Administrative Sanction Procedures for Foreign Nationals

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What is the maximum time allowed to issue a decision in administrative sanction proceedings?

As a general rule, the decision resolving the proceedings must be issued and notified within 6 months of the decision to initiate them.

What happens if the 6-month time limit for resolving the proceedings is exceeded?

 Once 6 months have passed without a decision being issued in the proceedings, they will lapse and the case will be closed, at the request of any interested party or on the competent authority’s own initiative. This does not apply if the proceedings were suspended for a reason attributable to the interested parties or if their suspension was ordered.

Is there a limitation period for offences?

Yes. The limitation period varies depending on the type of offence:

• Minor offences are time-barred after six months.
• Serious offences are time-barred after two years.
• Very serious offences are time-barred after 3 years.

The limitation period is interrupted by any action taken by the Administration that the accused is aware of, or that is intended to establish their identity or address. The period starts running again if the proceedings are suspended for more than 1 month for a reason not attributable to the person subject to the proceedings.

Is there a limitation period for sanctions?

 Yes. The limitation period varies depending on the type of sanction:

• Minor: time-barred after one year.
• Serious: time-barred after two years.
• Very serious: time-barred after five years.

What are the main types of proceedings in this area?

 The main types of proceedings are:

• Preferential
• Ordinary
• Simplified
• The procedure provided for in the Law on Labour and Social Security Inspection.

Am I entitled to legal assistance?

 In these types of proceedings, it is advisable to seek advice from a specialist in the field.

Regardless, the law provides for several situations in which a foreign national must be assisted by a lawyer (who may be appointed by the court if the person concerned does not have sufficient financial resources). These include all proceedings that may result in refusal of entry, return or expulsion from Spanish territory, as well as all proceedings concerning international protection.

The main situations are:

• At a police station, when the person is notified of the decision to initiate disciplinary proceedings under the preferential expulsion procedure.
• At a police station, when the person is notified of the decision to initiate return proceedings.
• At a police station, during proceedings for the forced enforcement of an expulsion order issued by a government authority in the same or a different province.
• At external land, sea or air borders, when the person is notified of the decision to initiate border refusal or return proceedings.
• At court, in judicial proceedings for detention, which may be ordered while expulsion, return or repatriation proceedings are pending, or during the forced enforcement of an expulsion order.

Am I entitled to assistance from an interpreter?

The LOEX also establishes the right to assistance from an interpreter when a foreign national does not understand or speak the official language being used.

This assistance may be provided free of charge if the person does not have sufficient financial resources.

What are the main features of the Ordinary Procedure?

The Ordinary Procedure applies to penalties that are not handled under the simplified or preferential procedure.

1. This procedure is initiated by an Initiation Decision (decision to commence proceedings), which must contain:

• The identity of the person or persons allegedly responsible.
• A brief description of the facts giving rise to the initiation of the proceedings, their possible classification and the penalties that may apply.
• The investigating officer and, where applicable, the procedural secretary, with an express indication of the rules governing challenges to them.
• The authority competent to decide the case and the provision conferring that competence.
• An indication that the person allegedly responsible may voluntarily acknowledge their responsibility.
• Any interim measures that have been agreed.
• Information about the right to make representations and be heard during the proceedings, and the time limits for exercising these rights.

2. Deadline for submitting representations:

The person concerned will be given 15 days to submit representations or propose evidence (which will be taken within 10 to 30 days).

3. Proposed Decision*: it is notified to the person concerned and forwarded to the competent decision-making authority.

4. Decision: within 10 days, the investigating authority will issue a decision, which will be notified to the person concerned. If the infringement is more serious, the persons concerned will be notified and given 15 days to submit representations.

* The investigating authority may request information from public authorities by means of a decision ordering supplementary steps. Representations may be submitted in response within 7 days. The supplementary steps will be carried out within a period of up to 15 days, and a decision will be issued within 10 days.

What requirements must the decision issued in the proceedings meet?

It may not concern facts other than those established during the investigation phase of the proceedings.

The decision will be notified to the person concerned. If the proceedings were initiated as a result of an order from a higher authority, the decision will also be forwarded to the administrative authority that issued that order.

It will include:

• An assessment of the evidence presented.
• A statement of the facts.
• The person or persons responsible.
• The offence or offences committed.
• The penalty or penalties.
• Or a declaration that no offence was committed.

What criteria will be taken into account when imposing the penalty?

The penalty will be determined according to the principle of proportionality, taking into account the offender’s degree of culpability and the harm caused or risk created.

In what cases will the Preferential Procedure be applied?

The Preferential Procedure will be applied in the following cases:

Serious offences (Art. 53):

• Being irregularly present in Spanish territory because an extension of stay has not been obtained, the person lacks residence authorization, or that authorization has been expired for more than 3 months, provided that the person concerned has not applied to renew it within the period established by the regulations,

AND, IN ADDITION, THERE IS:

• A risk that the person will fail to appear.
• The foreign national evades or obstructs expulsion, without prejudice to actions taken in exercise of their rights.
• The foreign national poses a risk to public order, public safety or national security.

(In these cases, no period for voluntary departure may be granted.)

• Failure to comply with measures imposed on grounds of public safety, including periodic reporting requirements or restrictions on entering border areas or specifically designated population centres, in accordance with this Law.
• The foreign national’s participation in activities against public order classified as serious offences under Organic Law 1/1992, of 21 February, on the Protection of Citizen Security.

Very serious offences (Art. 54):

• Taking part in activities against the State’s external security or activities that may harm Spain’s relations with other countries, or being involved in activities against public order classified as very serious offences under Organic Law 1/1992, of 21 February, on the Protection of Security
• Promoting, encouraging, facilitating or enabling, for financial gain and either individually or as part of an organisation, the clandestine immigration of people in transit through or bound for Spanish territory, or their stay in Spain, provided that the act does not constitute a criminal offence.

Art. 57.2:

Having been convicted, in Spain or abroad, of intentional conduct that constitutes an offence in Spain punishable by a prison sentence of more than one year, unless the criminal record has been expunged.

Are time limits in the Preferential Procedure calculated in the same way as in the Ordinary Procedure?

No. The Preferential Procedure is characterised by its speed, with all time limits being significantly shortened.

Accordingly, the period for the person concerned to submit representations or propose evidence is reduced to 48 hours; evidence must be taken within 3 days; and the period for making representations on the proposed decision must be completed within 48 hours.

Can precautionary measures be adopted while the Preferential Procedure is under way?

During the Preferential Procedure, detention and the following precautionary measures may be ordered:

• Withdrawal of the passport or document certifying the person’s nationality, after providing the person concerned with a receipt confirming this measure.
• Periodic reporting to the officer handling the case or another authority designated by that officer, on the days considered advisable in view of the person’s personal, family or social circumstances.
• Mandatory residence in a specified place.
• Any other precautionary measure considered appropriate and sufficient.

Can the Preferential Procedure be suspended?

In the cases referred to in points (a) and (b) of section 1 of Article 53 (being irregularly present in Spanish territory and working in Spain without having obtained a work permit or prior administrative authorisation to work, when the person does not hold a valid residence authorisation).

If the person concerned can prove that they previously applied for temporary residence authorisation under Article 31, the procedure will be suspended until a decision is made on the application. If the application is refused, the proceedings will continue.

What are the specific features of the decision in the Preferential Procedure?

Given the preferential and summary nature of the procedure, the decision will be issued immediately, must state its grounds and must resolve all the issues raised in the case file.

It may not concern facts other than those established in the procedure.

The decision must specify the appeals available against it, the body to which they must be submitted and the time limit for lodging them.

How will an expulsion order be enforced under the Preferential Procedure?

If an expulsion order is issued, it will be enforced immediately.

If the foreign national has not been released by the judicial authority within 60 days, that authority must be asked to end the detention so that the person can be escorted to the point of departure.

The exception to the general rule that administrative acts are enforceable, in the case of a decision concluding the preferential expulsion procedure, does not exclude the right of appeal for those entitled to lodge one. This is without prejudice to the immediate expulsion and to the fact that no administrative stay of enforcement may be granted.

In what cases does the Simplified Procedure apply?

This procedure will be used when the reported facts are classified as a minor offence (Article 52 of the LOEX), and A DECISION MUST BE ISSUED WITHIN 2 MONTHS OF ITS INITIATION.

How is the Simplified Procedure initiated?

It will be initiated ex officio or following a report made by officers of the National Police Corps, except where the alleged offence is one of those set out in points (c), (d) and (e) of the aforementioned Article 52. In those cases, the sanctioning procedure will be initiated by an inspection report from the Labour and Social Security Inspectorate.

What does the Procedure for Labour Law Offences involve?

It applies to the following offences:

MINOR OFFENCES:

• Working in Spain without having applied for administrative authorization for self-employment, when holding temporary residence authorization.
• Working in an occupation, sector of activity or geographical area not covered by the residence and work authorization held.
• Employing workers whose authorization does not allow them to work in that occupation or geographical area; a separate offence is committed for each foreign worker employed.

SERIOUS OFFENCES:

• Working on a self-employed basis in Spain without having obtained a work authorisation or prior administrative authorisation to work, when the person does not hold a valid residence authorisation.
• Failing to register, under the applicable Social Security scheme, a foreign worker for whom the employer has applied for residence and employed work authorisation, or failing to register the employment contract under the conditions on which the application was based, when the employer knows that the worker is legally present in Spain and authorised to start the employment relationship.

VERY SERIOUS OFFENCES:

• Employing foreign workers without first obtaining the relevant work authorisation (with a separate offence committed for each foreign worker employed).
• Falsely claiming that an employment relationship exists with a foreign national, where this conduct is carried out for financial gain or to obtain rights recognised by this Act improperly, provided that these acts do not constitute a criminal offence.

How are penalties graded for labour law offences?

Offences are graded as follows:

MINOR OFFENCES:

– Minimum level: 50 – 100 €

– Medium level: 101 – 250 €

– Maximum level: 251 – 500 €

SERIOUS OFFENCES:

– Minimum level: 501 – 2.000 €

– Medium level: 2.001 – 5.000 €

– Maximum level: 5.001 – 10.000 €

VERY SERIOUS OFFENCES:

– Minimum level: 10.001 – 20.000 €

– Medium level: 20.001 – 50.000 €

– Maximum level: 50.001 – 100.000 €

* The level depends on the offender’s degree of culpability, the damage or risk caused, and the seriousness of the offence.

What are the main features of this procedure?

Records of immigration offences will be notified to the person or persons responsible by the Labour and Social Security Inspectorate offices or, where applicable, the competent regional authorities. The notification will state that objections may be submitted within 15 days.

The proposed decision will set out, with reasons, the facts established, their legal classification and the amount of the proposed penalty. If the record of the offence includes the closure of the establishment or premises for a period of between 6 months and 5 years, a proposed decision on this matter will also be issued.

After carrying out any inquiries it considers necessary, the competent authority will issue its decision within 10 days of the conclusion of the proceedings.

If the competent authority decides to impose expulsion from Spanish territory instead of a fine, it will issue an expulsion decision.

• Below is a summary table of the main offences, the applicable procedure and penalty, and whether expulsion or detention applies, where relevant.