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RECENT MODIFICATION OF SPANISH STATUTORY LAW 4/2000 ON FOREIGN LAW: LAW 8/2000 OF 22 DECEMBER. HOW IT MAY AFFECT CARRIERS.

In our Circular 1A/2000 of April 2000 we advised that a new statutory law number 4/2000 on the status of a foreigner had come into force on the 1^st February 2000. This new law adapted to the postulates of the Amsterdam treaty and regulated the rights and liberties of foreigners in Spain and their social integration. Spain being one of the chosen goals for stowaways, we also commented in our Circular 1A/2000 how this law could affect stowaways’ cases.

We reviewed the title of Infractions and Sanctions of law 4/2000, basically informing that:

a)      Article 50 determined and detailed the very severe infractions.

b)      According to art. 50.c) it was a severe infraction: “TO INDUCE, PROMOTE, FAVOUR OR FACILITATE, FORMING PART OF A PROFIT-MAKING ORGANIZATION, THE ILLICIT INTEGRATION OF PEOPLE IN TRANSIT OR WITH DESTINATION TO SPANISH TERRITORY”.

c)      Article 51 sanctioned the previous infraction with a fine of from one million to ten million pesetas.

The Government had six months from the 01.02.2000 to approve the Regulation of this law. Instead, on the 22 December 2000 a new statutory law was approved modifying the previous law 4/2000. This new law 8/2000 came into force last December and has three articles, the first of which introduces modifications to all the articles of law 4/2000.

Therefore, Title III of law 4/2000, relative to the infractions and the sanctioning regime, has been modified and the new articles will remain as described in law 8/2000. With this modification article 54 of the law now determines the very severe infractions (“INFRACCIONES MUY GRAVES”). These infractions are, amongst others:

1) TO INDUCE, PROMOTE, FAVOUR OR FACILITATE, FORMING PART OF A PROFIT-MAKING ORGANIZATION, THE ILLICIT INTEGRATION OF PEOPLE IN TRANSIT OR WITH DESTINATION TO SPANISH TERRITORY AS LONG AS THE ACT DOES NOT CONSTITUTE A DELICT.

2) THE TRANSPORT OF FOREIGNERS, EITHER THROUGH AIR, SEA OR INLAND, TO THE SPANISH TERRITORY BY THE INDIVIDUALS OR COMPANIES RESPONSIBLE OF THE TRANSPORT WITHOUT HAVING VERIFIED THE VALIDITY OF THEIR PASSPORTS, TRAVEL TITLES OR IDENTIFYING DOCUMENTATION, AND WITHOUT HAVING VERIFIED THAT THESE DOCUMENTS ARE IN FORCE. THE SAME WILL APPLY TO THE VISA WHEN THIS EXISTS.

3) THE NONFULFILMENT OF THE CARRIERS’ OBLIGATION TO IMMEDIATELY TAKE CHARGE OF THE TRANSPORTED FOREIGNER THAT HAS NOT BEEN AUTHORISED TO ENTER INTO SPAIN DUE TO DEFICIENCIES IN THE DOCUMENTATION MENTIONED IN THE PREVIOUS POINT.

THIS OBLIGATION WILL INCLUDE THE MAINTAINANCE COSTS OF THE FOREIGNER AND THE TRANSPORT COSTS WHICH WILL HAVE TO TAKE PLACE IMMEDIATELY EITHER THROUGH THE COMPANY THAT IS BEING SANCTIONED OR THROUGH ANY OTHER TRANSPORT COMPANY.

1)      HOWEVER, IT WILL NOT BE CONSIDERED AN INFRACTION TO THIS LAW THE FACT OF TRANSPORTING TO THE SPANISH BORDER TO A FOREIGNER WHO, HAVING MADE AN IMMEDIATE APPLICATION FOR ASYLUM, THIS APPLICATION IS ACCEPTED TO PROCEEDINGS ACCORDING TO SPANISH LAW 5/1984 AS MODIFIED BY LAW 9/1994.

The sanctions described in previous points number 1, 2 and 3 will continue to have a fine of from one million to ten million pesetas, same fine as established in law 4/2000 before being modified.

It should however be noted that the previous modification, even though in force, is still object of strong government discussions and some parties are willing to take this law to the Constitutional Tribunal. Furthermore, how will the previous infractions be applied to carriers is still uncertain, specially bearing in mind that an interpretation was already made to certain articles of the 1992 Spanish law on Ports and Merchant Navy in order to fine carriers and shipowners either when a stowaway escaped from a vessel in Spanish ports or when vessels calling to Spanish ports did not inform to the port authorities carrying stowaways on board.