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Legislation Impacting Anti-Discrimination and Anti-Radicalisation Efforts

Legislation Impacting Anti-Discrimination and Anti-Radicalisation Efforts

The right to equality before the law for non-citizens is not expressly recognized by the Spanish Constitution. This effectively contradicts Article 14 of the ECHR and Article 1 of Protocol 12, which provide for a general prohibition of discrimination regardless of nationality and citizenship. This gap has been noted at various times, at least by the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and the CoE's European Commission against Racism and Intolerance ("ECRI"). Despite this, the 2011 constitutional amendments did not take this aspect into account. It must be said that Spain, like France and several other EU countries, lacks official data on the ethnic composition of the population, since the Constitution prohibits the collection of ethnically disaggregated data by public bodies, although this interpretation has been criticized by several NGOs, who believe that this position is based on a restrictive interpretation of the Constitution.

In addition to the gaps stemming from the general legislation highlighted above, there are some specific legal provisions that discriminate against minorities. In particular, under the aforementioned Organic Law 4/2000, irregular migrants are detained in foreign national migrant detention centers ("FNMCs") until they are expelled or deported. In theory, these detention centers should not be penal in nature, but in practice they are not.

Theoretically, these detention centers should not be penal in nature.

Deportation proceedings can be initiated on the following grounds:

  1. Lack of legal documents allowing the foreigner to remain in Spain.
  2. Work without authorization, even with a valid residence permit.
  3. Participation of a foreigner in certain criminal activities.
  4. Having a court decision against the foreigner involving imprisonment in Spain or abroad for at least one year.
  5. Performing begging or engaging in illegal activities.

There are currently eight CSMs in Spain. The CSMs are part of the Ministry of the Interior and are managed by the national police force. In 2017, 65.5% of those placed in the CSMs were not deported, meaning that they were eventually released and granted official status. According to the UN Special Rapporteur, "holding undocumented migrants, including women, in detention centers for foreign nationals (Centros de Internamiento de Extranjeros or CIE) presents a number of human rights challenges that must be addressed."

In 2013, the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance pointed to the lack of rules governing the operation of migrant detention centers as required by law, as well as the negative impact of the lack of provision for the rights of undocumented migrants within the CIE. This gap was partially addressed in 2014 with the adoption of the Royal Decree establishing the Regulation on the Functioning and Internal Rules of Procedure of the CSM. However, this regulation was criticized by stakeholders because it allegedly reinforced the idea that living conditions in the CSM were actually worse than in prison. The Supreme Court struck down some of its provisions, which were deemed contrary to EU law, the Spanish Aliens Act and Constitutional Court case law.

The Special Rapporteur is also particularly concerned about reported cases of abuse, torture and deaths among undocumented migrants. It has been reported that a woman and a young man died in Madrid (Aluche) in December 2011 and in Barcelona (Zona Franca) in May 2011, respectively. The Special Rapporteur (A / HRC / WGAD / 2012/37) was also informed of a case of alleged torture of a Moroccan detainee in May 2012 at the CSM in Madrid. Another disturbing element is that criminals are held together with other foreigners in the CSM, which poses a threat to people who are not criminals but are detained.<./p>

In addition, despite the closure of the CCM in Málaga in 2012, immigrants who arrive by boat to the shores of Málaga can now be detained in a penitentiary facility in Archidón, Málaga. Civil society organizations have largely advocated for the closure of the CSMs on the grounds that they violate human rights, are ineffective, and should at least be used proportionately, but they have not been successful. In addition, it is worth mentioning that the Barcelona City Council ordered the closure of the CSM in Barcelona in 2016 on the grounds that it lacked the proper license and did not meet safety standards. Nevertheless, the CSM reopened the next day.

Another issue of concern is health care reform in 2012 (Royal Decree Laws 16/3023 and 1192/2013), which excluded non-citizens without a valid public health permit. The application of this legislation is not uniform, as the Autonomous Communities are responsible for the implementation of this legislation. Indeed, some have restricted the exclusion of migrants from the public health system; conversely, others have applied the legislation very strictly and even in violation of the new law in some cases.

The ECRI notes that the reform not only affected noncitizens without valid residency permits, but also migrants with residency permits, "because some were frustrated, insecure, and unable to seek medical care." For example, the proportion of migrants in the Community of Madrid indicating that they experienced great problems in accessing health services increased from 35.9% in 2012 to 49.8% in 2016.

The discriminatory legislation that prevented undocumented migrants from accessing health care was repealed in 2018 by Royal Decree-Law 7/2018 on universal access to health care.

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