INTRODUCTION

Human Rights Watch is concerned that the Spanish authorities' implementation of Spanish Law 8/2000 (Regarding the Rights and Freedoms of Foreign Nationals Living in Spain and their Social Integration) and the law's Regulations for the Application of Spanish Law on Foreign Nationals¹ contravenes national, regional, and international standards for the treatment of migrants. Although Law 8/2000 is a national law applicable to migrants in all of Spain's autonomous regions, the lack of coordination among ministries and the inconsistent implementation among different regions result in significant variations in the treatment of migrants. The outcome is arbitrary treatment of migrants in violation of international and regional human rights standards.

A migrant arriving in Ceuta, for example, will likely be sent as a matter of course to the mainland with an expulsion order that, while unenforceable, renders him or her illegal and unemployable in Spain. Rarely will he or she enjoy the opportunity to put forward a claim for legal stay in Spain, regardless of his or her particular circumstances, including any claim he or she may have for asylum. In Melilla, on the other hand, the same migrant might be sent to the peninsula with a valid residence and work permit or deported to Morocco by a repatriation process that is no longer legally applicable. And in the Canary Islands, this migrant would probably be detained for up to forty days in substandard conditions and by a process that violates domestic, regional, and international standards, and then he or she would either be deported to his or her country of origin or, more likely, released onto the streets of Las Palmas to live illegally.

The problems associated with the arbitrary application of the law are exacerbated by serious violations of migrants' procedural rights, including their rights to legal assistance, translation services, individualized consideration of their cases, access to asylum determination procedures,² and appellate review of decisions affecting their legal status in Spain. In the case of certain migrant groups, particularly Algerians, the lack of formal identification procedures has promoted the use of unreliable, arbitrary, and possibly discriminatory decision-making processes.

The Spanish government should urgently develop effective mechanisms for clarifying, improving, and monitoring the law's implementation. Such mechanisms should address the apparent tendency among some officials to take advantage of the law's newness and varying interpretations of its implementing regulations to justify the detention, transfer, or deportation of migrants without the safeguards provided by the law.

Human Rights Watch's analysis is based on a six-week investigation into the treatment of migrants in Spain, carried out in late 2001. Our researchers spoke with a wide range of government officials and nongovernmental specialists and observers as well as with migrants in Madrid and Barcelona, in cities along the Andalucian coast, in Ceuta and Melilla, and in the Canary Islands.³ They also visited government-supported reception and detention centers where migrants were held.⁴

In October and November 2001, and again in March 2002, Human Rights Watch raised many of its concerns in meetings with responsible government officials, including officials in the Ministries of Interior, Labor and Social Affairs, and Foreign Affairs and with the government delegates in Ceuta and Melilla. To date, however, improvements or changes in Spanish policy and practice to correct the arbitrary treatment of migrants and asylum seekers have yet to be set into motion. On the contrary, the recent government focus has been on efforts to combat illegal immigration, including plans to revise the foreigner's law in order to expedite expulsion of certain migrants from Spain, despite indications that the current application of the law is already too swift and deprive many migrants of the procedural guarantees envisioned in domestic, regional, and international law.

While this report focuses solely on the challenges the government of Spain faces in the implementation of its immigration law, the issues addressed are common to many European countries. Asylum and immigration policy remains a matter for national regulation in Europe, but increasingly these policies are coordinated and dictated by the European Union (E.U.). In this context, the findings contained in this report have broader implications. Specifically, they point to the need to integrate safeguards for migrants' fundamental human rights into E.U. policy. Human Rights Watch is concerned that under the six-month Spanish presidency, European Union policy making in the immigration field has concentrated on migration control without regard for migrant, refugee, and asylum rights.⁵

1 Organic Law 8/2000 of 22 December, Reforming Organic Law 4/2000 of 11 January, Regarding the Rights and Freedoms of Foreign Nationals Living in Spain and their Social Integration) [Law 8/2000]; Royal Decree 864/2001 of 20 July, approving Regulations for the Application of Spanish Organic Law 4/2000, of 11 January, on the rights and liberties of foreigners in Spain and their social integration, reformed by Organic Law 8/2000 of 22 December [Regulation].

Spanish Law 8/2000 regulates the rights and freedoms of all foreigners-persons without Spanish nationality-in Spain. Law 8/2000, which reformed the previous foreigners' law (Organic Law 4/2000) in December 2000, was motivated by "the situation and characteristics of the foreign population in Spain, not only at present, but with an eye to the coming years." Ibid. Its stated purpose is to "regulat[e] immigration from the consideration that it is a structural fact which has made Spain a destination of migratory flow, and also a point of transit toward other states, whose border controls on those routes leaving our country have been eliminated or substantially reduced." Ibid. In short, Law 8/2000 is intended to serve as a "comprehensive, coordinated scheme for the treatment of the migratory phenomenon in Spain," setting forth the rights of legal and illegal, documented and undocumented, foreigners in Spain as well as the procedures for their treatment, including determinations on their regularization and expulsion, and social integration. Ibid. A separate law, Spanish Law 9/1994, regulates the rights and procedures applicable to asylum seekers in Spain.

Human Rights Watch's research concentrated on the treatment of migrants and asylum seekers in Spain, including those who are documented, undocumented, have a right to remain in Spain, and do not have a right to remain in Spain. As such, the primary focus of this briefing paper is the application of Law 8/2000 in the context of Spain's compliance with domestic, regional, and international standards for the treatment of migrants.

2 Procedural rights violations, such as the lack of information on one's rights or the inability to access meaningful legal and translation services, can also serve as an obstacle to the right to seek asylum. Obstruction to the right to seek asylum could result in the refoulement of potential asylum seekers to countries where their lives or freedom could be threatened, in violation of Spain's fundamental nonrefoulement obligations. For further discussion of access to asylum issues in Spain, refer to Human Rights Watch, "The Other Face of the Canary Islands: Rights Violations Against Migrants and Asylum Seekers," A Human Rights Watch Report, vol. 14, no. 1 (D), February 2002.

3 See Human Rights Watch, "The Other Face of the Canary Islands," p. 24. Human Rights Watch also undertook a five-week long research mission to investigate on the treatment of unaccompanied migrant children who had traveled from Morocco to Ceuta and Melilla. See Human Rights Watch, "Nowhere to Turn: State Abuses of Unaccompanied Migrant Children by Spain and Morocco," A Human Rights Watch Report, vol. 14, no. 4 (D), May 2002.

4 Human Rights Watch requested, and was given permission, to visit three of Spain's six detention facilities, or internment centers, including the internment centers in Barcelona, Málaga, and Murcia. In addition, we were granted permission to visit the two government-supported reception facilities for migrants in Ceuta and Melilla. Although we requested permission to visit the unofficial detention center at the old airport on Fuerteventura, the Spanish government denied our request, noting that nongovernmental organizations (NGOs) are not permitted access to this facility or the similarly constructed emergency detention facility on Lanzarote. Nevertheless, Human Rights Watch spoke with numerous migrants, lawyers, and representatives from nongovernmental and humanitarian organizations familiar with the conditions and treatment of migrants in these makeshift detention centers.

5 See Human Rights Watch, "The Human Rights Dimension of E.U. Immigration Policy: Lessons from Member States," speech presented at the Academy of European Law Conference: "State of Play on European Immigration and Asylum Policy: Patching Up Tampere," Trier, Germany, April 2002 (available at http://hrw.org/backgrounder/eca/eu-immigration.pdf).