Foreigner Rights & Work in Spain (PDF)

# AUXILIAR DE ENFERMERÍA DEL INSTITUTO NACIONAL DE GESTIÓN SANITARIA (INGESA) ## 3. Concepto de extranjero: comunitario y extracomunitario Before studying the issues relating to healthcare, work, and Social Security, which are the specific focus of this topic, it is necessary to define the concep...

# AUXILIAR DE ENFERMERÍA DEL INSTITUTO NACIONAL DE GESTIÓN SANITARIA (INGESA) ## 3. Concepto de extranjero: comunitario y extracomunitario Before studying the issues relating to healthcare, work, and Social Security, which are the specific focus of this topic, it is necessary to define the concept of *foreigner* as provided by the [Ley 4/2000](https://www.boe.es/buscar/act.php?id=BOE-A-2000-6470) (modified by [Law 2/2009](https://www.boe.es/buscar/act.php?id=BOE-A-2009-3420)). Article 1 of the consolidated text of Law 4/2000 states that "those who lack Spanish nationality" are considered foreigners. The amendment introduced by [Law 2/2009](https://www.boe.es/buscar/act.php?id=BOE-A-2009-3420) specifies that nationals of the Member States of the European Union and those to whom the Community regime applies shall be governed by the rules that regulate it. The law on the rights and freedoms of foreigners in Spain applies to them in those aspects that may be more favorable. Foreigners in Spain enjoy the rights and freedoms recognized in Title I of the Constitution under the terms established in international treaties and national legislation, and the general interpretative criterion is that foreigners exercise the rights that are granted to them "[i]n conditions of equality with Spaniards" (Article 3 of [Law 4/2000](https://www.boe.es/buscar/act.php?id=BOE-A-2000-6470)). ## Activity 1 Indicate whether the following statement is true or false: "Foreigners in Spain shall enjoy the rights and freedoms recognized in Title I of the Constitution under the terms established in the Constitution. As a general interpretative criterion, it may be understood that foreigners exercise the rights that this Law recognizes in conditions of equality with Spaniards." - True ☐ - False ☐ ## 4. The right to work and Social Security for foreigners ### 4.1. Right to exercise remunerated activity and access to the Social Security system As a prior question, it is necessary to clarify the immigration policy according to article 2 bis of [Law 4/2000](https://www.boe.es/buscar/act.php?id=BOE-A-2000-6470) (added by [Law 2/2009](https://www.boe.es/buscar/act.php?id=BOE-A-2009-3420)). - **The Government** is responsible for defining, planning, regulating and developing immigration policy, without prejudice to the powers that may be assumed by the Autonomous Communities and Local Authorities. In this context of normative competence, Article 2 bis states that all Public Administrations shall base the exercise of their competences related to immigration with respect to a series of principles, including "7) equality of treatment in labor and Social Security conditions". Therefore, Article 10 of [Law 4/2000](https://www.boe.es/buscar/act.php?id=BOE-A-2000-6470) establishes that resident foreigners who meet the requirements established in this Organic Law and in the provisions that develop it, have the right to exercise remunerated activity on their own account or for others, as well as access to the Social Security system, in accordance with current legislation. Furthermore, foreigners may access public employment under the terms provided for in the Consolidated Text of the Basic Statute of Public Employees. In the context of the right to work, it is also necessary to highlight the rights to trade union membership and strike that Article 11 of [Law 4/2000](https://www.boe.es/buscar/act.php?id=BOE-A-2000-6470) establishes: Foreigners are entitled to join a trade union or affiliate with a professional organization freely, under the same conditions as Spanish workers. Furthermore, foreigners may exercise the right to strike under the same conditions as Spanish workers. Article 14 of [Law 4/2000](https://www.boe.es/buscar/act.php?id=BOE-A-2000-6470) also establishes that resident foreigners have the right to access Social Security benefits and services under the same conditions as Spaniards. Resident foreigners are entitled to social services and benefits, both general, basic ones as well as specific ones, under the same conditions as Spaniards. In any case, disabled foreigners, minors under the age of eighteen years, and those who have their habitual residence in Spain, shall have the right to receive the treatment, services and special care required by their physical or mental condition. Foreigners of any administrative status shall have the right to basic social services and benefits. ## 4.2. Authorization of residence and work Article 36 of [Law 4/2000](https://www.boe.es/buscar/act.php?id=BOE-A-2000-6470) states: 1. Foreigners aged eighteen years and over shall require prior administrative authorisation to carry out any gainful, professional or vocational activity, in order to reside and work. The authorization to work shall be granted jointly with the authorization to reside, unless those exceptional cases described by regulation are met. 2. The effectiveness of the authorization to reside and work shall be conditional on the worker's registration in Social Security. The managing body shall verify, in each case, the prior habilitation of foreigners to reside and carry out their activity. 3. When a foreigner intends to work on his own account or for others, in a profession requiring specific professional qualifications, the grant of the authorization shall be conditional on the possession of the relevant qualifications and, where appropriate, their homologation, as well as the membership, if required by law, to the relevant professional body. 4. To hire a foreigner, the employer shall apply for the authorization referred to in paragraph 1 of this article, which shall in any case be accompanied by the employment contract that guarantees continued activity during the period of validity of the authorization. 5. The lack of the authorization to reside and work, without prejudice to the employer's liabilities in that regard, including those under Social Security, shall invalidate the employment contract with respect to the worker's rights. Furthermore, it shall not be an obstacle to obtaining the benefits derived from circumstances envisaged by international agreements protecting workers, or any other benefits to which they may be entitled, provided that they are compatible with their situation. In any case, a worker who lacks the authorization to reside and work shall not be entitled to unemployment benefits. Except as provided for by law, the recognition of a benefit shall not alter the foreigner's administrative situation. 6. In initially granting authorizations for administrative purposes for work, special criteria may be established for certain nationalities depending on reciprocity principles. 7. No authorization shall be granted to reside and carry out any gainful, professional or vocational activity to those foreigners who, within the framework of a voluntary return program to their country of origin, have undertaken to refrain from returning to Spain for a specified period, until such period has passed. 8. The conditions and requirements for the participation of foreign workers in limited liability companies and cooperatives shall be established by regulation. ### 4.2.1. Authorization of residence and work on own account To carry out economic activities on own account, it shall be necessary to prove that all the requirements that current legislation requires for nationals to open and operate the projected activity are met, as well as those pertaining to the sufficiency of the investment and the potential creation of employment, among others that are established by regulation (Article 37 of [Law 4/2000](https://www.boe.es/buscar/act.php?id=BOE-A-2000-6470)). The initial authorization to reside and work on own account shall be limited to an area not larger than that of an Autonomous Community and to one sector of activity. Its duration shall be established by regulation. The grant of the initial authorization to work, in necessary coordination with the one corresponding to the State in the matter of residence, shall be the responsibility of the Autonomous Communities in accordance with the competences assumed in their respective Statutes. **Activity 2** In relation to the authorisation to reside and work on own account, indicate the correct option: a) The initial authorization to reside and work on own account shall be limited to an area larger than that of an Autonomous Community. ☐ b) Its duration shall be established by law. ☐ c) The grant of the initial authorization to work, in necessary coordination with the one corresponding to the State in the matter of residence, shall be the responsibility of the State in accordance with the competences assumed in its respective Statutes. ☐ d) None of the above. ☐ ### 4.2.2. Authorization of residence and work on account of others For the initial grant of the authorization to reside and work, in the case of workers on account of others, the national employment situation shall be taken into account (Article 38 of [Law 4/2000](https://www.boe.es/buscar/act.php?id=BOE-A-2000-6470), and Article 65 of Royal Decree 557/2011, (Regulation of Foreigners)). The national employment situation shall be determined by the State Public Employment Service with the information provided by the Autonomous Communities and with that derived from official statistical indicators. This catalog shall contain a list of jobs for which it is difficult to secure coverage. Such catalog shall contain a list of jobs that should be filled through the recruitment of foreign workers. It shall be approved following consultation with the Tripartite Labor Commission on Immigration. - Foreigners may be hired when the State Public Employment Service assesses that the demand for employment opportunities is insufficient for the specific requirements of the company that is seeking to hire the foreigner. Regulation shall establish the minimum requirements for considering that the demand for employment opportunities is insufficient for the specific requirement of the company that seeks to hire the foreigner. This exemption from the general demand for employment opportunities may apply in the case of family members (spouse, children, parents), refugees, etc.). - The procedure for granting the initial authorization to reside and work, without prejudice to the cases provided for obtaining authorization to reside and work, shall be initiated, once the employer has submitted to the relevant authority a request for authorization to fill a vacant job, accompanied by the employment contract and the corresponding verification of the fulfillment of the requirements, the competent authority shall issue an authorization whose effectiveness shall be conditional on the foreigner applying for the relevant visa and that, once in Spain, the worker is registered in Social Security. The initial authorization, as well as the renewals, are governed by Articles 67 and subsequent ones of the Foreigners' Regulation. - The employer or employer shall be obliged to communicate the withdrawal of the request for authorization if, while the authorization or visa are being processed, the need for the foreign worker disappears or the conditions of the employment contract that served as grounds for the request change. Furthermore, when the foreign worker who has been habilitated is in Spain, he or she must register the employment contract with the State Public Employment Service and formalise the worker’s registration in Social Security and, if this is not possible for the labor relationship to begin, the employer or employer shall be obliged to notify the competent authorities. - **The initial authorization to reside and work shall be limited** to a specific territory and occupation, except as laid down by law and the International Agreements signed by Spain. Its duration shall be established by regulation. - The authorization to reside and work shall be renewed upon its expiry: - When the employment contract that led to the initial grant continues or is renewed, or when a new employment contract exists. - When the relevant authority, in accordance with the regulations governing Social Security, grants unemployment benefits. - When the foreigner benefits from an economic and social assistance allowance of public character aimed at ensuring his social or labor integration. - When other circumstances arise as detailed in the regulations, especially in situations where the employment contract is terminated or the employment relationship is suspended as a result of experiencing gender-based violence. - After the first grant, authorisations shall be issued without any limitation whatsoever as regards geographical area or occupation. - The grant of the initial authorisation to work, in necessary coordination with the one corresponding to the State in the matter of residence, shall be the responsibility of the Autonomous Communities in accordance with the competences assumed in their respective Statutes. **Activity 3** Fill in the blank with the appropriate word(s): In relation to the authorisation to reside and work, _after the first grant, authorisations shall be issued without any limitation whatsoever as regards geographical area or occupation._ ## 4.2.3. Exceptions to the work permit Article 41 of [Law 4/2000](https://www.boe.es/buscar/act.php?id=BOE-A-2000-6470) sets out the activities for which it is not necessary to obtain a work permit (developed by Articles 117 and subsequent ones of the Foreigners' Regulation): a) Foreign technicians and scientists who are invited or hired by the State, the Autonomous Communities or local entities or institutions dealing with research, who are primarily or majority-owned and run by any of the aforementioned bodies. b) Foreign teachers who are invited or hired by a Spanish University. c) Foreign managers and teachers of cultural and educational institutions that are officially recognised by Spain, which are either from other countries or private institutions with a proven reputation, who are running cultural or educational programs in Spain. Their work shall be limited to carrying out such programs. d) Foreign civil servants or members of the armed forces of foreign governments who come to Spain to carry out tasks within existing agreements for cooperation with the Spanish Government. e) Correspondents of foreign news media, who have been duly accredited, to work as journalists. f) Members of international scientific missions who are authorised by the Spanish authorities to carry out research and investigations in Spain. g) Performers who come to Spain to carry out specific performances that do not amount to ongoing employment.