Employer sponsorshipi Work permits
To work in Spain, a work permit is required that is obtained with the residence permit. The types of permit vary depending on whether the migrant will be working for himself or herself, or for others. For non-EU citizens, an essential document is the visa, which must be processed in the country of origin and is requested at and produced by the consulates of Spain in the respective countries.Classes of work permitsWorking for others
The initial authorisation of temporary residence and paid employment will enable foreigners residing outside of Spain and who have obtained the corresponding visa to start an employment relationship for others.
Types of work permits to work employed by others include:
- Type B (initial) for a specific sector or activity and geographical area, valid for one year, after which it is possible to obtain a Type B (renewed) permit;
- Type B (renewed) authorises the exercise of any activity throughout the national territory and is valid for two years; and
- Type C authorises the exercise of any activity throughout the national territory. The holders of a Type B (renewed) permit may obtain a Type C permit at the end of the Type B (renewed) permit's two-year term.
Types of work permits to self-employed individuals by others include:
- Type D (initial) may be limited to the exercise of a specific activity and for a specific geographical area, valid for one year, after which the holders of a Type D (initial) permit can obtain a Type D (renewed) permit;
- Type D (renewed) authorises the exercise of any activity throughout the national territory and is valid for two years; and
- Type E authorises the exercise of any activity throughout the national territory. The holders of a Type D (renewed) permit may obtain a Type E permit at the end of the Type D (renewed) permit's two-year term.
Other types of permits include:
- Type F for cross-border workers, employed by others or self-employed;
- Type G work permit in the framework of transnational services; and
- Type A seasonal work permit.
Decisions refusing the granting and the renewal of work permits may be open to an administrative or judicial review. In accordance to Law 39/2015 of 1 October establishing the Common Administrative Procedure of the Public Administrations, there are two types of administrative appeal: an appeal for review by the institution that had adopted the decision and an appeal to a higher authority. The final administrative decision shall be susceptible of jurisdictional review according to Law 29/1998 of July 13 governing contentious-administrative jurisdiction.ii Labour market regulation
The main state employment laws in Spain are:
- the Spanish Constitution of 1978;
- Royal Legislative Decree 2/2015 of 23 October 2015 approving the revised text of the Law of the Workers' Statute;
- Law 31/1995 of 8 November 1995 on the Prevention of Occupational Risks;
- Organic Law 11/1985 of 2 August 1985 on Freedom of Association;
- Royal Legislative Decree 1/1994 of 20 June 1994 on Social Security and the Protection of the Labour Market;
- Law 23/2015 of 21 July 2015, on the Labour and Social Security Inspection System, which assigns the compliance monitoring of social regulations to the Labour and Social Security Inspectorate.
In accordance with Law 23/2015, the inspection function is carried out by the officials of the Superior Body of Labour and Social Security Inspectors and by the officials of the Labour Sub-Inspectorate. Labour and social security inspectors have competence in labour relations, prevention of labour risks, social security, employment, migrations (work of foreign nationals and migratory movements) and technical assistance.
The Labour and Security Inspectorate have the authority to investigate work places employing illegal immigrants through dawn raids, requesting visits before the acting official or representative of obliged persons (to provide documentation or make pertinent clarifications) or by virtue of an administrative file. Depending on the outcome of the investigation, public proceedings may be instigated. Inspection proceedings may be carried out by one or more officials and extended as necessary.iii Rights and duties of sponsored employees
Foreign sponsored employees have the same rights as Spanish workers; however, it is the responsibility of those workers to be autonomous with regard to their situation and renew their work permit when appropriate. For foreign workers who are employed by others and have not renewed or do not have their work permit in force, it is possible that the contract of employment will be terminated. If, during the development of a work activity and a contract in force, the work permit is lost, it is possible this will result in the termination or loss of employment by the company; it would be a situation of objective dismissal, as established by the Statute of Workers. In a situation of this type, the employer should be obliged to compensate the worker for dismissal for objective reasons.
After five years living legally and continuously within Spanish territory, foreign employees can apply for a long-term residence permit authorising them to reside and work in Spain indefinitely under the same conditions as Spaniards, so long as they:
- are not citizens of a Member State of the European Union, of the EEA or Switzerland, or family members of citizens of these countries to whom the regime of citizen of the European Union applies;
- are not residing illegally or without the necessary permission from the immigration authorities within Spanish territory;
- have no criminal record in Spain;
- are not prohibited from entering Spain;
- are not returning during a period whereby returning to Spain is forbidden, owing to the foreign national having voluntarily returned to his or her country of origin.
Further, to be granted nationality by residence, continuous residency in excess of 10 years is required; five years will suffice for those who have obtained refugee status, and two years in the case of nationals from Ibero-American countries, Andorra, Equatorial Guinea, the Philippines, Portugal or of Sephardi origin. One year will suffice in special cases, such as:
- those born in Spanish territory;
- those who did not exercise the right to opt for Spanish nationality in good time;
- those who have been legally subject to the guardianship, or fostering of a Spanish citizen or institution for two consecutive years, even if they continue in this situation at the time of the request;
- those who at the time of the application have been married for more than one year with a Spanish citizen and are not legally or de facto separated;
- the widow or widower of a Spanish citizen if on the death of the spouse there is no legal or de facto separation; and
- of Spanish descent by second or third generation.
In all cases, the residence must be legal, continuous and immediately prior to the request.