First, opportunity: this policy of regularization responds to reasons of substantive justice, protection of fundamental rights and social cohesion. And yes, in addition, prioritize the general interests of Spain, such as supporting the labor market, fiscal reform and the fight against the submerged economy.
The second is the institutional plan: if such a decision, which may affect half a million or a million people, must be taken by general courts. Or it is enough if the government adopts it by regulation in the development of Basic Law 4/2000 on the rights and freedoms of foreigners (LOEx).
no embargo, if you paid less attention to the third party, more technique and -sin doubt- the most boring, but decisive from a legal point of view.
And if the draft decree respects the principle of compliance with regulations. It is clear that the modifications that the government intends to introduce in Royal Decree 1155/2024 of 19 November – specifically in the fifth and sixth transitional provisions – to create authorization for “extraordinary circumstances” are limited to the implementation of the existing legal qualification. Or, on the contrary, they change the regime proposed by LOEx and exceed the legal coverage.
Elma Saiz and Fernando Grande-Marlaska at the last meeting of EU interior ministers in December 2025
This is exactly the issue that will end up being resolved by the Supreme Court when the disputed administrative actions you reported are inserted.
Because the Most High—using castizo terms— regardless of whether the reform is suitable for Spain until the regulation is in LOEx.
If the answer were yes, a second finding would be necessary. Yes, it also complies with the European Directive, in particular with Regulation 2024/1351 of the European Parliament and of the Council of 14 May 2024 on asylum and migration management.
Let’s note down some elementary concepts.
In our legal system, regulations for the creation of a law cannot modify this law, nor introduce substantial innovations where the legislator did not request them.
Article 9.3 of the Constitution introduces the principle of normative legislation, and Articles 53.1 and 81 reserve the regulation of fundamental rights, including foreign rights, to the Basic Law.
The Supreme Tribunal has had occasion to comment many times on various foreign regulations which have been in force. And the jurisprudence is constant on this point (SSTS 1924/2003, dated March 20; 4259/2010, dated June 1, 731/2023, dated June 5, etc.): the regulation cannot innovate the order in content aspects that are not clearly established organically in the law.
The legal protection invoked by the project of the actual decree is the provision of Basic Law 4/2000, which allows temporary residence permits to be granted for “extraordinary circumstances”, in addition to being legally enforceable.
“If the executive branch intended at this point that extraordinary regularization would require the intervention of the legislature, it is difficult now to argue that it can be put into practice through regulation”
This clause does not now constitute a general qualification for redefining the residence access model. It is not a blank check for the government.
The Supreme Court has cautioned on numerous occasions that open regulatory qualifications must be construed restrictively, precisely to prevent the regulation from being ineffective in limiting the will of the legislature.
It is one thing that precise or complete regulations on the exceptional exceptions envisaged by law – social, work or family -. Another very different thing that transforms this exception into a general mechanism of regularization, accessible to an indefinite number of people through a very wide variety of means of proof, most of which are not directly or indirectly foreseen in the LOEx.
In this form, in strict legal terms, exceptionality is accepted as the rule and the regulation must be a norm of development in order to transform itself into a norm superseding the legislature.
The limited space of the article in print forces me to focus on one of the various arguments that can be made to reaffirm the idea that the changes envisaged in the foreign regime cannot be made by regulation: the proper behavior of the government that in the past considered it necessary to modify the Basic Law 4/2000.
As is clear, the legislative proposal of a citizen’s initiative for the extraordinary regularization of foreigners in Spain is currently passing through Congress.
The government explicitly supported this consideration during a debate in the full House of Congress on 9 April 2024.
“The regularization of this matter by regulation is not a matter of social sensitivity if it does not respect the principle of legality”
If his own executive at the time intended that extraordinary regularization would require the intervention of the legislature, it is hard to argue now without creating contradictions that such regularization can be pushed to the limit by regulation.
As of November 2024, the government has approved a new LOEx regulation (RD 1155/2024) without this regulation, disproving the idea that it would not be considered possible to implement without prior modification of the organic law.
At this point we can turn to the three agendas of the immigration regulation debate.
At the political level, he is a perfectly legitimate advocate that extended emergency regularization is necessary, just, and convenient.
It is also argued that Spain needs a more flexible and realistic migration policy.
But from a legal point of view, the conclusion must be clear: the royal decree project is illegalin medicine, which aims to formulate a general regularization of foreigners through the extensive and unnatural use of the “extraordinary circumstances” category of the LOEx, adapting to requirements, planning methods and areas not foreseen by this law.
If you want to correct this situation, the constitutionally correct way is the legislative way. Having it regulated is not a matter of social sensitivity (which for the most part the government has not discussed until this year 2026) as long as it does not respect the principle of legality.
The principle which, as the Roman plebeians knew when there were twenty siglos, bound the patricians to lay down in writing the laws of their city, protects citizens from the arbitrariness of the powerful. Ubi lex, ibi libertas.
*** Agustín Ruiz Robledo is Professor of Constitutional Law at the University of Granada and Visiting Professor at BITS Pilani Law School, Mumbai..
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