The extraordinary regularization of more than 500,000 migrants announced by the Government, and which the Council of Ministers plans to approve today, continues to cause rejection from parties such as Vox and the PP – its deputy secretary of Sectoral Coordination, Alma Ezcurra, has announced that they will do everything in their power to denounce what they consider “nonsense.” But now it is the Council of State that has also made public its assessments, especially critical of the criminal records of the beneficiaries.
Given this, the Association for Reconciliation and Historical Truth (ARVH) had already notified in writing to the Ministry of Inclusion about the absence of procedure for not complying with the reservation of law regulated in the 3rd Transitional Provision of the LOEX, and the lack of motivation and opportunity when lowering the roots times, “already very flexible and not very rigorous” and “for such a short period of no less than 5 months”, apart from what “inappropriate” that it can be enough “to request criminal records without representation or with a mere email.”
After learning – through the press – of the mandatory and non-binding report of the Council of State, the entity demands the suspension of the procedure upon detecting that its allegations, presented on time in February, have not been incorporated into the file or evaluated in the advisory opinion. To this end, it has activated a double response in two letters addressed to the Ministry of Inclusion and the Council of State itself.
Thus, the association has once again turned to Elma Saiz’s portfolio, to which it already formulated a prior request in February for the existence of de facto proceedings and for violation of fundamental constitutional rights. The association now appeals that the allegations presented “we do not know that they have been incorporated into the file,” nor that “have been sent to the Council of State” or have “been considered in the opinion issued by this body on April 9.”
Jurisprudence
It also insists to the Ministry of Housing that participation in the regulatory procedure is not merely formal, but implies “reception, consideration and incorporation into the file.” Likewise, it recalls, with the support of jurisprudence of the Supreme Court, the obligation to “send the complete file to the Council of State” and that, where appropriate, “allegations were made within the deadline” and “there is proof of presentation”, but “they do not appear in the file sent nor have they been considered or analyzed”, so the advisory institution “could not rule on essential arguments” and “issued an opinion on an incomplete file”.
According to the association, this does not represent “a mere irregularity, but rather it is a structural, essential defect, constituting a defect of nullity by operation of law (art. 47.1.3 Law 39/2015) because it affects the content of the opinion; “It prevents its real advisory function and conditions the Government’s decision.”
Regarding the legal consequence of all of the above, the entity recalls that “the omission of relevant allegations determines” a “violation of the regulatory procedure”, the “infringement of the right of participation”; a “flawed opinion”, as well as “nullity”. For all these reasons, it requests that “the processing of the royal decree on the regularization of foreigners be suspended”; that “the omitted allegations” presented by the association itself, “be incorporated and transferred to the Council of State so that it can expand its opinion”; “that the procedure be taken back to the moment prior to the new elaboration on these essential points of the Council of State’s opinion”that “the complete file be sent again” to the highest advisory body of the Government so that it can rule on it, under penalty of radical annulment (art. 47.1.e Law 39/2015) of the entire procedure.
As for the Council of State, the Association for Reconciliation directly asks “that its “appearance” in the procedure be considered formulated and that it be “transmitted, as an interested party, of the entire file processed” in the opinion. Furthermore, “that the Government be required to forward the omitted allegations and that they be considered attached now at the same time”; that “the consultative procedure be declared incomplete and continue with it, with the need for this Council of State to rule on all the allegations presented by this association” and that, “Where appropriate, the opinion issued is reviewed or supplemented in relation to the points stated.”
If what it considers its “legitimate requests” is not taken into account, the entity plans to present a contentious-administrative appeal today, as confirmed to LA RAZÓN by its president, Javier Campal.
Criminal record: “The statement is not enough”
According to the president of the Council of State, Carmen Calvo, the body “issues observations and recommendations every week”, so it is nothing new that it is being done now. Among the “essential observations”, a regulatory name, not a political assessment to “reinforce the legal security of the process”, Calvo highlighted the one related to criminal records. According to him, “a mere declaration by the person requesting regularization of their situation is not enough, but it must be effectively guaranteed that this record does not exist.”