Rights and freedoms of foreigners in Spain

The rights and freedoms of foreign persons in Spain must be interpreted in accordance with the Spanish Constitution, international human rights treaties and Organic Law 4/2000. In general, the exercise of these rights does not depend on the administrative situation, except where expressly provided for by law.

Public administrations have the obligation to ensure the effective exercise of these rights, avoiding restrictive practices, disproportionate requirements or interpretations that empty their content. In case of doubt, the rules must be interpreted in the sense more favourable to the exercise of the right, especially when they affect people or groups in vulnerable situations.

Rights of aliens and interpretation of the rules (Article 3):

1. Foreigners shall enjoy in Spain the rights and freedoms recognized in Title I of the Constitution in the terms established in international treaties, in this Law and in those that regulate the exercise of each of them. As a general interpretative criterion, it will be understood that foreigners exercise the rights recognized by this Law on an equal basis with Spaniards.

2. The norms relating to the fundamental rights of foreigners shall be interpreted in accordance with the Universal Declaration of Human Rights and with international treaties and agreements on the same matters in force in Spain, without the profession of religious beliefs or ideological or cultural convictions of a different sign being invoked to justify the performance of acts or conduct contrary to them.

Right to be documented (Article 4):

‘All foreigners have the right and the duty to keep documents proving their identity and their situation in Spain. Likewise, foreigners may not be deprived of their documentation outside the cases provided for by law.

Foreigners who have been issued a visa or authorization to stay in Spain for more than 6 months, will obtain the identity card of a foreigner, requested personally within one month from the entry or granting of the authorization. Holders of a residence and seasonal work visa shall be exempt from the above.’

The withdrawal or retention of documentation can only occur in the cases expressly provided for by law and with the guarantees of the administrative procedure. Lack of documentation cannot justify on its own denial of other rights under the Aliens Act.

Right of free movement (Article 5):

Foreigners who are duly authorized to be in Spain in accordance with the provisions of Title II of the Aliens Act, shall have the right to move freely through Spanish territory and choose their residence. The limitations shall be those established by treaties and laws, or those agreed by judicial authority, as a precautionary measure or in criminal or extradition proceedings in which the alien has the status of accused, victim or witness, or as a result of a final judgment.

However, specific limits may be established where this is agreed in the declaration of exception or site. They may also be established, exceptionally, for reasons of public security, individually, reasoned and complying with the criterion of proportionality, by decision of the Minister of the Interior and adopted in accordance with the legal guarantees of the sanctioning procedure provided for by law. These limiting measures may not last longer than necessary to alleviate the circumstances that justified them and may consist of regular presentation to the competent authorities and the removal of borders or population centers specifically specified.

Restrictions on free movement should be exceptional, individualised and reasoned, and in any event respecting the principle of proportionality. They cannot be used generically or automatically for administrative reasons.

Right to vote and public participation (Article 6):

Foreigners residing in Spain may hold the right to vote in municipal elections, according to the terms established in the Constitution, in international treaties and, where appropriate, in the law. If they are registered in a municipality, they will have all the rights established for this purpose in the legislation of bases of local regime and may be heard for matters that affect them according to the regulations.

The municipalities must include in the register foreigners who have their usual domicile in the municipality and will keep the information related to them updated. The public authorities have the obligation to facilitate the exercise of suffrage by foreigners in the democratic electoral processes of their countries of origin.

Participation in local public life is an important element of social integration. Administrations should facilitate the effective exercise of these rights and promote mechanisms for the participation of the foreign population in matters affecting them.

Right to education (Article 9):

Foreigners under the age of sixteen shall have the right (and duty) to education. This includes access to basic, free and compulsory education. Persons under the age of eighteen shall also be entitled to post-compulsory education.

This right includes obtaining the corresponding academic title and the possibility of accessing the public system of scholarships and grants under the same conditions as Spaniards. If the age of eighteen years is reached during the school year, the right will be maintained until its completion. Those over eighteen years of age shall have the right to education in accordance with the provisions of educational legislation.

The public authorities shall promote the education of foreigners for their better social integration.

Foreigners residing in Spain who are responsible for minors of compulsory schooling age must prove schooling with a report issued by the competent regional authorities, within the applications for renewal of their authorization or in the application for long-term residence.

Access to compulsory education cannot be conditioned the administrative situation, the registration, the possession of NIE or the presentation of certain documents. Lack of these requirements cannot justify non-schooling of minors.

The obligation to ensure schooling is also incumbent on public administrations, which must take the necessary measures to ensure effective access to the education system under conditions of equality and non-discrimination.

Right to work and social security (Article 10):

Provided that they meet the requirements set out in the LOEX and in the provisions implementing it, resident aliens shall have the right to engage in gainful activity in an employed or self-employed capacity, as well as access to the social security system.

They will also be able to access public employment as provided for in the Royal Legislative Decree 5/2015 of 30 October 2015, approving the recast text of the Law on Basic Statute of Public Employees.

The exercise of the right to work is linked to obtaining the corresponding administrative authorization, but access to the rights derived from the employment relationship (even when it occurs in an irregular situation and / or without registration in Social Security or contract) and the protection of Social Security must be interpreted in accordance with the principles of equality and protection of the worker.

Right to health care (Article 12):

Foreigners have the right to health care under the terms of current health legislation. It is understood under this RD Law that they must be holders of a residence permit (or have the health care documents corresponding to foreign persons in an irregular administrative situation or applicants for international protection, as appropriate). In any case, they have the right to health care:

• Foreigners under the age of 18 who are in Spain are entitled to health care under the same conditions as Spaniards.

• Pregnant foreigners in Spain are entitled to health care during pregnancy, childbirth and postpartum.

The right to basic health care is recognized irrespective of the administrative situation, under the terms provided for in the health regulations in force. Care for minors and pregnant women is a priority and cannot be restricted for administrative reasons.

Housing rights (Article 13):

Resident foreigners have the right to access public housing assistance systems under the terms established by law and the competent administrations. In any case, long-term resident foreigners are entitled to such aid under the same conditions as Spaniards.

Access to public housing support should be ensured in accordance with the principles of equality and non-discrimination. The exclusion of these systems can only occur when there is an express and justified legal provision.

Right to Social Security and Social Services (Article 14):

Resident foreigners have the right to access Social Security benefits and services under the same conditions as Spaniards.

Resident foreigners are entitled to services and social benefits, both general and basic and specific, under the same conditions as Spaniards. Foreigners with disabilities, under 18 years of age, who have their habitual domicile in Spain, shall be entitled to receive the treatment, services and special care required by their physical or mental state. Foreigners, regardless of their administrative status or immigration status, are entitled to basic social services and benefits. In any case, long-term resident foreigners are entitled to such aid under the same conditions as Spaniards.

Basic social services constitute a essential safety net They should be guaranteed to all persons, regardless of their administrative status. These services act as a gateway to other fundamental rights and social protection resources.

Denial of access to basic social services may constitute a violation of fundamental rights, especially when it affects minors, persons with disabilities or persons in a particularly vulnerable situation.