The Supreme Court doubts the legality of the regularization of migrants and considers sending the case to Europe

Barcelona / MadridThe Supreme Court expresses doubts about the legality of the extraordinary regularization of migrants that the Spanish government has promoted and which ends this Tuesday. In two rulings advanced in recent hours by various media, and to which ARA has had access, the high court questions the fit of the decree approved by Pedro Sánchez's executive within European law and gives five days to the parties involved against the process –in this case the government of Aragon and that of the Valencian Community, both from the PP– to rule on the suitability of raising a preliminary ruling to the Court of Justice of the European Union (CJEU), based in Luxembourg.

The Supreme Court's writings, dated June 24 and in response to the appeals of these two regional governments, have become known when there are only a few hours left for the regularization process to end: this coming midnight the deadline to submit applications expires. The latest official data from a couple of weeks ago indicated that 900,000 applications have been made, although the Spanish government's own president, Pedro Sánchez, revealed this Tuesday that 1.2 million files have been exceeded, more than double the Spanish government's forecasts (500,000). Sánchez said this during the presentation of a 500 million euro plan to strengthen, precisely, the integration of migrants in the State.

What does the court say?

Specifically, the Supreme Court is focusing on different elements. The first is that "the regularization regime established by the Spanish government [...] raises the doubt of whether it could collide with the rules implementing the EU's Migration and Asylum Pact [which came into force on June 12th]", states the high court in its rulings, which doubts that states can approve rules that go against this agreement even if they were implemented before the pact came into force.

The magistrates also raise a possible collision with the EU's return directive and question whether it is "admissible" for people who are in an irregular situation in the State not to be subject to a return order with the exceptions authorized by the same community rule, but rather to "be granted a temporary right of residence in general and simply for being irregularly present in Spain".

At the same time, the SC doubts that the EU regulation allows a state to adopt and apply, through a regulatory rule of "sub-legal" rank, a process of massive regularization of third-country nationals in an irregular situation.

Finally, it warns of a possible clash with the Schengen Borders Code, according to which "border control is not carried out solely in the interest of the member states where this control is carried out, but in the interest of the states as a whole". In this sense, it recalls that a migrant who obtains a one-year temporary residence permit acquires the right to "move freely within the Schengen area" for 90 days within periods of 180. The SC doubts that this can be done without any prior coordination with the other EU states.

For all these reasons, the high court has informed the parties that they have a period of five days to report on the option of referring the case to the CJEU so that it can analyze whether the regularization complies with European regulations.

The government appeals for "calm"

When a preliminary ruling is requested, the judicial proceedings are automatically suspended, although this should not automatically affect the validity of the regularization. It should be recalled, in fact, that the contentious-administrative chamber of the same Supreme Court rejected in May the provisional suspension of the decree by the Spanish government, as requested by Vox and the Community of Madrid, chaired by Isabel Díaz Ayuso (PP). Migration expert lawyer Albert Parés, from the Noves Vies Association, assures ARA that the Supreme Court's decision "will not affect" the regularization process because it ends precisely this Tuesday.

From the Spanish government they call for "calm" for all those who have submitted an application. Sources from the Ministry of Migrations recall that they can also comment on the "pertinence" of the preliminary ruling and that they are already working with the State Attorney's Office to "clarify" doubts. "If it were to be referred [to the CJEU], it would serve to resolve specific doubts before resolving the merits of the matter," they point out from the ministry, which defends that the wording of the regulation is "strictly" compatible with Community law. "The regularization grants a residence and work permit valid exclusively in Spanish territory," the same sources reiterate.

For its part, and although one thing has nothing to do with the other, the leader of the PP, Alberto Núñez Feijóo, has linked the Supreme Court's doubts about the regularization of migrants with his denunciation of the nationalizations foreseen by the democratic memory law. According to Feijóo, the Spanish government is making decisions "of great demographic and electoral impact without sufficient consensus." The regularization that ends this Tuesday grants a work and residence permit for one year and not nationality or the right to vote.

Quim Clavaguera, a lawyer and deputy responsible for the foreign commission of the Barcelona Bar Association (ICAB), questions whether the CJEU will rule in favor of annulling the regularizations and, on the contrary, states that perhaps there is a reproach regarding how the process was carried out and it may even end up imposing a fine on the State. However, he indicates that the approved regularizations are "acquired rights" and, moreover, the community court may take years to evaluate the Supreme Court's request, a time during which the beneficiaries of the procedure will have already had to renew their documentation.

However, Clavaguera points out that the entire regularization process has been carried out "chaotically" and "hastily" from the start, with various criteria and requirements to apply for the procedures, and that once the windows for collecting documentation were opened, there was also confusion, as seen in the fact that five weeks after the start of the process, the Ministry of Social Rights had to step in to resolve doubts and confusions. In this regard, the lawyer indicates that documents were requested that were not necessary and warns that now the "chaos" is in the National Police stations, where no appointments can be found for fingerprint collection.