Author
The legal framework of administrative detention of third-country nationals in Spain is set out by the Immigration Law.
Pre-removal detention
The only grounds for detention included within the Immigration Law are the following, and they are not meant to be applied to asylum seekers:
- For the purposes of expulsion from the country because of violations including, being on Spanish territory without proper authorisation, posing a threat to public order, attempting to exit the national territory at unauthorised crossing points or without the necessary documents and/or participating in clandestine migration;[1]
- When a judge issues a judicial order for detention in cases where authorities are unable to carry out a deportation order within 72 hours;[2]
- When a notification for expulsion has been issued and the non-national fails to depart from the country within the prescribed time limit.[3]
The Jesuit Refugee Service also continued to underline, in its 2023 Annual Report on the situation of CIEs, several elements which need to be significantly improved to ensure adequate conditions and guarantee the rights of detainees. Issues reported continued to include the challenges experienced in reporting and investigating cases of aggression and mistreatment by the police, shortcomings in relation to medical assistance and obstacles for NGOs to visit inmates.[4]
Asylum seekers are not detained during the Dublin procedure. It should be recalled that Spain initiates very few Dublin procedures (see Dublin).
Where persons apply for asylum from CIE before their expulsion, or from penitentiary centres, they will also remain detained pending the asylum decision. If the application is admitted to in-merit proceedings, the asylum claim will be examined under the urgent procedure, for which the notification decision must be made within 3 months.
Detention at the border
Persons who apply for asylum at borders or in airports must remain in ad hoc spaces (Salas de Inadmisión de Fronteras) with restricted freedom of movement, until their application is declared admissible.[5] This amounts de facto to deprivation of liberty, since applicants are not allowed to leave those spaces.
From the moment an asylum application is made, there is a period of 4 working days to issue a decision of admission, non-admission or rejection. This period may be extended up to 10 days in some cases (see Border Procedure).
In its 2023 Annual Report, the Spanish Ombudsperson, in its capacity as National Prevention Mechanism against Torture, continued to denounce serious problems at the ad hoc space at the Madrid Adolfo Suárez Barajas Airport, due to the deficiencies in the conditions of habitability. In particular, the report highlighted the serious damage of mattresses and the lack of a sufficient number of bunk beds, as well as the state of the toilets and lack of hygiene.[6]
[1] Articles 53-54 Aliens Act.
[2] Article 58(6) Aliens Act.
[3] Article 63(1)(a) Aliens Act.
[4] Servicio Jesuita a Migrantes, ‘Informe CIE 2023. Internamiento “muteado”. Personas cuyo sufrimiento queda oculto a la sociedad’, June 2024, p. 4, available here.
[5] Article 22 Asylum Law.
[6] Defensor del Pueblo, ‘Informe anual del Defensor del Pueblo 2023: Anexo del Mecanismo Nacional de Prevención (MNP)’, March 2024, available here.