The new process, regarded as one of the most comprehensive immigration reform initiatives in Spain in recent years, represents not merely an administrative reform but also a turning point that is redefining the direction of the country’s immigration policy. The government’s objective is to grant legal status to more than half a million irregular migrants; however, this ambitious goal has triggered significant debates on legal, administrative, and political grounds. In particular, the report prepared by the Council of State being Spain’s highest advisory body, raises important reservations regarding the technical foundations of the reform and gives rise to serious questions about the sustainability of the process.
From a political perspective, the government’s determination to implement this reform directly through a regulation, rather than passing it through parliament, is particularly noteworthy. This situation enhances the executive’s capacity to act swiftly; however, it also gives rise to debates in terms of democratic legitimacy and legal oversight. From a technical standpoint, the Council of State’s report indicates that implementing the reform in its current form could undermine the principle of legal certainty.[i] At this juncture, the central issue is the extent to which a large-scale regularization process can be made flexible and the degree to which such flexibility may jeopardize legal stability.
One of the report’s most critical objections concerns the verification of applicants’ criminal records. In practice, requiring migrants to submit official documents from their countries of origin is often not feasible; for this reason, the government has proposed an alternative “declaration-based” system. However, the Council of State emphasizes that this approach could give rise to serious security and legal concerns.[ii] The institution’s position is quite clear: no action should be taken in the absence of reliable data. This once again brings to the forefront a recurring dilemma in migration policy: how can a balance be struck between accelerating integration and safeguarding public security?
In addition, the report raises significant concerns regarding the internal coherence of the regulation. In particular, the requirement for migrants to provide documentation in relation to expungement of criminal records in Spain is regarded as contradictory, given that the administration itself has access to such records. Practices of this kind contribute to the overcomplication of administrative procedures and impose an additional burden on applicants. Furthermore, targets such as the acceptance of applications within 15 days and their resolution within 3 months appear highly optimistic in light of the current administrative capacity.
One of the most controversial aspects of the reform concerns its exemption provisions. The government’s proposal not to require criminal records from migrants who have been in Spain for five years has been strongly criticized by the Council of State. This is because, in many cases, it is not possible to substantiate how long a person in an irregular situation has actually remained in the country. Similarly, the relaxation of the criminal record requirement on the basis of the validity of documents submitted in the past is also considered problematic from a logical standpoint, as it overlooks the possibility that individuals may have committed offences over time. For this reason, the report argues that both exemptions should be abolished.
Another significant issue concerns the evidentiary value of documents, particularly the acceptance of expired passports and travel documents. The government proposes using these documents to establish migrants’ dates of entry into the country; however, both the Ministry of the Interior and the Council of State have indicated that this approach is not reliable.[iii] At the same time, the practical impossibility of hundreds of thousands of migrants obtaining valid documentation within a short period calls the feasibility of the reform into question. At this point, the gap between legal idealism and administrative reality becomes increasingly apparent.
The issue of administrative capacity stands out as one of the reform’s most critical vulnerabilities. Approximately 750,000 applications are expected to be processed within a short period, placing considerable strain on the limits of the existing bureaucratic structure. In particular, the roles assigned to institutions such as the Agricultural Transformation Agency (Tragsa) and the Spanish Postal Service (Correos) have generated controversy with regard to the boundaries of their legal authority. The Council of State stresses that these institutions should provide only technical support; otherwise, there is a risk of exceeding their legally defined competences.[iv] This situation illustrates how the distribution of responsibilities in public administration requires an especially delicate balance.
Another critical dimension of the reform concerns individuals who have applied for international protection. The regulation allows these individuals to participate in the process; however, in return, they are required to withdraw their asylum applications. This has been criticized, particularly by civil society organizations operating in Spain, such as the Spanish Commission for Refugee Aid (SCRA), on the grounds that asylum status offers a stronger form of legal protection. Encouraging migrants to waive this right in exchange for a weaker status may give rise to serious ethical and legal concerns.
All these debates reveal that Spain is facing a fundamental dilemma in its migration policy: should it seek to build a more inclusive and flexible system, or should strict rules and oversight mechanisms be prioritized?
The government seeks to expand flexibility in order to accelerate social integration and reduce informality; however, the Council of State cautions that this approach may undermine legal certainty. In this context, the reform emerges not merely as a technical adjustment, but also as a matter of normative choice.
Viewed within this broader framework, Spain’s regulatory initiative should be understood as part of a wider European debate on migration governance. The integration of migrants in an irregular situation into the system may offer both economic and social advantages. However, it would be in the government’s interest to ensure that this process does not conflict with fundamental principles such as legal certainty and public security. Otherwise, short-term solutions may give rise to greater problems in the long term.
Spain’s comprehensive immigration reform plan is, in theory, aimed at enhancing social integration and reducing informality; however, in practice, it entails serious legal and administrative risks. The objections put forward by the Council of State do not suggest that the reform should be rejected outright, but rather that it should be placed on a more solid legal foundation. In this context, the success of the regulation will depend on the balance to be struck between flexibility and legal certainty. Otherwise, a well-intentioned reform initiative may lead to systemic problems during the implementation phase.
[i] Martínez, María P. “Regularización bajo lupa: las principales objeciones del Consejo de Estado.”, Mundiario, https://www.mundiario.com/articulo/politica/regularizacion-lupa-principales-objeciones-consejo-estado/20260411184704382135.html, (Date Accessed: 12.04.2026).
[ii] Ibid.
[iii] Ibid.
[iv] Ibid.
