Article 89 Spanish Criminal Code: Expulsion in substitution for imprisonment

Article 89 of the Spanish Criminal Code provides for the substitution of a custodial sentence exceeding one year imposed on a foreign national by expulsion from Spanish territory, and permits partial substitution where the sentence exceeds five years. It is the provision of greatest practical consequence in the defence of non-EU nationals convicted in Spain, and it can operate either as a threat or as an objective, depending on the client circumstances.

Wording of Article 89 of the Spanish Criminal Code

Elements of the offence

1. The convicted person is a foreign national, with a materially different regime for nationals of EU Member States.
2. A custodial sentence exceeding one year, or exceeding five years for the partial substitution regime.
3. Prior hearing of the convicted person, the public prosecutor and any parties joined to the proceedings.
4. A proportionality assessment addressing the circumstances of the offence and the personal circumstances of the offender, in particular ties to Spain.
5. For EU nationals, a serious threat to public order or public security, and for those resident for more than ten years or who are minors, imperative grounds of public security.

Defence strategy

Establishing ties to Spain. This is the central line where expulsion is to be resisted. Length of residence, immigration status, family in Spain, schooling of children, employment history and access to housing must all be documented. The court is under a duty to weigh these matters and a decision that fails to do so is open to appeal.

Protection of family life. Article 8 of the European Convention on Human Rights and the case law of the Strasbourg Court require the impact of expulsion on the family unit to be weighed, particularly where there are dependent children or a Spanish spouse or long-term resident partner.

The reinforced regime for EU nationals. Paragraph 4 requires a serious threat to public order or public security and, for those resident for more than ten years and for minors, imperative grounds of public security. Invoking that higher threshold is frequently decisive for British nationals who acquired residence before the end of the transition period and for other EU citizens.

Expulsion as the defence objective. Conversely, where the client has no ties to Spain and wishes to return home, substitution avoids serving the sentence. Actively seeking it may be the best available outcome, and it should be raised at the plea stage rather than left to the enforcement phase.

Duration of the re-entry ban. The ban runs from five to ten years according to the length of the sentence and the circumstances of the offender. Reasons must be given for any period above the minimum, and that period is itself open to challenge.

Risk in the country of destination. Expulsion is not available where a risk to the life or physical integrity of the convicted person in the destination country is established, nor where he is an applicant for international protection with a pending file.

• Extradition and European Arrest Warrant
• Spanish Criminal Code by article
• Enforcement of criminal sentences
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.