The regulations concerning the detention of migrants in Spain are based on Organic Law 4/2000 of 11 January on rights and obligations of aliens in Spain and their social integration. Non-citizens can be detained by the national authorities for up to 72 hours before a judge authorises their placement in an officially designated detention centre. These centres cannot function as prisons.

Migrants can be detained for the following reasons:

• For the purpose of expulsion from the territory for violations listed under Articles 53 and 54 of Organic Law 4/2000, such as being in the territory without proper documentation and authorisation, posing a threat to public order or taking part in illegal immigration.

• When a judge orders detention in cases where the Spanish authorities cannot remove a migrant within 72 hours.

• When a migrant does not leave the country within the prescribed time limit after being issued a deportation order.

Legal grounds for the minimum age for detention

Minors cannot be placed in detention centres. They should be sent to the competent services of Protection of Minors. Should a judge authorise it, the minor could be sent to an internment centre if his or her parents or guardians are also in there, and request to keep the family together; the unity and intimacy of the family must be preserved in these cases.

Legal grounds for the detention order

The Centres of Internment of Foreigners (CIEs) were firstly enshrined in Organic Law 7/1985 of 1 July, On Rights And Freedoms Of The Foreigners In Spain. Article 26.2 enshrines the "possibility of the judicial authority to order the preventive or cautionary entrance of foreigners engaged in specific expulsion causes, in centres with no penitentiary character, while their procedure is being substantiated."

Organic Law 4/2000 of 11 January on the rights and obligations of foreigners in Spain and their social integration. Modified by: Organic Law 8/2000, of December 22; Organic Law 11/2003, of September 29 and by the Organic Law 14/2003, of November 20.

Article 62. Entrance in internment centres

1. Once the sanction procedure has started due to the causes included in paragraphs a) and b) of section 1 of the article 54, as well as a), d) and f) of article 53, by which the expulsion from Spanish territory can be proposed, the instructor could request to the competent judicial authority the entrance in an Interment Centre of irregular alien while the sanction is taking place, but without having to wait for the issuance of the expulsion order for the detention to take place.

The judge, previous audience of the interested person, will decide by means of motivated sentence, attending different circumstances and, especially, the fact that the foreigner lacks domicile or documentation, as well as the existence of previous incriminating sentences or administrative sanctions and/or other pending criminal or administrative procedures (this section has been modified by the article 2º Four of the Organic Law 11/2003, of September 29).

2. The internment will stay for the minimum time necessary for the legal procedure, and in no case can exceed forty days, neither to order a new internment for anyone by the same causes of a previous internment. The judicial sentence that authorizes the procedure, assisting to the circumstances in each case, can fix a maximum period of duration inferior to the one mentioned.

3. The opening of a file of expulsion, the precautionary measures of detention and internment and the final resolution will be communicated to the Ministry of Foreign Affairs and the embassy or consulate of their country.

Organic Law 4/2000 of 11 January on the rights and obligations of foreigners in Spain and their social integration. Modified by: Organic Law 8/2000, of December 22; Organic Law 11/2003, of September 29 and by the Organic Law 14/2003, of November 20.

Chapter VI

Centres of Internment of Foreigners

Article 153. Centres of Internment of Foreigners

1. The Judge of Instruction of the place where the foreigner has been detained, at the request of instructor of the proceedings, the responsible for the foreigners unit on of the National Police before the detainee is presented, or the governmental authority that for itself or for their agents had decided the detention, in the term of 72 hours from the detention could authorize his/her entrance in centres of internment of foreigners. The Centre will not have a penitentiary character, in the cases referred the section 2 below:

2. The internment of foreigners will be ordered only when any of the following situations occurs:

a) That the person has been detained for being included in some of the expulsion situations of the paragraphs a) and b) of the section 1 of the article 54, as well as paragraphs a), d) and f) of article 53 of Organic Law 4/2000, reformed by Organic Law 8/2000.

b) That resolution of return has been issued and it cannot be implemented within the term of 72 hours, when the judicial authority decides the internment

c) When an Agreement of Return has been issued in accordance with this Regulation.

d) That a resolution of expulsion has been issued and the foreigner has not abandoned the national territory within the timeframe given for it.

3. The foreigner's entrance in a centre of non-penitentiary internment of character won't be able to be prolonged for more time of the indispensable for the practice of the expulsion. The governmental authority should proceed to carry out the necessary measures for obtaining the documentation that was necessary at the shortest possible time.

4. The detention of a foreigner with the purpose of being expelled will be communicated to the competent Consulate, to which the information on the foreigner's identity and the internment measure will be provided. This communication will go to the Ministry of Foreign Affairs and Cooperation when it has not been possible to notify to the Consulate or when there is no Consulate of the foreigner national in Spain. The authorities will communicate the internment to the foreigner’s relatives or other people in Spain, upon his/her request.

6. During the time of internment, the foreigner will be submitted to the jurisdictional body that ordered his/her internment. The governmental authority must communicate to this body any situation that may emerge in relation to the foreigner's internment.

7. People admitted in centres of a non-penitentiary character will enjoy the rights which are not affected by the interment measure, especially in articles 62 bis and 62 quarter of Organic Law 4/2000, of 11 January.

Likewise, they will have to comply with the obligations emerging from the internment situation in the conditions established in Organic Law 4/2000 of 11 January, and the norms for its implementation.

Legal grounds for judicial review of the detention order

OM of 22 Of February 1999. Article 2.2. Judicial Review

During his/her stay in the Centre, the foreigner will be under the control of the judicial authority that ordered the measure, who will be informed of any circumstance of interest that may occur in the centre. This authority will verify that the fundamental rights of foreigners in the centres are respected, ex oficio, at the request of the Prosecutor’s Office or the affected person.

Legal grounds for the right of appeal against the detention order, or to challenge detention

Criminal Procedure Law (From Official Journal nº 260 of 17 September 1882 to Official Journal 283 of 10 October 1882) Modified by Organic Laws (…), 18/2006 (Official State Journal nº 134, of 6 June 2006).

Article 216

Against decisions of the Instruction Judge could be lodged the appeal mechanisms of reform, appellation and complaint.

Article 219

The reform and appellation appeals will be lodged before the same Judge that would have given the decision.

The appeal of complaint would be lodged before the competent superior Court.

Criminal Procedure Law (From Official Journal nº 260 of 17 September 1882 to Official Journal 283 of 10 October 1882) Modified by Organic Laws (…), 18/2006 (Official State Journal nº 134, of 6 June 2006).

Legal grounds for the right of information about the detention order and/or the reasons for detention

Organic Law 14/2003, of November 20 that reforms L.O 4/2000.

Article 62.1 quarter. Information and Requests.

When entering the internment centre, foreigners will receive written information on their rights and obligations, issues or general organization, norms of the functioning of the Centre, the disciplinary norms and the means to lodge requests and complaints. The information will be provided in a language that they understand.

Legal grounds for the duration of detention

At the moment of the study the maximum duration of internment could not exceed 40 days. Should the expulsion of the foreigner be proven not to be possible within that that time, authorities should request his/her release prior to this date. A recent reform just approved by the Spanish Parliament has increased the maximum duration to 60 days.

Legal grounds for the provision of health care and the scope of health care benefits, and for the provision of social services

Royal Decree 2393/2004, of 30 of December

Article 154.

Health assistance and social services that is provided in these Centres could be delegated by the Interior Ministry with other ministries or public or private non profit entities, charging the costs of assistance to the pre-established budget lines for that purpose.

Ministerial Order Of 22 Of February 1999 On Functioning Norms And Internal Procedures Of Aliens Detention Centres Article 12. Health Assistance Service

1. In each centre there will be a Health Service under the responsibility of a medical doctor who will be assisted by a professional nurse. Specialised personnel of the National Police Force will fulfil those positions.

2. In order to attend the need of foreigners to be attended in a hospital as well as specialised medical assistance, the necessary agreements could be made with hospitals and specialized clinics near to the interment centre.

3. There will be function of the Health Service, besides medical and pharmaceutical assistance of the foreigners, the inspection of the hygienic system. The Health service should inform and propose the direction of the centre the necessary actions, in relation to the preparation and distribution of the food that would be appropriate for a normal diet (LO 4/2000).

LO 4/2000

Article 62.bis. Rights of the interned foreigners

To receive health adequate health assistance and being assisted by the social services of the centre.

Legal grounds for contact with the outside world

LO 4/2000. Article 62 bis. Rights of the interned foreigners

Foreigners will have the following rights: (…)

d) To receive adequate health and sanitary assistance and being assisted by the social services of the centre.

RD 1293 of 30 de December. Article 154. Competence

6. Health assistance and social services that is provided in these centres could be delegated by the Interior Ministry with other ministries or public or private non profit entities, charging the costs of assistance to the pre-established budget lines for that purpose.

Ministerial Order Of 22 Of February 1999 On Functioning Norms And Internal Procedures Of Aliens Detention Centres.

Article 13. Social assistance services

1. The centres will have the appropriate social assistance services for the foreigners assisted by social workers under the direct supervision of the Director of the centre to who they will present their plans and projects for action.

2. The social services that will be facilitated in the centres could be delegated to public entities of non governmental organizations or other no profit organizations according to article 6.

3. Social assistance will have the purpose of addressing the problems that have emerged to the foreigners in the internment centres, and if appropriate to their families, as a consequence of their internment in the centre, especially with regards to interpretation services, family relations with other countries or support in their paper work.

Legal grounds for the provision of legal aid

LO 4/2000. Article 62.bis Rights and obligations of the interned foreigners

The foreigners under conditions of internment will have the following rights:

f) To be assisted by a lawyer that will be provided ex-oficio (free of charge) if necessary, and to privately communicate with him/her, even after regular visiting schedule if the urgency of the case so require.

Legal grounds for the protection of persons with special needs

No norm addresses this issue.

Legal grounds for alternatives to detention

There are no alternatives to detention laid down in law.

Legal grounds for providing release from detention

Should the expulsion of the foreigner be proven not to be possible within that that time, authorities should request his/her release prior to this date.

Source: The Spanish Refugee Council (Comision Espanola de Ayuda al Refugiado), national report written for Becoming Vulnerable in Detention (p.362)

CEAR is a Spanish independent NGO founded in 1979 in order to protect the right to seek asylum. Its main goals are to provide legal and social assistance to refugees and migrants, and to advocate for the interests of asylum seekers.

www.cear.es

Last updated on the 23/03/2011