They point to a technical loophole that would allow it to be done while waiting for what the TC sets
MADRID, 11 Ene. (EUROPA PRESS) –
The agreement between Junts and the PSOE to delegate powers in immigration matters to Catalonia has raised doubts about its constitutionality, since the Magna Carta expressly says that it is a matter exclusive to the State, although the experts consulted by Europa Press point out to a technical loophole that could make it possible while waiting for what the Constitutional Court (TC) determined at the time.
The pact, which made it possible to save two key decree-laws for the Government, contemplates “the delegation of powers over immigration to the Generalitat through article 150.2 of the Spanish Constitution, through a specific organic law for Catalonia”, as well as as the “necessary resources”, all with the objective that the autonomous community can “make a comprehensive policy.”
Experts point to Article 149 of the Constitution as a starting point, which states the matters over which the State has exclusive jurisdiction, including “nationality, immigration, emigration, foreigners and the right to asylum.”
However, they point to a second precept, the same one claimed by Junts, 150.2, according to which “the State may transfer or delegate to the autonomous communities, through organic law, powers corresponding to matters of state ownership that by their very nature are susceptible to transfer or delegation”.
“Therefore, the State can take away powers through 150.2,” explains José María Porras, professor of Constitutional Law at the University of Granada and Jean Monet chair on migration.
David Ortega, professor of Constitutional Law at the Rey Juan Carlos University, adds that the key is the requirement established by that same precept by saying that the State may give up its exclusive powers whenever the “nature” of the matters allows it.
In statements to Europa Press, Ortega states that it is an “indeterminate legal concept” whose lack of definition opens the door to practically any exclusive competence being delegated, with the Constitutional Court (TC) being the only one that can determine which ones and in what conditions. what measure.
Other legal sources agree that, although a literal reading of the Constitution leads one to think that immigration powers cannot be delegated, 150.2 offers a technical loophole to do so.
In fact, they emphasize that over the years the system of exclusive powers outlined in the Constitution “has become quite flexible” to the point that it has become “a debate that is more material than formal.”
For the aforementioned sources, the ‘crux’ is where the red line is drawn. “If powers are delegated in an exclusive matter in such a way that its state character is emptied of its content, then it would be unconstitutional,” they illustrate.
However, it is not a peaceful interpretation. Thus, Isabel Álvarez, professor of Constitutional Law at Comillas ICADE, has no doubt that immigration powers cannot be delegated to the autonomous communities.
Álvarez emphasizes that “care must be taken” because, although the 150.2 route has been used frequently, “it is designed to delegate powers that are owned by the state but that are acceptable to the autonomous communities.”
The “assumable” ones, he specifies, are those reflected in Article 149 itself. And this is because in some, although it grants them the character of exclusive jurisdiction of the State, it adds a tagline that allows such transfer.
Thus, for example, in 149.1.7 it establishes that labor legislation is a state competence, “without prejudice to its execution by the bodies of the autonomous communities.”
For the university professor, it is clear that immigration powers cannot be delegated because in her case (149.1.2) the Constitution does not contemplate any exceptions.
Javier Tajadura, professor of Constitutional Law at the University of the Basque Country, also sees it as “clearly unconstitutional” to cede immigration powers to Catalonia. But for different reasons. He understands that the “nature” of the matter does not allow it because it affects “the very unity of the State.”
Porras, on the other hand, believes that it is possible to “attribute its management, not its ownership”, because precisely immigration “is a transversal matter that affects many issues – labor, health, social – which are things that the autonomous communities provide. “.
The professor at the University of Granada details that the hard core of the state’s jurisdiction in immigration refers to the legal status of the migrant, that is, entry, visa and expulsion. In his opinion, the rest is susceptible to transfer because “the daily management of the migrant is done by the autonomous communities.”
However, the majority of experts consulted agree that it will be the TC that must resolve, where appropriate, the game between 149 and 150.2, clarifying whether immigration powers can be delegated and to what degree.
