Expulsion proceedings opened: 48 hours to make your case
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
The decision opening the file gives you 48 hours to make submissions and offer evidence, under arts. 63.4 of Organic Law 4/2000 and 234.1 of Royal Decree 1155/2024. If you do not, that same decision becomes the proposed resolution. That is where it is decided whether the case ends in a fine or in an immediately enforceable expulsion.
The police identify you at a checkpoint, at work, or when you go to report something else, and hours later you are handed some pages: a decision opening expulsion proceedings under the preferential procedure. You are told you have 48 hours, perhaps with an interpreter translating quickly, and you sign without fully understanding what you are signing. You may be taken to a detention centre. You have been here six years, your children are in school and you have a payslip, but none of that is yet on the file.
The case, in five lines
- What is brought
- Written submissions with an offer of evidence within the 48 hours, defence against detention and, once the order is made, a challenge to the expulsion decision with a request for suspension.
- Before which court
- The file is handled and decided by the Delegación or Subdelegación del Gobierno (the central government office in the province); detention is ordered by the sección de Instrucción del Tribunal de Instancia (the investigating section of the first-instance court), and the expulsion order is challenged before its administrative-law section.
- Deadline
- Forty-eight hours from service of the decision opening the file, under arts. 63.4 of Organic Law 4/2000 and 234.1 of Royal Decree 1155/2024. Where evidence is taken, art. 234.4 opens a further 48 hours to be heard on the proposed resolution.
- Who can bring it
- The foreign national subject to the file, personally or through a representative, both of whom arts. 63.5 of Organic Law 4/2000 and 234.3 of Royal Decree 1155/2024 expressly allow to make submissions and offer evidence.
- Financial risk
- The expulsion order is enforced immediately once notified, under arts. 63.7 of Organic Law 4/2000 and 235.2 of Royal Decree 1155/2024, and art. 235.3 rules out any suspensory effect being declared in the administrative route. In addition, art. 57.4 of Organic Law 4/2000 makes expulsion extinguish any authorisation to remain lawfully in Spain.
The 48 hours are not a warning: they are the hearing
Art. 63.4 of Organic Law 4/2000 requires the reasoned written decision opening the file to be served on the person concerned so that they may make whatever submissions they see fit within 48 hours, warning them of the consequences of not doing so. Art. 234.1 of Royal Decree 1155/2024 repeats the rule. That brief is not a form: it is the only defence the file will ever hear.
The consequence is written down. Art. 63.5 provides that if the person concerned or their representative makes no submissions and offers no evidence on the content of the opening decision, that decision is treated as the proposed resolution and sent to the authority competent to decide. In other words, the paper that accuses you becomes, with nobody contradicting it, the paper that expels you.
The preferential procedure does not fit every irregular stay
Art. 63.1 of Organic Law 4/2000 reserves the preferential procedure for the cases in arts. 53.1.d), 53.1.f), 54.1.a), 54.1.b) and 57.2. For the infringement in art. 53.1.a) it is available only where there is a risk of absconding, where the person avoids or hinders the expulsion, or where they represent a risk to public order, public security or national security.
Art. 233 of Royal Decree 1155/2024 spells out the first circumstance: risk of absconding is assessed by looking in particular at the absence of a home address or identity documents, at there being no proof of lawful entry into the Schengen area, or at failure to comply with an obligation to leave. Someone with a known address, padrón registration and passport removes that premise, and without it the preferential route loses its basis.
That is why the first line of defence does not argue the facts, it argues the route. If the opening decision charges art. 53.1.a) and gives reasons for none of the three circumstances, a summary procedure is being used for a case the law does not assign to it, and that objection must be raised within the 48 hours, not later.
Expulsion is an alternative to a fine, not the natural outcome
Art. 57.1 of Organic Law 4/2000 is explicit: where the foreign offender commits very serious conduct, or serious conduct under letters a), b), c), d) and f) of art. 53.1, expulsion from Spanish territory may be applied, having regard to the principle of proportionality, instead of a fine, after the file has been examined and by way of a reasoned decision assessing the facts that make up the infringement.
Two words in that provision carry the defence: proportionality and reasoning. Expulsion appears as a substitute for the fine, and the decision is required to assess the facts, not merely recite them. Art. 57.3 completes the picture by prohibiting expulsion and a fine from being imposed together, which confirms that they are alternative responses between which the authority must choose with reasons.
Pleading roots within the 48 hours is not procedural sentimentality: it supplies the facts the decision is bound to assess. Years of residence, children in school, a social security record, medical reports and a stable home are the material from which the disproportion of expelling someone who could have been fined is built.
Offering evidence opens three days and a second hearing
Art. 63.5 of Organic Law 4/2000 provides that, if the offer of evidence is accepted, it is to be taken within a maximum of three days. Art. 234.4 of Royal Decree 1155/2024 sets out the effect: once the evidence is taken, the case officer draws up the proposed resolution, notifies it to the person concerned and grants a fresh period of 48 hours to make submissions and file whatever documents they consider relevant.
That mechanism changes the pace of the file. A brief that merely denies the facts leaves the procedure where it was; a brief offering specific evidence forces the case officer to rule on it and, if it is admitted, to open a stage that did not exist. And if it is rejected, art. 234.4 requires that to be done with reasons, as improper or unnecessary, which creates the defect that is later challenged.
Detention is decided by a court and has limits
Art. 234.5 of Royal Decree 1155/2024 allows the case officer to request admission to a Centro de Internamiento de Extranjeros (an immigration detention centre), and requires the request to be reasoned. The decision is not the officer's: it is taken by the investigating judicial authority, today the sección de Instrucción del Tribunal de Instancia. Detention lasts only as long as strictly necessary, may never exceed sixty days, and the court order may set a shorter period.
The same provision forbids ordering fresh detention on any of the grounds already covered by the same file. And art. 234.6 offers the way out where the court refuses detention: surrender of the passport against a receipt, periodic reporting to the case officer, compulsory residence at a set place, or any other measure the court considers adequate and sufficient. Offering one of them is often what keeps a person out of the centre.
Appealing does not stop it: the order is enforced at once
Art. 63.7 of Organic Law 4/2000 and art. 235.2 of Royal Decree 1155/2024 provide that enforcement of the expulsion order, once notified, takes place immediately. Art. 235.3 adds that this enforceability does not remove the right of appeal of those entitled to bring one, without prejudice to the immediacy of the expulsion and to the fact that no suspensory effect may be declared in the administrative route.
Hence the challenge is brought with a request for suspension before the court, and not only before the authority. Art. 235.3 itself requires the decision to state which appeals lie, before which body they are filed and within what time, so a decision that omits that warning is defective, and it is worth recording that in writing straight away.
It is also worth knowing what gets reported. Art. 236 of Royal Decree 1155/2024 requires the opening of the file, the precautionary measures of arrest and detention, and the expulsion decision to be notified to the embassy or consulate of the person's country, and to be recorded in the Registro Central de Extranjeros (the central foreign nationals register) of the national police.
How we run the case, step by step
- 1
Fix the exact hour the opening decision was served
The 48 hours in arts. 63.4 and 234.1 run from service of the opening decision. We locate the record of service, with day and hour, because it determines whether the brief is in time and whether the later decision came too early.
- 2
Read the charge and check the route
We identify which infringement is charged and under which letter. If it is art. 53.1.a), we check whether the decision gives reasons for any of the three circumstances in art. 63.1 and art. 233 of Royal Decree 1155/2024, because without them the preferential procedure does not apply.
- 3
Submissions and offer of evidence in time
The brief is filed with documented facts of settled life and with specific evidence offered, so as to trigger the three days in art. 63.5. It expressly asks that, if the evidence is refused, the refusal be reasoned as required by art. 234.4.
- 4
Defence against detention
If the case officer requests detention, we appear before the sección de Instrucción del Tribunal de Instancia proving address and documents, and offer the measures in art. 234.6 of Royal Decree 1155/2024 as a sufficient alternative to the centre.
- 5
Second hearing on the proposed resolution
Once the evidence is taken, art. 234.4 requires the proposed resolution to be notified and a further 48 hours to be granted. They are used to rebut how the evidence was assessed and to add documents that did not arrive in time for the first brief.
- 6
Challenge to the order with a request for suspension
Once expulsion is ordered, it is challenged before the administrative-law section of the Tribunal de Instancia and judicial suspension is sought, because art. 235.3 rules out the authority declaring any suspensory effect of its own.
The evidence that decides the case
- The opening decision itself, with the record of service, the hour, and the specific infringement charged.
- The padrón certificate and the tenancy agreement proving a known address, against the risk of absconding referred to in art. 233.
- The passport and identity documents, whose absence is precisely one of the indicators art. 233 requires to be assessed.
- The family record book, the children's school enrolment certificates and the medical reports documenting family life in Spain.
- The social security record, payslips or employment contract that support the disproportion of expelling instead of fining under art. 57.1.
- Proof of an earlier application for temporary residence, which art. 63.6 links to suspension of the file.
What closes the door
- Letting the 48 hours pass. Art. 63.5 then turns the opening decision into the proposed resolution, and the file goes up for decision without a single argument against it.
- Making submissions without offering evidence. With no offer of evidence, neither the three days in art. 63.5 nor the second 48-hour hearing in art. 234.4 is opened.
- Signing without understanding it when you do not speak Spanish, instead of asserting the right to an interpreter recognised in arts. 63.3 and 234.2.
- Trusting that an appeal stops removal. Arts. 63.7 and 235.2 order immediate enforcement, and art. 235.3 prevents the authority from declaring any suspensory effect.
- Failing to prove a residence application already filed, which art. 63.6 links to suspending the expulsion until that application is decided.
The law that applies
- Art. 63 de la LO 4/2000. It reserves the preferential procedure for certain infringements and, for the irregular stay in art. 53.1.a), only where there is a risk of absconding, the expulsion is avoided or hindered, or the person poses a risk to public order. It gives 48 hours for submissions, turns the opening decision into the proposed resolution if none are made and no evidence is offered, and orders immediate enforcement. BOE-A-2000-544
- Art. 57 de la LO 4/2000. It allows expulsion to be applied, having regard to proportionality, instead of a fine, by a reasoned decision assessing the facts of the infringement, and forbids imposing expulsion and a fine together. It adds that expulsion extinguishes any authorisation to remain lawfully in Spain and closes any pending residence or work application. BOE-A-2000-544
- Art. 233 del RD 1155/2024. It lists the cases for the preferential procedure and specifies that, in assessing risk of absconding, particular weight is given to the absence of a home address or identity documents, the lack of proof of lawful entry into the Schengen area, or failure to comply with an obligation to leave. BOE-A-2024-24099
- Art. 234 del RD 1155/2024. It governs the initial 48 hours, the right to legal assistance and an interpreter, the duty to give reasons for refusing offered evidence, the taking of admitted evidence within three days, and a further 48-hour hearing on the proposed resolution. It also governs the reasoned request for detention, its sixty-day limit and the alternative measures. BOE-A-2024-24099
- Art. 235 del RD 1155/2024. It requires the decision to be reasoned, to resolve every question raised, and not to accept facts other than those established in the procedure. It orders immediate enforcement of the notified expulsion and rules out any suspensory effect being declared in the administrative route, without prejudice to the right of appeal, which the decision must state along with the body and the time limit. BOE-A-2024-24099
- Art. 236 del RD 1155/2024. It requires the opening of the file, the precautionary measures of arrest and detention, and the expulsion decision to be reported to the embassy or consulate of the person's country, and recorded in the Registro Central de Extranjeros of the national police. BOE-A-2024-24099
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
What happens if I say nothing within the 48 hours?
Art. 63.5 of Organic Law 4/2000 says it bluntly: if no submissions are made and no evidence is offered on the content of the opening decision, that decision is treated as the proposed resolution and sent to the authority competent to decide. The file goes up with a single version of the facts, that of the reporting officer, and with no evidence of settled life on it.
Can I be detained while the file is open?
Art. 234.5 of Royal Decree 1155/2024 lets the case officer request it, but the decision belongs to the investigating judicial authority and the request must be reasoned. Detention lasts only as long as strictly necessary, may not exceed sixty days, and the order may set less. If it is refused, art. 234.6 provides alternatives such as surrender of the passport or periodic reporting.
Does appealing the expulsion stop me being removed?
On its own, no. Arts. 63.7 of Organic Law 4/2000 and 235.2 of Royal Decree 1155/2024 order the notified order to be enforced immediately, and art. 235.3 rules out any suspensory effect being declared in the administrative route, while still recognising the right of appeal. That is why the challenge always goes together with a request for suspension addressed to the court.
I already filed a residence application. Does that help?
It can be decisive. Art. 63.6 of Organic Law 4/2000 provides that, in the cases in art. 53.1.a) and b), where the foreign national proves an earlier application for temporary residence under art. 31.3 of that law, the body in charge suspends the expulsion until that application is decided, continuing the file only if it is refused.
Can this end in a fine instead of expulsion?
That is the ground on which the case is fought. Art. 57.1 of Organic Law 4/2000 frames expulsion as something that may be applied, having regard to proportionality, instead of a fine, and always by a reasoned decision assessing the facts. Art. 57.3 forbids imposing both at once, so the authority has to choose and to explain why it chooses.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.