Spain’s Top Court Questions Migrant Regularization, May Refer to EU

Spain’s Supreme Court has asked the government and several regional authorities whether it should refer the country’s migrant regularization plan to the European Court of Justice (ECJ). The court wants to know if the plan conflicts with European Union law. The court gave the parties five days to respond. This step comes before the court decides on emergency requests from two regions, Aragon and Valencia, which want the process suspended. Valencia has already said it supports sending the case to the ECJ and has asked for an immediate halt to the plan. The disputed measure is a royal decree that offers temporary residency to irregular migrants who applied for international protection before January 1, 2026. It applies even if their protection request was denied or if they face deportation. The court’s three judges—Carlos Lesmes, Wenceslao Olea, and Fernando Román—raised several legal questions. They noted that the EU approved a new Migration and Asylum Pact in 2024, which includes rules that are not yet fully in force. The judges asked whether Spain can pass a general regularization law that may go against those future EU rules. The judges also pointed out that the Spanish decree allows residency for people who are under deportation orders. They said this may violate the EU’s Return Directive, which requires EU states to issue return decisions for irregular migrants. Spain has not yet adopted this directive into national law. Additionally, the judges argued that Spain did not notify the European Commission or coordinate with other EU countries before launching the plan. They estimate the regularization could affect between 900,000 and 1.65 million people. Once granted a one-year residency, these individuals can travel freely in the Schengen area for 90 days out of every 180. The European Commission previously stated that the regularization was legal. It declined to comment on the Supreme Court’s latest move. In May, the same court rejected a request from the Madrid region to suspend the process. At that time, a panel of seven judges ruled that there was no proof the plan would overwhelm public services. Two of the current three judges, Olea and Román, voted against that decision and called for the case to be sent to the ECJ. The court’s new step does not automatically suspend the regularization. A final decision on whether to refer the case to the ECJ is expected soon.