Spanish and international migratory proceedings are compiled and codified in the in various laws and regulations. It is the establishment and precision of each of the different elements and legal requirements of each migratory process in said laws what allows one to understand each process, generally this information is public, and everyone has unrestricted access to it; thus, enabling the distribution of each of the processes’ requirements. It is in fact that clear and transparent nature of the administrative requirements which allow allows one to get to know the proceeding’s estimated duration, documents that need to be submitted and an allows one to get a feel for the process.

However, in each of the migratory processes there are certain ambiguous components and elements, whose imprecision causes the criteria to which the applicant must adhere to difficult to discern. It is in large part this lack of the legal requirements’ identification pertaining to each of process what grants the Administration a discretion and an elective modus operandi. Generally, the Administration’s inclinations are unknown.

The reality is that the line that differentiates discretion and arbitration is quite thin and can cause an aversion to migratory procedures.

The truth is that to discern the Administration’s tacit requirements for each of the different migratory procedures, the one and only solution is experience, through which one can deduce and infer the implicit legal requirements.

Moreover, the Administration does not only not have to in a lot of instances need to publicize and divulge their standards, but it is also not obliged to justify and back up in depth their decisions.

Evidence of the Administration’s discretion can be found in the various Ministerial memos, files and newsletters, all which we recommend are taken into consideration when trying to figure out the requirements for each of the processes since it is those documents which allow one to take the Administration’s temperature. For instance, it is in the Ministerial Memo issued by “UGE” in which the salary requirements for the submission of highly qualified workers was published. The difficulty emanates from the fact the due to the nature of discretion; it can be subject to changes and can vary substantially. 

There are many examples that depict the administration’s discretion during migratory proceedings. Some Spanish Consulates abroad, for example in the case of the Consulate of Beijing, Nigeria or Islamabad the demands for the issuance the Family Reunification Visa have been hardened, in some cases even requesting as proof of the affiliation DNA tests. It is in fact the Consulate of Islamabad which was embroiled during 2016 in a process involving the Spanish Supreme Court due to the fact that upon needing to verify the authenticity of a marriage certificate, it requested the Judge’s sentences and witness testimonies. It is in those cases in which the Consulate has final even if the previous to the submitting the documents in the Consulate the process has undergone and been verified by national administrative organisms in Spain.

The recent changes in the American Administration and the reinforcement of American migratory demands, one can observe a high degree of discretion in each of the processes. One example is the CIS agent’s strictness at U.S Customs, who determine through a brief interview process if the foreigner carrying a valid visa can enter U.S territory. The Trump Administration has also granted greater leeway to USCIS.

Each government has its own migratory regulations and the administration’s discretion is applied differently in each of the cases, processes. The best remedy against the Administration’s is experience which allows the applicant to have an overview and outline of the administration’s true requirements.