The migration theory: Immigration vs. Social Integration.
Paper Submitted to Workshop 6: The constitutional challenges of immigration.
Tamara Álvarez Robles.
I.
INTRODUCTION.
The present investigation is aimed to the analysis of the global phenomenon of migration,
performed from the point of view of social integration. In this way our aim is to make know a
case study focused on Spain, by observing the main difficulties and studying the rights that most
concern the migrant population, concentrating on the right to receive an education.
Steger 1 defines globalization as “a multidimensional set of social processes that create,
multiply, stretch, and intensify worldwide social interdependencies and exchanges while at the
same time fostering in people a growing awareness of deepening connections between the local
and the distant”.
The migration process is at the same time cause and effect of the irreversible and supranational
globalizing phenomenon, thus to speak about migration in a globalizing field we are speaking
about a constant exchange in all of the personal an impersonal aspects that surround the
traditional concept of State (territory/border, population/citizens and power/ political and
economical relationship), that will condition the fluctuation of migration flows, because
ultimately the migrant will base their lucky on the basis of future possibilities at the same time
that eschew from political or/and economical adverse situations at the place of origin (conflict).
For this reason, the different treatment which person from “First World” countries receives
differs from the reception to citizen from “Developing Countries”, provided that this last
individual doesn’t “enjoy a very good economic position”. At same time, it is which aids the
growing traffic of people between different States in comparison to others (which close or
protect his borders), which we refer to as the “Selective Migration”2. We will focus our
attention on the European sphere, Schengen Agreement, as well as on most disadvantaged
groups of migrants which includes children3, women, and the undocumented, who are suffering
the worst treatment and deprivation of rights.
II.
CONCEPTUAL ELEMENTS OF THE GLOBALIZING MIGRATION:
SOCIAL INTEGRATION AND ACCULTURATION.
Therefore, in a globalizing world, we are speaking about a constant affluence of immigration
that must be addressed by different host countries on the basis of their possibilities or
determinants and in this way we have to speak about the concept of Social Integration,
understood as an assimilation process of the immigration, which could be performed in two
different ways: either through the Acculturation or though the Cultural Integration.
1
STEGER, M.B., 2003. Globalization: a very short introduction. New York: (usa): Oxford University
Press,.p. 13
2
In the case of Europe the preference for citizen from nearby Countries, for rich as opposed to poor, for
States with a close culture as opposed to States without a common past…
3
Children migrant rights are concerning because their lack of protection at both their origin and
destination, this is why one of the international objects of study: UN, EU, Save the Children…
Acculturation takes place when immigration is seen as a problem, since it could threaten the
loss of the cultural identity; we will speak here about the cultural indoctrination that is generally
produce in those States where there are strong roots of the traditional concept State-Nation or a
strong religious component united to the State, those that don’t tolerate the insertion of new
cultural traditions, or States which are attempting to establish the national unity through the
creation of an common cultural identity, this is in the line whit what Stolcke4 names “Cultural
Fundamentalism” that at same time can become xenophobia. Thus the immigrant who accesses
those States, which safeguard their border as much as possible, who are obliged to accept
customs and traditions thereof and leave behind their own to a certain extent (ex. Islamic States,
States where are an increase of nationalism parties).
In contrast, we found the real acceptance of the immigrant that passes though different stages of
Cultural Integration, the social integration sticto sensu, seeking coexistence/cohabitation and
respect for the immigrant’s culture at the same time that they are equating with national citizens.
Consequently, immigration is not a problem but a conditioning factor that must be treated with
the utmost respect for the immigrants’ rights and the respective guarantees, and only in the case
of cultural confrontation must be pondered prevailing the one that best respects the fundamental
and unavailable rights, therefore the limit to this permissiveness would be marked by rights and
freedoms internationally5 recognized. In this way Stolcke6 observes two ideological models of
integration: Universalist republican model of integration, assimilation; and differentialist
political ethics model. The first is characterized by those citizens who, in conditions (no option)
of equality and freedom, require their assimilation to the cultural and civic values of the Host
State, guaranteeing social cohesion. This equality has to be understood under the terms provided
by Böhning7 who established “the enjoyment of juridical and practical opportunities comparable
to those national citizens […] the effective participation with the same results in the life of
society which both groups are part of.” Meanwhile, the differetialits ethic involves respect for
the ethnic specificity from the different communities of immigrants (integral part although
culturally differentiated), which may be a double-edged sword because it supposes the
emergence of ghettos, that far from achieving cohabitation and social harmony, are used to
keep different cultures by not interacting. In both cases we are witness of a negotiation of state
power facing the integration of the immigrant collective, given that two circumstances were
met: the acceptance of the principles of the host society and the acceptation process, strictly
speaking, through the respectful coexistence of cultural diversity and with common rules, in the
same vein as Seara Ruiz8.
A pattern of actuation that goes beyond the cultural integration itself could speak about the
management of multiculturalism, once we understand this acceptance of immigrants, and from
that the multiculturalism doctrine is entrusted with “the more diverse the society is, the higher
the degree of cultural wealth it will achieve”, consequently it implies the rejection of
prejudices, respect towards diversity, mutual recognition of different cultures9 and the guarantee
4
STOLCKE: ARAGÓN BOMBÍN, R., CHECA, F., CHECA OLMOS, J.C. and ARJONA GARRIDO, Á., 2004.
Inmigración y derechos humanos: la integración como participación social. Barcelona: Icaria. p.27
5
Convention for the Protection of Human Rights and Fundamental Freedoms, Rome on 4 November
1950. The International Bill of Human Rights. The Universal Declaration of Human Rights 1948…
6
STOLCKE: (Aragón Bombín et al. 2004)p. 30.
7
BÖHNING: (Aragón Bombín et al. 2004)p. 125.
8
SEARA RUIZ, J.M. and ESPAÑA, 2010. La inmigración: un fenómeno universal. Madrid: Dykinson. p. 44.
9
IBARRA: (Aragón Bombín et al. 2004)pp. 52-53.
of rights and Universal values10 of dignity, freedom, equality, solidarity, citizenship and justice.
In this regard we have to point out Parekh11 advocate and scholar of multiculturalism.
III.
IMMIGRANT’S RIGHTS CONNECTED WITH SOCIAL INTEGRATION.
Closely related to social integration, we must to consider the rights which immigrants access in
the host country, and the first assertion to note is that the greater degree of acceptance that exist
in the host State the greater guarantees and rights the immigrants have, in other words, it is not
possible to speak about sociocultural integration without talking about the rights and freedom
guarantees12 to the immigrants13 collective, that must be equated with national citizens,
otherwise we speak about discrimination, which could be reflected in the regulatory/normative 14
framework and that may be made clear in respect of pleasure of the rights and freedoms from
the most vulnerable groups: children, women and undocumented 15.
As we pointed out earlier, in the host States must be happen the cohabitation and respect
between different cultures and traditions and just in case of confrontation from one of these with
fundamental rights and internationally guaranteed might have raised their limitation 16. Even
though, we are conscious about this determining global scenario of domestic17 regulatory power,
that means, the caressingly important influence and force from International Law has to be
related to the own Internal Legislation, Reordering “Equiordenación” from legal and regulatory
area, and consequently it observe higher degree of protection and the guarantee of those rights
and freedoms form people and to be aware of the difficulties faced. It’s about relaxing and
harmonizing the domestic legislation incarnated in the Constitution to avoid de fragmentation
and conflict in this global regulatory stage and to make the State an indispensable subject to
have into account when it is time to legislate and implement the legislation regard to migration
phenomenon at the same time that is given to International Law is given certain character of
Mundial18 Perfect Constitution, as far as a model/reference for the other internal Constitutions.
10
The Charter of Fundamental Rights of the European Union, (2010/C 83/02).
PAREKH, B., 2000. Rethinking multiculturalism: cultural diversity and political theory. Basingstoke:
Macmillan.
12
Guarantees that are observed and carry through in and by a constitutional State.
13
Report of the Special Rapporteur on the human rights of migrants (A/64/213): Conclusion 76
“Furthermore, the Special Rapporteur encourages Governments, in particular in countries of transit and
destination, to promote greater harmony, tolerance and respect among migrants, asylum-seekers,
refugees and the rest of society, with a view to eliminating acts of racism, xenophobia and other forms of
related intolerance directed against migrants.”
14
In this regard CHACON RODRIGUEZ L. (Aragón Bombín et al. 2004) “[...] while persist an institutional
difference between immigrant and national will be a discriminatory normative framework.”
15
Report of the Special Rapporteur on the human rights of migrants (A/64/213); 20º anniversary of
ACNUDH -20 achievements in human rights. (www.ohchr.org).
16
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION, art 52.1 “Any limitation on the
exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect
the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be
made only if they are necessary and genuinely meet objectives of general interest recognized by the
Union or the need to protect the rights and freedoms of others.”
17
STOLLEIS, M., PAULUS, A., GUTIÉRREZ GUTIÉRREZ, I. and FUNDACIÓN COLOQUÍO JURÍDICO EUROPEO,
2013. El derecho constitucional de la globalización. Madrid: Fundación Coloquio Jurídico Europeo. p.65.
18
GUTIERREZ GUTIERREZ I (Stolleis et al. 2013) pp 50-51.
11
This is inasmuch as a citizen sees the State responsible19 about problems and failures perceived
on national and international level, because the State is competent to Foreign Policy (established
his regulation respect to the entrance, permanence and expulsion) at the same time that it’s
obligated 20 to observe, respect and protect the people that is in his territory regardless of their
situation.
In such a way we came to the following two positions about globalization and that Gutierrez21
qualify as “open statehood/estatalidad abierta”, that mean the participation of the State in the
globalizing process: one that is about searching the harmony/equilibrium 22 between local,
regional and transnational and between correspondents competency and institutions, within
which the guarantee and the protection of the rights of man and of the citizen in the project that
Stolleis23 arouse to move the democratic procedures of forming the will from the State to the
supranational spaces. And other proclaim the “Global Governance” as an imperfect normative
order need of improvement to achieve their democratization24 and the effective protection of
those human rights, whom Stolleis25 propose solutions that respond to cooperation, deliberation
and inclusion of most powerful representatives from different cultures.
However in both cases it is presupposed the protection and defense of human rights and
freedom where we should emphasize those social rights relating to the children, the woman, the
family, the health, the work and the equality.
19
Report of the Special Rapporteur on the human rights of migrants (A/64/213): Conclusion 96: “States
should review their national and regional laws and policies to harmonize them with the international
legal framework on the protection of the human rights of migrants, with particular attention to the
protection of the rights of the child.”
20
International obligation regard to their adhesion to international treaties with regard to human rights
was subscribed to by the State.
21
GUTIERREZ (Stolleis et al. 2013) p.15.
22
PAULUS (Stolleis et al. 2013) p.111.
23
STOLLEIS (Stolleis et al. 2013) p.58.
24
GIDDENS, A., 2000. Un mundo desbocado: los efectos de la globalización en nuestras vidas.
Madrid: Taurus. “Democratize the democracy” pp. 88ss.
25
STOLLEIS (Stolleis et al. 2013) P.59
IV.
A CASE STUDY: SPAIN AND THE MIGRATORY PROCESS
1) Social Integration in Spain:
The Spanish case is one of the most significant in respect of the migratory process in the
European Union inasmuch as is one of the principal borders, we must to emphasize the enclave
of Ceuta and Melilla, as well as the change of tendency suffered over the last decades. Spain
has moved from being an emigrant country to being a transit and destination country to the
immigration, what entail an arduous work to their powers26, though in recent years, because the
economic27 crisis that is lashing us, Spain is immerse in a deep migratory process characterize
both the immigration and the emigration. According to the data provided by The National
Statistics Institute in 2013 shows that the number of the foreigners residents (register) dropped
by 4% because the emigration and the acquisition of Spanish nationality, to lie at 4.870.487.
During the first semester of 2013 Spain registered a negative migration balance (-124.915
people), a 50% greater than the previous semester, because a dropped of immigration by 11%
and increased of emigration by 10’7%. Spanish case, the migratory balance is -24.860,
emigrated 39.690 and immigrated 14.831. And with those data begs the questions: How are
immigrants treated? Are their rights affected? What is happening with the illegal immigration in
Spain? Which solutions are propose to solvent the possible problems?
To understand the Spanish situation we have to speak, also, about three kinds of immigrant
groups, as said Cachón Rodríguez28: settled, precarious and undocumented. The settled ones are
those people that are in legal situation, regular, and therefore are integrated in the rights and
freedom system and are equated to notional people, but we can observe two groups: qualified
(the majority are communitarian citizens) and low skilled (from Latin-America). The
precarious ones are the ones in legal, regular, situation but that don’t integrate socially and/or
culturally and that carry out work in temporary and low skilled jobs; usually in the agriculture,
the construction or in the service sector. The undocumented, not integrated, is a vulnerable
collective because they are in an irregular, illegal, situation and consequently they found several
difficulties to asserts their rights and it’s therefore they suffer overexposure, discrimination,
exclusion…that is why they need the maximum protection and attention, given that they are an
easy prey to the human traffic mafias 29, to the unscrupulous entrepreneur, to the xenophobes
groups… Those three groups are reduced in two depending on their administrative or integrative
situation. As regards administrative situation we speak about documented immigrant in legal,
regular, situation regarding residence and/or work permits and the undocumented30 in irregular,
illegal, situation with any permits. On the other hand, with regard to social integration they can’t
be other than intergraded (settled) and not intergraded (precarious and undocumented).
26
Art. 149.1.2ª established as an exclusive competence of the State: the nationality, immigration,
emigration, foreigners and asylum rights.
27
And because the economic crisis Spain doesn’t have to fall in the cultural fundamentalism: our
resources, our jobs, our healthy system, our education… and close the borders like others States are just
doing.
28
CACHÓN RODRIGUEZ (Aragón Bombín et al. 2004)p. 128.
29
Just in the called Indalo Operation in 2012 against this problems, 35 responsible of introduce illegal
immigrants from Spanish coast in dinghy have been arrested and have been rescued 2.245 immigrants
people from mafias, until May of 2012. Data from: www.exteriores.gob.es
30
The arrivals of illegal immigrants to Spanish coast in 2011 increased a 50% respect to 2010.
Furthermore, arrived 3.345 immigrants to Ceuta and Melilla, it’s doubling the number of people that
had accessed the previous year. Data from www.exteriores.gob.es
A positive thing about the integration from Spanish people is that over the last decades the view
of the immigrant as a problem has been descending, it supposes the acceptance of the
immigration, the tolerance, the social awareness. According to data31 published by The
Sociological Research Centre barometer on October 2007 the immigration was a problem that
supposed 32’5%, a 16’6% on January 2010, same month but in 2012 was a 7’5% and January of
2014 2’2%, consequently this acceptation in a short period of time is became notable, especially
when the immigration is a growing phenomenon in Spain.
At this respect we have to mention the Spanish current politics which are moving towards
international guidelines, especially European, hence that continue with the development of the
Organic normative, in this way Organic Law 2/2009, of 11 December, reforming Organic Law
4/2000, of 11 January, regarding the rights and liberties of foreign nationals in Spain and their
social integration, being one of the main objectives to establish a rights and freedom framework
to foreign that guarantees the exercise of fundamental rights to everybody, also, to refroze the
integration as a central axis/pillar from politics to immigration, that, having into account the
acquis communitary in immigration and international protection issues, bet on achieving a
framework of coexistence between identities and cultures. It’s because we are in front of
diferencial ethic model, though it’s made possible and even can be demanded32 the assimilation
of those immigrants to civic-cultural values33 that prevail in Spain, most in case of the acquiring
of nationality for residence34 process being necessary to put the integration35 on record and for
that it is needed, between other requirements, to pass an exam with diverse contents about
Spanish thematic36.
It is therefore an unavailable chore to look after this social integration that benefits the whole
State, so we can take advantage of cultural richness or diversity and work to guarantee certain
rights that worry the immigrant: work, healthy and education, we are talking about social-labor
integration. In this way Spanish Constitution should impose and enforce their rights contained
just as an embrace internationally considered, under art. 93 Spanish Constitution. And that by
the implementation of integration plans provided for by different levels: stately 37, regionally and
locally.
31
http://www.cis.es/cis/opencms/ES/11_barometros/indicadores.html
Art 221 Decree, 14 November 1958, by which there is approved the regulation of the law of the civil
register “The Manager, in the process of concession of nationality for residence, will hear personally the
petitioner, specially to verify the degree of adjustment to the culture and way of life Spanish, and will try
to hear also the spouse separately and in confidence on the change of nationality and circumstances
that in it meet”.
33
Civic-cultural values which must be revised to guaranteed a true equilibrium and to avoid unnecessary
conflicts because this global process.
34
Art. 22.4 Civil Code “The interested will have to justify, in the process regulated by the legislation of
the Civil Register, good civic conduct and sufficient degree of integration in the Spanish society”
35
Art 220.5 decree, 14 November 1958, by which there is approved the regulation of the law of the civil
register The circumstances that reduce the demanded time; if he speaks Castilian or another Spanish
language; any circumstance of adjustment to the culture and way of life Spanish, as studies, charitable
or social activities, and other that he considers suitable”.
36
Geography, history, art, literature, sports, gastronomy…
37
Strategic plan of Citizenship and Integration (PECI II) for the period 2011-2014; National plan of Action
for the Social Incorporation 2013-2016. Programs SARA and CLARA: www.inmujer.gob.es.
32
2) Approach to the immigrants’ rights in Spain.
In the Spanish case it exists a normative plurality in charge of look out the immigrants’ rights,
from communitaire normative, to the state or autonomous/regional until local. And in this lineup of mandates and regulation, various are the insistent preoccupations: the position of children
and woman, the right to health or to labor, and this aims are included in several strategic plans,
national and international reports and also in the explanatory memorandum of different laws.
Being one of the main tasks to carry out/develop the task of legislative alignment of this topic.
In respect to the double classification that we realized about previously, according to the regular
or irregular condition of the immigrant, Spain has certain rights that are guaranteed
notwithstanding this position such as: elemental/basic and obligatory education of minors,
effective juridical protection an legal assistance (art24SC), he right to healthcare in case of
minors, pregnant women or emergencies… however other rights are conditioned by the legal
condition such as: work, social security rights, in the other cases of right to healthcare, social
services without basic character…
a) Right to work:
Even though the employment is a crucial part in the social integration process Spanish’ labor
legislation is criticized as discriminatory with the immigrant collective, maximum if the
immigrant is in an illegal situation, thus those who enjoy the privilege of having a job can not
regularized38 his/her condition and are frequently private of all labour law/right, therefore those
people are submit to long working hours to precarious salaries, they haven’t got any
employment entitlements, any medical insurance, neither have sick leave…all of this has lead to
a proliferation of the criminal organizations and that unscrupulous entrepreneurs abusing their
vulnerability position saving labour cost because there isn’t any contract 39, and exacerbating the
problem of the informal/underground40 economy,24% GDP.
Addict to this we can speak about discrimination as far as laboural integration if it enjoys the
status of European communitaire or assimilate (equalized to nationals) or if, on the contrary,
does not have, and are foreign in a generic term (subjected to the pertinent alien/immigration
Law), as well as we should talk about the qualification of the immigrants (according to the
Organic Law 4/2000); laws and regulations reserving that jobs aren’t demanded by
38
The regulation allows to the immigrants in irregular situation to obtain the authorization of residence
for labor rooting being necessary two years of stay in the country and credit been working at least six
months for the same employer, always and when they could accredit the existence of labor relation and
lack criminal records. The complicated thing is to accredit this contractual relation. Another option, for
the case of gender-based violence, would suppose the obtaining of a temporary permission of residence
and work that in case of obtaining sentence condemnatory would acquire a permanent condition (art.
19.2 Organic Law 4/2000). A third route would be the process of massive regularization.
39
Practical measures for the Reduction of the Irregular Immigration Spain "The contracting of irregular
immigrants and the simulation of a labor relation with a foreigner are chased from the regulation of
immigration and from the labor one and are punished by fines of between 10.000 and 100.000 Euros. In
the year 2010 5.821 sanctions were imposed for these motives, with an amount of 46 million Euros ".
Report elaborated by the Point of National Contact of Spain of the European Network of Migrations and
the investigators Carmen Gonzalez Enríquez and Maria Miyar. December, 2011. P.16
40
Report of the Union of Technical personnel of the Treasury Department: "The rate rises up to 24’6 %
of the GDP, almost seven points more than in 2008". In: www.gestha.es
communitarians, assimilated or nationals to certain immigrants from specific countries by
means of a quota system, the collective management of hiring in origin 4142, questioned and
questionable.
Furthermore, union of workers (syndicates), sometimes, doesn’t do too much to help that
collective because look more for the payment of union fees that help those exploited workers
and deprived of all right, union of workers involves in this quota system and, also, give a
reduced representation in trade union officer.
This normative is also discriminatory with the young and women collective, that occurs
regardless of the status of immigrant, of this way their salaries/wages are lower, the worst jobs,
long working day… but the immigrants’ situation is aggravated because of being an immigrant
and because doesn’t has family support. We speak, in the specific case of the immigrant woman,
of "Multiple Discrimination" in this case in the labor area, since she is discriminated for being a
woman, for being an immigrant, and it worsens for being illegal and enclosed a mother.
Therefore, some are the objectives that have to be confront in the near future: the harmonization
of the labour normative/legislation, the implication of all powers in the fight against
discrimination, achieve a greater representativeness of this collectives mentioned, moreover an
increased in labour inspections in sector as agriculture, livestock, construction and services
sectors, in such a way obtain by sentence/court ruling the working root or improvement of
work’ conditions and to fight the informal economy.
b) The right to health:
The right to health, set out in art.43 of the Spanish Constitution, is one of the most affected as
regard legal and administrative situation of the foreign in Spanish territory (residence).
Previously to 2012 a minimum was guaranteed regardless of the administrative
situation/condition of the foreign, it there was same universalization and free of health care,
minimum that were improved with the only condition that was the registration (even if she/he
was illegal).
Even though, due to the crisis, among other issues, and also because of the abuse of the healthy
system by the called “health tourism” in 201243 had being carried out in a restrictive
interpretation about this universalization of the health care/system of foreigners aren’t
registered/authorized as a resident, under Decree-Law44, in such a way the cited health care is
restricted just to the following cases: supposition of urgency for critical illness or accident,
resulting from any cause, until certify discharge; health care during pregnancy, delivery and
postpartum; and in any case, the foreigners younger than 18 years old would receive health
assistance in same condition as a Spanish.
41
Cap. III, Tít. I OL 4/2000, Reformed by OL 2/2009.
Order ESS/2445/2013, of December 23, by that there is extended the force of the Order ESS/1/2012,
of January 5, by that the collective management of contracting is regulated in origin for 2012.
43
Royal Decree-Law 16/2012, of April 20, of urgent measures to guarantee the sustainability of the
National System of Health and to improve the quality and safety of his presentations.
44
Royal Decree-law in this case questioned as for not urgency and to the possible "abuse" on having
treated itself about a right gathered in the Title I of the Constitution, being able to affect even
fundamental rights since could be the right to the life or to the physical integrity of the art. 15SC.
42
In this normative framework have been affected certain foreign people that being in an illegal
situation and after the respective medical examination and medical discharged (from emergency
department/doctor) couldn’t access to subsequent medical treatment or monitoring, because
there is someone that understands that it’s not an emergency case. Similarly it presents the
discussion about the aggravation of diseases or healthy problems to understand as an
emergency, it could cause further injury/risk to the health and also a higher cost for public
finances, with the possible healthy problem from the other people in case of contagious disease.
c) The right to education:
The right to receive an education, fundamental right sated out in art. 27 SC, is doubly important
to the immigrant integration45, this is way legislators promotes the implication of all public
powers46. On the one hand the immigrant that accessed education would enjoy better conditions
in the future, develop their personality and could integrate in the host society; at the same time
that students would be educated in tolerance to the immigrant, would see as normal47 the
existence of several cultures that cohabitee. This should cause the reduction of the inequality
and of the discrimination and it also should cause the creation of an equality and respect society,
it’s because we are speaking about education in the broadest and bidirectional sense.
For the propose of speaking about integration from the education point of view we need to
differentiate between the levels of access to the national education system: the first level where
we have the compulsory education and a subsequent level with post-compulsory character,
within which we find two subcategories: student and investigator with their respective regimes.
The right to receive an education is recognized to immigrants independently to their situation. In
the meantime, they have been in the Spanish territory until the adult age48, 18 years old49, being
a right-duty in case of people younger than 16 years old whose must to study basic and
obligatory education with universal and free character. In this way immigrants are equated to
the Spanish and can obtain grants, scholarship and the corresponding certificate.
However, the discussion is focused on foreigners over 18 because Organic Law 2/2009
maintains, as same as OL 4/2000, in his article 9.2 that “foreigners over 18 years old who are in
Spain have the right to the education of agreement with the established in the educational
legislation. In any case, the foreigners residents older than 18 years old have the right to access
45
Being one of the most important aspects to treat the learning of the official language, but we do not
have to fall in the acculturation of the immigrant in the schools, we have to promote the
multiculturalism.
46
The intercultural education is one of the main lines of interest of the Ministry. Throughout the years
there have been financed, impelled and elaborated, studies and reports related to the attention to the
cultural diversity of the student body. For which the Center of Resources has been created by the
Attention to the Cultural Diversity in Education. mecd.gob.es and www.educacion.gob.es
47
Education: in terms of sociocultural integration, where aren’t several problems. The children of
immigrants are incorporated into the public colleges. The different foreign communities have created
networks of solidarity that they attend the newcomer. Nevertheless, there are important differences
according to the groups of origin. Is here the importance of the mediators. . Editorial Lex Nova.
Publication: Revista de Derecho Migratorio y Extranjería núm. 31/2012 parte Artículos Doctrinales.
Edificio LEX NOVA, Valladolid. 2012.
48
Art. 9 OL 2/2009, 11th Dec. That reformed OL 4/2000.
49
The Constitutional Court in its ruling 236/2007, 7th Nov.
other educational stages post-compulsory, to the obtaining of the corresponding qualifications,
and to the public system of scholarships in the same conditions that the Spanish”. So this right,
which is closely connected with the human dignity, is conditioned to the administrative legality
of “resident” or in any case to the current educative legislation, issue that was modified after the
ruling of the Constitutional Court 236/200750 on 7th Nov. where this right was recognized to the
education post-compulsory to illegal/irregular foreigners until they are 18 years old, it results in
the possibility to study Upper Secondary and Vocational education to these students without
legal residence, but what is less clear is the situation to university/higher education and
advanced vocational education.
Likewise The Constitutional Courts, in the ruling mentioned, decreed that “The Universal
Declaration of Human Rights and the agreements and international 51 above-mentioned
agreements, deduces that the content constitutionally guaranteed of this right, in his dimension
of provision of services, does not limit itself to the basic education, but it spreads also to the top
levels, though in them the obligatory nature and the gratuitousness is not imposed
constitutionally”. This issue had been collected by Royal Decree Law 14/2012, of 20th April, of
urgent measures of rationalization of the public expenditure in the educational area, which
foresee that “The public prices will be able to cover up to 100 % of the costs of the university
educations of degree and master, when foreigners have eighteen-year-old ore more and they do
not have the residents' condition, excluded the natives of members states of the European Union
and those to whom it is of application the community regime, without prejudice of the
beginning of reciprocity”. So we are speaking here about selective migration in the education
area and most important about the affectation to the illegal immigrants’ rights who are
discriminating in comparison with others who are in possession of the respective student
residence card and or student visa52.
In case of not European investigators (foreign researches) there exists a duality depending on
the type of labor character of visa; if there doesn’t exist labor remuneration they would need a
student visa53 being also a research visa54 which gives entitlement to stay in Spain doing
research projects within the framework of hosting agreement signed by a research organization.
In any case, this situation may be strange to irregular immigrants because they previously need
the university state, which is hampered by the legislation. Though we have to be cautious in
case of non-community foreigners who receive one of the scholarships of doctorate
(investigation)55 who attending in a beginning to a not remunerated relation they change/mutate
50
The Constitutional Court in its ruling 236/2007, 7th Nov. Decision 2º “To declare unconstitutional and
void the incorporation of the term "residents" in the arts. 9.3 and 22.2 of the Organic Law 4/2000, of
January 11, in the draft given by the Organic Law 8/2000, of December 22”.
51
The international Pact of civil and political rights; additional Protocol to the Covenant for the
protection of the human rights and of the fundamental freedoms, of March 20, 1952.
52
The study visa enables to remain in Spain in situation of stay for the accomplishment of courses,
studies, and works of investigation or formation, providing that there does not exist any labor
remuneration. In any case there exist different types of visa of study according to the time of
permanency.
53
Chapter II Royal decree 557/2011, of April 20, for which there is approved the Regulation of the
Organic Law 4/2000, on rights and freedoms of the foreigners in Spain and his social integration, after
his reform by Organic Law 2/2009. Authorization of stay for studies, pupils' mobility, not labor practices
or services of voluntary work.
54
Art.38 bis 2/2009, of November 11. Special regime of the researchers. And chapter IV Royal decree
557/2011, of April 20. Temporary residence and I work for investigation.
55
For instance: FPU (a scholarship for The Training of University Teachers) FPI (reserchers).
to remunerate so it changes his contractual condition and it can affect the enjoyment of rights
especially in the community area56.
Spain, according to the information facilitated by the Ministry of Education, in the course
2012/2013 they were studying 755.156 foreigner students in non-university education, the
majority of them in compulsory levels as: pre-schools 149.314, primary schools 255.023 and
secondary schools 203.955. Regarding levels of post-compulsory with: 47.258 of high school
students, 31.695 intermediate level vocation training program, 18.405 studies or higher level
professional training and 17.025 programs for initial professional qualification (PCPI).
Observing an increase compared with the previous year. In respect of the nationality of origin,
stand out the body student from South and Central America with 33’9%, followed by European
30’1% and from Africa with 27’5%. If we focus on the countries Morocco with 164.680
students, Rumania with 98.790, Ecuador 66.656 and Colombia with 41.723 students. The same
school year in respect of higher education were enrolled a total of 53.231 foreigners’ students,
20.515 of whom were European.
In the face of this multicultural situation the Spanish’ education have a mandate to several task,
not just a normative/legislative level as we could observe, if not about their social-educative
functions (effectiveness of the general principle of the equality of opportunities) which affected
to both students and their families and the faculty/teachers. The Educative System had to be
restructured, we must fight against discrimination, scholar failure, absenteeism…and we must
protect the cultural identity without this affected the integration; “we have the opportunity to
enriching our collective identity with the knowledge, acknowledgment and the respect to the
cultural plurality existing in our society and in our schools” 57.
56
Since it happens in case of visas of residence in third countries, rights derived from the social
security…
57
Report: Immigration and school of the intercultural education to the education for the citizenship: An
offer for the debate. 2001.
V.
FINAL REFLEXION:
To speak about integration of the immigrant in a society and with independence of the type of
social integration that we want to apply, has to give an indispensable condition, and this is the
guarantee of rights and freedoms of the immigrants (on the part of the public power)
overcoming the stadium of mere survival of the immigrant in a society and avoiding the social
exclusion, which is characterized by the persistence, the break of the social bows, the survival
on the margin of society.
For that reason, an unavailable task for the States’ powers is the search of integration and
responsible formulae of the mentioned rights and a freedom, beginning for the labor,
educational and sanitary worry since departing from these spheres a better social integration is
made possible on having diminished and even to eradicate any observation of inequality. As
well as being necessary to harmonize and re-fuse that regulation in the matter to attend to a legal
simplification, together with the reform of those rules that do not integrate but exclude the most
vulnerable groups.
The Spanish case, at present, is one of the most complex in the European area since we attend to
the overflow of the borders, must emphasize those of Ceuta and Melilla who suffer a serious
migratory pressure, that is why, in attention to the integration prism, the collaboration of the
international community has to follow being requested, from the different Spanish spheres
(state). Even though it is necessary to stress the worry of the Spanish society for the immigrant
group, as well as the necessity of speaking about a little number of "xenophobic" cases
happened, not being contagious of the example of countries around us which increasingly close
their borders not only to people without documents but to those to whom they free traffic is
presupposed because the international agreements signed by his Governments, as well as for the
exponential growth of nationalistic extremist powers either.
It is true that Spain after the economic crisis has produced a setback to itself in the social rights
of the immigrants and this is way they have to recover it in the near future, not to disadvantage
of the obligatory integration policies and to guarantee the harmony between different immigrant
groups and already based or national, with independence of their administrative situation,
reason why we should continue working at the different programs and plans of integration at
which one will to pay special attention to three big groups: minors/teenagers , women and
undocumented.