associate at Scornik Gerstein LLP.
2Antonio Ernesto Arenas Lopez and Adriana Agudo Martin (2016). Business Immigration. Thomson Reuters. 254-255.
3Article 117 of Royal Decree 557/2011 of 20 April 2011, which approves the Regulation of the Organic Law 4/2000.
4The Explanatory Memorandum of Law 14/2013 of 27 September, on supporting entrepreneurs and their internationalisation.
5Article 17 of Law 14/2003 of 20 November.
6Article 21 of Law 23/2015 of 21 July.
7Sentence of the Labour Chamber of the Spanish Supreme Court of 16 November of 2016.
8Article 22 of the Civil Code.