Author
The legal framework of administrative detention of third-country nationals in Spain is set out by the Aliens Act.
Pre-removal detention
The only grounds for detention included within the Aliens Act 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]
In its 2021 Annual Report, the Spanish Ombudsman, in its capacity as National Prevention Mechanism against Torture, continued to highlight the necessity to shut down permanently the CIEs and to express concerns about the presence of unaccompanied migrant children not identified as minors in such facilities, and the ill-treatment and harassment to inmates at the CIE of Madrid.[4]
The Jesuit Refugee Service also underlined, in its 2022 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 included 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.[5]
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.[6] 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 2022 Annual Report, the Spanish Ombudsman, in its capacity as National Prevention Mechanism against Torture, denounced some deficiencies of the ad hoc space at the Madrid Barajas Airport, in terms of, inter alia, lack of maintenance and hygiene of the infrastructure, absence of natural light, lack of access to public telephones, the impossibility to change money and buy products to the automatic dispenser, etc.[7]
[1] Articles 53-54 Aliens Act.
[2] Article 58(6) Aliens Act.
[3] Article 63(1)(a) Aliens Act.
[4] Defensor del Pueblo, ‘Informe anual 2020. Mecanismo Nacional de Prevención’, June 2021, available at: https://bit.ly/3IDpFZj.
[5] Servicio Jesuita a Migrantes, ‘Informe CIE 2021. Territorio hostil. Formas diversas de hostilidad en los CIE’, May 2022, available at: https://bit.ly/3GhWNH0.
[6] Article 22 Asylum Act.
[7] Defensor del Pueblo, ‘Informe anual 2022 – Anexo A – Informe Completo del Mecanismo Nacional De Prevención (MNP)’, March 2023, available at: https://bit.ly/439YdgI.