The central government has warned the Canary Islands that the decree law 4/2025, approved in July and which regulates the procedures for assessing and qualifying the degree of disability in the archipelago, could be unconstitutional as it invades state powers and conflicts with immigration rules. Both Administrations have started a dialogue through the Bilateral Commission for State-Canary Cooperation, as reported on Monday in the Official State Gazette (BOE). If no agreement is reached, the disagreement will likely end up in the Constitutional Court.
The discrepancy concerns article 1.2 of the decree, which establishes that people “registered with effective residence” in any of the municipalities of the archipelago can request recognition of disability. For the central government, this expression opens the door to interpret that foreigners without legal residency could also do so, as long as they are registered, which Moncloa considers incompatible with the state legal framework. For the State this formulation is ambiguous and could be interpreted more broadly than the legal concept of legal residence. If this were the case, the Canary Islands would allow foreigners without a residence permit to access the assessment procedure, which in turn would give them access to benefits that, according to the central government, cannot be granted to those without a regular administrative situation.
“This is a formal issue, due to the terms used in the Canarian decree, which the Ministry of Inclusion believes could be a cause for legal uncertainty”, summarizes a spokesperson for the central government, chaired by Pedro Sánchez (PSOE). “It’s not the substance. It’s the form,” he emphasizes. “There is no such thing as effective residence as a legal term, nor is there such a thing as non-effective residence,” he adds. “It is not an issue that aims to exclude either migrants or tourists, it happens that a term has been used that is not used, which can even generate dysfunctions and, in the long run, problems. The people to whom the decree is addressed must be defined exactly, with the appropriate legal terms”.
Therefore, the National Executive maintains that the recognition of the degree of disability is not a simple administrative procedure, but a procedure that gives access to benefits and services that go beyond basic social services. These include free access to public transport, parking passes, financial compensation for dependent children or various social support measures linked to the disability certificate.
We therefore recall that the State has exclusive jurisdiction over fundamental legislation on social security by virtue of Article 149.1.17 of the Constitution, and that state legislation on disability – including Royal Decree 888/2022, which establishes the procedure for recognition of the qualification – establishes a mandatory framework for all autonomous communities.
At the same time, the central government emphasizes that the Organic Law on Immigration (LOEX) only guarantees universal access for foreigners to “social services and basic benefits”, regardless of their administrative situation. However, the legal effects of the recognition of disability go beyond this basic scope, which is why this would require the applicant to have legal residence.
To strengthen this interpretation, the State also analyzes Law 16/2019 on Social Services of the Canary Islands, which regulates who can access the public social services system. Article 9 of that law generally requires third-country nationals living in the Canary Islands to be “residents”, a term which, according to the central government, should be understood as legal residence. The same regional law expressly exempts only foreign minors and people in situations of social emergency, which reinforces the idea that the rest of foreigners must have a regular residence to access non-essential benefits.
Faced with this “possible stain of unconstitutionality”, the Ministry of Territorial Policies has proposed to activate the cooperation procedure referred to in article 33.2 of the Organic Law of the Constitutional Court, a preliminary mechanism for filing an appeal for unconstitutionality. This procedure is articulated through the Bilateral Commission for State-Canary Islands Cooperation.
