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

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

& Italy

Introduction.................................................................................................................. Part I. Immigration Under EU Law Part ll. Immigration in Spain and Italy A- Population Trends 1. Decreasing Birthrate & Aging Population 2. Causes of Declining Birthrate & Aging Population 3. Economic Impact of Decreasing Birt~ate and Aging Population B- The Impact of Immigration on Italian Society C- Italy's Current Immigration Statutory Framework. D- The Impact of Immigration on Spanish Society 1. EI Ejido: Attitudes Towards Immigration in Spain E- Spain's Current Immigration Statutory Framework. Part

1

2 :.. 5 7 7 8 9 10 12 14 16 18 20 23 23 25 25 26 27

ill.

The European Union and the Future of Immigration 1. The European Court of Justice 2. Immigration as an Issue in the 21 st Century

A- Solutions 1 Incl usion 2. ControL................................................................................................ B- Conclusion

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 of Inclusion and Exclusion, at 1-12 (Robert Miles Dietrich Thranhardt eds., Pinter Publishers 1995).

&

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 asylumseekers, 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 membersBenelux 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).

IlId.

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 on the crossing of the external borders of the Member States" establishing "the conditions under which nationals of third countries shall have the freedom to travel within the territory of the Member States" on a temporary basis. -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 largescale migratory flows as hundreds of thousands of their citizens abandoned the poverty and

13Treaty of Amsterdam, Oct. 2 1997, Luxembourg: Office for Official Publications of the European Communities (1997) [hereinafter Amsterdam Treaty]. 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 Spanish immigrants. For example, Argentina all~wed up to 25,000 immigrants a year. In addition, around 500,000 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>.

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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>

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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: ITALY Males Females 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 1999 2050 ITALY 18% 35% SPAIN

17% 37%

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

Hipotesis sabre la evolucionfutura

de lafecundidad,

supra note 18.

23

Replacement 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 demogrqfico nazionale, supra note 17; and Hipotesis sobre la evolucionfutura
lafecundidad, supra note 18.

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.

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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: Italy (last revised Feb. 25, 2000) <http://www. state.gov/www/global/human Jights/1999 _hrpJeport/italy/html> 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 labor (lavoro autonomo) and requests for family reunification entries.

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 'unita 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 grandparents-that are unable to support themselves).
3rd

degree- cousins, uncles,

-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 n. 56 [Council of Ministers, Release n. 56] (last updated April 2000) <http://palazzochigi.it.html>
42 Anticipazioni

is,

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 1980.44The 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) better than interlopers.45 The fact remains that the economic migrants fill a very important labor niche: lowpaying, 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 are looked upon as little

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 of Statistics, Spain's Population] (Spain) (last visited Feb. 11,2000) <http://www.ine.es.htm>.
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}, EI ABC (Madrid) Feb. 8,2000 <http://www/abcc.es/abc/fijas/ opinion/OO1paOO.asp> 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 56Ley Orgimica, de 1 de Julio de 1985, sobre derechos y libertades de los extranjeros en Espana, (E. O. E., 1985).

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 sobre derechos y libertades de los extranjeros en Espana y su integraci6n social (B. O. E.,

1999,295).
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 "incidente lamentable" a "lamentable incident"), EI Mundo (Madrid) Feb. 20, 2000 <http:www.el-mundo.es/2000/02/20/espana/20N0026.htm1> 61Poblaci6n de Espana, supra note 47.

rEI Ejido, more than just

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 Affairs, and the Directorate-General The immigration-related 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: (D-G) for Employment, Industrial Relations and Social for Justice & Home Affairs.

aspects of the D-G for Employment, Industrial Relations and'

62Directorate-General for Employment, Industrial Relations and Social Affairs, Migration Policy, (visited March 4, 2000) <http://europa.eu.int/comm/dg05/fundamrilmigrat/intro _en. htm>.

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. (last visited April 11, 2000)

65Directorate-General ofJustice & Home Affairs, Responsibilities, <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 memberstates 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 nonWhites 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,

Trade, and the Nation-State:

the Myth ojGlobalization,

3 UCLA 1. Int'l L.

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

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