Who takes a peek at the history of the regulation of immigration in Spain, you will find, among other things, a strange battle between the legislative (parliamentary or regulatory) and jurisdiction. The rules often walk "the razor's edge" skirting, or directly exceeding the limits imposed by the Constitution, laws or European law. For example, the Aliens Act 1985 was challenged by the Ombudsman before the Constitutional Court, which declared the year 1987 and some of its provisions unconstitutional because it violates fundamental rights of foreigners. Royal Decree 155/1996, was much more favorable to foreign interests that the law developed, in fact, this rule came to be directly illegal in some places, although there was no subject with a legitimate interest willing to challenge it. The reform of immigration carried out by the LO 8 / 2000 was also contested in part to the Constitutional Court, which declared unconstitutional several of its provisions in two judgments of 2007 . The development regulations of the latter law, passed in 2001, was challenged before the Supreme Court of the Third Sector organizations and ended up being outlawed in many points, the English legislature solved the problem by changing the law in 2003 and giving more leeway to the executive. Never end if we were to comment on all the occasions when courts have had to overrule administrative practices clearly illegal. Persistent drizzle
sentencing embarrassing to the government there appears to be over. Very recently, in a sentence of 01/06/2010, the Division of Administrative Litigation of the Supreme Court annulled several provisions of Royal Decree 240/2007 which establishes the regime for foreign family community, considering the most part the appeal by the Federation and Andalusia Welcomes Human Rights Association of Andalusia. I can not help but mention that this time I participated in the preparation of the resource, which makes me rather proud chubby, but is rather collective pride, for my individual contribution was rather modest
Some readers will wonder warned. Ah, but the foreign community have a legal problem in this country? I think that scholars have a tendency to automatically consider that the Community system poses no problem, so we always focus on the extra. However, people working every day in the field of immigration will not stop insisting on the paramount importance of the regulation 240/2007 and, therefore, this ruling of the Supreme Court seems to have gone unnoticed in the press.
Certainly the application of the Community is not too problematic for families in which all members are EU nationals home (well, lately Sarkozy is innovative in this respect). However, it is normal "immigrants" at one point acquired English nationality or that of another European Union country. Our Civil Code allows the acquisition of nationality within a relatively short (2 years) to people who have certain national origins. In some countries, like Italy, has been easy for the descendants of former immigrants to acquire Italian citizenship. Although in other cases, the acquisition of nationality is not so simple, it remains accessible to non-EU members have a time set in a European Union country. On the other hand, is very significant number of EU foreigners married or arrejuntarse "with English and EU citizens. What happens when all these people (foreign nationals married to EU) want to reunite family members who are foreigners from outside? That's where the importance of Regulation 240/2007.
seems that the English government realized this importance because, when it came to tidy up the legal framework for community families, chose to significantly restrictive formulas. So much so that he ignored the terms of the EU directive that was supposed to transpose into English law.
so held by the Supreme Court in this Judgement, whose main points are:
For the first time in Spain, the English regulation would have excluded the Community scheme by forwarding them to the normal law on aliens. So, if a English family wanted to reunite foreigners had to come to the legislation that applies to aliens outside the regime, not the far more profitable, the other European Union nationals. The ruling nullifies this provision, although it is based, in my view, erroneously, in the literal text of the Directive. In my opinion this difference in treatment is unjustified, but not because it conflicts with Community law (who does not mind a English treated worse than an Englishman, but to ensure the free movement of workers), but because it is contrary to the principle of equality laid down in Constitution. There seems to be no good reason for treating worse than the English nationals of the European Union, as explained at the time .
"Secondly, is excluded from the Community scheme to legally separated spouses, even though the directive was referring to the dissolution of marriage. The ruling considers the appeal on the grounds that the separation is to be understood not in terms of the Directive, since it does not produce the legal effects of divorce (the couple may be reconciled without remarrying).
-Thirdly, although the directive expressly included the "unmarried partners", the regulation imposed a new condition. The registration had to be in a record that does not allow duplicates in the territory of a Member State. This requirement exuded an aroma of a certain hypocrisy, because it is precisely in Spain-a country that enacted the regulation-the regulation of domestic partnerships is complete chaos, local autonomy, an issue that is not attributable to affected aliens. Thus, would validity of many foreign records, but not English. The Supreme Court came to agree with the appellants on this point. A different matter is that it is desirable to have a minimum of coordination between different public records of cohabiting couples that exist in our country to avoid fraud, but that is not necessary to violate the directive.
-Fourth, the text of the directive given to all community families included in the scope of the right to work freely in Spain under the same conditions as nationals. However, the Royal Decree of transposition restrict this right for over 21 descendants dependents and dependent descendants. They were only allowed to have "jobs" petty, castigándoseles stay in a situation of dependence, even though the law laid down in Directive was unconditional. Once again, the Supreme Court has annulled these limitations accordance with the text of the Community legislation.
-Fifth, it also gives us reason to appellants other provisions on visa requirements, which had been repealed while the case was pending in the Supreme Court. Not worth extended, since the issue was already resolved when it is rendered.
-Sixth Directive stated that the death of the community not detrimental to the residence of the family had been residing in Spain. In contrast, the regulation sent abroad to general regime within six months of death, requiring a range of requirements. Again, the TS understands that there was in excess with respect to Community law.
-Seventh, rejecting the challenge to be made regarding safeguards relating to expulsion but to cancel a clause that allowed carrying out expulsions immediately should there be justified, since the Directive implies always a time taken out the evictions.
-Finally, Directive provided that Member States should facilitate the entry and residence of other family members not included in its scope to live together, were in charge or in need by reason of serious illness.; the regulation, however, restricts the help the second degree. The Supreme Court annulled this restriction because it considers that goes beyond the terms of the Directive, which laid down requirements of objective type (cohabitation, economic dependency, illness).
In short, this ruling is good news for the rights of foreigners (about time). On the other hand, continues to confirm, along with another sentence May 2010 which refers to another provision of 2007, that our system of migration management is based on overlapping normative orders., for the benefit or, usually, to the detriment of foreigners. The law is sometimes opposed to the Constitution, the rules often violate the law; s laws may violate the Constitution, the rules tend to violate the law or Community law and administrative practice tends to skirt or exceed the legal system. Chaos. And I can not say we are improvising because the change in migration flows has been very fast. Rather, we must conclude that the chaos is part of the model.
