International cases · Prison
Prison in Spain when you are a foreigner
Foreign prisoners in Spain have the same rights as Spanish prisoners. In practice their situation is often harder: no family nearby, no fixed address to go to on leave, and the question of what happens with their residence permit afterwards. These are the rules that matter most.
Saúl Rosell Manglano · Criminal defence lawyer · Madrid · ICAM 83.198
The essentials
1 year
For sentences of more than one year, the court can replace prison with expulsion from Spain and a ban on returning for five to ten years.
1/4
After serving a quarter of the sentence, a prisoner in second grade can ask for ordinary temporary leave.
Parole
A foreign prisoner who reaches parole can ask to serve it in their country of residence.
Grades and leave
Spanish prisons classify sentenced prisoners in three grades: first grade (closed regime, for exceptional cases), second grade (ordinary regime, the most common) and third grade (open regime, sleeping in prison or reporting by electronic means while working outside). The classification is reviewed at least every six months.
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Ordinary temporary leave can be granted after a quarter of the sentence has been served, in second or third grade and with good conduct. Here foreigners often lose out: the prison wants to know where the person will stay and who will receive them. An address in Spain and a relative or friend who takes responsibility help a great deal, and I prepare that application with the family.
Parole
Parole usually comes after three quarters of the sentence, in third grade and with good conduct. In some cases it can be brought forward to two thirds, or even to half for a first prison sentence of up to three years, if the legal conditions are met.
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A foreign prisoner who meets the conditions can ask the prison supervision judge for permission to serve the parole period in their country of residence, with the condition of not returning to Spain before the sentence ends without permission.
Replacing the sentence with expulsion
Under article 89 of the Spanish Criminal Code, a foreigner sentenced to more than one year in prison can have the sentence replaced by expulsion from Spain, with a ban on returning for five to ten years. The court can order part of the sentence to be served first. For sentences of more than five years, all or part is served first, and expulsion takes place on reaching third grade or parole.
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Expulsion is not ordered when it would be disproportionate given the facts and the person's roots in Spain: years of residence, family, work. For EU citizens it is only possible if they represent a serious threat to public order or security, and the requirements are stricter still after ten years living in Spain. Returning before the ban ends means being sent back and the ban starting again from zero.
Expulsion can be a solution or a disaster, depending on the person's life. Whether to ask for it or to oppose it is one of the first decisions I discuss with the client and the family.
Residence permits after prison
Before releasing a foreigner sentenced to more than one year, the prison informs the police. A conviction of more than one year for an intentional offence can also lead to administrative expulsion or affect the renewal of a residence permit. That is why the criminal defence has to take immigration consequences into account from the start, and not only at the end.
How we will understand each other
I work in Spanish. With my clients from abroad I use translation tools to read and answer messages, and we manage well that way. At the police station and in court the law gives you a free interpreter, and I make sure that right is respected. If you write to me in English, I will answer you.
Common questions
Can my relative ask to be expelled instead of staying in prison?
It can be raised with the court, but the decision is the court's, after hearing the prosecutor. It depends on the length of the sentence, the type of offence and the person's ties to Spain.
My relative has lived in Spain for years with his children. Can they expel him?
Roots in Spain are precisely what can make expulsion disproportionate. They have to be proved with documents: residence, work, children's schooling, family life.
Does my relative have the same right to leave as a Spanish prisoner?
Yes. The law is the same. What changes in practice is that the prison asks for an address and someone responsible, so those have to be prepared.
Is it urgent?
Call me on 688 884 488. I answer the phone myself, at any hour.
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