ITEM 14: Specific Groups and Individuals

(a) Migrant Workers

Dear Madam Chairperson,

The new Spanish legislation about the rights and freedoms of migrants, in its 2000 reform of the previous legal text, has introduced substantial modifications characterised by a lack of equal rights and freedoms to both the immigrant citizens and the Spanish citizens. There is a distinction between legal and illegal migrants by which only the former is fully entitled to equality with respect to Spanish citizens. The new law focuses on clarifying the notion of legal residence, increasing the administration’s power in connection with entry denial and expulsion from Spain, restricting the right to family regrouping, limiting the right to free legal counselling, etc. In sum, even if it introduces some improvements, this law is intended to curtail the legal guarantees which, until its enactment immigrants had enjoyed in Spain.

The above-mentioned increase in the administration‘s power has lead to an unfair application of the immigration laws because they are being applied in a unequal way in the Spanish territory. A migrant who arrives to Ceuta, for instance, will be usually sent to the Peninsula with an order of expulsion that, being inapplicable, will leave him in an illegal situation, unable of being employed in Spain. In Melilla, however, the same immigrant could be sent to the Peninsula with a work and residence licence or taken back to Morocco in a repatriation process which is no longer applicable. And, in the Canary Islands, this immigrant would be probably detained for a period of even 40 days in conditions less acceptable and following a process that violates Spanish, regional and international norms, to, at a later date, be sent back to his country of origin or, more probably, be left in freedom to live in illegality.

The problems associated with the arbitrary application of the law are increased with the serious violations of the proceeding’s rights of the immigrant, including their rights to juridical assistance, to translations services, to the fact that his case is considered in an individual way, to the access to the procedures of determination of asylum and to the revision of the decisions that affect his legal situation in Spain. The Special Rapporteur herself, Mrs. Gabriela Rodriguez Pizarro in her report E/CN.4/2003/85/Add.1 has stated the latter violations. All this means a violation of the right of effective juridical assistance recognised both in the article 24 of the Spanish Constitution and in the article 14 from the International pact of Civil and Political Rights, ratified by Spain in 1977. As a result of these procedural deficiencies, the risk that immigrants and seekers of asylum who have arrived to Spain, in case of being subjected to torture or to cruel, inhuman or degrading treatment or punishment, are not able to denounce, can increase. Indeed, as it is reflected in the Special Rapporteur’s report, in Spain cases of degrading treatment and torture by the police authorities to immigrants, both adults and children, frequently take place.

In view of the above, we urge the Spanish Government to:

• to take measures to solve the co-ordination deficiencies between the central, regional and local authorities, in accordance to guaranty an interpretation and uniform and no discriminatory application of the immigration normative,
• to establish mechanisms that limit and control the excessively wide powers that the Spanish officials in charge of the Immigrations and application of the law have,
• to receive again the special repporteur and co-operate in the examination of the migrants situation,
• to ratify the EU Protocol that forbids massive expulsions, practice usual at the moment in Spain and
• to ratify the International Convention on the Protection of the Rights of Migrant Workers and their families.