INCONSISTENT AND UNCOORDINATED IMPLEMENTATION OF THE LAW

The experience of migrants arriving in Spain varies widely, depending to a great extent on their point of entry or place of detention rather than the merits of their individual cases. These disparities in treatment have emerged in large part because the law vests significant authority in certain officials who exercise it without the assistance of clear implementing guidelines or coordinating mechanisms. From cosmopolitan cities, such as Barcelona, Madrid, and Málaga, to small coastal towns along the Andalucian coast, the Spanish cities of Ceuta and Melilla, and the Canary Islands, Human Rights Watch documented an alarming lack of knowledge among officials, police, lawyers, and others working with migrants about the requirements of Law 8/2000 and its implementing regulations.

The Role of the National Police

The Spanish National Police, within the Ministry of Interior, play an important role in the implementation and interpretation of the law on migrants as they "have the responsibility of coordinating the whole situation of foreigners in Spain, including expulsions, detention and so forth."⁶ Civil servants, primarily police officers, are responsible for implementing the law in their particular localities, while the Ministry of Interior has responsibility for overseeing the process throughout Spain. The conduct of the National Police is a significant source of the wide disparities in the treatment of migrants in Spain. Migrants, their lawyers, and representatives of nongovernmental and humanitarian organizations told Human Rights Watch of many instances in which the police exercised their powers arbitrarily or erroneously.

Lawyers working for the Comisión Española de Ayuda al Refugiado (CEAR) (Spanish Commission for Refugee Aid), one of the primary refugee and asylum aid organizations in Spain, told Human Rights Watch that at airports the police routinely violate detained migrants' and asylum seekers' procedural rights. They reported that police regularly obstruct migrants' and asylum seekers' rights under Spanish and international law to adequate legal counsel and to translation and interpretation services.⁷ For example, lawyers told Human Rights Watch that police at the Madrid airport frequently refused to allow them to speak confidentially with their clients prior to or between the formal asylum application and appeal hearings.⁸ In addition, according to CEAR, asylum seekers report that the police, in violation of Spanish law,⁹ do not routinely provide asylum seekers with contact information for lawyers who are expert in asylum issues or who work for refugee organizations.¹⁰ Immigration lawyers reported that the airport police are also responsible for decisions to detain asylum seekers in excess of the seven days permitted under the law while they await decisions on their asylum claims.¹¹

Concerns about the conduct of the police, particularly in the context of airport operations, were echoed in the 2001 Annual Report of the Ombudsman, which stated that the Ombudsman's office was required to intervene on behalf of migrants who were refused entry to Spanish territory because "police measures are insufficient" or fail to "take into consideration reasons of a humanitarian nature."¹² Moreover, the Ombudsman's report noted that police authorities responsible for border control frequently failed to provide migrants with an explanation of why they were not permitted entry to Spanish territory.¹³

The Ombudsman's report further indicated that the lack of uniform criteria for determining how legal aid services should be provided in airports permits large discrepancies in the form and quality of legal services available to migrants. The report noted, for instance, that authorities at the Barajas Airport in Madrid have provided significantly better procedural safeguards for migrants, such as the presence of a lawyer from the first encounter with the police, than comparable authorities operating in the Barcelona, Las Palmas, and Lanzarote airports.¹⁴ In Las Palmas and Lanzarote, for example, a lawyer is only present during the notification on the ruling to return the migrant. Furthermore, in Las Palmas and Lanzarote, migrants may reject their right to legal assistance by signing a waiver in the presence of a representative of an airline company, rather than in consultation with a lawyer.¹⁵

Human Rights Watch also received reports that police in locations outside of the airports sometimes abuse their discretion in handling immigration matters. In particular, lawyers, migrants, and migrants' organizations told Human Rights Watch that the police are poorly trained regarding the documentation required for residence permits and often ask migrants to produce documentation other than or in addition to that required by the law.¹⁶ For example, in one case, the police required an Armenian migrant to submit proof of economic means to stay in Spain and a visa from her country of origin in order to obtain a residence permit, though neither element was required by law.¹⁷

As another example of arbitrary police conduct, migrants and lawyers told Human Rights Watch that in December 2000 police based in Madrid decided that they would no longer renew any residence permits granted to migrants on the basis of a "humanitarian exception."¹⁸ This abrupt change in policy was apparently made at the local level, not by the Ministry of Interior, and police in other parts of the country did not follow suit. Moreover, the National Police failed to adequately communicate its new policy to the Ministry of Labor and Social Affairs, which, as the agency responsible for issuing work permits, shares a role in documenting migrants. Consequently, the new police practice in Madrid had a profound effect on large groups of migrants who had previously renewed their residence permits without difficulty. Under Spanish law migrants who have been living and working legally in Spain with humanitarian exception documents should be able to transition to the ordinary residence and work permit regime. This particular category of migrants, however, went from legal to illegal status when their humanitarian exception documents were not renewed, and once illegal encountered serious administrative obstacles to transitioning to the ordinary residence and work permit regime.¹⁹

When Human Rights Watch addressed these concerns in meetings with the Ministry of Interior and the Ministry of Labor and Social Affairs, authorities said they were unaware of these policies or their ramifications.²⁰ Moreover, representatives of both ministries indicated that under the new policy migrants should be able to change their status from a humanitarian exception basis to the ordinary work and residence permit regime without difficulty.²¹ Aside from these assurances that the new police policy should not adversely affect migrants in the way in which it does, however, neither ministry had answers for how the government would or could address these issues to ensure that a particular group of migrants are not arbitrarily deprived of their ability to maintain legality in Spain.²² Representatives of the Ministry of Labor and Social Affairs only indicated that because "the law and regulation are very new [perhaps] it is difficult to put it all into practice."²³

6 Human Rights Watch interview, Manuel Prieto, head of foreigners and documentation department, José García Santalla, chief of central foreigners unit (Foreigners and Documentation Department), and José Ramón Pérez García, chief of statistics, Spanish National Police (within the Ministry of Interior), Madrid, November 14, 2001.

7 Spanish Law 9/1994 (May 19) (published in Boletín Oficial del Estado [Official Bulletin of the Spanish State], nos. 122 and 131), amending Law 5/1984 (March 26), Regulating Refugee Status and the Right to Asylum, Chapter Two, Article 4(1); Royal Decree 203/1995 (February 10) approving the Implementation Regulation of Law 5/1984 (March 26) regulating Refugee Status and the Right to Asylum, which was amended by Law 9/1994 (May 19) (published in Boletín Oficial del Estado, no. 52, 2 March 1995), Articles 8(4) (request made within Spanish territory) & 19(2) (requests made at border points); Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR, 1992), para. 192. See also, Law 8/2000, Article 22(1), giving all migrants who cannot afford counsel the right to pro bono legal services and interpretation and translation services.

8 Human Rights Watch interviews, CEAR lawyers, Madrid, October 26, 2001 and November 5, 2001.

9 Law 5/1984 (March 26), Regulating Refugee Status and the Right to Asylum (Published in Boletín Oficial del Estado, no. 74, 27 March 1984), modified by Law 9/1994 (May 19) [Law 9/1994], § 114, Article 5(1).

10 Human Rights Watch interviews, CEAR lawyers, Madrid, October 26, 2001 and November 5, 2001.

11 Human Rights Watch interviews, CEAR lawyers, Madrid, October 26, 2001 and November 5, 2001; Human Rights Watch interview, Médicos sin Fronteras (MSF), Madrid, October 8, 2001. Although the courts have interpreted the seven-day period to include weekend and holiday days, lawyers report that at times the police still maintain that the seven-day period only includes official working days. Spanish National High Court, decision no. 53/2002, February 27, 2002.

12 Ombudsman Annual Report, presented before the Spanish Parliament on October 8, 2001, Section 3.1.1, "Entry Requirements," pp. 61-63. The office of the Ombudsman was created under the Spanish Constitution of 1978. The Ombudsman is appointed for a five-year term by the legislature, which requires a majority vote in both Congress and the Senate, and is a delegate of the Spanish Parliament. Although the Ombudsman's role is not executive in nature and is limited to the critique of acts of administration, the office of the Ombudsman is tasked with surveying all administrative functions of the Spanish government, including administration in embassies abroad and in the autonomous and local administrations throughout Spain. The office is also tasked with protecting human rights and has a department designated for issues of immigration and foreign affairs. Once a complaint has been filed with the Ombudsman's office, the office can ex officio investigate. The government is constitutionally required to respond to all complaints and requests for information filed by the office of the Ombudsman. Moreover, the Ombudsman and his staff have unrestricted access to all administrative offices in Spain. Because of the Ombudsman office's independent character and special position in Spanish law, particularly its unique role as a delegate to the Spanish Parliament, the Ombudsman has the power to bring issues to and to appear before the Constitutional Court.

13 Ibid.

14 Ibid.

15 Ibid.

16 Human Rights Watch interviews, CEAR lawyers, Madrid, October 26, 2001 and November 5, 2001; Human Rights Watch interview, Concha Badillo, legal coordinator, MSF, Madrid, March 26, 2002; Human Rights Watch interviews with migrants, Madrid, November 4-5, 2001.

17 Human Rights Watch interview with Armenian migrant, Madrid, November 4, 2001. This account was confirmed by the migrant's lawyer. Human Rights Watch interview, Estela Gracia, Madrid, November 5, 2001.

18 Under Spanish law there are two types of humanitarian exception documents: 1) for asylum seekers who are denied asylum but whose claims are considered worthy enough to warrant permission to stay in Spain on the basis of humanitarian reasons; and 2) for migrants who do not possess the required documentation for entry into Spain but for whom legal entry and stay is authorized "when there exist exceptional reasons of a humanitarian nature, public interest or compliance with commitments acquired by Spain" or for whom temporary residency permits are granted "for humanitarian reasons, in exceptional circumstances, or when a situation of cultural rooting can be proven." Examples of humanitarian reasons include medical needs, family ties to Spain, and the infeasibility of returning a migrant to his/her country of origin. See Law 9/1994, Article 17(2); Law 8/2000, Articles 25(4) & 31(4); Human Rights Watch interview, lawyers working with migrants at CETI, Ceuta, October 18, 2001.

19 Spanish law requires that migrants apply for an ordinary work and residence permit in order to regain their legal status, thus converting the basis for their legality in Spain from a humanitarian exception to the ordinary immigration regime. Successful transition to the ordinary immigration regime requires both that the migrant gain permission from the Ministry of Labor and Social Affairs to work in Spain and permission from the Ministry of Interior (through the police) to live in Spain. Many migrants whose humanitarian status was not renewed, however, found that when they tried to renew their work permits on the basis of their past work in Spain and proof that they had been paying social security taxes-the normal renewal requirements for a two to three-year work permit-they were required to present a pre-contract (or offer) of employment. Some migrants who work in seasonal jobs cannot get pre-contracts from their employers because their employers, temporary agencies, do not issue pre-contracts. Other migrants have found it difficult to convince employers to provide them with a pre-contract because employers are afraid-unnecessarily so-that they will be sanctioned under Law 8/2000 for providing pre-contracts to undocumented migrants. Consequently, a number of migrants have not been able to renew their work permits, and, in turn, cannot obtain permission from the police to legally stay in Spain. The new condition is a consequence of failed coordination and communication between the police and the authorities within two separate departments of the Ministry of Labor and Social Affairs (one department for humanitarian exception approvals and one for ordinary work permit approvals), and not a reflection of an intentional change in work permit renewal policy. See Human Rights Watch interview, CEAR lawyers, Madrid, October 26, 2001; Human Rights Watch interviews with migrants, Madrid, November 4-5, 2001; Human Rights Watch interview, Concha Badillo, legal coordinator, MSF, Madrid, March 26, 2002.

According to MSF, the policy was revised in November 2001-due to swift and insistent pressure from NGOs that denounced the new policy as illegal-so that migrants whose humanitarian exception documents are not renewed technically have a three-month period in which to regularize their situations. The police continue, however, to refuse renewals of these documents and have not improved inter-ministry coordination in order to facilitate migrants' transition from one permit regime to the other. MSF has recently had some success appealing the denial for renewal of documents issued on the basis of humanitarian circumstances. Human Rights Watch interview, Concha Badillo, legal coordinator, MSF, Madrid, March 26, 2002.

20 Human Rights Watch interview, Carlos Guervós, deputy director of immigration, Ministry of Interior, Madrid, November 12, 2001; Human Rights Watch interview, Concepción Dancausa Treviño, secretary general of social affairs, and Antonio Maceda García, director of migration affairs, Ministry of Labor and Social Affairs, Madrid, November 13, 2001.

21 Ibid.

22 Ibid.

23 Human Rights Watch interview, Concepción Dancausa Treviño, secretary general of social affairs, and Antonio Maceda García, director of migration affairs, Ministry of Labor and Social Affairs, Madrid, November 13, 2001.