Deportation instead of prison (art. 89)

A foreign national sentenced to prison in Spain can have that sentence replaced by deportation from the country. This is governed by art. 89 of the Código Penal (the Spanish Criminal Code). For some people it is a way out: they avoid going to prison, or they leave earlier. For others it is a disaster: they have built their life here, they have a partner, children and a job, and deportation breaks all of it.

These are two opposite situations. And they arise in the same courtroom, before the same judge, under the same article. That is why there is no single answer. Some clients ask us to apply for deportation. Others ask us for exactly the opposite: to prevent it. Both requests are legitimate. Both need a strategy.

Deportation does not erase the conviction, and it carries a very concrete cost: a ban on returning to Spain for a period of between five and ten years. At Bataller Abogados we have more than 25 years of experience working on the border between criminal law and immigration law.

What replacing a prison sentence with deportation means (art. 89 CP)

It is a mechanism in the Código Penal (the Spanish Criminal Code). It allows a foreign national sentenced to prison to serve that sentence not in a Spanish prison, but by being removed from Spanish territory.

The current wording comes from Ley Orgánica 1/2015, in force since 1 July 2015. Before that reform the measure was limited to foreign nationals without legal residence and to sentences of under six years. The test today is different and much wider.

Three basic points: it is a criminal measure, not an administrative one – it is ordered by a criminal judge or court within the criminal proceedings; it replaces the sentence, it does not cancel it – the conviction and the criminal record remain; and it is not automatic. Although the article uses the words “shall be replaced”, the courts have rejected any automatic application: the Tribunal Supremo (the Spanish Supreme Court), in a judgment of 27 November 2025, again stressed that the court must weigh the convicted person’s personal circumstances – arraigo (established ties in Spain), family, means of support – alongside the seriousness of the offence.

That absence of automatic application is precisely the space in which the defence works. In both directions.

Requirements and thresholds: when deportation can replace a sentence

The threshold: more than one year in prison

Art. 89 applies to prison sentences of more than one year imposed on a foreign national. The Tribunal Supremo, in a judgment of 18 June 2020, set two tests: a prison sentence of one year or less cannot be replaced by deportation; and what counts is the sentence imposed in the judgment, not the sentence the Criminal Code sets in the abstract for that offence.

In other words: if you are sentenced to ten months, art. 89 does not come into play. If you are sentenced to exactly one year, it does not either. The sentence has to exceed a year.

Who can be affected

It applies to foreign nationals. The 2015 reform removed the requirement that they be unlawfully resident, so it can also affect foreign nationals with legal residence. EU citizens have stronger protection.

Offences where it does not apply

Art. 89 expressly rules out replacement where the conviction is for the offences in arts. 177 bis (human trafficking), 312 and 313 (unlawful trafficking in labour and fraudulent emigration) and 318 bis (facilitating illegal immigration). The logic is obvious: it would make no sense for a person who exploits migrants to receive a ticket home instead of a prison sentence.

The proportionality limit

Art. 89 provides that replacement does not apply where it would be disproportionate. This is the main line of defence for anyone who wants to stay.

Full or partial deportation: serving part of the sentence and being deported afterwards

Many people think art. 89 is a switch: either prison or deportation. It is not.

Sentences of more than one year and up to five years. The general rule is full replacement by deportation. But the judge or court can order, exceptionally and with reasons, that part of the sentence be served where this is necessary to protect the legal order. That part cannot exceed two thirds of the sentence. Once that part has been served – or when the prisoner reaches tercer grado (third grade, Spain’s open regime) or parole – deportation is carried out for the remainder.

Sentences of more than five years. The court must order all or part of the sentence to be served in Spain, to the extent necessary to protect that same legal order. Deportation replaces the rest and takes effect when the prisoner reaches third grade or serves the portion of the sentence that opens the way to parole.

Why this matters in practice: because the real negotiation is almost never all or nothing. It is usually a question of how much is served here and when the deportation is carried out. There is technical room to move there, and much of the outcome is decided in that space. If your case is at the enforcement stage, it is also worth looking at a suspended sentence.

Is deportation in my interest? The real advantages and drawbacks

This is the question we are asked most. It deserves an honest answer, not a sales pitch.

What you gain. You avoid prison, in whole or in part. If you are already inside, deportation can greatly shorten the time actually spent in custody. And it closes the matter: once deportation is carried out, the sentence is treated as served on the terms set by the court.

What you lose, and this is the important part. The re-entry ban is the main cost and the most underestimated one: art. 89 provides that a deported foreign national cannot return to Spain for a period of five to ten years from the date of deportation. Deportation also brings with it the closure of any administrative proceedings for permission to live or work in Spain: if you had an application for arraigo, for renewal or for family reunification in progress, it falls away. The conviction remains. And if you have a partner or children in Spain, deportation separates you from them for years.

How the decision is made. Where a person has no real ties in Spain, deportation is often the more sensible route compared with years in prison. Where the person does have arraigo, a five to ten year entry ban can weigh far more heavily than the sentence itself. Do not accept deportation without doing that arithmetic. And do not reject it without doing it either.

How to oppose deportation: arraigo, family and children

If your life is in Spain, there are solid legal arguments for opposing it. They are not magic formulas: they are tests the courts apply, and they have to be backed by evidence.

Proportionality as a legal limit. Art. 89 itself prevents replacement where it would be disproportionate. That is assessed case by case: the nature and seriousness of the offence, how long you have lived in Spain, your family situation, your means of support, and your ties with your country of origin.

Article 8 ECHR protects the right to private and family life. Any interference by the State – and deportation is one – must be prescribed by law, pursue a legitimate aim, and be necessary and proportionate in a democratic society.

The best interests of the child. Where there are minor children, a further principle comes into play, 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 decorative: it requires an express assessment of the effect deporting a parent would have on the child. One situation is especially relevant: that of a foreign parent of a dependent child who is a Spanish national or a national of another EU State, where the case law of the Court of Justice of the European Union has held that deportation may deprive the child of the effective enjoyment of their rights as an EU citizen.

What has to be proved. Arguments do not stand on their own: continuous registration at a local address (empadronamiento), the family book, school certificates for the children, social services reports, employment contracts and employment history, medical reports, witness statements. Evidence of arraigo is built, not asserted. We set this out in avoiding deportation on family grounds.

The right to be heard. Art. 89 requires the judge to rule on replacement in the judgment itself wherever possible. If that was not done, the court must rule by reasoned order once the judgment is final, after hearing the Ministerio Fiscal (the public prosecutor) and the other parties. That hearing is your chance to set out your personal situation. Missing it, or facing it unprepared, is an expensive mistake.

EU citizens: a different set of rules

If you are a citizen of an EU Member State, your protection is far stronger. Art. 89 provides that an EU citizen can only be deported where they represent a serious threat to public policy or public security, having regard to the nature, circumstances and seriousness of the offence committed and to the danger they pose.

There is a second level of protection. If the EU citizen has lived in Spain during the previous ten years, deportation is further restricted to defined cases: convictions for serious offences against life, liberty, physical integrity or sexual freedom and integrity, where there is a well-founded risk of reoffending, or convictions for terrorism offences or offences committed within a criminal group or organisation.

The Court of Justice of the European Union has been consistent since Bouchereau and Calfa: a criminal conviction alone does not justify deporting an EU citizen. The person’s own conduct must amount to a genuine and sufficiently serious threat affecting a fundamental interest of society. In practice: if you are an EU national and deportation is proposed on the basis of your criminal record alone, there is a solid basis for opposing it.

Deportation from prison: art. 197 of the Prison Regulations

A common misunderstanding is worth clearing up, because a lot of inaccurate information circulates about this article.

Art. 197 of the Reglamento Penitenciario (the Prison Regulations) is not the rule that orders deportation. What it governs is the possibility of a foreign prisoner serving parole in their country of residence, which requires the prisoner’s express agreement and authorisation from the Juez de Vigilancia Penitenciaria (the prison supervision judge).

Its second paragraph does connect with deportation: it requires proposals for parole for foreign prisoners to be notified to the public prosecutor, expressly stating the dates on which two thirds and three quarters of the sentence will have been served, precisely for the purposes of deportation under art. 89 CP.

What that means in practice: deportation of a person already in prison is normally handled through art. 89 CP, and takes effect on reaching third grade or parole. Prison classification stops being purely a treatment matter and becomes a strategic part of the case. That is why the prison file has to be worked on in parallel: see prison law and third grade, Spain’s open regime.

And there is a third route many people do not know about: international transfer of sentenced persons, which allows the sentence to be served in the country of origin without necessarily carrying an entry ban like the one in art. 89. In some cases it is the best of the three options.

Judicial deportation and administrative deportation are not the same

These are constantly confused. They are separate procedures, with different rules, different authorities and different defences.

Judicial deportation (art. 89 CP). Ordered by a criminal judge or court. It replaces a prison sentence of more than one year. It is dealt with inside the criminal proceedings or at the enforcement stage. Re-entry ban of five to ten years. It is challenged through the criminal courts.

Administrative deportation (art. 57.2 LOEx). Ordered by the administration. It is based on art. 57.2 of Ley Orgánica 4/2000 (the Spanish Immigration Act): having been convicted, in Spain or abroad, of intentional conduct that amounts in Spain to an offence punishable by more than one year in prison, unless the conviction has been spent. The Tribunal Supremo, in a judgment of 8 June 2018, held that here what counts is the penalty laid down in the abstract, not the one actually imposed. It is challenged through the administrative courts.

It is not automatic either. For years the administration applied art. 57.2 almost mechanically. That practice has been corrected: the Tribunal Supremo, in a judgment of 4 September 2023, has confirmed that there is no automatic application, requiring individual reasoning and a weighing of personal and family circumstances, applying the principle of proportionality. And if you are a long-term resident, protection is stronger still under Article 12 of Directive 2003/109/EC.

The risk of the two routes. A single conviction can open both doors. We can defend the criminal proceedings well and then discover that the Subdelegación del Gobierno (the central government’s provincial office) has opened administrative proceedings. That is why both routes have to be anticipated from the outset and the strategy coordinated.

Returning to Spain after deportation: the entry ban

This is the consequence that weighs most over the long term. It lasts five to ten years under art. 89 CP, and the judge fixes the exact period having regard to the length of the sentence replaced and to personal circumstances. It runs from the date of actual deportation, not from the judgment. And as well as barring entry to Spain, registration in the relevant information systems can affect the ability to enter the Schengen area.

If deportation cannot be carried out. Art. 89 covers this situation: the sentence originally imposed, or the outstanding part of it, is then enforced, or where appropriate a suspended sentence is applied. To secure deportation, and where the person is not already deprived of liberty, they may be placed in a centro de internamiento de extranjeros (an immigration detention centre).

Cases we typically handle

• A foreign national without ties in Spain who wants to avoid prison and applies for deportation in place of the sentence.
• A person with a partner and minor children in Spain opposing deportation ordered in the judgment.
• A parent of a dependent Spanish or EU child facing a proposed deportation.
• An EU citizen who has been convicted and whose deportation is sought without evidence of a genuine and present threat.
• A long-term resident facing proceedings under art. 57.2 LOEx after a conviction.
• A foreign prisoner in third grade or approaching parole who has to choose between deportation, serving the sentence in Spain, or transfer to their own country.
• A person whose deportation could not be carried out and who needs to sort out their criminal and immigration position.

How we work on your case

1. First meeting and clarifying the goal. The first question is not a legal one: it is what you actually want. Sometimes a person arrives convinced of one thing and, on seeing the real consequences, changes their mind. That conversation happens before anything is filed.
2. Full technical analysis. We review the judgment and the sentence imposed, the stage of the proceedings, your immigration position, your criminal record, your prison classification if there is one, and any administrative proceedings that are open.
3. Building the evidence. If the aim is to prevent deportation, we prepare the arraigo file. If the aim is to obtain it, we prepare the application and the identity and travel documents.
4. Written submission and hearing. We file the submission and attend the hearing provided for in art. 89. It is the decisive moment and it is prepared with the client, not improvised.
5. Appeals, enforcement and coordination. If the decision goes against you we assess the available appeals, and we always coordinate the two routes – criminal and administrative – so that one does not undo the other.

Useful documents

• The judgment and, if there is one, the order on deportation. The sentence calculation.
• Passport, NIE, residence card or receipts for applications made.
• Certificate of registration at a local address (empadronamiento), with the history if possible.
• Family book, children’s birth certificates, ID documents of Spanish or EU relatives.
• School enrolment certificates for the children.
• Employment contracts, payslips, employment history report.
• Relevant medical or social services reports.
• Any notifications received from the Subdelegación del Gobierno or the police.
• Prison paperwork: classification, leave, treatment reports.

Frequently asked questions

How many years can I not return to Spain after deportation?

Art. 89 CP sets a period of five to ten years from the date of deportation. The judge fixes the exact period within that range, having regard to the length of the sentence replaced and to your personal circumstances. In administrative deportation under art. 57.2 LOEx the periods are governed by the immigration legislation and may be different.

Can I avoid deportation if I have Spanish children?

It is one of the strongest arguments, but it does not work automatically. You have to prove a real relationship with the child, that you live together or genuinely meet your parental responsibilities, and the impact deportation would have on them. The arguments relied on are Article 8 ECHR, the best interests of the child and, where the child is a Spanish or EU citizen dependent on you, the case law of the Court of Justice of the European Union.

Does deportation erase the conviction?

No. Deportation replaces the way the sentence is served, but the conviction and the criminal record remain. Having a conviction spent has its own time limits and its own procedure, separate from deportation.

What happens if I come back early?

Art. 89 deals with this expressly. If you try to enter Spain in breach of the ban, you will be returned by the authorities and the ban will start running again in full from the new date. In addition, returning early can mean the replaced sentence has to be served. It is a decision with serious consequences: take advice before, not after.

Can deportation be requested if the sentence is one year or less?

Not through art. 89. The Tribunal Supremo, in a judgment of 18 June 2020, held that a sentence of one year or less cannot be replaced by deportation, and that what counts is the sentence imposed in the judgment, not the one laid down in the abstract for the offence.

Can I be deported if I am an EU citizen?

Only on much stricter conditions. You must represent a serious threat to public policy or public security. If you have lived in Spain during the previous ten years, deportation is limited to defined cases. The case law of the Court of Justice of the European Union is clear: a conviction on its own is not enough.

What happens if deportation cannot be carried out?

Art. 89 provides that, if deportation cannot be given effect, the sentence originally imposed or the outstanding part of it is enforced, or a suspended sentence is applied if the conditions are met. A person may also be placed in an immigration detention centre to secure the deportation.

Can I ask to be deported instead of going to prison?

The defence can apply for replacement and put forward arguments and documents in support. The decision rests with the judge or court, which must weigh the seriousness of the offence, the protection of the legal order and your personal circumstances. Bear in mind that the Tribunal Supremo has warned that deportation ordered without any part of the sentence being served may be inappropriate in serious cases.

Talk to a lawyer who knows both sides of this article

Replacing a prison sentence with deportation is one of the most far-reaching decisions a foreign national convicted in Spain can take. It affects where you will live for the next ten years, your family and your immigration status.

We handle both the application for deportation and opposition to it, depending on what each client needs. We also handle international transfers of sentenced persons. We know that many of our clients are not native Spanish speakers: we work in several languages and we make sure you understand each step before you decide anything.

Available 24 hours. C/ Aribau 205, 2nd floor, Barcelona. +34 696 967 181 and +34 937 490 708. Contact us and tell us about your case. You may also want to read our overview of deportation of foreign nationals in Spain.