Avoiding deportation on family grounds

If you have been told you are going to be deported, or you are afraid it may happen, this page is for you. We are not explaining here how to leave Spain. We are explaining how to stay.

The law allows a foreign national convicted of an offence to be deported. But not always, and not automatically. The main limit is called proportionality: if your life is in Spain, removing you from Spain may be excessive. That set of connections is what we call arraigo (established ties in Spain).

And this is the key point. Arraigo is not declared: it is proved. Saying “I have been here fifteen years” is not enough. It has to be evidenced with documents, and those documents have to be filed in time. At Bataller Abogados we have been handling these cases from Barcelona for more than 25 years.

When deportation can be prevented

It helps to know which route it is coming down, because the defence changes.

• The criminal route. The criminal judge replaces the prison sentence with deportation, under art. 89 of the Código Penal (the Spanish Criminal Code).
• The administrative route. The Subdelegación or the Delegación del Gobierno (the central government’s provincial and regional offices) orders deportation on the basis of a criminal record, under art. 57.2 of Ley Orgánica 4/2000 (the Spanish Immigration Act).

We do not repeat here how art. 89 works: you have it step by step in deportation instead of prison, and an overview in deportation of foreign nationals in Spain. This page deals with the opposite: the strategy for opposing it.

There is real room to defend in cases such as these:

• You have lived in Spain for many years.
• You are the parent of a child, especially a Spanish or EU child.
• You are married to a Spanish national, or a registered partner.
• You have long-term resident status, or you are an EU citizen.
• The offence is minor or old, or you have already served the sentence.
• There is serious illness, yours or that of a dependent relative.

Proportionality: the legal limit that opens the defence

Art. 89 CP says that a sentence cannot be replaced by deportation where that would be disproportionate. And it requires the circumstances of the offence and the personal circumstances of the offender to be examined, “in particular their arraigo in Spain”.

That sentence is the doorway into the whole defence. It is not a favour: it is what the law requires. If the court does not weigh it, the decision can be challenged.

Much the same applies on the administrative route. The Tribunal Supremo (the Spanish Supreme Court) has confirmed that deportation under art. 57.2 LOEx is not automatic: a conviction does not oblige the authorities to deport. The administration must give reasons, look at your case individually and weigh your personal and family circumstances. That is the position set out in the Supreme Court judgment of 4 September 2023, from the Administrative Chamber.

If the decision does no more than cite your conviction and does not explain why your family situation gives way to the public interest, that failure to give reasons is a ground of appeal.

Article 8 of the European Convention on Human Rights

Article 8 ECHR protects private and family life. A deportation that separates you from your family is an interference with that right. It is not prohibited, but it is only lawful if it is proportionate.

The European Court of Human Rights set out the criteria for that assessment in Boultif v Switzerland (2001) and completed them in Üner v the Netherlands (Grand Chamber, 2006). The factors considered include:

• The nature and seriousness of the offence.
• How long the person has been living in the country.
• The time that has passed since the offence, and their conduct since.
• The family situation and how real the shared life actually is.
• Whether the partner knew about the offence when the family was formed.
• Whether there are children, their ages and their best interests.
• The difficulties the family would face in the country of destination.
• The strength of the ties with the country of residence, compared with the country of destination.

Almost all of those points are facts. And facts have to be proved. Each criterion is a folder of documents that has to be built.

Children: the best interests of the child

Where children are involved, a principle of the greatest weight comes into play: the best interests of the child. It is set out in Article 3 of the Convention on the Rights of the Child, in art. 39 of the Spanish Constitution and in Ley Orgánica 1/1996.

It is not an automatic shield: having a child does not by itself prevent deportation. But it does require an assessment of what would happen to that child. Would they be left without one of their parents? Would they have to leave the country where they were born and go to school?

What decides the case is the real relationship: living together, day-to-day care, financial support, and being present at school and at the doctor.

Parent of a dependent Spanish or EU child

There is particularly strong protection if you are a non-EU parent of a Spanish or EU child who depends on you.

The Court of Justice of the European Union dealt with this in Ruiz Zambrano (C-34/09, Grand Chamber, 8 March 2011): if deporting the parent would in practice force the child to leave the territory of the Union, the child is deprived of the genuine enjoyment of the substance of their rights as an EU citizen.

Later decisions have refined two points:

• A criminal record does not allow residence to be refused or a person to be deported automatically. The specific conduct must be examined, and whether it amounts to a present threat.
• The existence of another Spanish or EU parent does not close the argument: it has to be examined whether that parent can genuinely take on the care of the child.

The key point of evidence here is actual dependency: showing that the child depends on you for their care and their support.

Long-term residents: reinforced protection

If you have long-term resident status, your position is stronger. Art. 57.5 LOEx limits deportation of this group and requires prior assessment of the length of residence, the ties created, the person’s age, the consequences for the family and the ties with the country of destination.

That requirement comes from Article 12 of Directive 2003/109/EC, which only allows a long-term resident to be deported where they represent a genuine and sufficiently serious threat to public policy or public security, and prohibits deportation on economic grounds.

Many decisions state that those circumstances “have been assessed”, without explaining how. Courts have quashed deportations for exactly that reason.

EU citizens

If you are an EU citizen, or a family member of one with a right of residence, the protection is stronger still.

The Código Penal only allows you to be deported where you represent a serious threat to public policy or public security, having regard to the seriousness of the offence, your record and your personal circumstances.

If you have also lived here for the previous ten years, the law narrows the situations further: in essence, they are reserved for very serious offences against life, liberty or sexual integrity where there is a risk of reoffending, and for terrorism or organised crime.

A conviction on its own is never enough. There must be personal conduct amounting to a present threat.

How arraigo is proved: the documents that decide the case

Now we come to the heart of this page. Arguments do not win on their own: a brilliant submission with no documents usually loses to a simple one with a good file behind it. This is the documentation we put together.

Family ties

• Family book (libro de familia), birth certificates and marriage or registered partnership certificates.
• Joint or historical registration at a local address (empadronamiento) showing that you live together.
• Separation agreement or court order on custody and contact.
• Proof of child maintenance payments.
• Medical reports for dependent relatives.

Length of residence and social ties

• Historical certificate of registration at a local address: the central evidence of how long you have been here.
• Employment history report from the Seguridad Social (the Spanish social security system).
• Medical records and health card.
• Enrolment certificates for you and for your children.
• Language courses, training and qualifications.
• A social integration or arraigo report from the town hall.
• Certificates from associations, churches, clubs or voluntary organisations.
• Letters from neighbours, friends or employers, with a copy of their ID.

Work and financial ties

• Employment contracts, payslips and firm job offers.
• Self-employed registration, tax returns and invoices.
• Tenancy agreement or title deeds, and utility bills.

Lack of ties with the country of destination

• Evidence that you have no immediate family there, or that they have already left.
• How long it is since your last visit.
• No housing, employment or health cover there.

Conduct since the offence

• An up-to-date criminal record certificate.
• Proof that you have paid the civil liability or made good the harm.
• Reports on addiction treatment, therapy or training programmes.
• Favourable prison reports and periods of leave without incident.

The hearing: your chance to explain your life

Before deportation is ordered you must be given the opportunity to be heard: on the criminal route, through a hearing of the parties; on the administrative route, through the submissions stage.

It is often wasted: people reply late, in general terms, or not at all. Making up the lost ground afterwards is very hard. Treat it as the most important step in the procedure:

• File an orderly submission, with the documents numbered and an index.
• Explain your life in concrete terms: since when you have been here, who you live with, what work you do.
• Answer the proportionality test expressly, not in general terms.
• Ask for an interpreter if you need one. It is a right, and it avoids misunderstandings.

If deportation has already been ordered: criminal and administrative appeals

The fact that deportation has been ordered does not mean everything is closed. The deadlines, though, are short.

The criminal route

If deportation is ordered in the judgment, it is challenged through the appeals available against that judgment. If it is ordered later by court order (auto), it is challenged through the appeals available against that order.

Sometimes the right route is not only to oppose, but to apply for a suspended sentence. And if you are already serving a sentence, the strategy overlaps with prison law: classification, prison leave and parole all weigh on how your progress is assessed.

The administrative route

An administrative decision can be challenged by an internal appeal (recurso de alzada), generally within one month. Once the administrative route is exhausted, an appeal lies to the competent administrative court, as a general rule within two months.

Alongside the appeal, an interim measure suspending the deportation while the court decides is usually requested. This is a key step: a deportation that has already been carried out leaves the appeal with no practical effect. And if the deadlines have passed, take advice anyway.

Cases we typically handle

• People with many years of residence and a single old conviction.
• Mothers and fathers of Spanish children who are minors.
• Long-term residents facing proceedings based on a criminal record.
• People who arrived as children and have no remaining ties with their country of origin.
• EU citizens facing proceedings opened after a conviction.
• Prisoners who are told deportation will follow when they reach third grade, Spain’s open regime.

How we work on your case

1. Urgent study of the file. We review the decision, the route it has come down and, above all, the deadlines.
2. A map of your ties. An interview about your life in Spain, and the list of documents that are missing and where to obtain them.
3. Building the evidence. We help you obtain certificates, reports and statements, and we put them in order.
4. Submission or appeal. We link each document to the legal test it goes to: proportionality, family life, the best interests of the child.
5. Follow-up to the end. We apply for whatever interim measures are appropriate and keep you informed in language you can understand.

Frequently asked questions

How many years of residence do I need to rely on arraigo?

The law does not set a number of years. Time counts for a great deal, but it is weighed alongside family, work and integration. There are also people with only a few years here and very strong family ties. What is decisive is proving it with documents.

Does having Spanish children help?

It is one of the weightiest factors, but it does not work automatically. What is assessed is the real relationship: whether you live with the child, whether you look after them, and whether you contribute to their support. If a Spanish child depends on you, EU law also comes into play.

What if I am married to a Spanish national?

That is relevant to the family life protected by Article 8 ECHR. But a marriage certificate is not enough on its own: you have to show a real and stable shared life, with joint registration at the same address, shared accounts or contracts, and witnesses. The difficulties your spouse would face in your country also count.

Can I appeal against a deportation that has already been ordered?

Yes, if you are within the deadline. If it is administrative, an internal appeal lies and then an appeal to the administrative court. If it is criminal, it is challenged through the criminal proceedings. In both cases it is usually essential to apply for interim suspension. Take advice as soon as you can.

Can I be deported if I have legal residence in Spain?

It is not an absolute bar, but it improves your position. If you are a long-term resident, Spanish and EU law require reinforced protection and specific reasoning. The administration has to explain why, despite your ties, it considers deportation proportionate. If it does not, the decision can be challenged.

Is deportation automatic if I am sentenced to more than a year?

No. The Tribunal Supremo has confirmed that deportation under art. 57.2 LOEx is not imposed automatically because of a conviction: a reasoned, individual decision is required. The same applies on the criminal route, because the Código Penal rules out disproportionate replacement of a sentence. That is why a failure to give reasons is such a common ground of appeal.

What if I am serving a prison sentence?

It can be raised during the sentence, particularly on reaching third grade or parole. It is worth preparing in advance: prison reports, periods of leave without incident and treatment programmes all affect how your progress is assessed. There is more information in prison law.

How long do I have to gather the documents?

Less time than you think. Deadlines are counted in days or weeks, and some certificates take longer than that to arrive. Ask for them on the same day you receive the notification. An incomplete file filed on time is better than a perfect one filed late.

Talk to a lawyer today who understands your situation

Every deportation is a different story. We do not give textbook answers: we study your case, your documents and your deadlines.

We are available 24 hours and in several languages: these notifications do not arrive during office hours, and being able to explain yourself in your own language avoids mistakes. We are at C/ Aribau 205, 2nd floor, Barcelona, and we work throughout Spain.

Call us on +34 696 967 181 or +34 937 490 708, or write to us from our contact page. Bring the decision you have received and the documents that show your life in Spain.