The Supreme Court (TS) has emphasized without unanimity the “public interest” and the “human substrate” in its decision not to provisionally suspend the extraordinary regularization of migrants approved by the Government. However, two judges have issued a dissenting opinion in which they are in favor of the provisional suspension of the royal decree.
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This is stated by the Contentious-Administrative Chamber in two orders, in which it responds to Vox and the Community of Madrid, who requested to suspend the regularization in a hearing held last Friday at the Supreme Court, which had already indicated that it opposed their requests and now argues its refusal.
The judges point out that in the royal decree challenged by both parties “there is an especially qualified public interest not only because it pursues a well-known public interest but because this public interest directly, intimately, and qualifiedly affects a human substrate that goes beyond mere economic consideration.”
“Such public interest is based on different justifications (of a humanitarian nature and respect for human rights with special emphasis on the protection of minors, economic nature, demographic nature, cultural and social nature, etc.)”, they indicate.
And they add that this public interest “essentially boils down to allowing the full integration of those foreign persons who remain in Spain for a prolonged period and who, due to causes beyond their control, cannot access a temporary residence permit due to exceptional circumstances.”
“In coherence with the above, full incorporation into the administrative and economic system strengthens Social Security, improves tax collection, and contributes to a more transparent and efficient labor market,” they maintain. In their view, this also “allows guaranteeing foreign persons the effective exercise of their rights and prevents situations of labor exploitation.”
The judges express that “interests of third parties would also be affected, such as the applicants for the authorizations themselves, since the requested suspension would determine that they remain in a situation of administrative irregularity, conflicting with the pursued public interest, with all that this entails, humanly, socially, and economically.”
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Dissenting opinion: “administrative amnesty”
However, judges Wenceslao Olea and Fernando Román have issued a dissenting opinion in which they are in favor of the provisional suspension of the regularization royal decree, considering that “it is not appreciated that the proposed suspension violates the rights of the potential beneficiaries of the royal decree.”
Furthermore, they point out that the regularization procedures provided for in several provisions “incorporate a unique regime that, in terms of legal technique, presents features typical of an administrative amnesty.”
“Those who apply for such regularizations and meet the conditions set out in the regulation are granted authorization, even in cases where there are pending expulsion or return orders,” they explain.
And they argue that “it is indisputable that a regulatory norm cannot produce such effects, especially when this conflicts with higher-ranking norms, such as European Union Regulations,” so “this circumstance alone would have required a more thorough examination before denying the requested precautionary measure.”
Regarding Hazte Oír, Asociación por la Reconciliación y la Verdad Histórica, and Libertad y Justicia, the court specifies that it dismissed their appeals for suspension “due to lack of active standing.”
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