Alternatives to detention


Country Report: Alternatives to detention Last updated: 30/11/20


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:

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

These alternatives are not applied in practice.

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.[2] This situation has improved in 2018, partly because of the creation of CATE 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. This was still the case in 2019.

[1] Article 61 Aliens Act.

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


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