Supreme Court ruling improves employment situation of illegal immigrants

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In April 2004, the Spanish Supreme Court ruled - in a case brought by the CC.OO trade union confederation - that restrictions placed on the granting of work permits to immigrants in 2002 were invalid. The ruling should improve the employment situation of a large number of illegal foreign workers.

In 2002, the conservative People's Party (Partido Popular, PP) government of the time introduced new, more restrictive regulations on granting work permits to (non-EU/EEA) foreign workers (ES0209204F). This move was challenged by the Catalonia regional organisation of the Trade Union Confederation of Workers’ Commissions (Comisiones Obreras, CC.OO), and on 6 April 2004 the Supreme Court (Tribunal Supremo) ruled in favour of CC.OO's challenge.

In its decision, the Supreme Court declared the relevant cabinet agreement that regulated the quota of foreign workers (ES0112244F) to be invalid. This regulation restricted the number of work permits awarded to foreign workers and critics stated that for many immigrants this meant that their only alternative was work in the undeclared, clandestine economy. Therefore, this ruling is seen as being of great importance for the rights of foreign workers and for the future reform of immigration policy. It will also force the new Socialist Party (Partido Socialista Obrero Español, PSOE) government ES0405202N) to change the criteria for awarding work permits.

The most significant aspects of the Supreme Court ruling are as follows.

• It recognises the legal capacity of the social partners to present a legal challenge to a cabinet agreement. This is based on Article 7 of the Spanish Constitution, which is interpreted by the Court as recognising the right of trade unions to defend the socio-economic interests of Spanish and foreign workers.

• It sets a precedent, which means that the ruling is binding for all courts and for the public administration.

• It establishes that, whether or not they are on Spanish territory, foreign workers can apply for work permits in sectors of activity in which the annual quota of foreign workers set by the government has been exhausted or in sectors in which no quota has been set. This was not possible under the terms of the Law on Foreign Persons and its accompanying regulations ( ES0310107F ).

• By declaring the cabinet agreement invalid, it means that the government's provincial delegations must grant work permits that they had previously refused systematically. Therefore, workers who have an individual offer of work will now be entitled to a work permit providing that it is for a sector in which no quota has been set, or for which the quota has been exhausted and the Public Employment Services ( Servicios Públicos de Empleo ) are unable to cover the demands for workers made by the companies. The ruling thus forces the administration to award work permits to foreign workers who have individual offers of work from an employer in a sector in which the government has not established a quota of permits or the quota is insufficient.

In short, the government must now revise the whole policy of awarding work and residence permits, which will make it possible for foreign workers who are now working unofficially in the clandestine economy to legalise their position. The hidden economy has grown in recent years thanks to the abundance of illegal foreign workers, who find it difficult to defend their collective interests. In labour-intensive sectors such as construction, agriculture and hotels and catering, in which illegal immigrants are numerous, wages have been falling (ES0401204F). The new Supreme Court ruling should bring about a revision of this situation of precarious employment and low pay.