The Council of State, in its report on the extraordinary migrant regularization project, requests that the Government be more rigorous when it comes to demonstrating the criminal records of potential beneficiaries of the new residence permits in Spain. The procedure, he says, “should be suspended” if there are no reports on the migrant’s criminal history. The Ministry of the Interior had requested the same from the Migration Ministry, the latter in charge of drafting the regulations, which in this aspect are more lax, since it plans to continue with the process even when the foreigner has not been able to obtain these documents in their country of origin. It is enough, according to the wording, to present a responsible declaration of the absence of a criminal record.
Government sources point out that all these recommendations are technical, but they do not go to the heart of the project, and therefore they consider that it endorses above all the fact that it is done through a reform of the regulations of the immigration law, and therefore without the need to vote on it in Congress. Executive technicians are modifying the text over the weekend to incorporate all these recommendations from the Council of State and thus have the final wording ready for approval in the Council of Ministers on Tuesday.
The legal text also establishes that if there are criminal records susceptible to cancellation in Spain, the interested party must request said cancellation from the Ministry of the Presidency. This, the Council of State emphasizes, is not consistent with what is stated in the norm, which expresses the desire not to request from migrants those documents that are already in the possession of the Administration and in addition, says the report, “it may have procedural consequences that are difficult to compatible with the demanding deadlines provided for the processing of files”, 15 days for admission for processing and three months to conclude the process.
The project contemplates two exceptions that would exempt criminal records from being submitted, with which the Council of State report also does not agree. The first is that the applicant has remained in Spain five years prior to the request for regularization; and the second is that in that period he has already presented on some occasion a document that shows that he has not committed crimes. In the first case, says the Council, it is practically impossible to prove permanence in Spain during that time, given that these are people who have been in the country irregularly. The second exception also poses obvious drawbacks, since the foreigner could have demonstrated that he had no crimes in the first of the five years and then committed them in Spain or elsewhere, the report explains. For all these reasons, he says, “the highest priority must be given to rigorous accreditation of the lack of criminal records in third countries.” And they consider that “the two exceptions should be deleted.”
The Ministry of the Interior also objected to the use of expired passports, registration cards or travel titles as proof that the foreigner has remained in Spain five months before their request for regularization, one of the requirements to access it. The Council of State agrees and asks Migrations to “exclude” from the process those who do not have said documents in force. Remember that the Administration has the obligation to provide documents to those who live in Spain, therefore they should do so now, something practically impossible if a massive regularization is to be undertaken in a timely manner – 750,000 applications are expected – which, in addition, has revealed the difficulties of “attending and processing adequately, in very short times, a foreseeable huge number of requests.”
The Council’s report also requests the exclusion from this process of those people who have requested statelessness, that is, those who are not recognized as nationals in any State. The Council understands that these people are mixing with those who have requested International Protection, two different circumstances in the Spanish legal system. The Ministry of the Interior had requested the same from Immigration, but the department headed by Elma Saiz responded that the same regularization requirements were being asked for stateless people and those requesting asylum, a response that is not sufficient for the Council of State.
The Government has estimated that around half a million migrants will finally have access to this extraordinary regularization and this is because the process also includes around 300,000 people who requested international protection upon arrival in Spain. In these cases, these are those fleeing situations of violence or discrimination in their countries that compromise their lives, among them thousands of Malians, for example. The bottleneck that has formed in the Administration to process these applications drives many of them to opt for the regularization route to formalize their stay in Spain. But those who decide this will have to renounce international protection, which is more guaranteeing. The Spanish Commission for Refugee Assistance raised objections to this and the Council of State supports the criticism because renouncing protection for a process that has an exceptional nature and that could be denied, “can seriously disrupt the processing of ongoing international protection procedures.”
Finally, the Council of State report raises doubts about the role that the public company Tragsa will play in the “very complex administrative tasks of managing requests” for regularization. It is necessary, says the report, that the activities entrusted to this company “be limited to administrative actions of management and document channeling”, that is, a mere “instrumental collaboration”. The Council also warns of the planned use of the Post Offices for the presentation of regularization requests, given the dispersion of these windows throughout the national territory and the authorization of the personnel involved, which will represent “a difficulty” for the planned procedures to adjust to the deadlines set for the procedures. It must be assessed, says the Council, whether the general functions that are already legally attributed to the Postal Service are not sufficient to channel its collaboration in the process of submitting and processing applications. “It would be,” he says, “a simpler and more operational possibility” that is included in the Migrations text.
