Grounds for detention

Spain

Country Report: Grounds for detention Last updated: 30/11/20

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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:

  1. 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]
  2. 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]
  3. When a notification for expulsion has been issues and the non-national fails to depart from the country within the prescribed time limit.[3]

In 2017, due to the increase in arrivals by sea, there was a rise in automatic detention at police stations in Almería, Tarifa, Motril and Algeciras. Where the authorities have not been able to carry out removal within 72 hours, individuals have been transferred to CIE. During 2018 the police stations in Algeciras and Cádiz were overcrowded due to the high numbers of arrivals and the shortage in police responsible for the identification procedure.[4] After the 72-hour detention permitted by law for the identification procedure, it seems that many persons, especially nationals of Morocco, were released without removal being executed.

A report issued by the Spanish Ombudsman, in its capacity as National Prevention Mechanism against Torture, highlights that Spanish CIE are in practice used as a tool to contain and channel irregular migration, especially sea arrivals.[5] In fact, out of 8,814 persons detained in the CIE and in the prison of Archidona in 2017, only 37.3% were expelled.

It appears that as of 2018 the situation has changed in Málaga, where detention orders in CIE are issued just for Moroccan and Algerian nationals.[6] The Spanish Ombudsman has asked for a clarification on this practice.[7] In its 2019 annual report, the Spanish Ombudsman in its capacity as National Mechanism for the Prevention of Torture reported that, during his visit to the CIE of Tarifa in 2018, the Director explained that such practices are applied to Moroccan and Algerian nationals depending on whether they can be returned or not. They thus receive a different treatment than persons origination from Sub-Saharan countries.[8] The situation seemed to have persisted in 2019, as the Jesuit Service for Migrants denounced the discrimination on grounds of origin in CIEs, where the vast majority of detainees are Moroccan and Algerian nationals.[9]

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.[10] 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 to 10 days in some cases (see Border Procedure).

 


[1] Articles 53-54 Aliens Act.

[2] Article 58(6) Aliens Act.

[3] Article 63(1)(a) Aliens Act.

[4] Pressreader, ‘La llegada de 900 magrebíes satura las comisarías de Policía’, 9 October 2018, available in Spanish at: https://bit.ly/2Hq5GSS; El País, ‘La llegada de migrantes colapsa los servicios de acogida en el Estrecho’,  26 July 2018, available in Spanish at: https://bit.ly/2Oko6Uv.

[5] Ombudsman, Informe Anual 2017 – Mecanismo Nacional de Prevención, July 2018, available in Spanish at: https://bit.ly/2RYCUNa, 94.

[6] El País, ‘Las llegadas de migrantes se duplican en Málaga’, 26 July 2018, available in Spanish at: https://bit.ly/2W1AzQX.

[7] Ombudsman, ‘El Defensor insiste en la necesidad de mejorar la primera acogida de personas migrantes que llegan a las costas en situación irregular’, 17 December 2018, available in Spanish at: https://bit.ly/2Hi03pV.

[8] Defensor del Pueblo – Mecanismo Nacional de Prevención de la Tortura, ‘Informe Anual 2018 – Mecanismo Nacional de Prevención’, September 2019, available in Spanish at: https://cutt.ly/8tOesYa.

[9] Info Libre, ‘Servicio Jesuita a Migrantes denuncia "discriminación" en los CIE: dos tercios de internos son de Marruecos y Argelia, 6 June 2019, available at: https://cutt.ly/dtU0A2C.

[10] Article 22 Asylum Act.

 

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