Given the extraordinary regularization of migrants that the Council of Ministers will approve this Tuesday, through a royal decree, both PP and Vox have announced a series of political, parliamentary, and judicial appeals against the measure at the national and European level. In this context, while the Deputy Secretary for Sectoral Coordination of the Popular Party, Alma Ezcurra, has declared that "we will have to see what text comes to decide what avenues are followed and what channels are followed" to try to overturn it, when asked if her party plans to go to court against the regularization. The general secretary of Vox, Ignacio Garriga, assures that his party will take it to the Supreme Court, requesting its precautionary suspension.
Beyond the statements, it is worth asking what real possibilities exist that the measure can be stopped and if, in the improbable event that it is achieved, it would have retroactive effects. The regulatory window -extraordinary, limited and with very specific conditions- that the Executive opens today will close, presumably, on June 30. Those who manage to regularize their administrative situation in that period of time will remain within the system.
How the royal decree of regularization could be overturned
Unlike a royal decree-law, this type of norm does not go through a vote in Parliament, which completely conditions the ways to stop it. Thus, the main door to try to overturn it is the judicial one through an appeal that is filed before the Supreme Court, which is the one that controls the legality of the Government's regulations.
The arguments to try to annul it can be several: excess of regulatory power (regularization without sufficient legal coverage), possible clash with Organic Law 4/2000 and defects in the approval procedure
If the court upholds the appeal, the royal decree would be annulled.
As we have pointed out, the Congress of Deputies cannot directly overturn it, lacking the capacity to repeal it by vote, as is the case with decree-laws.
Its margin to operate against the norm is indirect: to approve a law that contradicts the decree and politically force its modification.
What would happen if the Supreme Court overturns it
If the judicial path were to succeed and the Supreme Court annuls the royal decree new regularizations would stop and the legal framework would cease to apply, but that does not automatically imply reviewing everything already granted.
The papers already granted, can they be taken away?
The Spanish legal system protects two fundamental principles enshrined in Article 9.3 of the Spanish Constitution: legal certainty and non-retroactivity of unfavorable norms. Therefore, the papers granted to migrant people while the royal decree is in force cannot be revoked.
This means that, as a general rule, migrants who have already obtained residence permits would maintain their new legal status.
When the permits could indeed be reviewed
Only in very specific cases such as fraud or falsehood in the application or serious administrative errors. Even in these cases, the review would be individual and there would not be a massive withdrawal of rights.
Precautionary measures?
As we have said, the approval of the royal decree does not close the judicial path and any political party, autonomous community or legitimate entity can appeal it before the Supreme Court and request its precautionary suspension, as Vox has anticipated it will do. Requesting precautionary measures would suspend its application while the merits are resolved, although the key is to know what probabilities there are that the Supreme Court will agree to that suspension.
In the contentious-administrative jurisdiction, the court decides whether to suspend or not the rule based on a balance: irreparable harm if the rule is applied, general interest in it remaining in force and appearance of good law (that the appeal is not unfounded)
That the Supreme Court suspends the entire royal decree from the beginning is uncommon because the legality of the norm is presumed, there is a strong general interest (migratory policy, public order, administrative management) and suspending it would have broad immediate effects.
A partial suspension would be more plausible if there were clear legally weak points. The court could suspend specific articles or limit certain effects.
However, the most common is that the Supreme Court not suspend the decree as a precautionary measure and allow it to be applied while the appeal is resolved. In this regard, the time factor is key, since the merits can take months or years to be resolved.
What happens with the renewal of permits
The discussion about regularization is not limited to its approval, but to its legal resistance over time, although in this case it is born with an expiration date. An eventual appeal before the Supreme Court can become a battlefield, but with a clear limit: Spanish law protects the legitimate trust of those who have already accessed rights under an existing norm. In that context, any attempt at massive reversal would not only be legally complex, but with high probabilities of being rejected by the courts.
The extraordinary regularization of migrants will issue residence permits to more than 500,000 people, according to the most conservative estimates. These permits are temporary and are conditioned on meeting certain requirements at the time of their renewal, which obliges the Administration to apply the general framework, bringing into play Organic Law 4/2000, which regulates residence and work authorizations in Spain.
In a hypothetical more restrictive scenario, greater requirements could be demanded for a renewal, although in practice courts and administration tend to :
- Avoid legal loopholes that generate supervening irregularity
- Facilitate the transition to the ordinary regime
- Analyze each case individually
This reduces the risk of a “block fall” of renewals.