Article 318 bis Spanish Criminal Code: Facilitating Illegal Immigration

Article 318 bis of the Spanish Criminal Code punishes intentionally helping a person who is not a national of a European Union Member State to enter Spain, to transit through it or, for gain, to remain in it in breach of the immigration legislation. The provision contains an express humanitarian exclusion: the conduct is not punishable where the sole purpose was to give humanitarian assistance. The article reaches employers, landlords and intermediaries as well as those who organise crossings, and the qualified form, where an organisation is involved or life is endangered, carries imprisonment of four to eight years.

Wording of Article 318 bis of the Spanish Criminal Code

Elements of the offence

1. A person assisted who is not a national of a European Union Member State. Assistance given to a Union citizen falls outside the article entirely.
2. Assistance with entry, transit or, for gain, with remaining in Spain, in breach of the legislation on entry, transit or stay.
3. Intention. Negligent conduct is not punishable, so the person providing the assistance must know that it breaches the immigration rules.
4. For paragraph 2, an intention to obtain gain, which is a constituent element and not an aggravating circumstance: assistance to remain that is given without gain is not an offence under this article.

Defence strategy

The humanitarian exclusion. The second paragraph of the article expressly removes from the scope of the criminal law conduct whose sole purpose was humanitarian assistance. It covers assistance given to relatives, the rescue of persons in distress and the provision of shelter or transport to a person in need. The defence documents the relationship between the parties, the circumstances in which the assistance was given and the absence of any payment, because the exclusion operates as a matter of law once those facts are established.

Absence of gain in cases of assistance to remain. Paragraph 2 punishes only assistance given for gain. An employer who continued to employ a worker whose authorisation had lapsed, a landlord who let a property to a person without a residence permit, and a friend who provided an address are not within the provision unless the benefit obtained derived from the irregularity itself. The ordinary payment of rent or the ordinary performance of a contract of employment is not gain in this sense, and the distinction is the central argument in the majority of these files.

Excluding the qualified form. The move from paragraph 1 to paragraph 3 is a move from a fine to four to eight years, and the two circumstances relied on are pleaded more readily than they are proved. An organisation requires a stable structure with a distribution of functions and not merely the participation of several persons in a single episode. The endangerment of life requires evidence of the actual conditions of the crossing or the transport. Each is contested on the evidence rather than by inference from the number of persons involved.

The reduction in paragraph 6. Paragraph 6 gives the courts an express power to reduce the penalty by one degree having regard to the gravity of the act, the condition of the offender and the purpose pursued. It is the provision that resolves cases lying at the margin of the humanitarian exclusion, where the assistance was given to a family member and the gain was incidental. The submission requires evidence of the accused’s own circumstances and of the purpose actually pursued, and it converts a sentence in the qualified bracket into one capable of suspension.

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• 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.