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.
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.
| 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. |
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.
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.
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.
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.
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.
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.
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.
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.
The period is set by the court in the decision ordering expulsion and runs from the date on which expulsion is carried out.