Grounds for detention

Spain

Country Report: Grounds for detention Last updated: 25/03/21

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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:

  • 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 2020 Annual Report, the Spanish Ombudsman, in its capacity as National Prevention Mechanism against Torture, highlights the necessity to shut down or reform the CIEs. In addition, it expresses concerns about the lack of legal assistance, the use of coercive measures, the difficult access to judicial authorities and visitors, as well as the limited communication possibilities with the outside world.[4]

In its 2020 Annual Report on the situation of CIEs, the Jesuit Refugee Service also underlined several elements which need to be significantly improved to ensure adequate conditions and guarantee the rights of detainees. Issues reported include structural deficiencies, the lack of identification of unaccompanied children, the inadequate treatment of persons with health problems, the obstacles faced to apply for asylum, the lack of interpretation services, the limited access to mobile phones and NGOs, the deficiencies in the provision of socio-cultural and legal assistance, and the poor management of crisis situations.[5] Given the extent of these issues, the Jesuit Refugee Service calls for the closure of all CIEs – or at least their improvement until they are all officially closed.

Asylum seekers are not detained during the Dublin procedure. It should be recalled that Spain initiates very few Dublin procedures.

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).

 

 

[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 2019. Mecanismo Nacional de Prevención’, October 2020, available at: https://bit.ly/3p6qWxH, 72.

[5] Servicio Jesuita a Migrantes, ‘Informe CIE 2019. Diez años mirando al otro lado’, December 2020, available at: https://bit.ly/3p8aAEw, 4.

[6] 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