An Update on my Research

As promised, I finally have an update on my research that features an early version of my abstract, some background on the Spanish judicial system, the development of the rights of undocumented immigrants to join labor unions, and the future direction of my work in Madrid.

Here we go.

Abstract:

As Spain becomes a major destination for immigrants, the question over the rights of undocumented immigrants to organize and strike, which are protected by the Spanish Constitution, has been a key issue facing the Spanish government since 1978. Although most immigration legislation generally avoided regulating these rights, the Spanish government under the rule of the right wing Partido Popular (PP) took stricter measures to resolve this issue in December 2000. Specifically, the PP led government adopted a law known as Ley Orgánica 8/2000 that granted the right to strike and organize to immigrant workers who possessed work and residency permits. In this sense, the law linked the exercise of these rights to the fulfillment of administrative requirements. In 2007, however, the nation's Constitutional Court struck down these regulations, declaring that any effort to link these rights to the legal status of an individual violated the spirit of the Constitution as well as international human rights law. My paper will discuss the significance of this ruling on the development of Spanish immigration law and human rights law in Europe.

Background Information on the Spanish Legal System:

The majority of my work revolves around the development of laws known as 'Ley Organicas.' All Immigration and Labor Laws are LOs since the they elaborate on the contents of the most 'organic' document in the Spanish legal system, the constitution. The constitution establishes the basic parameters of the relationship between citizen and non-citizen and protects the right to organize and strike as well.

In order to pass a LO, the congress of deputies must carry out a majority 50 + 1 vote on a proposed bill. The only judicial body that can rule on the constitutionality of a LO is the Tribunal Constitucional, which operates independently of the rest of the nation's judicial system. This court issues the ruling in 2007 that overturned the provisions in two immigration laws that appeared in 2000 and 2003.

This court is a unique characteristic of Spain's legal regime. Unlike the United States, where the Supreme Court is the ultimate arbiter on all legal matters, Spain uses two supreme courts - the TC and a Supreme court that rules over a wider system of upper and lower courts - to rule on LOs and standard issue civil laws known as Repertorios de Legislación Civil (RCLs) that do not elaborate on the contents of the Constitution, respectively.

The Development of the Rights of Undocumented Workers to Join Labor Unions

The time line generally for the development of the rights of undocumented workers to join labor unions follows a simple trajectory. Initially, the laws were fairly lax in regulating the right of all migrant workers to join labor unions. With the rise of the right wing PP, however, the Spanish government began using administrative requirements that regulated entry and exit into Spanish territory as a prerequisite for the exercise of the right to organize. The trajectory ends with a Tribunal Constitucional (TC) ruling 2007 that defines this method of regulating the rights of immigrants as a violation of international law as well as the spirit of the Constitution of 1978.

Here is the timeline:

1978 - Spanish Constitution:

Declares that all legal immigrants have the same rights as Spaniards, with the exception of the right to public office and universal suffrage. Also declares that 'todos' - literally, everyone - has the right to organize, strike, public assembly, and association (with unions and other organizations).

1979 - 1980: LO on the Right of Unions; RCL Statute of Workers:

The government passes a LO on union related matters and a RCL known as the statute of workers, which have remained static since the early 1980s. The law over union rights of 1979 governs the rights and responsibilities of labor unions while the statute of workers of 1980, a law that serves as the founding document on the rights and responsibilities of employees and employers.

1985 - Ley Organica 7/1985:

The first immigration law, that states that all migrant workers must reside legally in Spain to exercise the right to join a labor union and go on strike.

1995 - Restatement of the Statute of Workers:

RCL clarifies that the right to organize is a fundamental right of all Spanish workers as stated by the Constitution.

1996 - Royal Decree on the Rights of Immigrants:

This statute, which issued by the government and approved by the president's council of ministers, was a reform of LO 7/1985 that created three new legal categories for the rights described in LO 7/1985 and expanded legal guarantees for immigrants residing legally in the country. The right to join a labor union and strike, however, remains reserved for immigrants who entered the country with proper documentation.

At the end of the year, the right wing Partido Popular (PP) wins the elections in 1996, ending 14 years of rule by the Spanish Workers Socialist Party (PSOE).

2000 - LO 4/2000 and 8/2000.

The two major reforms of the LO 7/1985. The first law, which was the product of major negotiations between the PP, the PSOE, and various nationalist parties, essentially relativized the right of undocumented workers, giving them the right to join labors while criminalizing their status as undocumented immigrants.

The second law was passed after the PP party gained an absolute majority in the middle of the year, was a reform of 4/2000. LO 8/2000 declared that migrant workers could not join labor unions unless they possessed both a work and residency permit. The applies similar restrictions to the right to association, strike, and public assembly. Further, any immigrant who enters and works in the country illegally becomes subject to immediate expulsion.

2003 - LO 14/2003:

The most recent immigration law maintains LO 8/2000's text that links an immigrant's ability to exercise the right to join a labor union, go on strike, public assembly, and association to the possession of a work and residency permit.

The law also grants the national police force the right to review all demographic data on the inhabitants - citizen, documented immigrant, or undocumented immigrant - collected by each city's statistical department 'for single purpose requests' related to an investigation. Previously, each city kept this file closed to all government agencies and used the information primarily for statistical purposes.

2004 - 11/3 Bombings; PSOE returns to power:

The PSOE, which ran on a pro-immigrant platform, among other things, beats the PP in the national elections held three days after the attack. One of the main reasons for the victory results from reports that the PP blamed the ETA Basque Separatists for the bombings instead of an Al Qaeda 'inspired' terrorist cell that sought to punish the PP government for supporting Operation Iraqi Freedom. The PSOE comes to power and removes troops from Iraq, creating major tensions between Washington and Madrid.

The PSOE subsequently sets the stage for stronger integration policies as well as plans for the largest amnesty for undocumented immigrants in the history of Spain. The government carries out the Amnesty in 2005; 1.7 million immigrants become regularized in the legal system as a result.

Nov. 2007/Dec. 2007 - RTC 2007/236 and RTC 2007/259-265 (TC rulings):

In seven law suits filed by several autonomous communities, the PSOE, and the majority coalition in the congress of deputies, the TC struck down the articles in LO 8/2000 and 14/2003 that require immigrants to possess a work and residency permit to join labor unions, protest/public assembly, strike, and association with organizations/unions.

Two ideas sustain the Court's reasoning for this decision. In RTC 2007/236, the court declared that any precondition on the free exercise of the right to join a labor union violates international treaties such as the Convention on Human Rights of the Council of Europe/the Social Charter of the Council, the Universal Deceleration of Human Rights, and the conventions of the ILO that protect the right to organize/strike.

At the same time, the law violated the spirit of the constitution, which gives the right to join a labor union to any individual, regardless of their legal status. In this sense, the decision breaks the link between the right to join a labor union and the administrative requirements created by LO 8/2000 and maintained by LO 14/2003.

However, the court adds that the legislator can develop specific conditions that regulate the an undocumented immigrant's right to join a labor union only if these conditions respect the constitutional foundations of the right to join a labor union: the right to organize can pertain to any person, independent of their administrative or legal situation.

The Next Steps in the Direction of my Research

My paper will focus on the seven rulings that were issued by the TC in 2007. My advisor suggested that I compare the rulings to the rest of Spanish immigration law as well as EU law to understand A) how these rulings have clarified the relationship between fundamental rights and administrative requirements and B) the implications for the development of human rights/immigrant rights in Europe that emerge from the clarification of the aforementioned relationship.

He also suggested conducting a comparative study of US rulings on similar issues (e.g Hoffman Plastic Compounds vs. NLRB). As far as I know, the Inter-American Court on Human Rights issued a similar ruling with Advisory OC-18/03 on September 17, 2003. (please see Sarah Cleveland's article at: http://www.jstor.org/stable/1562510.) Of course, a comparison of rulings does not square with the aims of the Fulbright program, so I might leave this work for a law school course or part time fun when I'm working for a year or two before heading off to law school.

That said, I have begun writing the paper based on my research so far. I am also in the process of preparing interviews with the legal offices of government ministries, labor unions, and pro immigrant NGOs in Spain. I need to develop my theory section, which will most likely focus on the intersections between citizenship and human rights in the context of immigrant rights in modern Europe.