When you are stopped for not having papers, you will normally be fined. Deportation is in theory reserved for the most serious cases, although this is not always the case: there is always a risk that they will try to deport you (see below ⇒ ch. Deportation).
Attention: Although most people get detained after being stopped on the street or in public transport, the police may come to your home or even summon you to the police station (“for a matter of interest to you or your papers”). In the latter case, let someone you trust know that you are going to the police station and that if you do not return in more than one or two hours you may have been detained.
Detention
If the police detain you, you have the following rights:
- The right to be informed why you are being detained.
- The right to call your lawyer, a friend or relative: this “friend” can also be a local association that you know so that they are aware of your detention.
- The right to an interpreter, if you do not understand or speak Spanish well.
- The right to a lawyer. Ask to speak to your lawyer, if you already have a lawyer. If you do not have one and do not have the financial means to pay for one, you should be assigned a public defender free of charge.
- The right to health care, if you are injured or ill.
- The right not to testify before the police: You have the right to wait until you are in front of the judge to testify, as the police could use your statements against you.
- The right to ask for “habeas corpus”, i.e. to be brought before a judge immediately. You should only ask for this right if you believe you may have been unlawfully detained or if you have been ill-treated by the police in detention.
- The right not to be detained at the police station for more than 72 hours. Before that time or when the 72 hours are up, you must either be released or be brought before a judge (or be deported, ⇒ ch. Deportation).
If you are detained, you may be at risk of deportation. To prevent deportation from happening, your lawyer needs to know all the information that can prevent you from being deported, including:
- If you have already applied for asylum, if you want to apply for asylum and the reasons why you want to do so.
- Information about your current situation in Spain (registration/empadronamiento, work, etc.).
- If you have any residency application in process: this is very important, because having any paperwork in process could prevent deportation.
- If you have family in Spain with legal residence, or children in school.
- If you have taken training courses in Spain or belong to an association.
- If you have an illness, receive medical treatment or are in another situation of vulnerability.
For women: it is important to inform your lawyer if you are pregnant. If you trust them, also inform them if you are a victim of gender-based violence (⇒ ch. Glossary) or human trafficking (⇒ ch. Glossary), because this implies rights to protection (and therefore, not to be deported).
The best thing to do is to always have this documentation ready so that, if you are arrested, you can get it to your lawyer quickly. It is highly recommended that a family member or friend has a folder with the originals or a copy of all these documents, and that you tell your lawyer so that they can contact them.
Attention: You don’t have much time. Your lawyer must file an appeal against your arrest or planned deportation as soon as possible, ideally within 48 hours of your arrest, in order to avoid “preferential deportation” or “express deportation” (for more information on the different types of deportation see below ⇒ Deportation).
Sometimes, public defenders are reluctant or slow to do so (they suggest waiting until the next working day). Insist on your right to make representations as soon as possible so that you can avoid an express deportation.
It is difficult to build trust with a public defender, and they do not always do their best to defend your case, so try to seek free legal aid with the support of associations before you are in an emergency situation (⇒ ch. 12: Contacts).
Remember: in any case it is very important that you keep your lawyer’s full name, bar number and telephone number so that you can contact them immediately and they will have your contact as well.
CIES
The CIES (“Centros de Internamiento de Extranjeros”, Detention Centres for Foreigners) are centres where people without documentation are detained for the purpose of deportation.
The maximum time you can be held in a CIE is 60 days. If they have not been able to deport you in that time, they have to release you and cannot detain you again. There are many reasons that can prevent your deportation from being organised within 60 days, such as:
- You don’t have a passport and your country refuses to receive people without documentation.
- You ask for asylum. You can apply for asylum at any time while you are in the CIE. Talk to your lawyer to find out when to apply.
- Your lawyer files documents useful to prevent/postpone your deportation. In the case of express deportations, you only have 48 hours to do so.
- You have a recognised illness (physical or mental) that prevents your deportation.
It is very important that people close to you and your lawyer are informed that you are in the CIE from the very beginning, so that they can protect you. If you do not have a lawyer, you have the right to a public defender to defend you. This lawyer will be assigned to you when the judge issued the detention order: get their contact details and get in touch with them (or ask a friend or association to help you do this). If you are not clear about your legal situation, go to one of the associations that visit CIEs; also, try to find out if there is a liaison person at the CIE from the “Servicio de Orientación Jurídica de Extranjería del Colegio de Abogados” (Foreigners’ Legal Advice Service of the Bar Association).
In the CIE you can be visited by family members and you must have access to a public telephone (for that you usually need coins). Find out more about the support organisations that have permission to visit the CIE, they can help you to claim your rights.
There are several organisations throughout Spain that are campaigning against CIEs (APDHA, SOS Racismo, CIEs NO, SJME, among others). If you suspect you are being taken to a CIE or a friend is being taken, contact these organisations for information and support. Some of them visit CIEs, or know which associations visit them. And you can also join the fight.
Remember: It is illegal to detain you in a CIE for more than 60 days during your entire stay in Spain for the same deportation order. In other words, if you have been detained once for 40 days, the next time you are detained in a CIE they do not have the right to detain you for more than 20 days. That doesn’t mean that the authorities won’t try. Stand up for your rights!
Deportation
“Expulsión” is the official term for deportation in Spain.
When the police stop you, they may open an expulsion file (expediente de expulsión) for you. This is the first step towards your deportation. In that case, you always have the right to legally appeal against the decision with the help of your lawyer, within 2 months after the decision, and you must do so in any case. If the appeal does not go ahead, a judge will issue a deportation order (orden de expulsión). It is very important that you check with your lawyer whether you have an expulsion order.
Types of deportation
There are two types of expulsions: ordinary expulsions, which take place after a judge issues a deportation order and after the time you have been given to leave the country voluntarily; and “preferential “or “express deportations”, which can take place without a judicial procedure (and the issue of a deportation order) and have to be carried out in less than 72 hours.
“Express” deportations can be executed directly from the police station. After 72 hours, you must be brought before a judge, who will either order your detention in a CIE or release you.
If you face an express deportation, you may only be at the police station for a few hours before you start being deported. It is therefore very important that your lawyer has the tools to defend you. You should leave all your documentation in their hands or in the hands of someone you trust (see above ⇒ Detention).
What happens if you have an expulsion order?
If the authorities have issued you with an expulsion order, and even if you manage to stop it and stay in Spain, you should know that having an expulsion order in force will make it difficult for you to regularise your situation in the near future. Contact a lawyer to try to lift this expulsion order. Otherwise, you will be at risk of future arrests in an attempt to deport you.
If you are deported after an arrest (i.e. outside the voluntary departure period stated in the deportation order), you will also be banned from entering Spain or another European country for a period of three to five years (extendable to ten years in exceptional cases). These details are contained in the documentation that should be given to you or your lawyer at the time of expulsion. If you do not have this information, ask your lawyer for it so that you can find out where you stand with regard to a possible return.
Even if some time has passed since you were served with the deportation order (⇒ ch. Glossary), it does not expire for a long time. This means that the police can arrest you at any time to enforce the order.