Expulsion Order in Spain: Procedure and Revocation

In the field of immigration, an expulsion order is an administrative measure that requires a foreigner to leave the national territory, and it can be issued following an administrative or judicial process. In general, expulsion is accompanied by a ban on reentry, which applies not only to Spain but also to the Schengen area, depending on the circumstances of the case.

In Which Cases Is an Expulsion Order Issued?

According to Organic Law 4/2000, an expulsion order can be issued as an alternative to a fine in the following cases:

• Serious Violation: Includes violations of public safety regulations or breaches related to staying in Spain without the proper authorization.
• Very Serious Violation: Such as participating in activities that threaten national security, irregular immigration, or committing crimes punishable by prison sentences of more than one year.
• Intentional Crimes: Convictions, both within and outside Spain, for crimes whose punishment involves a prison sentence of more than one year.

Effects of the Expulsion Order

The expulsion of a foreigner has several important effects, such as:

• The termination of any residence or work permit the foreigner may hold in Spain.
• A ban on entering Spain for the period determined in the expulsion resolution.
• In certain cases, the temporary closure of establishments or premises that have been used to violate immigration laws, with sanctions ranging from 6 months to 5 years.
• The confiscation of goods used to commit the offense, especially when they are related to illegal activities such as clandestine immigration.

Additionally, the order will be communicated to the Consulate or Embassy of the foreigner’s country and registered in the Central Foreigners’ Register.

Procedure for the Expulsion Order

The procedure for issuing an expulsion order can follow two routes: the ordinary procedure or the preferred procedure. The latter is the most commonly used as it speeds up the expulsion process.

First, the police station will notify the foreigner about the initiation of the expulsion procedure, providing the individual’s personal details and specifying the reasons that justify the measure. From here, as specialized immigration lawyers in Madrid, we will prepare a written statement of allegations within a maximum of 48 hours, where we challenge the validity of the expulsion, present supporting evidence, and, if necessary, propose the practice of additional evidence.

The competent authority is required to resolve the request within a maximum of six months, as stipulated by Article 225 of Regulation 557/2011, of April 20. If a resolution is not issued within that time, we can request the expiration of the procedure. If a resolution is issued, it can be appealed: through an appeal for reconsideration before the same body that issued the resolution (within one month) or through a contentious-administrative appeal before the courts (within two months).

Immediate Expulsion

In exceptional cases, immediate expulsion can be requested when the foreigner is involved in a judicial process related to serious crimes. The request is made before the judge, who authorizes the expulsion within the shortest possible time, not exceeding three days, unless there are exceptional circumstances that justify not applying this measure.

Exceptions to Expulsion from Spain

An expulsion order cannot be imposed in some specific cases, such as:

• Foreigners born in Spain who have legally resided in the country for more than 5 years.
• Long-term residents: If the foreigner has legally resided in Spain for a considerable period, family and social ties will be evaluated before issuing the expulsion.
• Persons with international protection: Those who have been granted asylum or protection in another EU member state cannot be expelled to their country of origin if there is a risk to their safety.
• Exceptions for health or pregnancy reasons: Expulsion will not take place if it affects pregnant women or if there is a risk to their health or that of their baby.

Duration of the Ban on Entry into Spain

The ban on entering Spain imposed as a result of expulsion has a temporal limit that varies according to the circumstances. In general, the ban can last up to five years. However, if the foreigner poses a serious threat to public order, national security, or public health, the ban can extend up to ten years, in accordance with Article 58 of Law 4/2000, of January 11, regarding the rights and freedoms of foreigners in Spain.

In certain cases, the expulsion can be imposed without the entry ban being applied, such as when the foreigner is in an irregular situation or is working without the corresponding residence and work permits (Articles 53.1 a and b of Law 4/2000).

Duration of the Expulsion Order and Entry Ban

The ban on entering the country varies depending on the circumstances of the case. In general, this ban will not exceed 5 years. However, if the foreigner represents a serious threat to public order, national security, or public health, the ban can extend up to 10 years. This measure also applies to the Schengen Area territories by agreement with the member countries.

Revocation of the Expulsion Order

The revocation of the expulsion order is possible under various circumstances, as stipulated in Article 241 of Regulation 557/2011. Some situations that may lead to revocation include:

• If the foreigner who has been subject to an expulsion order for irregular stay demonstrates that they have previously applied for a residence permit based on exceptional circumstances.
• If, in the case of expulsion for irregular stay or working without a permit, the foreigner has applied for residence for exceptional reasons (such as in cases of victims of gender-based violence, trafficking victims, or cooperation with organized crime).
• If the foreigner has an expulsion order pending execution but there is clear evidence that their residence application might be successful, despite it not being accepted yet.

The Fine Instead of Expulsion

The Supreme Court, in its ruling no. 366/2021, established an important doctrine regarding penalties for irregular stay in Spain. According to the Court of Justice of the European Union (CJEU), there is no automatic link between irregular stay and expulsion. The EU return directive requires additional aggravating circumstances for expulsion to proceed.

In this regard, case law establishes that the general rule will be the imposition of a fine for irregular stay, and only if aggravating circumstances are found to justify expulsion will this measure apply. The principle of proportionality must prevail, and the most severe sanction, expulsion, will only be applicable when the facts justify it.

Thus, expulsion is considered an extraordinary measure, and its application will depend on the specific details of the case file and the assessment of the aggravating factors present.

Execution Deadline for the Expulsion Order

The deadline for executing the expulsion order depends on the type of procedure followed:

• Preferred Procedure: The expulsion will be executed immediately.
• Ordinary Procedure: The foreigner will have a voluntary period to leave the country, which can be extended if they have dependent children or exceptional circumstances. If the foreigner fails to leave Spain within that period, forced expulsion will take place.

Frequently Asked Questions About the Expulsion Order

1. In which cases can an expulsion order be imposed? An expulsion order can be imposed when the foreigner has committed serious or very serious infractions, such as:
2. What is the duration of the entry ban? The entry ban can vary depending on the circumstances of the case, but it generally does not exceed 5 years. In exceptional cases, such as serious threats to public order or national security, the ban can extend up to 10 years.
3. How is the expulsion procedure initiated? The expulsion procedure can be initiated ex officio or as a result of a complaint. There are two types of procedures: preferred and ordinary. The preferred procedure is usually faster and is applied in severe cases, such as when the foreigner is in an irregular situation or has committed very serious infractions.
4. Can I appeal an expulsion order? Yes, the expulsion order can be appealed. There are two types of appeals:
   • Appeal for reconsideration: This is filed before the same authority that issued the resolution, within one month.
   • Contentious-administrative appeal: This is filed before the National Court within two months.
5. What happens if the expulsion is not executed within the established time frame? If the expulsion order is not executed within the time frame, the foreigner may request the expiration of the procedure, according to Article 225 of Regulation 557/2011.
6. Can an expulsion order be revoked? Yes, in certain situations, such as when the foreigner applies for residence due to exceptional circumstances or proves that their expulsion would affect their personal or family well-being. In these cases, the expulsion procedure may be archived or suspended.
7. What happens if I do not comply with the deadline to leave the country? If the foreigner does not leave Spain within the voluntary period, the expulsion will be executed forcibly, and the police may proceed with detention and forced return to the country of origin.
8. Can I avoid expulsion if I have family in Spain? If you are a long-term resident or have strong family ties in Spain, the expulsion may be reviewed or suspended. However, if the infraction is serious, the expulsion may continue.
9. Can the execution of the expulsion be suspended if I have a child or spouse in Spain? In some cases, if the expulsion affects a foreigner who has minor children or a spouse with legal residence in Spain, evidence may be presented to justify the temporary suspension of the expulsion.
10. Can a less severe sanction than expulsion be applied? In some cases, if the infraction committed is not excessively serious, less severe sanctions, such as a fine instead of expulsion, can be applied. This will depend on the circumstances of the case and the interpretation of the law by the competent authorities.
11. Can an expulsion order be applied if I am already in the process of applying for residence? Yes, if the residence application is being processed and has not yet been granted, the expulsion order can still be executed. However, if it is shown that the foreigner is in the process of regularization and meets the requirements, the expulsion may be suspended.
12. Can I return to Spain after being expelled? Depending on the duration of the entry ban, the foreigner may return to Spain after the stipulated period. To return, a new entry authorization must be requested once the ban period has ended.