Alternatives to detention

Spain

Country Report: Alternatives to detention Last updated: 25/03/21

Author

There are no provisions under Spanish law regarding alternatives to detention for asylum seekers; meaning applicants in CIE, penitentiary centres or ad hoc spaces at borders.

Under the Aliens Act,[1] the only cautionary alternative measures that can be taken concern foreigners that are subject to a disciplinary proceeding, under which removal could be proposed, and they are the following:

  • Periodic presentation to the competent authorities;
  • Compulsory residence in a particular place;
  • Withdrawal of passport or proof of nationality;
  • Precautionary detention, requested by the administrative authority or its agents, for a maximum period of 72 hours prior to the request for detention;
  • Preventive detention, before a judicial authorisation in detention centres;
  • Any other injunction that the judge considers appropriate and sufficient.

These alternatives are not applied in practice. As confirmed by the Global detention Project, there are long-standing concerns that authorities routinely fail to consider all criteria before imposing detention measures.[2]

During 2017, many persons have been detained in violation of fundamental procedural guarantees, namely an individualised assessment of the necessity and proportionality of detention. In Motril, collective detention orders have been issued to groups of newly arrived migrants for the purpose of removal, which have been upheld by the Provincial Court of Granada.[3] This situation has improved in 2018, partly because of the creation of CAED where identification of international protection needs should be carried out, including one managed by CEAR with presence of lawyers, partly because of the mentioned project the UNHCR and CEAR are implementing for informing persons arriving by boat about asylum. In addition, as already indicated, in practice detention orders are issued solely for persons coming from Morocco and Algeria, to which expulsion is generally executed. Thus, the lack of individualised assessment of necessity and proportionality of detention may predominantly concern persons coming for those two countries (see Access to the territory and push backs). This was still the case in 2020.

During 2020 many stakeholders called on the Government for the implementation of alternatives to migration detention, in particular following the closure of CIEs from March to September 2020 due to the COVID-19 outbreak in Spain.[4] However, a report published by Caritas in December 2020 demonstrates that alternatives to detention are not applied by the police nor by judges in Spain.[5]

[1]  Article 61 Aliens Act.

[2] Global Detention Project, Country report Spain, May 2020, available at: https://bit.ly/3sruJaU.

[3]  CEAR, Refugiados y migrantes en España: Los muros invisibles tras la frontera sur, December 2017, 14.

[4]  Europapress, ‘CEAR asegura que se ha demostrado “existen alternativas” a los CIE tras su cierre por el Covid-19’, 19 June 2020, available in Spanish at: https://bit.ly/36VvrF5; Alfa y Omega, ‘Es hora de buscar alternativas a los CIE’, 21 October 2020, available in Spanish at: https://bit.ly/2NEq2M7;   Revista Ecclesia, ‘Marifrán Sánchez: «Hay que buscar vías alternativas a los CIE», 24 September 2020, available in Spanish at: https://bit.ly/3aS8Fir.

[5] Cáritas, “Invisibles en la última frontera, Manual jurídico para la defensa de los extranjeros en los centros de internamiento”, December 2020, p. 26, available in Spnaish at: https://bit.ly/2YpPzKF

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation