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Article 89 Spanish Criminal Code: Expulsion in substitution for imprisonment
Quick answerArticle 89 of the Spanish Criminal Code provides that prison sentences of more than one year imposed on a foreign national are replaced by expulsion from Spain. The substitution is not automatic: it requires that the convicted person be heard and that the court weigh their ties to Spain, family and employment situation and the risks in the country of destination.
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.
Also cited as: article 89 Spanish Criminal Code · art. 89 CP · Spanish Penal Code article 89 · artículo 89 del Código Penal.
Wording of Article 89 of the Spanish Criminal Code
1. Custodial sentences of more than one year imposed on a foreign national shall be substituted by his expulsion from Spanish territory. Exceptionally, where necessary in order to ensure the defence of public order and the proper re-establishment of social confidence in the legal system infringed by the offence, the court may order that part of the sentence be served, not exceeding two thirds of its length, with the remainder substituted by expulsion.
4. No substitution shall be ordered where it appears disproportionate in the light of the circumstances of the offence and the personal circumstances of the offender, in particular his period of residence in Spain and his family, employment and social ties. Nor shall it apply to nationals of Member States of the European Union unless they represent a serious threat to public order or public security, having regard to the nature, circumstances and gravity of the offence and to their personal circumstances.
Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.
Sentencing range. Substitution of a custodial sentence exceeding one year by expulsion, with a ban on re-entry of five to ten years. Where the sentence exceeds five years, part of it is served and expulsion follows on progression to open conditions or on parole. A reinforced regime applies to EU nationals.
Key facts
| Scope | Prison sentences of more than one year imposed on foreign nationals. Sentences of one year or less fall outside the provision. |
|---|---|
| Sentences over five years | The court orders all or part of the sentence to be served, and expulsion operates when the prisoner reaches open conditions or is granted parole. |
| EU citizens | A stricter regime applies: expulsion is available only where they represent a serious threat to public order or public security, with further requirements for long-term residents. |
| Required safeguards | The convicted person must be heard, with adversarial debate, proportionality and sufficient reasons. Their absence renders the expulsion order void. |
| Ban on return | The expelled foreign national may not return to Spain for the period set by the court, running from the date of expulsion. |
| When it is decided | It may be ordered in the judgment or at the enforcement stage. The defence should address it at both points, since the convicted person’s interests may change. |
| Related provision | Article 80, suspension of enforcement, an alternative worth weighing against expulsion. |
Elements of the offence
- The convicted person is a foreign national, with a materially different regime for nationals of EU Member States.
- A custodial sentence exceeding one year, or exceeding five years for the partial substitution regime.
- Prior hearing of the convicted person, the public prosecutor and any parties joined to the proceedings.
- A proportionality assessment addressing the circumstances of the offence and the personal circumstances of the offender, in particular ties to Spain.
- 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.
Case law
Supreme Court judgment 608/2017 of 11 September, Second Chamber, appeal 10104/2017, Llarena Conde. Holds that expulsion under Article 89(1) cannot be applied automatically or mechanically. It requires an individual examination in each case, weighing the competing fundamental rights with care and moderation.
Matters to be weighed. The same judgment lists the convicted person’s ties to Spain, their family and employment situation, the risk of torture or degrading treatment in the country of origin and the impact on constitutional values such as family unity. It stresses that the essential standards of a hearing, adversarial debate, proportionality and sufficient reasons must be observed.
The one-year threshold. The Supreme Court has held that a prison sentence of less than one year imposed on a foreign national cannot be replaced by expulsion, as it falls outside the wording of the provision.
Defence in this area
If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.
Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.
- 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.
Last reviewed: 21 September 2026.
Frequently asked questions
When is a prison sentence replaced by expulsion?
Where a foreign national receives a prison sentence of more than one year. Sentences of one year or less fall outside the provision, as the Supreme Court has held.
Is expulsion automatic?
No. Supreme Court judgment 608/2017 of 11 September holds that it cannot be applied automatically or mechanically and requires an individual examination, weighing the competing fundamental rights with care and moderation.
What must the court take into account?
The convicted person’s ties to Spain, their family and employment situation, the risk of torture or degrading treatment in the country of origin and the impact on constitutional values such as family unity, after hearing them and with sufficient reasons.
What happens with sentences over five years?
The court orders all or part of the sentence to be served, and the remainder is replaced by expulsion when the prisoner reaches open conditions or is granted parole.
Does it apply in the same way to EU citizens?
No. Their expulsion requires that they represent a serious threat to public order or public security, with stricter requirements where they are long-term residents.
How long does the ban on return last?
The period is set by the court in the decision ordering expulsion and runs from the date on which expulsion is carried out.
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