Using Criminal Charges to Punish Administrative Immigration Offences in Spain

Guest post by David Moffette and Christian Orgaz Alonso. David is a doctoral candidate in sociology at York University, Canada, where he conducts research on how irregular migration is governed in Spain. Christian is a doctoral candidate in sociology at the Complutense University of Madrid where he studies the institutionalization of Spanish immigration detention centres. The authors thank Women’s Link Worldwide–Spain for their help.

On 9 December 2014, a judge of the Criminal Court N^o 20 of Madrid condemned an immigrant to six months in jail for resisting her deportation (sentence 408/2014). The alleged events occurred in 2011 when Sandra―a pseudonym used by NGOs supporting her―was living in Spain without status. She was arrested and detained in the Madrid Immigration Detention Centre (CIE) pending her deportation.

Fearful for her life in her country of origin, Sandra chose not to cooperate when officers of the National Police tried to deport her, making noise and resisting in an attempt to get the pilot, flight attendants or police officers to decide that the deportation couldn’t be safely carried out under the circumstances. The procedure was suspended and Sandra used the delay to claim asylum as a survivor of human trafficking with the support of Women Link Worldwide. The claim was swiftly dismissed and, soon after, a new attempt to deport her was underway. Once again, it was unsuccessful. Immigration detention in Spain is limited to 60 days, and Sandra was eventually released and remained in the country without status.

Since then, she secured a temporary residence permit through a clause of the Alien Act aimed at protecting survivors of gender-based violence (Art. 31bis), and filed a complaint in which she accused police officers involved in her detention and attempted deportation of deliberately assaulting her while she was in custody. In retaliation, one of the officers accused her of an ‘offence against authority’ and ‘assault’ and she was sentenced to six months of incarceration as a result. The practice of prosecuting people who denounce police abuse has been documented by NGOs for some time. Spain, like the UK and elsewhere, it appears, is turning increasingly to the Criminal Code to punish unauthorized immigrants for what were previously administrative offences under the Alien Act.

Scope and Types of Criminalization

The use of the concept of criminalization to describe different phenomena risks losing much of its heuristic potential. As one of us has argued elsewhere, the thesis that immigrants are ‘governed through crime’ is often exaggerated and, in Spain at least, it’s more accurate to consider the ways in which irregular migrants are governed through probation, a strategy that relies on both promises of inclusion (through regularization) and threats of exclusion (through deportation).  This isn’t to say, however, that the concept of criminalization is useless in making sense of some of the ways irregular migrants are governed. We follow Leanne Weber’s advice to consider the criminalization of immigration as a threefold process involving rhetorical criminalization (the discursive coupling of immigration and crime), procedural criminalization (treating migrants as though they were criminals), and literal criminalization (charging migrants with criminal offences). While the first two non-literal forms are common in Spain, the use of criminal charges to govern irregular migration is, thus far, rather limited.

Administrative Detention and the Rhetoric of ‘Qualified Expulsions’

Rhetorical and procedural criminalization of unauthorized immigrants is common. According to the Alien Act (Title III) and its regulations (Title XIV), the normal sanction for irregular stay is a fine and a request to leave the country. Only in exceptional cases is expulsion recommended as an administrative sanction but, as the Office of the Ombudsman explained in its 2011 report, this measure is often used without proper grounds. In cases where deportation is the chosen sanction, a request is presented to a lower criminal court judge to authorise administrative immigration detention for a maximum of 60 days pending deportation.

Detention should be authorized only as a means to facilitate deportation but, as data released by Spain’s Attorney General in 2012 reveal, about half of all detainees cannot be deported, a situation that effectively turns preventive detention into a form of punishment.  Indeed, as Anna Morero Beltrán, Ana Ballesteros Pena, and Elizabeth Almeda Samaranch have explained in a previous post on this blog, the conditions in Spanish CIEs are harsh and experienced as a punishment by many detainees.

we should not lose sight of the fact that while the number of unqualified expulsions declined in the last years, the number of qualified expulsions, that is, those due to having a police or criminal history, or both, increased in an obvious way, going from 57% in 2009 to 80% last year. We are talking about forced returns. This means that a great number of the detainees have committed crimes, which adds special complexity to the management of the CIEs.

There are many problems with this argument, as Margarita Martínez Escamilla and her colleagues have also pointed out. First, the category of ‘qualified expulsions’ is vague and may include foreigners only ‘known to police’ alongside others who have been convicted of a criminal offence. Second, it accounts for only one of the categories of deportation, excluding ‘refusals of entry’ at the border, ‘devolutions’ within 36 hours of foreigners who have entered without authorization (including many asylum seekers sent back without due process at the Ceuta and Melilla borders), and ‘readmissions’ (deportations regulated by bilateral readmission agreements). As the numbers of repatriations listed in the table below show, ‘qualified expulsions’ represent a much lower proportion of all repatriations than what the Minister claims. Finally, these statistics refer to ‘qualified expulsions,’ not to ‘qualified detentions.’

Table 1: Numbers and Types of Repatriations 2008-2013

Source: Ministry of Interior’s yearly Report on the Fight Against Illegal Immigration.

These are some of the ways in which migrants like Sandra are criminalized in Spain. But despite this rhetorical and procedural criminalization, the use of criminal law to govern irregular migration continues to be limited.

Use of Criminal Law in Immigration Governance

Beyond the prosecution of activities that facilitate the irregular entry or stay of unauthorized migrants, the formal criminalization of migrants themselves is still rare. A bill to reform the Criminal Code (121/00065) that’s currently being debated considers punishing the selling of counterfeit merchandise by street-vendors―most of whom are unauthorized immigrants―with six months to two years in jail. This measure would be a step back to the legislation previously in place, before the sanction was reduced to a fine in 2010 to limit the criminalization of a ‘crime of survival,’ and would have tragic consequences for many migrants.

The case of Sandra points to yet another use of criminal law to govern unauthorized immigrants.  In a country with one of the worst records of refugee protection in the European Union, people who fear for their life if they are to be deported often resist their deportation in the hope of cancelling the operation. They’re then usually released into what Adrian Jarrín Morán, Dan Rodríguez García and Javier de Lucas (2002) called a ‘legal limbo,’ unable to achieve regularization while the expulsion order remains in effect, but considered not deportable for some time. This survival strategy frustrates law enforcement, and the recourse to criminal charges is a means to circumvent the limits of immigration law and to punish migrants who resist.

With her criminal record, Sandra will not be able to renew her temporary permit and will lose her precarious status in 2018. Now barred from legal avenues of regularization, she will remain in the country without status, and if arrested again, will probably be expelled as part of the statistical increase in so-called ‘qualified deportations.’ Here, formal and rhetorical processes of criminalization reach full circle. This use of criminal law as a means to scare irregular migrants into cooperating during their administrative expulsion is a troubling example of the ways in which criminal law is mobilized as a tool for governing unauthorized immigrants and asylum seekers.

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How to cite this blog post (Harvard style):

Moffette, D. and Orgaz Alonso, C. (2015) Using Criminal Charges to Punish Administrative Immigration Offences in Spain. Available at: http://bordercriminologies.law.ox.ac.uk/using-criminal-charges-to-punish-administrative-immigration-offences-in-spain/ (Accessed [date]).