UNHCR UNOFFICIAL TRANSLATION
( by Branch Office Madrid - Spain)
CONSTITUTIONAL LAW (LEY ORGÁNICA) 4
of January 11, 2000
on the rights and freedoms of aliens in Spain
and their social integration.
JUAN CARLOS 1
On the Rights and Freedoms of Aliens
KING OF SPAIN
To all of those who see and understand that which is herein. Let it be known: that the Spanish Parliament has approved and that hereby sanction the tollowing Constitutional Law.
Article 1. Delimitation of Scope
1. For the purposes of applying the Law herein, an alien is considered to be any person who does not have Spanish nationality.
2. The nationals of the Member States of the European Union and those to whom the regulafory scheme of the European Union is applicable shall be governed by the laws of the European Union, the Law herein being applicable to them for those matters in which it would be more favourable to them to do so.
Article 2. Exclusion from the Scope of the Law
Excluded from the scope of this Laws applicability are:
a) Accredited diplomatic agents and consular civil servants in Spain, as well as the other members of the permanent and special diplomatic missions and of the consular offices and their family members who, by virtue of the rules of International Law, are exempt from the obligations to register themselves as aliens and to obtain the residence permit.
b) The representatives and delegates, as well as the other members and family members, of the permanent Míssions and Delegations acting before the intergovernmental Organizations with an office in Spain or at the international conferences which are held in Spain.
e) The civil servants sent to International orintergovernmental Organizations with an office in Spain, as well as their family members, who the treaties to which Spain is a party release from the obligations mentioned in paragraph a) of this article.
On the Rights and Freedoms of Aliens
Article 3. Equality with Spaniards and Interpretation of the Law.
1. In Spain, aliens shall, in equal conditions as Spaniards, enjoy the same rights and freedoms recognized in Title 1 of the Constitution and in the implementation laws thereof, under the terms established within the Constitutional Law herein.
2. The rules regarding the fundamental rights of aliens shall be interpreted in accordance with the Universal Declaration of Human Rights and with those International Treaties and Agreements in force in Spain regarding the same matters. However, allegations of divergent religious beliefs and ideological or cultural convictions shall not justify acts or behaviour that are contrary to said rules.
Article 4. The Right to Possess Documents
1 Those aliens who are within Spanish terrifory have the right and the obligation to preserve the documents that accredit their identity, documents issued by the proper authorities in their country of origin or in that from which they have arrived, as well as those that accredit their situation in Spain.
2. They may not be deprived of their documents, except in those instances and under those requírements provided for in the Constitutional Law herein and in Constítutional Law 1 of February 21, 1992 on the Protection of Public Safety
Article 5. The Right to Freedom of Movement
1 Those aliens who are in Spain in compliance with that which is established in Title II of the Law herein, shall have the right to move freely about Spanish terrífory and to choose their place of residence with no further limitatíons than those of a general nature established by treaty or law, or those which, having been decided by judicial authorities, are of a precautionary nature, are decided during criminal or extraditíon proceedings in which the alien stands accused orisa victim or witness, or are fhe result of a final sentence.
2. Nevertheless, specific limiting measures may be established when decided in a declaration of a state of emergency (estado de excepcián) or siege under the terms foreseen in the Constitution, and exceptionally, in an individual manner, by the Ministry of the Interior, for reasons of Public safety.
Article 6. Participation in Public Life.
1. Resident aliens may hold the political right of suffrage in municipal elections under the terms established by treaty and law.
2. Those resident aliens that are registered on the list of residents (padrón") of a municipalify but are unable to take part in local elections may democratically elect their own representatives from among themselves in order to take part in the municipal debates and decisions that concern them, as determined by local law.
3. The Municipal Governments shall draft and maintain a list of the alien residents (padrón") living in the municipality.
4. The Public authorities shall favour the aliens exercise of the right to vote in the electoral processes of their country of origin. Necessary measures will be taken for fhis purpose.
Article 7. The Freedoms of Assembly and Public Demonstration.
1. Those aliens in Spain may exercise the right to assembly under Article 21 of the Constitution with no need for prior administrative authorization and in accordance with the provisions of the rules regulating this right.
2. The promoters of meetings or demonstrations in places of Public transit must gíve the prior notice foreseen in the Constitutional Law that regulates the right to assembly to the appropriate authority, which shall not prohibit it or propose an amendment unless for the cause foreseen in said Law.
Article 8 Freedom of Association
Ah of the aliens who are in Spain shall be able to exercise the right of association in accordance with the laws that regulate it for Spaniards. Only residents may be the promoters thereof.
Article 9 The Right to Education.
1. All aliens under the age of eighteen years have the right to education under the same conditions as Spaniards, including access to a basic, obligatory educafion free of charge, the obtainment of the corresponding academic degrees and access to the Public scholarship and aid system.
2. Aliens shall have the right to education of a non-obligatory nature under the same conditions as Spaniards. More specifically, fhey shall have the right to access at the level of pre-school ("educación infantil") and those beyond the levels of basic education, as well as to the obtainmenf of the corresponding degrees in each insfance, and to access the Public system of scholarships and aid.
3 Resident aliens may perform activities in teaching or scientific research in accordance wifh that which is established in the provisions in force. They may also create and direct centres of learning in accordance with that which is established in the provisions in force.
Article 10 The Right to Work and Social Security.
1 Aliens shall have the right to perform a remunerated activity, through either self-employment ("por cuenta propia") or employment by another (por cuenta ajena), as well as to access the Social Security System, under the terms provided for in the Constitutional Law herein and in its implementation provisions.
2. Aliens may be hired as employees in the service of the Public Administration, in accordance with the constitutional principles of equality, merit, ability and publicnass. For this purpose, they may become candidates for Public employment offerings that are called by the Public Administration.
Article 11. The Freedom to Join a Union and to Strike.
1. Alien workers who are in Spain shall have the right to join labor unions freely, or to join a professional organization, undar the same condifions as Spanish workars, in aocordance wifh the laws that regulafe this right.
2. In the same manner, the right of alien workers to strike is recognized.
Article 12. The Right to Health Care.
1. Those aliens who are in Spain and registered on the list of residents ("padrón") of the municipality in which they habitually reside have the right to health care under the carne conditions as Spaniards.
2. Those aliens who are in Spain have the right to casualty care under the Public health service if they contract grave or accidental illnesses, regardless of their cause, and to the continuation of said care until they are considered medically recovered.
3. Those aliens under the age of eighteen years that are in Spain have the right to health care under the same conditions as Spaniards.
4. Pregnant aliens who are in Spain shall have the right to health care during pregnancy, labour and the postnatal period,
Article 13. The Right to Aid for Housing.
Resident aliens and those aliens that are in Spain and registered on the list of residents ("padrón") of the municipality in which they habitually reside have the right to access the Public system of aid for housing under the same conditions as Spaniards.
Article 14. The Right to Social Security and Social Services
1. Resident aliens shall have the right to gain access to the benefits and cervices of the Social Security System under the same conditions as Spaniards.
2. Resident aliens shall have the right to cervices and social benefits, be they general, basic or specific, under the same conditions as Spaniards.
3. Aliens, regardless of their administrative status, have the right to basic social services and benefits.
Article 15. The Subjection of Aliens to the Same Taxes as Spaniards.
1. Without prejudice to the provisions of any applicable international double taxation agreements, aliens shall be subject to the same taxes as Spaniards, as regards income obtained and activities performed in Spain.
2. Aliens shall have the right to remit the income or savings they have obtained in Spain to their country or to any other, in accordance with the procedures established by Spanish law and in accordance with any applicable international agreements. The Government shall take the measures necessary to facilitate said remittances.
On the Reuniting of Families
On Legal Guarantees
Article 18. The Right to Effective Protection of the Court.
Arficle 16. The Right to Family Privacy.
1. Resident aliens have the right to a family life and family privacy in the manner foreseen in the Constitutional Law herein and in accordance with the provisions of the International Treaties subscribed by Spain.
2. The family members of the aliens residing in Spain to whom the following article makes reference have the right to the status of residence in Spain in order to be reunited with the resident.
3. Any spouse that has acquired residence in Spain on family grounds and those family members with which this spouse is united shall preserve their residence even if the marriage that gave rise to the acquisition of residence comes to an end.
Articla 17 Familias Enti(lad to Reuniting.
A resident alien has the night to having a Spanish residence permit granted to the following relatives, in order to be reunited with them:
a) The spouse of the resident, unless separated in fact or by law or the marriage was performed in a fraudulent manner. in no case may more than one spouse be reunified with the resident, even if the personal Law of the alien permits this form of matrimony. Any resident alien that is separated from a spouse and re-marries may only be reunited with the new spouse and his or her family members, if it is shown that the separation from the previous spouse(s) took place after undergoing a legal procedure that established the status of the prior spouse and his or her family members in terms of housing, alimony and the sustenance of any dependant minors
b) The children of the resident and the spouse, including those that are adopted, provided that the children are under the age of eighteen years or are incapacitated, in accordance "with Spanish Law or their personal Law, and that the children are not married. In instances involving the children of only one of the spouses, it is also required thaf fhis parant exercise the custody, care and control alone or that custody have been 5ranted to him or her and that the children in question are effectively in his or her care. in instances involving adopted children, it must be accredited that the ruling which grant the adoption contains the features necessary to be legally effective in Spain.
e) Minors who are under the age of eighteen years or incapacitated persons, if the resident alien is their legal representative.
d) Ascendants of the alien resident, if economically dependent on the alien resident and if reasons exist to justify the need to authorize their residence in Spain.
e) Any other family member for whom fhe need to authorize residence in Spain is justifiad for humanifarian reasons
f) Alien family members of Spaniards to whom the regulations on the entrance and remaining in Spain of European Union Member State nationals is not applicable.
1. Aliens have the right to the effective protection of the court.
2. The administrative procedures established for aliens shall in any casa respect the guarantees foreseen in the general Laws on administrative procedure, especially as regards the publicness of rules, contradiction, the concerned partys right to a hearing and reasoned decisions.
3. In said procedures, the representative organizations that are legally established in Spain for the defence of immigrants may intervene as concerned parties.
Article 19. The Right to Appeal Administrative Action.
1. Administrative acts and decisions regarding aliens may be appealed in accordance with the provisions of Law.
2. Administrative acts relating to aliens shall be executed in accordance with the general system. With the exception of the provisions on the procedure for urgent expulsion, which the provisions of the Constitutional Law herein shall regulate.
Article 20. The Right to Pro Bono Legal Aid
1. Aliens have the right to free legal assistance in the administrative and judicial procedures that may lead to the denial of their entry into or to their expulsion or obligatory exit from Spanish territory and in all proceedings with regard to asylum. Also, they will have the right to interpreter assistance if they do not understand or speak the official language being used.
2. Resident aliens and those who are in Spain and registered on the list of residents ("padrón") of the municipality in which they habitually reside and who accredit that the lack of sufficient economic resources to litigate shall have the right to free legal assistance in the same conditions as Spaniards in any proceedings to which they are a party, regardless of the jurisdiction in which the proceedings are conducted.
On Measures Against Discrimination
Article 21. Discriminatory Acts.
1. For the purpose of the Law herein, discriminationisdefined to be any act that directly or indirectly implies a distinction, exclusion, nastricfion or preference against an alien on the basic of race, colon, national or ethnic origin or background or religious practices or belief is, and whose purpose or effect is to destroy or limit the acknowledgment or exercise of human rights and fundamental freedoms under equal conditions in political, economic, social or cultural matters.
2. In any case, the following constitute acts of discrimination.
a) Those carried out by any authority, civil servant or employee of a Public service who, by action or omission in performing his on her duties, commits any discriminatory act prohibited by law against a foreign citizen due only to the aliens status as such or because the alien belongs to a specific race, religion, ethnicity or nationality.
UNHCR UNOFFICIAL TRANSLATION
b) Any that place more onerous conditions than on Spaniards or that imply resistance to providing an alien with goods or services offered to the Public due only to the aliens status as such or because the alien belongs to a specific race, religion, ethnicity or nationality.
c) Any that illegitimately place more onerous conditions than on Spaniards or that restrict or limit their access to work, housing, education, professional training, social cervices on social assistance, as well as to any other night recognized in the Constitutional Law herein for aliens who hold a regular legal status in Spain, due only to the aliens status as such or because the alien belongs to a specific race, religion, ethnicity on nationality.
d) Any that impede by action or omission the exercise of an economic activity that is legitimately undertaken by any alien who legally resides in Spain, due only to the aliens status as such on because the alien belongs to a specific race, religion, ethnicity on nationality.
e) Businessmen and their representatives who perform any act that produces a harmful effect by discriminating, even if indirectly, against workers because of their status as aliens or because they belong to a specific race, religion, ethnicity on nationality.
Any treatment caused by the use of criteria that are unjustifiably disadvantageous to workers because of their status as aliens on because they belong to a specific race, religion, ethnicity or nationality constitutes indirect discrimination, provided that it is related to requirements that are not essential in carrying out the employment activity.
Article 22. Applicability of Summary Proceedings
The protection of the court against any discriminatory practice that entails the violation of fundamental rights and freedoms may be demanded using the procedure provided for in Article 53.2 of the Constitution, under the terms established by law.
On the Legal Definition of the Status of Aliens
On the Entry into and Exit from Spanish Territory Article 23. Requirements for Entry into Spanish Territory.
1. Any alien who intends to enter Spain must do so at the ports established for this purpose, must possess a passport or travel documents that accredit his or her identity and that is considered valid for this purpose by virtue of the international agreements subscribed by Spain and must accredit having sufficient financial resources for the time that he on she intends to remain in Spain.
2. With the exception of instances in which the international agreements subscribed by Spain establish the contrary, a visa shall also be necessary. It shall not be possible to demand the visa if the alien is the title holder of any form of authorization to reside in Spain on of any analogous documents that allows for his or her entry into Spanish territory.
3. The provisions of the preceding paragraphs shall not be applicable to those aliens that request the right to asylum upon entering Spain. The provisions of the specific regulatory schema on asylum shall govern the granting of this right.
4. Entry into Spain may be authorized for those aliens that do not f it the requirements established n the preceding
Paragraphs, provided that there are exceptional reasons of a humanitarian nature or of Public interest, on in compliance with the commitments acquired by Spain to do so. In any such instances, the alien shall be provided with those documents established by regulation.
Article 24. Prohibition of Entry into Spain.
1. Those aliens that have been deported, as well as those whose entry is prohibited into any country with which Spain has signed an agreement to this effect, may not enter
Spain or obtain a visa for this purpose throughout the duration of their entry prohibition.
2. The entry of those aliens who do not fit the requirements established for this purpose will be denied in a reasoned decision, as well as providing information on the appeals that may be filed against the decision, the time period for doing so, the authority before whom the appeals must be formalized and the aliens night to legal assistance.
Article 25. Issuing the Visa.
1. The visa shall be issued by the diplomatic missions and consular office of Spain, and, as an exception for humanitarian reasons on for reasons involving Cooperation with the Justice system on health care, those aliens who are in Spanish territory and who fit the requirements for obtaining a residence permit may be exempted by the Ministry of the Interior from the obligation to obtain a visa lf the exemption is requested as the spouse of a resident, the alien must fit the circumstances mentioned in Article 17 herein, must accredit at least one year of cohabitation and must accredit that the spouse is authorized to continua residing in Spain for at least one more year.
2. The granting of the visa shall be governed by regulation. In granting it, the fulfilment of the national interests of Spain and the international commitments that it has taken on shall be taken into account. The grounds for denial of a visa shall be established by regulation. The personal appearance of the applicant may be required during the proceedings.
3. Any visa denial must be expressly stated and reasoned, and the appropriate appeals must be indicated. The Government may exceptionally and temporarily establish instances in which the grounds for the denial need not be stated for the nationals of a specific country on those who come from a certain geographic area. When involving residence visas requested by persons who invoke their status as persons entitled to a subjective right to reside in Spain that has been recognized by the legal system, the grounds for the denial must always be stated.
4. The administrative processes leading to the granting or denial of the permits and visas regulated by the Law herein shall produce a decision within no more than three months, to be counted from the date of the request or, where appropriate, from the date on which the required documents were submitted.
Article 26. On Exits from Spain.
1. Exits from Spanish territory may be made freely, except in those cases provided for in the Penal Coda and in the Law herein.
2. As an exception, the Ministry of the Interior may prohibit the exit from Spanish territory for reasons of national security or Public health. The examination of prohibition proceedings and the decisions thereupon shall always be performed individually,
3. The exit shall be obligatory in the following nefandas:
UNHCR UNOFFICIAL TPANSLATION
a) Expulsion from Spanish territory by court order, in those nefandas provided for in the Penal Coda.
b) Expulsion on return by administrative decision, in those nefandas taracean by the Law~ herein.
o) Administrative denial of the requests made by the alien to continua residing in Spanish territory, unless the request was made under Article 29.3 herein.
On the Status of Aliens
Article 27 Lists of Possible Statuses.
1 Aliens may be in Spain under the following statuses:
Visit (estancia), temporary residence or permanent residence
Article 28 Visitor Status ("Estancia").
1. A visit ("estancia") is considered a stay in Spanish territory for a period of time that is no greater than ninety days.
2. Once this period of time has expired, either an extension of the stay or a residence permit must be obtained in order to remain in Spain.
3. The extension of the stay may last no longer than another ninety days.
Article 29 Status of Temporary Residence.
1. Temporary residence is the status that authorizes an alien to remain in Spain for a period of more than ninety days and lees than five years. Any authorization with a duration of less than five years may be extended at the request of the party concerned if circumstances analogous to those that lad to the granting of the authorization exist. The duration of the term of authorization for temporary residence and the extensions thereof shall be established by regulation.
2. The status of temporary residence shall be granted to any alien who accredits having sufficient resources for the sustenance and stay of his or her family for the period of time that the alien requests without having to perform a lucrative activity, who intends to perform an economic activity by taking up business after having requested the appropriate licenses on permits for this purpose, who has an offer for employment through a procedure that is recognized by regulation or is entitled to the right of family reunion.
3 Likewise, any alien who accredits an uninterrupted stay of two years in Spanish territory, who appears on the list of residents ("padrón") of a municipality at the time when submitting his on her request and who has sufficient economic means to subsist shall have access to the status of temporary residence
4. In order to authorise the temporary residence of an alien, it shall be necessary that the alien have no criminal record in Spain or in his or her former countries of residence for crimes existing in the Spanish legal system and that the alien not considered reject able within the territory of the Treaty of Schengen. Having committed a crime in Spain shall not be an obstacle to obtaining on renewing residence if the sentence has been served, it the crime has been pardoned or if the sentence has been conditionally remitted.
5. Aliens with a temporary residence permit shall be obliged to inform the Ministry of the Interior of any changes of nationality or address.
Article 30 Permanent Residence.
1. Permanent residence is the status that authorizes one to reside in Spain indefinitely and to work under the same conditions as Spaniards.
2. Those who have had temporary residence for five years shall have the right to permanent residence. As an exception, the criteria whereby the aforementioned period of residence is not required for instances involving special bans with Spain shall be established by regulation.
Article 31. Residence of Stateless Persons and Refugees.
1. Any aliens who lack personal documents and who accredit that the country of their nationality does not recognize said nationality shall be documented with an identity and, the Status of Stateless Person being recognized and applied to them in accordance with Article 27 of the Convention on the Status of Stateless Persons, and they shall thereby enjoy the specific legal status determined by regulation.
2. Displaced aliens who are taken in by Spain for humanitarian reasons or as a result of an international agreement or commitment, as well as those that have been granted refugee status, shall obtain the corresponding authorization for residence.
Article 32. Residence of Minors
1. The residence of minor under the guardianship of a body of the Public Administration is considered regular for all intents and purposes. At the request of the body that exercises the guardianship, the minor shall be granted a residence permit, the effect of which shall be retroactive to the time at which the minor was placed in the custody of the appropriate child protection services.
2. In those instances in which members of the Security Carpe and Forces arrest an undocumented person, and it cannot be accurately established whether the person is a minor or of legal age, the Courts of Minors must be informed so that they may determine the persons identify and age and verify his or her personal and familial circumstances. Once the age and other aforementioned data have bean determined. It the person is deemed to be a minor, the appropriate body of the Administration must make the proper decision on whether to return the alien to his on her place of origin or on the status of the aliens stay in Spain.
On the Residence Permit and Special Statuses Article 33. Authorization to Perform Lucrative Activities
1. Those aliens over the age of sixteen yeans who wish to hold employment or perform any professional activity for profit in Spain must obtain administrative authorization to work or a work permit.
2. It the alien wishes (a set up business ("tabular poor quanta proper") or take employment ("tarlatan pan quanta arena") by exercising a profession for which a especial degree is required, the granting of the permit shall be conditional upon the possession, and, where appropriate, the official recognition of the corresponding degree. It shall also be conditional upon the aliens membership in a professional association, if the Law so requires
3. Any employer who hires a foreign employee must request and obtain prior authorization from the Ministry of Labour and Social Affairs. The employees lack of the corresponding contract authorization shall not invalidate the employment contact as the rights of the foreign employee, without prejudice to the liability it may entail.
Article 34. Administrative Authorization to Work.
In order to perform economic activities by setting up business with the status of merchant, businessperson, farmer or craftsman, the alien must accredit having requested the corresponding administrative authorization and having fulfilled all of the requirements that the legislation in tone demands of Spanish nationals for the start-up and performance of the projected activity.
Article 35. The Work Permit.
1. The work permit is the authorisation to perform lucrative activities in Spain through employment.
2. For the initial granting of the work permit, in instances involving paid employment, the employment situation of nationals shall be taken.
3. The work permit shall have duration of les then five years and may be limited to a specific territory, area or activity.
4 The work permit may be renewed upon expiration of the contract or offer of employment that led to the initial granting continues to exist and is rewarded, or if the alien has a new area of employment under the terms established by regulation. After the first permit, the subsequent permits shall be granted with no limitation whosoever as to geographic area, or activity.
5 Five years after the granting of the first work permit and the corresponding extensions the permit shall acquire a permanent status.
Article 36. Special Permits.
1. These aliens who obtain a residence permit through the procedure provided for in Article 29.3 herein shall be entitled to a work permit. The duration of the work permit shall be one year, and the permit shall be renewed as long as the same dictums continue to exist.
2. Likewise, those work permits and administrative authorisations to work in which any of the following circumstances exist shall also be renewed automatically, even if the requirements established in Article 35.4 herein are not met.
a) It the proper authority, in accordance with the rules on Social Security, has granted a contributory unemployment benefit payment for the duration of said benefit.
b) It the alien is the beneficiary of any economic assistance of a Public nature thatisintended to achieve his or her integration into society or employment throughout the duration thereof.
Article 37 The Quota of Foreign Workers.
The Government shall, after a hearing of the Superior Council on immigration Policy and the most representative labour unions and business organizations annually establish a labour quota which sets the number and characteristics of the employment offers made to the non-resident foreign workers in Spain. with an indication of the industries and professional activities concerned
Article 38 Exceptions to the Quota.
1 Those offers of employment that businesspeople may make to foreign workers are separate from the overall quota that is established
2. It shall not be necessary to consider the availability of positions in the quota if the employment contract on offer is intended for:
a) Filling positions of trust.
b) The spouse or child of a resident alien in Spain.
o) The title holder of a prior authorization to work who intends to have this authorization renewed.
d) Workers necessary for the assembly or repair of productive installations or equipment.
a) Those that have enjoyed refugee status during the year (allowing the loss of said status.
Article 39. Exceptions to the Work Permit.
1. The work permit need not be obtained to perform the following activities:
a) Foreign technicians and scientists who are invited or hired by the State.
b) Foreign professors who are invited or hired by a Spanish university.
c) Foreign executive personnel and professors of cultural institutions and institutions of learning which are dependent upon other States or are private, or acknowledged prestige and officially recognized by Spain and which offer cultural and educational programmes in our country or about their respective countries, provided that they Limit their activity to putting on said programme.
d) Civil servants or military personnel of the Administration of a foreign state that come to Spain to perform activities by virtue of cooperation agreements with the Spanish administration
e) Foreign media correspondents who are duly accredited to work in the field of providing information.
f) Members of international scientific missions who perform work or research in Spain with State authorization.
g) Artistes who come to Spain to perform specific acts that do not constitute a continuous activity.
h) Ministers, members of religious orders or representatives of the various Churches and Confessions which are duly registered in the Registry of Religious Entities, provided that they limit their activities to strictly religious functions.
i) Those aliens who form part of the representative bodies, government and administration of the internationally recognized labour unions, provided that they limit their activity to functions related strictly to labour union activities.
2. A work permit shall also not be necessary for the following:
a) Persons who were originally Spanish nationals. but who lost their Spanish nationality.
b) Aliens who are married to a Spaniard and are not separated in fact or by law.
e) Aliens who are responsible for ascendants or descendants of Spanish nationality.
d) Aliens who were born in and are residents of Spain.
a) Aliens with authorization for permanent residence.
Article 40. Special Status of Students.
1 The authorization to enter and reside in Spain in order to study shall be granted to those aliens who have been admitted to an officially recognized centre of learning, whether public or private.
2. The duration of the residence authorization shall be equal to that of the course of study in which the alien is enrolled at the centre that he or she attends.
3. This authorization shall be extended annually if the holder thereof demonstrates that he or she continues to fit the conditions required for the issue of the initial authorization and fulfils the requirements of the canter of learning that he on she attends.
4. Those aliens admitted in order to study shall not be authorized to set up business or take employment. However, insofar as it does not limit the completion of their studies, and under the terms determined by regulation, they may perform remunerated activities that are part-time on of a specific duration.
5. Working in a family to compensate for its providing accommodations and sustenance while improving linguistic or professional knowledge shall be regulated by the provisions of international agreements or the placement of au pair."
Article 41. Special Status of Seasonal Workers.
1. The Government shall regulate the work permit for alien workers who perform seasonal work by regulation so as to allow for their entry and exit from Spanish territory in accordance with the characteristics of the aforementioned seasonal work.
2 The Public Administration shall ensure that the seasonal workers are housed in forms of housing with adequate conditions of dignity and hygiene and shall promote the assistance of the proper social services in order to attend to their social needs during the season on campaign for which the work permit is granted to them.
Article 42. Cross-border Workers.
Those alien workers who reside in a bordering area, perform their activity in Spain and return to their place of residence daily. or at least once per week, must obtain the appropriate administrative authorization, with the same requirements and under the same conditions for obtaining authorizations of a general nature.
On the Fees for Administrative Authorization
To Work in Spain
Article 43. Taxable Event.
The administrative authorization issued to foreign citizens to set up business or take employment in Spain constitutes an event that is taxable in the form of a fee.
Article 44. Taxpayers.
1. Directly obliged to make the payment of the fee are the employers to whom the initial employment of a foreign worker is authorized or to whom the authorization for employment is renewed, in instance of paid employment. whereas it is the worker himself that is obliged when he has set up business.
2. Any agreement whereby a worker who is employed by another accepts to pay all of or a portion of the established fee is invalid.
Article 45 The Amount of the Fees.
The amount of the fees shall be established by regulation, bearing in mind the type of authorization, whether it is initial or a renewal, the nature of the renewal, whether the work is
through paid employment on setting up business and the duration of the work.
Authorizations for permanent work are exempt from the payment of the fee.
On Violations with Regard to Alien Affairs and the System of Sanctions Related Thereto
Article 46. The Authority to Place Sanctions.
The authority to place sanctions as a result of the administrative violations provided for in the Constitutional Law herein shall be compliant with the provisions herein. with the implementation provisions of the Law herein and with Law 30/1 992 on the Legal System of the Public Administration and Common Administrative Procedure.
Article 47. Types of Violations.
1. Those who are the perpetrators of or take part in any of the violations described in the following articles shall incur administrative liability.
2. The administrative violations established in the Constitutional Law herein are classified as minor, serious and very serious.
Arbole 48. Minor violations.
The following are minor violations:
a) Any omission on delay in informing the Spanish authorities of a charge of nationality or address, as well as in informing them of other circumstances which determine their employment status when they may be required to do so according to the applicable regulations.
b) Any delay of up to three months in requesting the renewal of any form of authorization, once it has expired.
o) Working without having requested a work permit, whether in possession of a temporary residence permit or when the work permit has been denied.
Article 49. Serious Violations.
The following are serious violations:
a) Being in Spanish territory unlawfully, due to having obtained an extension of the stay, a residence authorisation or an analogous document, when required, after having let the document expire for over three months, provided that the person concerned has not requested their renewal within the aforementioned period of time.
b) Working in Spain without having requested a work permit or administrative authorization to work, if the alien does not have a valid residence authorisation. Committing the crime of concealment in bad faith ("occultation dole") or grave misrepresentation (false- dad grave") in complying with the obligation to inform the Ministry of the Interior of changes of nationality or address.
d) Entry into Spanish territory without possessing the required documents or fulfilling the proper requirements, or by entering in locations other than the appropriate entry post, or by violating any legally established entry prohibition.
e) The failure to comply with the measures taken for Public safety, to make periodical appearances or to have an obligatory place of residence, in accordance with the provisions of the Law herein.
f) Committing a third minor violation, provided that, during a period of six monfhs before doing so, the alien was sanctioned for two minor violations of the same nature.
g) The aliens participation in the performance of illegal activities.
Article 50. Very Serious Violations.
The following are very serious violations:
a) Taking part in any activities that jeopardize the foreign security of the State or performing any sort of activity that might harm the relations of Spain with other countries.
b) Taking part in any activities that jeopardize Public order and are considered very serious under the Constitutional Law on the Protection of Public Safety.
c) Inducing, promoting. favouring or facilitating, while forming part of a profit-seeking organization, the clandestine immigration of persons who are in transit through or whose destination is Spanish territory.
d) Performing discriminatory acts for racial, ethnic, national or religious reasons, under the terms provided for in Article 21 of the Law herein.
a) The hiring or habitual use of alien workers without having previously obtained the corresponding authorization to hire them
f) Committing a third serious violation, provided that, during a period of two years before doing so, the alien was sanctioned for two serious violations of the same nature.
Africa 51. Sanctions.
1. The violations described in the articles above shall be sanctioned under the following terms:
a) Minor violations with a fine of up to 50,000 pesetas.
b) Serious violations, with a fine from 50.001 to one million pesetas.
e) Vary serious violations, with a fine from one million to ten million pesetas.
2 The placement of sanctions as a result of the administrative violations established in the Constitutional Law herein shall correspond to the Sub-delegate of the Government or, in those Autonomous Regions comprised of one sole province, to the Government Delegate.
3. In order to determine the amount of the sanction, the economic capability and degree of wilfulness of the violator shall especially be taken into account.
Article 52. Lapsing of Violations and Sano done.
1 Very serious violations shall lapse after three years, serious violations after two years, and minor violations after six months
2. The sanctions placed due to very serious violations shall lapse after five years, due to serious violations after two years, and due to minor violations after one year.
3. If the sanction placed is that of expulsion from Spanish territory, the Lapsing period shall not be counted until the entry prohibition period established in the expulsion order has come to an end, up to a maximum of ten years.
Article 53. Expulsion from Spanish Territory.
1. If the violators are aliens and they perform acts that are described as very serious or serious from among those foreseen in sections d). e) and g) of Article 49
of the Constitutional Law herein, the sanction or expulsion from Spanish territory may be applied instead of the sanction
of the fine, once the corresponding administrative procedure has been conducted.
2. The following aliens may only be sanctioned by expulsion in instances involving the repetition of very serious crimes:
a) Those aliens who ware born in Spain and have been legal residents for the past five years.
b) Those who have been granted permanent residence unless they commit the violations in sections a), b), e) art) of Article 50 or section g) of Article 49 herein.
o) Those who were Spanish nationals by origin, but who lost their Spanish nationality.
d) These who are the beneficiaries of a permanent labour disability payment resulting from a work accident that occurred or a professional illness that was contracted in Spain, as well as those that receive a contributory unemployment benefit or are the beneficiaries of any economic assistance of a Public nature that is intended to achieve his or her integration or re-integration into society or employment. unless the sanction is placed because they have committed any of the violations in sections a), b), c) or f) of Article 50 or section g) of Article 49 herein.
3. The spouses of aliens and the ascendants and minors or incapacitated children who are under the responsibility of an alien may not be deported either if the alien is in any of the aforementioned situations provided they have legally resided in Spain for more then two years; nor may pregnant women, if this measure might put the pregnancy or the health of the mother at risk.
4. When the alien is accused in proceedings for crimes punished with sentences that deprive the condemned of their liberty for less then six years, the Judge may authorize the aliens exit from Spanish territory, following a hearing with the Public Prosecutor, provided that the requirements established by the Law or Criminal Prosecutor are met, or the aliens expulsion, if this is appropriate according to the provisions of the preceding paragraphs of this article, following the completion of the corresponding administrative sanction proceedings.
In instances involving aliens who are not legal residents of Spain and who are sanctioned in a final sentence, the provisions of Article 89 of the Penal Code shall be applicable.
Article 54. Procedure and Effects of Expulsion.
1. Every expulsion shall entail the prohibition to enter Spanish territory for a minimum term of three years and a maximum term of ten yeans.
2. Expulsion proceedings shall not be necessary for the return of aliens in the following circumstances:
a) Those who were expelled and have violated the prohibition of entry into Spain.
b) Those who attempt to enter the country illegally, with the exception of the case described in Article 4.1 of Law 5 of March 26. 1984 Regulating Refugee Status and the Right to Asylum.
3. Returns shall be ordered by the same governmental authority as that which orders expulsions.
4. Any return that is ordered in application of letter a) of section 2 of this article shall cause the term of the entry prohibition that was caused by the violation of the expulsion order to be reinitiated. Likewise in such instances, if the return cannot be performed within seventy-two hours, the governmental authority may request from the judicial authority that the alien be interned as provided for in expulsion proceedings.
VNHCR JJNOFFICIAL TRANSLATION
Article 55. Cooperation Against Organized Crime.
1. Any alien who has crossed the Spanish border outside of the post established for this purpose or who has not complied with the obligation to declare his or her entry and is in Spain irregularly or is working without a permit, without documents on with irregular documents, due to having been a victim, injured party or witness of an act of illicit trafficking of human beings, Illegal immigration, illicit trafficking of workers or exploitation by prostitution through the abuse of the aliens situation of need, shall be exempt from administrative responsibility and shall not be deported if he on she accuses the perpetrators or accomplices of said crimes before the authorities with jurisdiction or alien affairs by providing essential information or testifying, where appropriate, in the corresponding proceedings against said perpetrators.
2. The appropriate administrative bodies charged with the examination of the sanction proceeding shall make the proper proposal to the authority that must issue the decision.
3. Those aliens who have become exempt from administrative responsibility may be aided in, at their own choice, returning to their country of origin or remaining and residing in Spain, as well as receiving a work permit and aid for their integration into society, in accordance with that which is established in the Law herein.
4. It the Public Prosecutor becomes aware that an alien against whom an expulsion order has been issued appears in a criminal procedure as a victim, injured party or witness and deems the aliens presence to be indispensable in order for the court to take the requisite procedural course, he must inform the appropriate governmental authority for the purposes of evaluating the non-executive of the expulsion order and, in the event that the expulsion order has been executed, he shall also proceed in the same manner for the purposes of authorizing the aliens return to Spain during the time necessary to take the requisite procedural course, without prejudice to the possibility of adopting any of the measures provided for in Law 19 of December 23, 1994 on the protection of witnesses and experts in criminal proceedings.
Article 56. Return and Internment.
1. Those aliens who are not permitted to enter the country at the border shall be returned to the place of origin in the shortest amount of time possible. The governmental authority that orders the return shall address the Examining Judge if the return were to be delayed for more than seventy-two hours so that the Judge may determine where the aliens are to be interned until the time of their return.
2 The places of internment for aliens shall not be of a penitentiary nature and shall be equipped with social, legal, cultural and health services. Interned aliens shall only be deprived of freedom of movement.
3. During their internment, aliens shall at all times be at the disposal of the judicial authority who authorized it, and any circumstances surrounding the status of the interned aliens must be reported to the judicial authority by the governmental authority.
4. The detention of an alien for the purposes of a return shall be reported to the Ministry of Foreign Affairs and to the Embassy or Consulate of the aliens country.
Article 57, Obligation to Make Periodical Appearances.
As an exception, the governmental authority may provisionally apply to the aliens who are within Spain and against whom sanction proceedings have been initiated the obligation to make periodical appearances at the offices indicated. Likewise, it may olden the seizure of the passport or document that accredits the aliens nationality, after providing the alien concerned with a receipt which accredits that this measure has been taken.
Article 58. Placement in an Internment Centre.
1. If the proceedings on the alien are due to the causes included in sections a), b) and c) of Article 50 herein or section g) of Article 49 herein, and the expulsion of the alien concerned is to be proposed, the governmental authority may propose to the corresponding Examining Judge with jurisdiction that the alien be placed in an internment centre until the sanction proceedings have been concluded. The judicial decision with regard to the request for the internment of the alien pending expulsion shall be issued in a reasoned court order (auto"), following a hearing with the alien concerned.
2. The internment shall continue throughout the time required for the purposes of the proceedings, but may in no case surpass forty days. Nor may the aliens internment be re-ordered for any of the causes provided for in the same proceedings. The court decision authorizing the internment may, depending on the circumstances surrounding each case, establish a maximum term of internment that is shorter than the aforementioned.
3. Minors who are in the circumstances foreseen for internment shall be placed at the disposal of the proper child protection services. Following a favourable report by the Public Prosecutor, the Judge may authorize the minors placement in san alien internment centre if the minors parents or guardians are there as well, if his or her parents or guardians request the minors placement there and it special cells exist which guarantee family privacy.
4. The filing of proceedings, the precautionary measures of detention and internment and the final decision or the aliens expulsion proceedings shall be reported to the Ministry of Foreign Affairs and the Embassy or Consulate of the aliens country.
Article 59. Possibility of Appealing Decisions on Aliens
1. Administrative sanction decisions may be appealed in accordance with the provisions of Law. The system for executing these decisions shall be the system provided for of a general nature.
2. In any case, if the alien is not in Spain, he or she may file the appropriate appeals through both administrative and judicial action through the corresponding diplomatic or consular representatives or through duly empowered migration assistance organizations, which must convey them to the proper governmental body.
On the Coordination of Public Powers with Regard to immigration
Article 60. Coordination of the Bodies of the State Administration.
1. The Government shall constantly observe the magnitude and most significant characteristics of the phenomenon of immigration in order to analyse its impact on Spanish society and to provide objective, comparative information which avoids or impedes the up rise of xenophobic or racist (rends.
2. The Government shall create Provincial Offices to join the existing services which depend on different bodies of the
UNHCR UNOFFICIAL TRANSLATION
State Administration with competence on immigration in order to achieve adequate coordination of its administrative action.
3. The Government shall draft plans, programmes and guidelines on the action of the Labour inspectors prior to undertaking sanction proceedings, especially in order to verify compliance with the principle of equality and non-discrimination of other workers, as well as the effective compliance with the rules on the aliens work permit, all without prejudice to the faculties of planning which correspond to the Autonomous Regions that have competence in the execution of labour laws.
Article 61. The Superior Council of immigration Polio.
1. In order to ensure the proper coordination of the actions of the bodies of the Public Administration with competence on the integration of immigrants, the Supreme Council of immigration Policy shall be established, and representatives of the State, the Autonomous Regions and the municipalities shall participate therein.
2. The aforementioned body shall establish the bases and criteria whereupon a global policy for the integration of immigrants into society and employment shall be constructed. For this purpose, it shall gather information from and consult with bodies of the administration, of both the State government and the Autonomous Regional governments, as well as doing so with the social and economic agents involved with immigration and the defence of the rights of aliens.
Article 62. Support from the Alien Association Movement.
The Public authorities shall promote the strengthening of the aliens movement to form associations and shall support labour unions and non-governmental organisations which are non-profit and favour the aliens societal integration by providing them with material resources and economic aid, both through general programmes and with relation to their specific activities.
Article 63. The immigration Forum.
1. The immigration Forum, comprised of three parts in equal proportions: representatives of the bodies of the Public Administration, of the immigrant associations and of the social support organizations, among which are the labour unions and business organizations concerned are involved in the field of immigration, is a body of consultation, information and advice on immigration.
2. The composition, competences, operating system and administrative assignment thereof shall be determined by regulation.
Sole Additional Provision. Maximum Term for Making Decisions on Files.
The requests for an extension of the residence permit and for the renewal of the work permit that are submitted by the persons concerned under the provisions of the Constitutional Law herein shall be decided upon in no more than three months to be counted from the day following that on which the request was submitted. Once the aforementioned period of time has come to an end, if the Administration fails to make an express response, it shall be understood that the extension or renewal has been granted
First Transitional Provision. Regularization of Aliens Who Are in Spain.
The Government, by Royal Decree, shall establish the procedure for the regularisation of the aliens who have been on Spanish territory since prior to June 1, 1999 and who accredit
having requested a residence or work permit on any occasion or who have had such a permit in the past three years.
Second transitional Provision. Validity of Currently Valid
The various permits or cards that enable the persons included in the scope of applicability of the Law herein to enter, reside and work in Spain and that are valid when the Law herein takes effect shall preserve their validity throughout the time for which they were issued.
Third Transitional Provision. Rules Applicable to
Proceedings Currently Being Conducted.
Those administrative proceedings that are currently being conducted shall be processed and decided upon in accordance with the rules in effect at the time when they were initiated, unless the person concerned requests that the Law herein be applied.
Sole Provision of Repeal. Repeal of Prior Laws.
Constitutional Law 7 of July 1, 1985 on the rights and freedoms of aliens in Spanish hereby repealed, as are any provisions in opposition to that which is established by the Law herein.
First Final Provision. Amendment of Article 312 of the Penal Code.
Section 1 of Article 312 of the Penal Code is hereby drafted in the following manner:
1. Those who traffic with labour illegally shall be punished with prison sentences of two to five years and a fine equal to six to twelve months.ª
Second Final Provision. Inclusion of a New Title XV bis in the Penal Code.
A new Title XV bis is hereby drafted in the following manner:
Title XV bis. Crimes Against the Right of Foreign
Article 318 bis.
1. Those who promote, favour or facilitate the Legal trafficking of persons from, in transit through or to Spain shall be punished with prison sentences of six months to three years and a fine equal to six to twelve months
2. Those who perpetrate the sote daecnibed ir :he pracadírg seofion for prafit 0< by using víalanoa. intimida(ion am (raud, or by abusirg the victime eitua~on of raed, shall be punchad wifh pnisor sentenees of ~.iO to (aun yeans and a fina aqual to (walve to (wanty-tour manths.
3. The highan halt of the respectiva santances provídad for ir the pneceding sectiors shall be placeo it, ir panpetnstirg the onímee, the lite, health on integníty of the persone was jaopandized 0< the víotírn was a mincr.
4. Those who perpetrate the crime by using their status as an authority, an agent thereof or a civil servant shall be given the same sentences as those described in the preceding section, as well as being completely barred from holding Public positions ("irhabilitacón absoluta") for Six to twelve years
5. Sentences of a greater degree than those provided for in the preceding sections shall be placed, in their respective cases, when the guilty party belongs to an organization or association that is devoted to performing said activities, even if it is of a transitory nature.ª
Third Final Provision, Amendments to Articles 515, 517 and 518 of the Penal Code.
1. A new section 6.0isharaby added to Article 515 and drafted in the following manner:
´6.0 Those who promote the Illegal trafficking of persons.ª
2. The first paragraph of Article 517is hereby amended and shall be drafted in the following manner:
´In the retarces pravided for ir numbens 1.0 and 3,0 through 6.0 of Ar(icla 515 herein, the tollowing sartarcas shall be placad:ª
3. Anficle 518isharaby amended snd shall be drafted ir the tollawing marran:
organizations of the changas from the pnion lagislatian en(ailad by the psssage of the Canstifutional Lsw herein.
Eighfh Final Pnoyisior. Credit Pro visían.
The Govenrman( shall creste (base pnovisions that are racessamy to confront the expanditunes causad by the applicatior and implamartatior of (bis Law.
Ninfh Final Pmovision. Entiy /nto Parca.
Ibis Core(ifufional Law shalh (aka effac( (wanty days af(an te full publicatior ir the "Bola(in Oficial del Estada" ("O(ficial Bullefir of the Spanish Sta(a).
1 orden sil Spaniande, bo(h irdividuals ard authonites, to abide by and uphold (bis Corstifu(ional Law.
Ir Madrid, on the alavarnt day of Januany, 2000. KING JUAN CARLOS
The Presidant of the Govennment,
JOSÉ MARIA AZNAR LÓPEZ
´Ihoee who, thraugh thein economic 000pamafior or 000penafíar of any ofhen eort, ir any casa of a nelavart nature, favor the faurdation, onganizatior am ao(ivity of the assaciafiars ir rumbare 1.0 and 3,0 (hrough 6.0 of Amticle 515 herein ehall be senfanced to pnisor for ore to (bree yaans ard a fina equal (a (welve to (wenty-toum inarthe and shall be barrad fnom holding Public t~irployman( am pasitiors for ore fa toun yeams.ª
Faurth Final Pmovision Nar-Conet,tutionat Art/cies
The pnecep(s ir Articlas 10, 12, 13 ard 14 herein ame no( of a cans(i(u(ioral nature ("orgánica"), having baen issuad urdan the pmavisione of Anticla 149.1.2.a of the Corsfitufion
Fifth Final Provisior. Support (am the Soben gen information System.
The Government shall, within the frarnework of thaf which rs foresaen ir the implamentatron Agreamar( of the Schangar Agneemart, taka any maasunee that ana racassany to mair(air the sccunacy srd cunmarfness of the da(a ir the Schengan irformat,on system by facilifa(ing the axancisa of the night fa the cornec(iar am daletior of data (a (bose persors whosa dafa appaar therein.
Srx(h Final Provision impiemantatíon Decree for the Law Herein.
The Govennment is hereby givar a tenm of cix man(hs to appnova the lmplementatiar Decnaa ("Reglamento") of the Corstrtutianal Lsw herein
Severtn Final Provisian. Pro vmding lnformat,on on the Law to the Bodies and Qrgan,zat,one Cancerned.
From the marnart st which the Lavi herein fakas effact,
the Govemnmart shall taka the maasunes raceseamy ir arden to
nfarm the civil senvants of the vsnious bodiee of the Public
Administrador, the diractoms of irnmignan( aesaoiatans the
Bar Aseociations the labor uniars and the rar-govennmantal