Expulsion over a criminal record when your family is here

The case, in five lines

What is brought

Challenge to the expulsion decision for want of the conditions in art. 57.2 of Organic Law 4/2000 and for the absence of the balancing exercise required by art. 57.5, with a request for suspension.

Before which court

The decision is made by the Delegación or Subdelegación del Gobierno (the central government office in the province), and the court challenge is heard by the sección de lo Contencioso-Administrativo del Tribunal de Instancia (the administrative-law section of the first-instance court).

Deadline

One month for a reposicion appeal where the decision is express, under art. 124.1 of Law 39/2015, and two months for the court claim under art. 46.1 LJCA, both running from the day after notification.

Who can bring it

The foreign national subject to the file. Art. 57.5 of Organic Law 4/2000 also protects the spouse who has resided lawfully for more than two years, and the dependent ascendants and children on the terms set out there.

Financial risk

Art. 57.4 of Organic Law 4/2000 makes expulsion extinguish any authorisation to remain lawfully in Spain and close any pending residence or work application. If the court claim is lost, an order to pay costs may be added to the removal.

A conviction is not, by itself, a ground for expulsion

Art. 57.2 of Organic Law 4/2000 requires three things at once, and the absence of any one of them brings the decision down. That the person has been convicted, inside or outside Spain, for intentional conduct. That the conduct amounts in Spain to an offence punishable by more than one year of imprisonment. And that the criminal record has not been cancelled.

Each requirement is a front. A conviction for negligence is not intentional conduct. A foreign conviction requires checking how the act is classified under Spanish law and what penalty it carries here, not there. And cancellation of the record is expressly excepted in the provision itself, so the actual state of the criminal record is the first thing to check in the case.

The same art. 57.2 makes expulsion conditional on the corresponding file having first been examined. That is not an empty formula: it means the conditions must be established in a specific file, with the judgment before the authority, and not inferred from a police entry or a note stating that a conviction exists without saying which one or what penalty it carried.

Art. 57.5 says exactly what has to be weighed

Where the person concerned is a long-term resident, art. 57.5.b) of Organic Law 4/2000 leaves no room: before an expulsion decision is taken, account must be taken of the length of residence in Spain and the ties created, the person's age, the consequences for them and for the members of their family, and the ties with the country to which they would be expelled.

That list is the structure of the appeal. You do not argue that expulsion is unjust in the abstract: you take each factor and document it. Twelve years of residence proved with the historical padrón and the social security record. Ties created, with contracts, school reports and community involvement. Consequences for the family, with the children's enrolment certificates and social reports describing who depends on you.

The last factor is always forgotten and carries the most weight: the ties with the country to which the person would be expelled. Someone who left it as a child, with no family, no home, no fluent language and no healthcare cover in that State, is not being sent back to their life but uprooted from it. That is proved, not proclaimed, and its absence from the decision is a defect of reasoning.

There are people on whom the law forbids imposing expulsion

Art. 57.5 of Organic Law 4/2000 provides that the penalty of expulsion may not be imposed, unless the infringement is the one in art. 54.1.a) or amounts to a repeat within one year of another of the same nature punishable by expulsion, on four groups: those born in Spain who have lawfully resided for the last five years, long-term residents, those who were Spanish by origin and lost the nationality, and certain benefit recipients.

The fourth group is overlooked and sometimes decides the case. It covers anyone receiving a permanent incapacity benefit arising from an accident at work or an occupational illness occurring in Spain, and also anyone receiving contributory unemployment benefit or a public assistance benefit aimed at achieving their social or occupational integration or reintegration.

The protection extends to the family. The same provision adds that expulsion may not be imposed on, or enforced against, the spouse of a foreign national in one of those situations who has resided lawfully in Spain for more than two years, nor against their ascendants and minor children, or adult children with a disability who are objectively unable to provide for their own needs because of their state of health and are dependent on them.

Some expulsions that are ordered cannot be carried out

Art. 57.6 of Organic Law 4/2000 bars enforcement of expulsion where it would breach the principle of non-refoulement, and also where it affects pregnant women if the measure could pose a risk to the pregnancy or to the mother's health. These are limits on enforcement, distinct from those on imposition, and they can be relied on even once the order has been made.

Art. 57.7 adds another filter where criminal proceedings are open: if the file shows that the person is charged with an offence carrying less than six years of imprisonment or a penalty of a different nature, expulsion requires judicial authorisation, which the court grants after hearing the public prosecutor unless it finds, with reasons, circumstances justifying refusal.

What expulsion sweeps away, and why the deadline presses

Art. 57.4 of Organic Law 4/2000 is blunt: expulsion always entails the extinction of any authorisation to remain lawfully in Spain, together with the closure of any pending application for residence or work. The card you held and the renewal you were waiting for both disappear at the same time, and that is the harm the challenge has to stop.

The same provision leaves a door open, since it allows expulsion to be revoked in the cases set out by regulation. And art. 57.9 requires the decision to be notified stating which appeals lie, the body before which they are filed and the time allowed, so a notification silent on those points is defective, and it is worth putting that in writing.

Finally, a fact that sets the calendar. Art. 57.1 frames expulsion, in the infringement cases it lists, as something that may be applied having regard to proportionality instead of a fine and by a reasoned decision assessing the facts. That duty to give reasons is the ground on which the case is fought, and the appeal clock starts the day after notification.

How we run the case, step by step

1. 1

   Verify the three conditions in art. 57.2

   We obtain a certified copy of the judgment and the criminal record sheet to check whether the conduct was intentional, what penalty the act carries in Spain, and whether the record is already cancelled. One failing condition is enough for the ground not to apply.

2. 2

   Document the balancing exercise factor by factor

   We build an evidence annex following the list in art. 57.5.b): length of residence, ties created, age, consequences for you and for your family, and ties with the country of destination. Each factor with its document, not with adjectives.

3. 3

   Check whether a bar under art. 57.5 applies

   We examine whether you are a long-term resident, were born in Spain, were Spanish by origin, or receive one of the benefits the provision lists, and whether your spouse, ascendants or dependent children are covered by its closing paragraph.

4. 4

   Make submissions before the decision is taken

   The whole balancing exercise is put on the file at the submissions stage, with the evidence, so that the decision is obliged to address it. What is not on the file is far harder to rely on before the court afterwards.

5. 5

   Challenge the order and seek suspension

   The appeal is filed in time, judicial suspension of enforcement is sought, and, where they apply, the limits in art. 57.6 and the judicial authorisation required by art. 57.7 in the case of open criminal proceedings are invoked.

6. 6

   Rebuild your documentary position after winning

   Once the expulsion is annulled, we demand that the extinction of authorisations imposed by art. 57.4 be undone and that the applications closed because of that decision be reopened, with their original dates.

The law that applies

• Art. 57.1 de la LO 4/2000. It allows expulsion to be applied, having regard to the principle of proportionality, instead of a fine, after the corresponding file has been examined and by a reasoned decision assessing the facts that make up the infringement. BOE-A-2000-544
• Art. 57.2 de la LO 4/2000. It makes it a ground for expulsion that the foreign national has been convicted, inside or outside Spain, of intentional conduct amounting in Spain to an offence punishable by more than one year of imprisonment, unless the criminal record has been cancelled, and always after the corresponding file has been examined. BOE-A-2000-544
• Art. 57.4 de la LO 4/2000. Expulsion always entails the extinction of any authorisation to remain lawfully in Spain and the closure of any pending application for residence or work, although it allows expulsion to be revoked in the cases set out by regulation. BOE-A-2000-544
• Art. 57.5 de la LO 4/2000. It forbids imposing expulsion, save in the cases it excepts, on those born in Spain with five years of lawful residence, on long-term residents, on those who were Spanish by origin, and on certain benefit recipients, and it requires that, before expelling a long-term resident, account be taken of length of residence, ties created, age, the consequences for them and their family, and ties with the country of destination. It extends the protection to a spouse with more than two years of lawful residence and to dependent ascendants and children. BOE-A-2000-544
• Art. 57.6 de la LO 4/2000. It bars enforcement of expulsion where it would breach the principle of non-refoulement or where it affects pregnant women if the measure could pose a risk to the pregnancy or the mother's health. BOE-A-2000-544
• Art. 57.9 de la LO 4/2000. It requires the expulsion decision to be notified to the person concerned stating which appeals lie against it, the body before which they are to be filed and the time allowed for filing them. BOE-A-2000-544

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions