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Writing sample # 2

Changes, Trends and Scenarios

in

European Union Immigration

Policy for the 21st ce~tury:

Spain & Italy as Case Studies

by Francisco J. Gonzalez

Requirement

of the Course

Seminar in Transnational

Law

(Law of the European

Union)

Hamline University

School of law

Spring 2000

Prof

J. Weeks

European

Changes,

Trends

and Scenarios

in

Union Immigration Spain & Italy

Policy for the 21st century:

as Case Studies

Introduction ..................................................................................................................

 

1

Part

I. Immigration

Under

EU Law

2

Part

ll. Immigration

in Spain

and Italy

:

5

A- Population

Trends

7

 

1.

Decreasing

Birthrate & Aging Population

7

2.

Causes of Declining Birthrate & Aging Population

8

3.

Economic

Impact of Decreasing

Birt~ate

and Aging Population

9

B- The Impact of Immigration

on Italian

Society

 

10

C- Italy's

Current Immigration

Statutory

Framework.

12

D- The Impact of Immigration

on Spanish Society

 

14

 

1.

EI Ejido: Attitudes

Towards Immigration

in Spain

16

E- Spain's

Current Immigration

Statutory Framework.

18

Part

ill. The European

Union

and the Future

of Immigration

 

20

 

1.

The European

Court

of Justice

23

2.

Immigration

as an Issue

in the 21 st Century

23

A- Solutions

25

 

1

Incl usion

25

2.

ControL

................................................................................................

26

B- Conclusion

27

Changes, Trends and Scenarios in European Union Immigration Policy for the 21st century:

Spain & Italy as Case Studies

Introduction

In 1992 two grand celebrations

held in Spain, the Olympic Games and the World

Exposition, served to highlight the sooth Anniversary of Christopher Columbus voyages of

"discovery" to the Americas. While the focus of the activities was on the host country, the

overall theme was the role played by Spain and, eventually, other European countries as well,

in carrying Western civilization (and European immigrants) to the farthest comers of the planet.

However, in a paradoxical contrast, already in 1992 the member states of the European Union

were beginning to enact measures to limit the influx of foreigners (i.e. citizens of non-member

states) settling within their borders.

The European

Union (EU) is currently struggling to accommodate

two processes that

pose challenges to their immigration policy: first, the growing number of asylum-seekers, and

economic migrants (legal and illegal); and second, the need to remove barriers to the free flow

of goods, persons, services and capital in order to promote the continuing integration of the

member states. I The obvious tensions produced by these competing needs are reflected in EU

and national efforts to craft implementing

regulations

on immigration

and on

intracommunitarian trade.

IMigration

and European

Integration:

The Dynamics

Dietrich Thranhardt

eds., Pinter Publishers

1995).

of Inclusion

and Exclusion,

at 1-12 (Robert

Miles &

1

In this paper I will present an overview of several aspects of immigration into the EU,

focusing exclusively on the role played by economic migrants.2 Part I of this paper will explore

the legal framework of EU-wide immigration legislation, in particular the incorporation of the

Schengen acquis into EU law by the 1998 Treaty of Amsterdam.3

Part II will examine in detail the impact on Spain and Italy from a decreasing birthrat~

and increased migration from non-ED foreigners, factors that are dramatically changing the

social, economic and political structures of both nations. Their current immigration laws and the

policy considerations behind them will also be ex:amined. Lastly, a short analysis ofthe

immigrant populations of Spain and Italy will be presented.

In Part III, the Conclusion,

an overview of policy and economic

trends will be presented,

including increased efforts by the European Commission to enhance EU-wide immigration

control measures, steps by the EU to enhance economic development (and thus lessen need for

immigration) in Africa and Eastern Europe, and how demographic and economic realities will

require an evaluation ofirnrnigration's role in the development of the ED.

Part I. Immigration Under EU Law

Until fairly recently, immigration-

asylum policy was strictly a preserve of the national

21 will use the terms economic

migrant and immigrant

to describe immigrant workers

from outside the

European Union that enter a EU member state seeking economic opportunities. In contrast are refugees and asylum- seekers, individuals escaping political oppression or military conflict in their own home countries. Both EU and International law have different regulations applied to each category.

3 The Schengen Agreement on the Gradual Abolition o/Checks at Their Common Borders, June 14. 1985, 30 I.L.M. 68 (1991) (Convention applying the Agreement enacted June 19, 1990). The original Schengen members- Benelux countries, France and Germany enacted several measures regarding asylum and immigration procedures and policies. While the Schengen Agreement and Convention were not part of the EU framework, they were incorporated into the Treaty of Amsterdam and made applicable to all EU member states effective 1999 (the United Kingdom and Ireland, however, were exempted since (among other factors) their geographic situation as islands, and the conflict in Northern Ireland, created problems not envisioned by the Schengen policies).

2

states. Since the 1980's a clear intensification of cooperation in this field among EU member

states took place. These contacts were initially limited to the level of intergovernmental

consultation (that is, bilateral or multilateral arrangements outside the parameters ofEU

institutions). Eventually, a joint general policy in the areas of immigration and asylum policy

was developed. One Dutch analyst, Henk Overbeek, describes the process as follows:

"Officially

this intensification

[of immigration-related

cooperation

efforts] is

explained by the need for a common policy after the abolition of internal border controls with the Single Market. However, the abolition of border controls is not per se a

sufficient condition for a common policy nor can the Single Market explain the form which the intensification of cooperation has taken. The prior desire of the governments to reduce uncontrolled immigration and the convenience of legitimating such a policy by reference to the need imposed by the Single Market are important elements of a fuller explanation. The attempts to control the new immigration of asylum-seekers and illegals amount to what we call a system of multiple barriers to entry.,,4

The Schengen Agreement and Conventions of 1985 and 1990 represent the most

comprehensive arrangement among European nations regarding the movement of persons. The

Agreement provided for the abolition of all border controls within the area of the signatory

States and the strengthening of the external borders of the Schengen nations5. The Agreement

establishes that the signatories "shall endeavor to hannonize

...

the laws and administrative

provisions concerning the prohibition and restrictions which form the basis for the controls and

to take complementary measures to safeguard security and combat illegal immigration by

nationals of States that are not members of the European communities.,,6

Schengen essentially served as an "experimental

garden" or "dress rehearsal"

for

4Schengen Agreement

and Convention.

supra

note

3, at 30.

5Id,

at 79,

art.

17.

3

Union-wide integration.7 The terms of the agreement encompass the review of immigration,

visa, and asylum policies; cooperation in policing external borders and enforcing laws; and

establishing arrangements for sharing immigration and criminal records.8 While the agreement

abolishes border controls between signatory states, this right did not extend to non-EU nationals

even if they had been granted admission to any the parties to Schengen.9

The most important element of the Schengen reforms is the crafting of new definitions

applicable to asylum seekers and refugees. 10 For example, France and Germany define refugee

"as a person with reasonable fear of persecution from his or her government", thus excluding

individuals fleeing from non-governmental violence or strife such as inter~ethnic conflict or

persecutions by religious fundamentalists. II This, in turn, has greatly reduced the number

of

individuals admitted as asylum-seekers, but has resulted in an increase of the number of

foreigners residing illegally in the Schengen countries since they now have no avenue to

obtain legal admission. 12

The general revision of the basic EU constitutional framework accomplished by the

7Giovanna I. Wolf, Efforts

Toward

"An Ever Closer"

European

Union Confront

Immigration

Barriers,

4

Ind. 1. Global Legal

Stud. 223, 225 (1996).

 

9 Schengen Agreement and Convention,

supra

note

3, at 93,

art.

2 (2)

10 The UN Carter and the Universal Declaration

of Human Rights guarantees

refugees the right to seek

 

asylum in other countries. See Gabriela I. Coman, European

Union Policy

on Asylum

and Its Inherent

Human Rights

Violations,

64 Brook.

L. Rev.

1217, 1229 (1998).

 

I lId.

at 1230.

12 The exact number of undocumented

aliens residing in the EU is difficult to estimate, for the obvious

reason of their legal situation, but the figure ranges between 800,00 to 1million. See Martin Heisler, Contextualizing Global Migration: Sketching the Socio-political Landscape oj Europe, 3 UCLA 1. Int'l L. & Foreign Aff 557, 580

(1998).

4

Treaty of Amsterdam, which became effective on May 1st of 1999, included several articles

specifically addressing issues of immigration. 13 Title IV of the Treaty ("Visas, Asylum,

Immigration and Other Policies Related to the Free Movement of Persons") include the

following:

-Art.62: Directs the Council to adopt "measures

the Member

States" establishing

"the conditions

on the crossing of the external borders of under which nationals of third countries

shall have the freedom to travel within the territory of the Member temporary basis.

States"

on a

-Art. 63: Directs the Council to adopt measures regarding asylum seekers and refugees, as well as the development of "conditions. of entry and residence, and standards on procedures for the issue by Member States of long tenn visas and residence penn its, including those for the purpose of family reunion. In addition, the Council shall adopt "measures defining the rights and conditions wider which nationals of third countries who are legally resident in a Member State may reside in other Member State."

The Amsterdam Treaty points out to the clearly defmed trend ofEU law regarding this subject:

the eventual replacement of individual laws of the Member States with a EU-wide framework

regulating all aspects of immigration policy.

Part ll. Immigration

in Spain and Italy

Why the focus on Spain and Italy regarding immigration

into the EU? Simply because

nowhere else in Europe are the effects of population

trends, economic

development

and

immigration

seen in such stark contrast. Due to increased immigration

and decreasing

birthrates,

both countries will be profoundly different by the end of the 21 st century.

During the 19th and most of the 20th centuries, both Spain and Italy experimented

large-

scale migratory

flows as hundreds of thousands

of their citizens abandoned

the poverty and

13Treaty of Amsterdam,

Communities

(1997)

[hereinafter

Oct. 2 1997, Luxembourg:

Amsterdam

Treaty].

Office for Official Publications

of the European

5

political instability of these nations. With rapidly increasing populations, huge income and class

disparities, and stagnant economies at home, Spaniards and Italians flocked to the welcoming

shores of Latin America, the US, Canada and Australia.

The destruction of World War Two and the Spanish Civil War (1936-39) created

additional waves of economic and political refugees fleeing these Mediterranean nations, and it

was only with the European boom of the 1960's that their economies began to improve.

However, both countries still had a labor surplus, with no need for foreign workers. 14 Moreover,

Spain was ruled by fascist dictator Francisco Fra~co until his death in 1975, making the country

less attractive to refugees, asylum seekers or economic migrants. 15

This scenario began to change in the late 1970's and early 1980's, with the increased

economic tempo among the southern European economies. Italy, an early member of the

European Community ( EC, now the ED), began to improve its economic position thanks to

transfer funds and increased investment. Spain, after the reestablishment of democracy in and its

14 The state

of Italy's

pre-Schengen

immigration

policy is best described

as follows:

"For instance, between 1950 and 1960, 3,137,712 Italians emigrated from their homeland, and the following decade, 2,956,667 Italians left. More central to Italian policy makers in this period was the repatriation of previously emigrated Italians and their families. It was only after 1973, in fact, that the number of Italian migrants repatriating exceeded the number of Italians emigrating from Italy. Moreover, even after 1973, significant Italian migration created the perception that Italy was still an emigrant country despite continual annual increases in net migration to Italy. While more Italian nationals repatriated to Italy between 1973 and 1986, the number of Italian emigrants remained relatively high at 1,247,284. Further, internal migration ofItalians, from the impoverished South to the prosperous North, strengthened the belief that Italy was still an emigrant country. With this persistent and extensive migration ofItalian-nationals, Italian legislators were more occupied with addressing the rights ofItalian emigrants than with confronting immigration to Italy." - David Christensen, Leaving the Back Door Open: Italy's Response to Illegal Immigration, 11 Geo. Immigr. L. 1. 461, 469-470 (1997).

15 Many Latin American countries

were receptive

to 25,000

immigrants a year. In addition, around 500,000

to Spanish immigrants. For example, Argentina

all~wed up

persons emigrated

from Spain between

1939-40, escaping

Franco's dictatorship. Juan G. Bedoya, Los espafioles se extinguen [The Spanish people are becoming extinct], El

Pais (Madrid), February 15, 2000, <http://elpais.es/p/d//20000215/espana/familia.htm>.

6

incorporation

to the EC in 1986, also experienced

a period of accelerated

economic

development.

In addition, economic

prosperity and evolving cultural mores resulted in dramatic

changes on the population makeup of both nations. By the late 1980's, authorities in both Rome

and Madrid began to take notice of the fact that their countries were beginning to attract

immigrant workers from beyond the borders if the European Community.

A- Population

Trends

The current migratory influx into Spain & Italy is made possible by the unmet need for

labor, this the result of demographic changes in b9th countries. Society and culture are also

affected by these factors.

1.

Decreasing

Birthrate

& Aging Population

Currently Spain has the world's

lowest birth rate (1.07 births per women),16 and Italy's

is

just slightly higher (1.2).17 The resulting population

loss, or difference

between live births and

deaths, is significant. For example, in 1998, Italy lost over 44,000 inhabitants; 18Spainjust

managed to retain its current population without reduction, but this trend is not expected to

last. 19In order to maintain its current population of 39 million, Spain will need to admit a total

 

16

£spafia sera el paL,>mas industrializado

con mayor porcentaje

de ancianos

en 2050 [Spain

will he

the

industrialized

country with the highest percentage

of elderly by 2050], EI Pais (Madrid),

March 22,2000,

<http://elpais.eslp/dl/20000322/sociedadlviejos.htm>

 

17

U.N. Dep't

of Economic

& Social Affairs, Replacement

Migration:

Is it a Solution

to Declining

and

Ageing Populations?

(last modified March

17, 2000) <http://www.un.orglesalpopulationlunpop.htm>.

 
 

18

L'Instituto

Nazionale

di Statistica, Bilancio

demografico

nazionale,

[National Institute

of Statistics,

National

Demographic

Overview] (Italy) (last visited March 21,2000)

<http://www.istat.it/Anotizie/Acornl

 

bildernlprirna.htm>.

 
 

19 Instituto Nacional

de Estadistica,

Hipotesis

sabre fa evoluciOn jutura

de la jecundidad

[National Institute

of Statistics, Hypothesis

regarding

thefuture

evolution

of the birthrate]

(Spain) (last visited Feb. 11,2000)

<http://www.ine.es/daco/daco.htm>

7

of250,000 new immigrants every year for the next 50 years.20 Italy, moreover, must receive

370,500 new immigrants annually to retain its current population of 57 million inhabitants.21

The other important

demographic

factor that creates a need for increased immigration

is

the rapid aging ofthe population. The life expectancy in both Italy and Spain has steadily

increased

during the last 30 years, and currently stands as follows22:

Males

Females

ITALY

74.9

years

81.3

years

SPAIN

74.7

years

81.9

years

The elderly will comprise an ever-larger percentage of the total population of these countries:

(Percentage

of the population

over 65 years 01d?3

YEAR

ITALY

SPAIN

  • 1999 17%

18%

  • 2050 37%

35%

  • 2. Causes of Declining

Birthrate

& Aging Population:

The statistics for Italy and Spain are virtually identical

in their conclusion

regarding the

principal cause for declining birthrates: in short, women's liberation.24

During the 1970's & 1980's, increased educational

and social programs,

added to the

diminution of the burdensome influence of the Catholic Church in both countries, opened the

  • 20 Replacement

Migration:

Is it a Solution

to Declining

and Ageing Populations?,

supra note

16.

21Id

  • 22 sabre la evolucionfutura

Hipotesis

de lafecundidad,

supra note

18.

Replacement

  • 23 Migration:

Is it a Solution

to Declining

and Ageing Populations?,

supra note

16.

24

Instituto

Nacional

de Estadistica,

Encuesta

de Fecundidad

1999 [National Institute

of Statistics, Survey

on Birthrate

1999J (Spain) (last visited Feb. 11, 2000) <http://www.ine.es/daco/daco.htm>.

8

door to women to become more active in the labor market, in government and in society in

general. With these new freedoms, women were now able to have more control regarding how

many children to have. This is the same pattern that reduced the birthrate in Northern Europe

and the United States by the 1950's and 60'S.25

The expansion

of health services and other social welfare programs account for the

increase in the lifespan of Italian and Spanish men and women.26 As already indicated, the

elderly, because of the reduction in the birthrate, will comprise a larger percentage of the

continuously decreasing total populations.

  • 3. Economic Impact of Decreasing

Birthrate

and Aging Population:

The United Nations, as well as officials in Madrid and Rome, have identified

some ofthe

foreseeable

consequences

if the current demographic

trends continue:27

1- The recent growth in the economies of Spain and Italy cannot be sustained in the long

run without an adequate labor force.

2- The aging population of both countries will require an increase in service industry,

which is labor intensive (personal care assistants, food preparation staff, nurse aids, etc.)

In addition to the native elderly populations, many retired and elderly individuals from

Northern Europe (mainly the United Kingdom and Germany) are also moving

permanently into the Mediterranean countries, thus increasing the demands on the local

...'..

25 Replacement

Migration:

is

it a Solution

to Declining

and Ageing Populations?,

supra note

16.

'p ld, see also Bilancio

lafecundidad,

supra

note 18.

demogrqfico

nazionale,

supra note 17; and Hipotesis

sobre la evolucionfutura

de

9

infrastructure and service industry.

3- In order to guarantee the funding for current welfare and social security programs, the

contributions of four active workers are needed for each retiree. By the year 2050, Italy

and Spain will only have around two workers per retiree, which can potentially bankrupt

the system.

 

B- The Impact

of Immigration

on Italian

Society

The availability

of work, due to the shortage of local labor, is the principal

magnet for

non-ED nationals (known as extracomunitari) to move into Italy. The limits placed by the

government on asylum and refugee seekers resulted in an increase of these extracomunitari

living at the margins of the law, since until

1986 Italy did not have a system that allowed for the

lawful admission of economic migrants or foreigners without valid asylum claims.

While changes in the law now permit the legalization

and orderly admission

of a limited

number of extracomunitari, the persistence and growth of illegal immigration in Italy further

undermines the government's

efforts to accommodate

this influx.28 Efforts to count the illegal

population

in order to understand

the depth of the problem become a guessing game in which the

margin of error is amplified by the high percentage

of illegal aliens in relation to legal

immigrants.

This problem has been described

as follows:

"[T]he impact of Italian efforts to stem the flow of illegal immigrants

is

weakened by the already large illegal populations. Potential illegal immigrants are attracted by the large illegal community in Italy, whose existence is evidence of the possibility of remaining in Italy as an illegal. Illegal immigration has also enlarged Italy's already thriving 'black-market' of labor, syphoning away the much needed potential tax

28Christensen, supra note 13, at 464-65.

10

revenue of the billions of lira paid in salary that goes unreported each year"29.

Another factor resulting from undocumented immigration has been a slowdown in the

economic development ofItaly's poor and underdeveloped southern regions, such as Sicily and

Calabria. There is some evidence that a great percentage of the often unreported jobs available

in southern Italy go to the cheaper labor of undocumented extracomunitari. 30

On the other hand, these illegal immigrants suffer from abuse and discrimination since

they are reluctant to contact the authorities to seek protection or legal redress.3! In most

occasions, the illegal immigrants face a harrowing experience attempting to cross the Italian

border unchecked. Even after arriving in Italy, immigrants who contracted the services of a

smuggler may face continued abuse and exploitation, as the high cost of the voyage charged by

the traffickers often leads illegal immigrants to accept dangerous work conditions and

sub-standard wages. In addition, there are frequent reports of illegal aliens compelled to repay

their smugglers by becoming virtual slaves or prostitutes.32

However, despite all the obstacles, extracomunitari immigrants continue to flock to Italy.

The greatest concentrations are registered in the northern part of the country, close to the

industrial centers of Milan and Turin, and in the area around Rome.33 In addition, there are

significant pockets scattered across the rest of the peninsula and on the islands of Sicily and

29Christensen, supra note 13, at 465.

3!u.S.

Dep't.

of State, Country Reports

on Human Rights Practices:

<http://www.

state.gov/www/global/human

Jights/1999

_ hrp Jeport/italy/html>

Italy (last revised Feb. 25, 2000)

32Christensen, supra note 13, at 466.

33 Bilancio demografico nazionale, supra note 17.

11

Sardinia.34 They are mostly engaged in low-skilled, labor intensive occupations such as

construction, agriculture and the service industry. 35

The majority of the extracomunitari,

both legal and undocumented,

originate in the area

of the Mediterranean basin. Other significant groups are from Eastern Europe, the Far East, and

even the United States. The largest groups, according to 1999 figures, are36:

COUNTRY

Morocco

Albania

Philippines

United States

Tunisia

Yugoslavia

Romania

NUMBER

of IMMIGRANTS

146,000

92,000

50,000

50,000 (mostly ethnic Italian-Americans)

30,000·

30,000 (mostly ethnic Albanians & Gypsies)

30,000

C- Italy's Current Immigration

Statutory Framework

Law 943 of 1986 became Italy's first-ever, comprehensive

immigration

legislation,

creating statutory regulations for the entry of immigrants, family reunification, and extending a

general amnesty to those undocumented aliens already living in Italy.3? In 1990, Law 39 (the

Martelli Law) was enacted.38 This statute introduced a new amnesty program for illegal aliens

and expressly repealed a significant portion of the laws applicable only to foreigners that dated

to the time ofMussolini's fascist regime. Beyond developing Italy's immigration system from

34Bilancio demograjico nazionale, supra note 17.

35Presidenza del Consiglio dei Ministri, Anticipazioni

Dossier Statistico

1999[Prime

Minister's

Office, Early

Resultsjrom

the 1999 Statistics Report]

(Italy) (visited Apr. 4, 2000) <http://palazzochigi.it/approfondimenti/

immigrazionel approfondimenti/index.

htm1>

37Christensen, supra note 13 at 479.

38Id at 483.

12

one of administrative decrees to a structure based on democratically produced laws, though, the

Martelli Law eliminates only a small number of Italy's immigration problems.

On July 25 1998, the Italian government approved a complete revision of the country's

immigration procedures and enacted the Decreto Legislativo (Legislative Decree) n. 286, in

order to accommodate the following objectives: need for the admission of additional workers,

the regularization of those undocumented aliens already residing in the country, and the

simplification of the process for the integration of the immigrants into mainstream society.39 The

principal aspects of this decree are40:

- Art. 1 (Ambito de applicazione-Jurisdiction): Laws applicable only to non-ED members

(nationals

of ED member states are regulated by the terms of the Schengen Agreement).

- Art. 2 (Diritti e doveri dello straniero-Rights and Duties o/Foreigners): Application to

all foreigners (legal or undocumented) of all rights granted by law to Italian citizens and

applicable international treaties and covenants.

- Art. 3 (Politiche migratorie-Immigration Policy): The government, in cooperation with

the ED, international organizations, and non-governmental organizations, will develop a

plan to address immigration issues with the home countries of immigrant residents in Italy; the law also directs the Prime Minister (Presidente del Consiglio die Ministri) to

establish a ceiling for the number of foreigners allowed into the country, depending upon

the need for seasonal work, non-contract reunification entries.

labor (lavoro autonomo)

and requests for family

39Decreto Legislativo

25 Iuglio

1998, n. 286, Testo unico delle disposizioni

concementi

fa disciplina

dell'immigrazione

e norme suUa condizione

dello straniero

[Laws and Procedures

Regarding

Immigration

& the

Status of Foreigners} (visited April 3, 2000) <http://palazzochigi.it/approfondirnenti/ immigrazione/italia/index.html>

40Id

13

-Art. 21 (Determinazione dieflussi di ingresso- Establishment of Admission Flow): The

Ministry of Labor and Social Services ,¥ill be the agency in charge of processing requests

from Italian employers (datore di lavoro) for the admission into the country of foreign

workers. The nature of the occupation (seasonal or permanent, skills needed, etc.) Will

determine the type of status that the worker will receive. The number of requests

approved will conform to the numerical ceiling to be determined under Art. 4 of this law

-Art. 28 (Diritto all 'un ita familiare-Right to F amity Reunification): All foreigners duly

authorized to reside in Italy will have the right to bring in close relatives (married spouses, minor children, parents, and relatives up to a 3rd degree- cousins, uncles,

grandparents-that are unable to support themselves).

-Art, 42 (Misure di integrazione sociale- Measures to Achieve Social Integration ): The

Italian government will order all agencies and subdivisions to: adopt measures that foster

the incorporation (positivo inserimento) of foreigners into Italian society; work with

foreigner groups and organizations to achieve better communication; and organize

educational campaigns to combat discrimination, xenophobia and racism.

The government

established

a ceiling of58,000

work permits be issued in 1998 and also

in 1999.41 The total number of authorized

foreigners residing in Italy in 1999 was of 1,250,214;

comprised

of 171,601 (13.7 %) from other ED countries,

and 1,078,613 (86.3 %)

extracomunitari.42

D- The Impact of Immigration

on Spanish Society

The effects of immigration

in Spain reflect some of the Italian experiences.

Spain's

41Consiglio dei Ministri, Comunicato 2000) <http://palazzochigi.it.html>

n. 56 [Council of Ministers,

Release n. 56] (last updated

April is,

42 Anticipazioni Dossier Statistico 1999, supra note 34.

14

history as a receptor of immigrants

is fairly recent. For example,

more than 2.5 million Spanish

citizens continue to live overseas, while only about 800, 000 foreigners live in Spain (around

1.3% of the total population,

one of the lowest percentages

in all ofEurope).43

However, while emigration

of Spanish nationals is steadily decreasing,

that of foreign

immigrants has more than doubled since 1980.44 The treatment accorded to foreigners varies

tremendously: immigrants from other EU member states are received with open arms (over

300,000, many of them retirees from Germany, Scandinavia and the United Kingdom), while

economic immigrants from the developing world.(extracomunitarios) are looked upon as little

better than interlopers.45

The fact remains that the economic migrants fill a very important labor niche: low-

paying, low-skills service and agricultural jobs that most native Spanish despise.46 These

extracomunitarios are concentrated in the regions of Andaluda (where traditionally marginal

agricultural lands have been improved thanks to EU subsidies, allowing for a boom in the

production of vegetables and other producet7; Cataluiia (the industrial heart of Spain) and

Madrid (that largest city in the country, surrounded by newly developed industrial and residential

43

Miguel Gonzalez, Inmigrantes

hoy, padres

de espdnoles

manana [Immigrants

today, parents

of

tomorrow's

Spanish),

EI Pais (Madrid) February

14, 2000 <http://www.e1pais.es/p/d/20000214/espanalinmi.htm>

44

Id.

47

A. Torregrosa,

De erial a huerta de Europa [From

Wasteland to Europe's

Garden},

EI Pais (Madrid),

Feb. 11,2000

<http://www.e1pais.es/p/d/2000021l/espanalerial.htm>

15

areas).48 Legal and illegal immigration also provide other benefits to the Spanish economy: for

example, only around 17, 000 immigrants receive any type of social assistance or subsidies,

while over 300,000 pay into the extensive social security system.49

While Spain's immigration laws are enacted by the central government, the

Comunidades Autonomas (Autonomic Communities, government subdivisions at the regional

level) have extensive powers to deal with related issues such as employment/labor needs,

education, law enforcement, health and social services. 50 Thus, local authorities have, compared

to their Italian counterparts, greater impact on thE:situation of immigrants within their

jurisdictions.

The resulting disparity in services, attitudes and treatment

available to immigrants

was one of the primary reasons why Spain decided to revamp its entire immigration law,

effective on January of2000.

  • 1. EI Ejido: Attitudes

Towards Immigration

in Spain

The sudden increase of immigrants moving into Spain has raised concerns in many

sectors of society, specially in rural parts of the country. This undercurrent of xenophobia and

outright racism exploded in the town ofEI Ejido, in the province of Almeria (Autonomous

Community of Andalucia). On February 4,2000, a mentally-ill Moroccan immigrant stabbed to

death a Spanish women at the local market. While the aggressor was immediately arrested, the

Spanish inhabitants of the town went on a rampage, assaulting hundreds of immigrants and

burning their homes and property, in the worst scene of ethnic violence seen in Spain since the

48Instituto Nacional

de Estadistica,

Poblacion

de Espana

(National Institute

Population]

(Spain) (last visited Feb. 11,2000)

<http://www.ine.es.htm>.

of Statistics, Spain's

49 Gonzalez, supra note 20.

50 Art. 149-152 C.E. (Spanish Constitution

of 1978).

16

expulsion of the Islamic Moors in the 16th century. 51 The mostly North and Central Mrican

immigrant community in EI Ejido (15,000 out of a total population of 45,000) provide an

indispensable source of labor for the many successful small agribusinesses in the area. 52

However, most of these workers were undocumented, making them easy prey for unscrupulous

farmers, and also increasing their isolation from the general community (because of their illegal

status, they were ineligible to participate in the political process, submit grievances before the

proper authorities,

avail themselves

to education

and other services, etc. )53

This time, however, the immigrants stood. their ground and fought back. They declared a

strike that affected all the agribusinesses in the area (despite efforts by local farmers to bring in

replacement workers from Rumania), organized rallies and orchestrated a public relations

campaign that eventually forced the government to provide reparations for the lost wages and

homes. 54 Thanks to the new immigration law, most of the undocumented immigrants can now

legalize their status, which in turn will lead to an increased participation and influence on the

political and social landscape of Spain.

The majority of the extracomunitarios, both legal and undocumented, originate in the

Maghreb (Western North Mrica). Other significant groups are from Latin America and the Far

51Jorge A. Rodriguez,

Cierre total de comercios y siete detenidos

en otra jornada

de violencia xenofoba

en

EI Ejido [Businesses Closed & Seven Arrested After j'd Day of Xenophobic Unrest in EI Ejido}, EI Pais (Madrid) Feb. 8,2000 <http://www.eIpais.es/p/d/20000208/espana/ejido.htm>

52Editorial, Vergiienza nacional

[National

Shame},

<http://www/abcc.es/abc/fijas/

opinion/OO 1paOO.asp>

EI ABC (Madrid) Feb. 8,2000

53 For example,

minimum daily wages for a Spanish farmhand are 5,000 pesetas (around

$28), while

immigrants

are only paid 2,500 pesetas

(less than $15). Id.

54Jorge A. Rodriguez,

La huelga en EI Ejido crea crispacion

entre los inmigrantes

magrebies y los

europeos

[Tensions

Rise Between

Striking North Africans

and European

Immigrants}

El Pais (Madrid) March 9,

2000 <http://www.elpais.es/p/d/20000210/sociedad/inmigran.htm>

17

East. The largest groups, according to 1999 figures, are55:

COUNTRY

Morocco

China

Peru

Dominican

Rep.

Argentina

United States

Philippines

NUMBER

of IMMIGRANTS

140,896

20,690

24,879

24,256

17,007

15,563

13,553

E- Spain's Current Immigration

Statutory Framework

The death of dictator Francisco Franco in .1975, and the adoption of a new constitution

in

1978, did not produce any changes to the country's

immigration

laws. Not untill985

did the

Cortes (parliament)

approve new legislation,

the Ley Organica (Organic Law) 7/1985, totally

replacing the fascist laws of the Franco era. Spain was not a member of the European Common

Market at this time, so the regulations applied to all foreigners; however, special consideration

was provided to citizens of Latin America, the Philippines, and other countries with historical

and cultural ties to Spain. 56 This law also included provisions for an amnesty for those

undocumented immigrants already living in the country. 57

On December

23 1999, the Spanish government

adopted legislation that rewrote

immigration laws, in order to reflect Spain's membership into the ED and the Schengen

agreements; and also to address the issues of increased (and mostly undocumented) immigration

into the country. This Ley de Extranjeria (Alienage Law) entered into effect on January 1st,

55Poblaci6n de Espana,

supra note 47

1985).

56 Ley Orgimica, de 1 de Julio de 1985, sobre derechos y libertades de los extranjeros

en Espana,

(E.

O. E.,

18

2000. The main purpose of the new system is reflected by its official title: "Organic Law on

Rights and Freedoms of Foreigners in Spain and Their Social Integration.,,58 The principal

characteristics of the new law are59:

-

Art. 1 (Delimitacion

del ambito--Jurisdiction):

Laws applicable

only to non-ED

members

(nationals

ofEU

member

states are regulated

by the terms of the Schengen

Agreement)

unless the terms of this law are more favorable to individuals than those of

the ED.

-

Art. 3 (Igualdad

con los espafioles e interpretacion

de las normas-Equality

with

Spanish Citizens and Interpretation of Regulations): Application to all foreigners (legal

or undocumented)

of all rights granted by law to Spanish citizens, as interpreted

under

the guidance of applicable international covenants and treaties.

-

Art. 6 (Participacion

pitblica- Participation

in Public Affairs): Foreigners

with legal

status will be eligible to vote in municipal elections (full political participation remains

restricted to Spanish citizens only); undocumented foreigners can elect their own

community representatives in order to participate in debates and the crafting of public

policy at the municipal level.

-Art. 12 to 14: These articles establish that all foreigners, legal or undocumented, are

eligible, just like Spanish citizens, to the same basic services regarding housing

assistance, public health insurance, and social security/welfare benefits.

-Art. 17 (Familiares reagrupables-Relatives Eligible for Reunification): All foreigners

duly authorized to reside in Spain will have the right to bring in close relatives (married

58 Ley Orgimica

1999,295).

sobre derechos y libertades

de los extranjeros

en Espana y su integraci6n

social

(B.

O. E.,

59Id

19

spouses, minor or disabled children, dependent parents and grandparents, and other

relatives eligible on humanitarian grounds).

-Art. 35 (El permiso de trabajo- The Work Permit): The Spanish government will issue,

depending on national labor needs, work permits to foreigners seeking employment. The

permit is valid for 5 years, and becomes a permanent work authorizations if the

immigrant remains gainfully employed at this time.

Art. 61 (El Consejo Superior de Polftica de Inmigracion- Superior Council for

Immigration

Policy): This Council will be created in order to facilitate

the coordination

of policies pursuing the social integration of immigrants, and will be composed of

representatives from the central government, the Autonomic Communities and the

municipalities.

-Disposiciones Transitorias (Transitory Dispositions): Amnesty- All foreigners that can

verify their presence in Spain prior to June 1st of 1999, and that had requested or obtained

a work permit in the last three years, can apply for permanent residence.

The government

established

a ceiling of 30,000

work permits be issued in 1999.60 The

total number of authorized

foreigners residing in Spain in 1999 was of719,

647; comprised of

330,528

(46 %) from other ED countries, and 389, 119 (54 %) extracomunitarios61.

Part ID.

The European

Union and the Future of Immigration

As previously indicated, the Amsterdam

Treaty (incorporating

the Schengen framework

6~elen

Reyes Guitian, El Ejido,

alga mas que un simple

a "lamentable

incident"),

EI Mundo (Madrid) Feb. 20,

2000

"incidente

lamentable"

<http:www.el-mundo.es/2000/02/20/espana/20N0026.htm1>

rEI Ejido, more than just

61Poblaci6n de Espana,

supra note 47.

20

and setting down broad policy goals) directs the Commission to enact measures that implement

a "harmonized" system ofEU immigration legislation. The principal European Union agencies

that have jurisdiction over the issue of immigration are two portfolios of the European

Commission:

the Directorate-General

(D-G) for Employment,

Industrial Relations

and Social

Affairs, and the Directorate-General

for Justice & Home Affairs.

The immigration-related

aspects of the D-G for Employment,

Industrial Relations

and'

Social Affairs mission are:

"[the] promotion of social integration by providing aid for practical projects to organizations representing migrants or operating for their benefit (reception, information, assistance, housing). Projects involving studies, conferences and publications are of lower priority. Such projects may be co-financed provided they are for the benefit of immigrants, of innovative nature, meeting current needs of contributing to the development of policies or projects specifically concerning immigration. This budget line also provides financial support for the construction and adaption of accommodation

for migrant workers. [The] total budget [available is]: 9.6 million euros, of which some 8 million euros are direct subsidies. ,,62

Another agency that operates under the supervision of the D-G for Employment, Industrial

Relations and Social Affairs is the European Monitoring Centre on Racism and Xenophobia,

located in Vienna. Its mission is "to provide the European Union and the Member States with

objective, reliable and comparable information at European level on racism, xenophobia and

anti-Semitism, and thus improve the exchange of information and experiences. "63 Both the EU

Council and the Commission

agreed to the establishment

of this center in 1997, as they realized

that:

62Directorate-General

for Employment,

Industrial

Relations

March 4, 2000) <http://europa.eu.int/comm/dg05/fundamrilmigrat/intro

and Social Affairs, Migration _en. htm>.

Policy,

(visited

63D_G, Employment

& Social Affairs, European

Centre on Racism

and Xenophobia

(visited Apr. 5, 2000)

<http://www.europa.eu.int/comm/employment_sociallfundamrileuJacismlenglish!observatory/observatoire_en.htm>

21

"[t]he need for action at European

level against racism and xenophobia

is becoming

more and more apparent with the growing transnationalism of racist propaganda and incitement to racial hatred. There is thus an urgent need to have a better understanding at European level of the nature and extent of racism and xenophobia, so that the European Union can strengthen its role as an important force in the struggle against these problems and develop a global strategy for their elimination."64

The other agency with immigration-related

issues is the Directorate-General

for Justice

and Home Affairs, which is directly involved in drafting and proposing legislation to the

Commission and the European Parliament. 65 One of this D-G's most important projects

regarding the implementation ofEU guidelines on immigration is the ODYSSEUS Program,

which provides training, exchanges and cooperation in the field of asylum, immigration and

crossing of external borders (and the security of travel and identity documents) within the

Member States of the EU, and cooperation in the same areas with States applying for

accession.66 In order to meet these objectives, the program includes the following: "training

(ranging from basic training to top-level specialist training and training for instructors);

exchanges of officials or those responsible

for the matters to which the programme

relates;

studies and research and the dissemination

of infonnation. ,,67

Regarding

immigration,

the new head of the D-G for Justice and Home Affairs,

Commissioner

Antonio Vitorino (Portuguese)

has expressed

his frustration

at the slow pace

of

64 European

Centre

on Racism and Xenophobia,

supra note 63.

65Directorate-General

ofJustice

& Home Affairs, Responsibilities,

(last visited April 11, 2000)

<http://www.europa.eu.int/comm/dgs/justice_home/mission/resp_en.htm>

66Directorate-General

of Justice & Home Affairs, ODYSSEUS,

(last visited April 11, 2000

<http://www.europa.eu.int/comm/justice_home/project/odysseus/index_en.htm>

22

incorporation of the Schengen principles (regarding the free flow of citizens from member-

states across the ED, and the restrictions on asylum and immigration). Commissioner Vitorino

insisted that one of his priorities will be to assist the Commission with a family reunification

project that would help legal immigrants bring their families into the ED; in addition, the

Directorate will be creating a schedule with attainable benchmarks involving the "statutory

harmonization

among the member-states

regarding the rights and duties of legal immigrants

in

the ED".68

1. The European Court of Justice

The role ofthe

European

Court of Justice (ECJ) in shaping the current debate regarding

immigration into the ED has been almost non-existent. This is the natural result of the fact that,

as was already mentioned, migratory policy regarding non-ED citizens was dictated exclusively

by the individual Member States until the adoption of the Amsterdam Treaty in 1999.

Furthermore,

the process of harmonizing

immigration

laws and procedures

across

the ED is far

from complete. As a result, the ECJ has yet to heard a case directly addressing the status of

immigrants

under ED law. Naturally,

once the process of harmonization

of laws and

immigration

procedures

is fully underway, the intervention

of the ECJ would be just a matter

of

time.

 

2. Immigration

as an Issue in the 21 sf Century

The European

Commission,

the Council and Europarliament

are all faced with the tasks

68Bosco Esteruelas,

La inmigracion

no es la [mica respuesta para conservar

el estado de bienestar:.

entrevista

con Antonio

Vitorino, Comisario Europeo

de Justicia

e Interior [Immigration

is not the only solution

to

preserve

the welfare state: interview with Antonio

Victorino],

EI Pais (Madrid)

January 26,2000

<http://www.elpais.es/p/d/20000126/sociedad/vitorino.htm>

23

of finding a way to stem the influx of illegal economic immigrants (responding to social,

economic and political pressures from the member-states),

while at the same time recognizing

the vital role that immigration will play in the future development of the ED. 69

As is the case

in Spain

and Italy, the main

factor pushing

for an increase

in the levels

of

immigration is the continued decrease of the population across western Europe. The average ~U

woman now has 1.45 children, with no indications that this will increase in the future.7o The

changing population dynamics in Europe, coupled with the great disparities in wealth between

the EU and its North African and Eastern European neighbors, can only mean that economic

immigrants will become an increasingly vital part of the socio-economic and political fabric of

European Union.

Large-scale

immigration

from outside the EU, however, has resulted in an increase of

anti-foreign and racist sentiment in many countries.7I The recent electoral success of Austria's

FPQ, the far-right party led by Jorg Haider, is but one expression ofthis trend. The strength of

the far-right is evident in the electoral success of other ultraconservative parties in recent

national elections: in Italy, the Alianza Nazionale obtained 10 % of the vote; in Switzerland, the

SVP received 23 % of the vote, and Norway's populist FrO

garnered

12 %.72 The strong fascist

69 "A policy of keeping

other out undermines

free trade market goals and may not be reconciled with human

rights guarantees".

Wolf, supra

note

7 at 229.

70Statistical Office of the European

Communities,

EU Population

Up Slightly Last Year, Driven by

Immigration:

Births Below Replacement

Levels (visited March 5, 2000)

 

<http://europa.eu.intlcomm/eurostat/Public/datashop

.htm>

71Editorial, La ultraderecha

capitaliza

en Europa

el temor al extranjero

[The Far-right

Thrives on

Europe's

Fear of Foreigners},El

Pais (Madrid), Feb.

14,2000

<http://www.e1pais.es/p/d/2000014/espana/otrps.htm>

72 R.v. La Europa

que saluda a fa Romana

[The Europe

That Uses the Roman

(Fascist) Salute}, ABC

(Madrid), Feb.

15, 2000 <http://abc.es/documentes/documentoslhaider/haiderl.asp>

24

traditions

of Spain (ruled by Franco from 1939 to 1975) and Italy (ruled by Mussolini

from 1922

to 1943) add to the fears of further anti-immigrant

political

radicalization.

A- Solutions

1. Inclusion

The basic fear expressed

by many Europeans

(including

Italians and Spanish) is the

"otherness"ofthe immigrants. The evidence is clear that not all foreigners are perceived as

threats. Citizens of EU member states, as well as of those (of European descent) from the United

States and the British Dominions (Canada, Australia, New Zealand and South Mrica) are, for the

most part, exempted

from the suspicion and hostility reserved to Easter European

Slavs and non-

Whites from the rest of the world.

However, there are indications

that this disparate treatment

is based not merely on purely

racist attitudes, but on the impression that non-Western European foreigners have undesirable

cultural, religious and behavioral traits that are incompatible with those of the mainstream

society.73 Thus, individual immigrants that successfully adopt at least some key outward

trappings of mainstream society (language, clothing, manners, etc.) are less likely to suffer from

discrimination and rejection. Opposition to increased immigration from outside the EU may be

tempered if those immigrants already residing there are better integrated into mainstream

society. The recent immigration laws from both Spain and Italy, as was pointed out, explicitly

address the issue of integration of immigrants, directing several courses of action to be

undertaken in this regard.

73James F. Hollifield, Migration,

& Foreign Aff 595,603-604 (1998).

Trade, and the Nation-State:

the Myth ojGlobalization,

3 UCLA

1. Int'l

L.

25

Independent

of government

action, however, there are indications

that social and cultural

traits among immigrant communities are being transformed. For example, the Italian daily La

Stampa reported that abortions in Italy increased 15% from 1980 to 1998: the reason for this,

increased abortions by immigrant women, who now have access to safe procedures, greater

rights and social protections, all of which was unheard of in their native lands.74 Immigrants and

second-generation offsprings of immigrants are also beginning to be seen in popular culture,

politics and the arts across Europe, following the pattern already established by longer-

established immigrant and minority populations iIJ.France, Germany and the United Kingdom.

2. Control

The policy goal of "harmonization"of

immigration

policy across the EU is prompted by

the fears of loss of control by the member states, and exacerbated by the continued influx of

undocumented immigrants, this often facilitated by organized crime networks. This, however,

may result in that "harmonization" may be achieved as the result of a "race to the bottom", with

the adoption of increasingly more restrictive immigration and asylum policies.75

To achieve real control over the flow of immigrants,

a more comprehensive

policy

framework must be developed. First, in order to combat undocumented immigration, the

opportunities for legal entry must be expanded. Once again, the immigration policies of Spain

and Italy serve as examples, by offering amnesty to those workers already residing in their

countries, allowing for family reunification, and tying the number of new immigrants that would

74In vertiginoso

aumento gli aborti tra Ie straniere

[In Rapid Increase Abortions

Among Foreigners},

La

Stampa (Milan), April 14, 2000 <http;//www.1astampa.it/redazione/ultima/redazione/menu/principale/immigrate.stm>

75Wolf,

supra

note

7 at 229.

26

be admitted to real economic demands for labor. All these measures serve to discourage

undocumented immigration: legal immigrants no longer have to rely on smuggling networks to

bring in their relatives, and linking the availability of new work permits to the needs for labor

would send a clear signal to non-ED workers that there may not be employment opportunities

available foe undocumented entrants, thus eliminating the main attraction for immigration.

A second, simultaneous

approach must be the improvement

in the economic

conditions

of the home countries

of the largest immigrant groups in the ED. The creation of a "free trade

zone" between the ED and other countries of the Mediterranean

basin (in North Africa and the

Middle East), scheduled

for 2010, is an important first step.76 In addition, the ED has launched

other initiatives to establish

closer economic ties with Mrica,

Asia and Latin America. 77

Improved economic standards at home would serve to lessen the incentives for immigration in to

the ED. However, Europe's needs for labor will dictate that immigration would continue, albeit

now under a more controlled and fine-tuned system.

B. Conclusion

By the end of the 21 st century Europe will have received the largest migratory

influx of

peoples since the 4th century Germanic invasions that replaced a decaying Roman Empire with

the forerunners

of the modem European

nation states. The forces of globalization,

free trade

(unimpeded

flow of peoples, goods and services for the purpose of economic

activity) and

demographics

all point out to the fact that the ED will continue to rely on non-ED immigrants

76Wolf, supra note

7 at

228.

77 Bosco Esteruelas,

Comienza

en Ef Cairo fa primera

cumbre entre fa Union Europea y Africa [Today

Starts in Cairo the First Summit Between

the European

Union and Africa],

EI Pais (Madrid)

April 3, 2000

<http://www.elpais.es/p/d/2000403/intemac/elcairo.htm>

27

for much of its own future economic

development.

Both government

policies and the public's

perceptions

regarding immigration

must be

based on real facts and not on unfounded

fears and obsolete notions of nationalism

and

sovereignty.

In order to secure the future of the Union, the EU must adopt policies recognizing

that today's

immigrants

will provide the labor, intelligence

and inspiration

that a dying Europe

needs in order to survive.

28