Foreigners in irregular situation: the penalty of expulsion cannot be substituted for a fine, but neither can they be expelled if there are no aggravating circumstances.

For foreigners in irregular situation in Spain, the debate about whether they should be expelled from Spain, or whether they can remain in Spain in exchange for a fine, is not new. The Judgment of the Court of Justice of the European Union, of April 23, 2015, establishes that in the case of an irregular situation of a foreigner in Spanish territory, depending on the circumstances, a fine or expulsion will proceed, but both measures are mutually exclusive. And based on that ruling, our Supreme Court declared that it is not possible to choose between the sanction of a fine and expulsion, but rather that for a foreigner in irregular situation in Spanish territory, the sanction of expulsion must be imposed.

Foreigners in irregular situation: What has the Court of Justice of the European Union ruled?

But the Court of Justice of the European Union, in a ruling of October 8, 2020, established that for foreigners in irregular situation in Spanish territory, it must be taken into account that the expulsion of the foreigner should only be adopted if there are aggravating circumstances , additional to the irregular situation of the foreigner. In other words, the competent authority on immigration matters in Spain may not take the decision to expel from Spain a foreigner in irregular situation in Spanish territory unless there are aggravating circumstances in the person of the foreigner, in addition to their irregular situation.

Well, the ruling of our Supreme Court of March 17, 2021 clarifies whether expulsion from Spanish territory is the preferred sanction to impose on foreigners who have engaged in conduct classified as serious (felony) in article 53.1 a) of the Organic Law. 4/2000 of January 11 or if, on the contrary, the main sanction for such conduct is a fine, provided that there are no aggravating circumstances added to the irregular situation. And this sentence comes to establish that the principle of proportionality referred to in article 57.1 of our Organic Law 4/2000 of January 11 must be applied to determine when the irregular stay can give rise to expulsion or not. And, according to the European Union’s own jurisprudence, it is necessary to attend to factors added to the mere stay that justify the expulsion.

Foreigners in irregular situation: the European Directive and Spanish law

And it is that, neither in the European Directive nor in our Spanish Law, the mere irregular stay without these added factors can give rise to the expulsion of the foreigner (to an expulsion order). In other words, if there are no concurrent factors to the mere irregular stay, then there would be no reason to justify an order to expel the alien in irregular situation.

Ultimately, the aforementioned Supreme Court ruling establishes the following criteria:

«Firstly, that the situation of irregular stay determines, where appropriate, the expulsion decision and
there is no possibility of substitution by a fine sanction.
Secondly, that the expulsion, including the return decision and its execution, requires, in each case and individually, the assessment and appreciation of aggravating circumstances that reveal and justify the proportionality of the measure adopted, after the processing of a procedure with full guarantees of the rights of those affected, as required by European Union jurisprudence.
Thirdly, that due to such aggravating circumstances, those that have been appreciated by jurisprudence in relation to the seriousness of the mere irregular stay must be considered, whether of a subjective or objective nature, and which may include others of similar significance ” .

Neither in the European Directive nor in our Spanish law, the mere irregular stay of the foreigner in Spain without added aggravating factors can give rise to the expulsion of the foreigner (to an expulsion order).

Conclusion

In conclusion, the mere irregular situation of a foreigner in Spanish territory should not lead to an expulsion order, but there must be aggravating circumstances that, based on a judgment of proportionality, determine that the foreigner must leave Spanish territory.

If you are in irregular situation in Spain, or if you want to regularize your situation in Spanish territory, or obtain your residence permit or appeal your denial of residence permit in administrative or judicial procedures, or you wish to get your Visa to  reside in Spain, do not hesitate to contact the Pérez Parras Economistas y Abogados Firm.

If you are a resident or non-resident foreign citizen, at Pérez Parras Economistas y Abogados office we help you to process your taxes (Form 720 Spain, tax return as a natural person or statement of assets), as well as to establish your business in Spain or to buy your living place. Do not hesitate to contact the Pérez Parras Economists and Lawyers Firm.