Contesting a fine or expulsion order: defences that can work

Key rules

• Allegations: In the preferential procedure you have 48 hours to make allegations, so act the day you are notified.
• Expiry: An ordinary procedure expires after 6 months from its start if it is not resolved.
• Serious infractions: A serious infraction prescribes after 2 years.
• Appeals: An appeal does not automatically stop an expulsion, so ask for suspension in the same filing.
• No guarantee: Proportionality and expiry work most often, but no defence is certain.

Defences exist and some succeed, but none is guaranteed. Each depends on strict deadlines, on how much time has passed, and on whether you belong to a protected group. Get a lawyer as early as you can, because the first deadline can be very short.

Act on the deadlines first

The deadline to make allegations depends on the procedure. In the preferential procedure you have 48 hours. In the ordinary procedure the notice itself states the period, so read it the day you receive it. Use that time to file allegations, attach documents and propose evidence.

The deadlines for challenging the final resolution are set out in the timeline below. Missing them usually closes the door on that route.

Proportionality

Being in Spain without a permit should normally lead to a fine, not expulsion, unless there are aggravating factors. Courts often cancel expulsions that rest only on irregular stay. This is one of the strongest defences, but the result varies by court and by your facts. Argue it in your allegations and again in any appeal.

Expiry and prescription

Check the dates before anything else. An ordinary procedure expires if it is not resolved within 6 months from its start. A serious infraction prescribes after 2 years, which means it can no longer be punished. Other infractions have different periods: minor ones prescribe after 6 months and very serious ones after 5 years.

The clock for an infraction starts the day it was committed. It stops when the procedure begins and you know about it. A sanction that has become final also prescribes if it is not enforced: after 1 year for minor, 2 years for serious and 5 years for very serious sanctions.

Protected status and family ties

Some people cannot be expelled for a stay-related infraction. They include:

• long-term residents, unless there are serious public-order or security grounds;
• people born in Spain who have lived there lawfully for the last 5 years;
• people holding a residence permit based on roots (arraigo);
• refugees, stateless people and people with a valid pending asylum application;
• minors, including unaccompanied minors;
• people receiving a Spanish disability or retirement pension;
• pregnant women, where expulsion would endanger the pregnancy or birth.

Victims or witnesses of trafficking, victims of gender violence and cooperating victims of workplace exploitation also have protections. Ask a lawyer how they apply to you.

Family ties count even outside these groups. Courts weigh a child's best interests and the right to family life. They look at the economic and emotional dependence of children and spouses. Being the parent of a Spanish child often leads to the expulsion being cancelled. Bring proof: birth certificates, school records, proof of living together and of financial support.

Notice and reasoning defects

If you never truly received the notice, you may have had no chance to make allegations. That can invalidate the procedure. A resolution that does not explain its reasons can also be challenged. Keep any proof of your address and of how you found out about the case.

Appeals do not stop the expulsion

Filing an appeal does not automatically suspend an expulsion. Ask for suspension in the same filing. If you risk irreparable harm, you can ask the judge for urgent measures, and the judge may decide within two days. In the preferential procedure the expulsion can be carried out at once, so ask for suspension immediately.

When expulsion is ordered in the ordinary procedure, the resolution may give you 7 to 30 days to leave. If you plan to challenge it, do not wait for that period to run out.

Choosing between options

Which defence should you lead with against a fine or expulsion order?

• Proportionality: Your only issue is an irregular stay with no aggravating factors, so a fine should be imposed instead of expulsion.

• Expiry or prescription: The procedure took longer than 6 months from its start, or the infraction is older than its period, such as 2 years for a serious one.

• Protected status or family ties: You are a long-term resident, a minor, pregnant, or a parent of a Spanish child who depends on you, or you hold a permit based on arraigo.

• Notification or reasoning defects: You never truly received the notice, or the resolution gives no reasons for the decision.

Check the dates first, since expiry and prescription end the case outright. Then check protected status, then proportionality. Use all that fit your facts.

Timeline and deadlines

• File allegations, documents and proposed evidence after the notice starting the procedure: within 15 working days of notification in the ordinary procedure, or 48 hours in the preferential procedure

• File an optional recurso de reposición with the body that issued the resolution: within 1 month of notification

• Ask for suspension of the expulsion in your appeal: at the same time as you file the appeal

• Appeal to the courts (recurso contencioso-administrativo): within 2 months of notification, or 2 months from the express answer to a reposición

• Ask the judge for urgent suspension if enforcement risks irreparable harm: when you file in court, the judge can decide in about two days

What to watch out for

• Missing an appeal deadline: The deadlines are strict. If you let the 1 month for reposición or the 2 months for the courts pass, the resolution becomes final and most defences are lost. Note the notification date today, check the remedies written in the notice and file before the first deadline ends.

• Expecting an appeal to stop the expulsion: An appeal does not automatically suspend an expulsion, so you can still be required to leave while it is pending. Ask for suspension in the same filing, and for urgent measures if leaving would cause serious harm.

• Counting on a defence that is not guaranteed: Proportionality and expiry of the procedure succeed most often, but results vary by court and no defence is certain. Raise every defence that fits your facts, such as family ties, notification defects and lack of reasons, rather than just one.

Frequently asked questions

Does appealing an expulsion order stop it from being carried out?

No, an appeal does not automatically stop an expulsion from being carried out. You can ask the body or the court to suspend it while you appeal, and in urgent cases of serious harm a judge can decide on an urgent request within about two days. Asylum applicants cannot be removed while their claim is pending.

Which people cannot be expelled for an irregular stay?

Long-term residents, people born in Spain who have lived there lawfully for the last 5 years, refugees, minors and holders of a residence permit based on arraigo (roots in Spain) are protected from expulsion for stay-related infractions. Pregnant women are protected where expulsion would endanger the pregnancy or the birth. Parents of Spanish minors who depend on them often win annulment.

How long before an immigration infraction can no longer be punished?

A minor infraction prescribes after 6 months, a serious one after 2 years and a very serious one after 5 years. The clock starts the day the infraction was committed and stops when the procedure starts with your knowledge. It restarts if the procedure stalls for over one month through no fault of yours.

What if I never properly received the notice?

A notification defect is a defence if you did not truly receive the notice and had no chance to make allegations. Raise it in your appeal and say exactly when and how you first learned of the procedure. Also ask whether the resolution gives reasons for the decision, since a lack of reasons is a separate defence.