Avoiding deportation on family grounds

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.

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.

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.

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.

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

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.