Offences and penalties for foreign nationals

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Which legislation governs the regime of offences and penalties?

The main legislation applicable in this area is:

• Organic Law 4/2000 of 11 January on the Rights and Freedoms of Foreign Nationals in Spain and Their Social Integration (hereinafter, the LOEX).
• Regulations implementing Organic Law 4/2000, approved by Royal Decree 557/2011 of 20 April (hereinafter, the Regulations)

What types of offences are there?

Offences can be classified as:

• Minor offences.
• Serious offences.
• Very serious offences.

What are the minor offences?

Minor offences are those set out in Article 52 of the LOEX:

1. Failing or delaying notification to the Spanish authorities of changes in nationality, marital status or address, as well as any other circumstances affecting the person’s employment status, where notification is required under the applicable legislation.
2. Filing an application to renew an authorization up to three months after it has expired.
3. Working in Spain without having applied for administrative authorization for self-employment, when holding temporary residence authorization.
4. Working in an occupation, sector of activity or geographical area not covered by the residence and work authorization held.
5. 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.

What are the serious offences?

Serious offences are those set out in Articles 53.1 and 53.2 of the LOEX:

Serious offences include:

1. Being irregularly present in Spanish territory because no extension of stay has been granted, the person does not hold residence authorization, or that authorization has been expired for more than three months, provided that the person has not applied to renew it within the period established by the regulations.
2. Working in Spain without obtaining work authorization or prior administrative authorization to work, when the person does not hold valid residence authorization.
3. Deliberately concealing information or committing serious fraud in complying with the obligation to notify the competent authorities of changes affecting nationality, marital status or address, or making false statements when providing the information required to register on the municipal register for the purposes set out in this Act, provided that such acts do not constitute a criminal offence. If any authority becomes aware of a possible infringement on these grounds, it must notify the competent authorities so that the appropriate sanctioning proceedings may be initiated.
4. Failure to comply with measures imposed on grounds of public safety, including requirements to report periodically or to stay away from borders or specifically designated population centres, in accordance with this Act.
5. Committing a third minor infringement, provided that the person was sanctioned for two minor infringements of the same kind during the preceding year.
6. Participation by a foreign national in activities against public order classified as serious under Organic Law 1/1992, of 21 February, on the Protection of Citizen Security.
7. Leaving Spanish territory through an unauthorised border crossing, without presenting the required documents or in breach of legally imposed prohibitions.
8. Failure to comply with the obligation set out in paragraph 2 of Article 4.

The following are also serious infringements:

• Failure to register with the relevant Social Security scheme a foreign worker for whom the employer has applied for a residence and employed work authorization, or failure to register the employment contract under the conditions on which the application was based, where the employer is aware that the worker is legally in Spain and authorised to begin the employment relationship. However, the employer is exempt from liability if they inform the competent authorities of unforeseen circumstances that may objectively jeopardise the viability of the business or that, under the law, prevent the employment relationship from beginning.
• Entering into a marriage, simulating a similar emotional relationship or becoming the legal representative of a minor, where such conduct is carried out for financial gain or to obtain a residence right improperly, provided that these acts do not constitute a criminal offence.
• Facilitating a foreign national’s irregular stay in Spain where their lawful entry was made possible by an express invitation from the person responsible for the infringement and they remain in that person’s care after the period allowed by their visa or authorization has expired. The personal and family circumstances involved will be taken into account when determining the penalty.
• Allowing a foreign national to be registered on the municipal register by the owner of a dwelling authorised to do so, when that dwelling is not the foreign national’s actual residence. A separate infringement is committed for each person improperly registered.

What are very serious infringements?

Very serious infringements are set out in Article 54.1 and 2 of the LOEX:

The following are very serious infringements:

1. Taking part in activities against national security or that may harm Spain’s relations with other countries, or being involved in activities against public order classified as very serious under Organic Law 1/1992, of 21 February, on the Protection of Citizen Security.
2. 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.
3. Engaging in discriminatory conduct on racial, ethnic, national or religious grounds, as defined in Article 23 of this Act, provided that the act does not constitute a criminal offence.
4. Employing foreign workers without first obtaining the relevant residence and work authorization, with a separate infringement committed for each foreign worker employed, provided that the act does not constitute a criminal offence.
5. Committing, for financial gain, the infringement set out in point (d) of paragraph 2 of the preceding article.
6. 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.
7. Committing a third serious infringement, provided that the person was sanctioned for two serious infringements of the same kind during the preceding year.
8. The following are also very serious infringements:
9. Failure to comply with the obligations imposed on carriers under Article 66, paragraphs 1 and 2.
10. Transporting foreign nationals to Spanish territory by air, sea or land without the carriers responsible for the transport having checked the validity and currency of their passports, travel documents or relevant identity documents and, where applicable, the corresponding visas, which the foreign nationals must hold. Failure by carriers to meet their obligation to take charge without delay of a foreign national or passenger who has not been authorised to enter Spain because of deficiencies in the documents mentioned above, or of a foreign national travelling in transit who has not been taken to their country of destination or has been returned by that country’s authorities because they were not authorised to enter.

This obligation shall include the costs of maintaining the foreign national in question and, if so requested by the authorities responsible for border control, the costs of transporting that foreign national. Such transport must take place immediately, either through the sanctioned carrier or, failing that, through another transport company, to the State from which the person was transported, the State that issued the travel document used, or any other State where their admission is guaranteed.

Notwithstanding the provisions of the preceding paragraphs, transporting to the Spanish border a foreign national who, having submitted an application for international protection without delay, is admitted to the procedure shall not be considered an infringement of this Law, in accordance with the provisions of Law 12/2009, of 30 October, regulating the right to asylum and subsidiary protection.

What types of penalties are there?

Depending on the amount of the penalty, they may be classified as follows:

• Minor: up to 500 €.
• Serious: from 501 to 10.000 €.
• Very serious: from 10.001 to 60.000 €.

In addition to a financial penalty, certain infringements may entail related measures, such as EXPULSION (which may, in some cases, replace the financial penalty) or the confiscation of property used to commit the infringement.

What penalty applies to each type of infringement?

Minor infringements are penalised as follows:

Serious infringements are penalised as follows:

* When the offenders are foreign nationals, they may be expelled from Spanish territory instead of being fined, following the corresponding expulsion proceedings.

Very serious offences are penalized as follows:

{"token":""}* Where they are foreign nationals, EXPULSION may be imposed instead of a fine.{"token":""}

Are there other types of sanctions?

Certain conduct may also entail additional measures, such as:

1. If facilitating clandestine immigration (Article 54.1.b): the assets used to commit the offence will be confiscated.
2. In the case of employing workers who do not have authorisation (Article 54.1.d): the establishment will be ordered to close for 6 months to 5 years.

What criteria are applied when imposing sanctions?

When determining the severity of sanctions, the competent authority will apply the principle of proportionality, taking into account the degree of culpability and, where applicable, the damage caused or the risk arising from the offence and its significance.

When determining the amount of the fine, particular account will be taken of the offender’s financial capacity.

Who is responsible for investigating offences and imposing sanctions?

The following table provides a summary: