Why foreigners get caught out
Expulsion is often decided in the judgment, and in plea deals it may be part of what is agreed. For long-term residents, it can mean losing their home, work and family life in Spain. For others, it can be an acceptable alternative to prison. Either way, it must be discussed with the defence before any plea and argued at trial.
How substitution by expulsion works
Sentences of more than one year
Prison sentences of more than one year imposed on a foreign national are substituted by expulsion. Exceptionally, to defend the legal order, the judge can order part of the sentence, up to two thirds, to be served first, with expulsion for the rest. Expulsion also replaces the remainder when the prisoner reaches open conditions or parole.
Sentences of more than five years
The judge orders all or part of the sentence to be served, and expulsion replaces the rest once that part is served, or when the prisoner reaches open conditions or parole.
Proportionality
Substitution does not apply when, in view of the facts and the person's circumstances, in particular their roots in Spain, expulsion would be disproportionate. Residence, work, children in Spain and years living in the country are decisive.
EU citizens
An EU citizen can only be expelled when they represent a serious threat to public order or public security, given the nature and seriousness of the offence and their circumstances. If they have lived in Spain for the previous ten years, expulsion is only possible for serious offences against life, liberty, physical integrity or sexual freedom with a real risk of reoffending, or for terrorism or organised crime.
UK nationals after Brexit
Since Brexit, UK nationals are no longer EU citizens for these purposes. UK nationals who are residents under the Withdrawal Agreement have protections similar to EU citizens for conduct before the end of the transition period; for later conduct, the general rules apply, so arguing proportionality and roots is essential.
The re-entry ban
The expelled person cannot return to Spain for five to ten years. If they return early, they must serve the substituted sentence, and if caught at the border they are expelled again with the ban restarting.
Administrative expulsion
Separately from article 89, non-EU nationals without residence or with certain convictions can face administrative expulsion under the Immigration Act. A criminal conviction can also prevent the renewal of a residence permit.
A practical example
A Moroccan national who had lived in Mallorca for fifteen years, with a job and two children at school, was sentenced to eighteen months for a drug offence and the prosecutor requested expulsion. We showed his roots and the judge refused expulsion as disproportionate and suspended the sentence. See drug offences. More information on the firm's main website: immigration law at Castell Abogados (in Spanish).
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In a Spanish criminal case, what happens in the first hours shapes everything else. Call or WhatsApp us and an English-speaking criminal lawyer will tell you, in confidence, what to do next.
Questions about expulsion after a conviction
Can I be deported from Spain for a crime?
Yes, if you are a foreign national sentenced to more than one year in prison, unless expulsion is disproportionate or you are protected as an EU citizen.
Can an EU citizen be expelled from Spain?
Only if they represent a serious threat to public order or public security.
How long is the re-entry ban?
Between five and ten years, depending on the sentence and the person's circumstances.
Can expulsion be avoided with a suspended sentence?
Sometimes. The defence must argue roots in Spain and proportionality so that the judge chooses suspension.