Expulsion Order Procedures

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Can a fine be replaced with expulsion?

In accordance with the principle of proportionality, expulsion from Spanish territory may be imposed instead of a fine, following the relevant administrative proceedings and through a reasoned decision assessing the facts that constitute the offence.

Can you be expelled to another European Union Member State?

If a foreign national holds a valid authorization from another State and commits the offences set out in points (a) and (b) of Article 53.1, they will be warned, by means of an endorsement in their passport, that they must proceed immediately to that State’s territory.

If they do not comply with this warning, expulsion proceedings will be initiated and the corresponding expulsion decision will be issued.

Can a long-term resident of another European Union Member State be expelled?

If a long-term resident of another European Union Member State is in Spain, they may be expelled outside the territory of the Union only if the offence committed is one of those provided for in Articles 53.1.d) and f) and 54.1.a) and b) of this Organic Law. The competent authorities of that Member State must be consulted before the expulsion decision is adopted.

If these requirements for expulsion outside the territory of the Union are not met, the person will be expelled to the Member State in which their long-term residence was recognised.

Are there any circumstances in which an expulsion order cannot be issued?

 The following people may not* be expelled:

• People born in Spain who have been legally resident there for the last 5 years.
• Long-term residents. Before deciding to expel a long-term resident, consideration must be given to how long they have lived in Spain and the ties they have established, their age, the consequences for them and their family members, and their ties to the country to which they would be expelled.
• People receiving a benefit for permanent incapacity for work as a result of an occupational accident or disease that occurred in Spain, as well as those receiving contributory unemployment benefits or a public financial assistance benefit intended to help them achieve social or employment integration or reintegration.
• The spouse of a foreign national who falls into any of the categories listed above and has been legally resident in Spain for more than 2 years, as well as their dependent parents and minor children, or adult children with disabilities who are objectively unable to meet their own needs because of their health condition.

In addition, expulsion may not be carried out if it would violate the principle of non-refoulement, or if it affects pregnant women where the measure could pose a risk to the pregnancy or the mother’s health.

* unless the offence committed is the one provided for in Article 54, point (a) of paragraph 1, or involves reoffending within one year by committing an offence of the same nature that is punishable by expulsion).

What requirements must the decision to initiate expulsion proceedings meet?

•  Identification 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 officer responsible for the proceedings and, where applicable, the secretary, expressly indicating the rules governing challenges to their impartiality.
• The authority competent to decide the case and the provision conferring that competence.
• Information about the possibility for the alleged responsible party to 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.

AS WELL AS:

• The interested party’s right to free legal assistance if they lack sufficient financial resources.
• The interested party’s right to the assistance of an interpreter if they do not understand or speak the official languages being used.
• That any expulsion order issued may entail a ban on entry into Spain.

Can interim measures be adopted while disciplinary proceedings proposing expulsion are underway?

The government authority may order:

• Periodic reporting to the competent authorities.
• Mandatory residence in a specified place.
• Retention of the passport or identity document, with a receipt provided.
• Provisional detention for a maximum period of 72 hours.
• Preventive detention in a detention centre, subject to prior judicial authorization.
• Any other interim measure that the judge considers appropriate and sufficient.

If the proceedings are conducted under the ORDINARY procedure, detention as an interim measure may not be ordered.

What requirements must an expulsion decision meet?

The decision concluding the proceedings must give reasons and indicate the appeals that may be lodged against it, the authority to which they must be submitted and the time limit for doing so.

What are the consequences of an expulsion order?

• BAN ON ENTRY INTO SPAIN: The duration of the ban will be determined in light of the circumstances of each case and may not exceed 5 years.

Exceptionally, where the foreign national poses a serious threat to public order, public safety, national security or public health, an entry ban of up to 10 years may be imposed.

In the circumstances established by regulation, the competent authority will not impose an entry ban if the foreign national has left the national territory while administrative disciplinary proceedings were underway for any of the grounds set out in points (a) and (b) of Article 53.1 of this Organic Law, or will revoke an entry ban imposed on those same grounds if the foreign national leaves the national territory within the voluntary compliance period specified in the expulsion order.

• TERMINATION OF ANY AUTHORIZATION TO REMAIN IN SPAIN.
• WHERE APPLICABLE, PROPERTY, ITEMS AND INSTRUMENTS FINALLY CONFISCATED WILL BE TRANSFERRED TO THE STATE.
• CLOSURE OF ANY PROCEEDINGS SEEKING AUTHORIZATION TO RESIDE OR WORK IN SPAIN.