Immigration Detention in Spain: Law Acting as a Gatekeeper Amidst Bureaucratic Justice

Guest post by Byron Villagomez Moncayo, Erasmus-Mundus doctoral candidate in Cultural and Global Criminology, Universities of Utrecht and Hamburg.

Irregular entry or unlawful presence is not a crime in Spain; nonetheless, unauthorized immigrants can be detained in an immigrant detention centre (CIE) for up to 60 days, allegedly to facilitate their removal. According to Spanish law (LO 4/2000), this is an instrumental and cautionary measure to ensure deportation, and not a sanction or punishment; besides, CIEs are administrative and not penitentiary institutions. However, there are reasons to argue that immigration detention in the country is punitive in practice.

Immigration detention centres resemble prisons. Notwithstanding the difficulties in accessing these places, there is already ample evidence of the meagre circumstances that detained immigrants often face. In fact, many NGOs, the media and academics have reported that CIEs are in worse conditions than prisons, and that detainees suffer from deprivations that are worse than in penitentiary centres. In this post, drawing on my doctoral research, I will focus on a critical and still overlooked aspect of detention: the judicial decision to detain.

Detention in Spain is authorized, at police request, by criminal investigative courts (juzgados de instrucción). According to the Spanish Constitution (Art. 17.2) judicial intervention is mandatory whenever freedom of movement has to be restricted for more than 72 hours. In order to guarantee judicial oversight, these criminal courts are accessible at any time. Nonetheless, this means that, in practice, immigrants who undergo this proceeding, experience the setting, environments and treatments normally encountered by those suspected of a crime.

Back in 1987, when the Spanish Constitutional Tribunal ruled on the constitutionality of detention, it concluded that judicial intervention is not enough to guarantee the legitimacy of detention. It is essential, the Tribunal ruled, that judges issue a judicial order for detention after having considered all the relevant circumstances on a case-by-case basis and apply it only as a measure of last resort to facilitate deportation (i.e. when there is a risk of absconding). Yet, in practice, these restrictions do not seem to operate. In 2015, for instance, a report from the Spanish Ombudsman, revealed that 58.6% of those detained in CIEs that year were not deported (52.5% in 2014), mainly due to the unavailability of valid travel documents. The numbers vary across the eight CIEs in the country, with 79.5% of those detained in the CIE of Algeciras versus 29.5% of those in the Madrid detention centre not being ultimately deported.

In my doctoral thesis I examined the mechanics, meanings and practices developed by practitioners in detention decisions. For this purpose, I combined extensive semi-structured interviews with judges, secretaries, court staff, prosecutors and defence lawyers with participant observation. I conducted my research between January and August, 2016 in the courthouse of one of the most populated provinces of Andalusia, characterized by a large presence of foreigners, a permanent floating population, and the regular arrival of small boats with immigrants from Africa. Moreover, immigrants processed there are regularly sent to the CIE of Algeciras, which has one of the smallest proportions of effective deportations. 

The evidence I uncovered was telling. Firstly, court staff largely agreed that detention was ineffectual. Indeed, when asked about detention, the most common and spontaneous answer was that most detainees were out on the street just a few days after being detained. While they recognised that detention often failed its formal justification (deportation), the court personnel I spoke with nevertheless continue to impose it regularly. When asked why, judges justified their decisions by arguing that they do not know in which cases immigrants will be deported or not. However, the same judges could easily give me examples of the countries that are most difficult to deport people back to. Remarkably, many judges justified their decision to detain by arguing that the police do their job and request detention only when necessary. Furthermore, respondents from appellate courts said that they largely dismiss the appeals against detention. One appellate judge argued that this should not be seen as a sign of mechanical decision-making, but as showing that investigative courts were doing a good job. Yet, court personnel are to some extent conscious of these inadequacies, and when questioned, they reflected on the circumstances that surround their work. For example, one young secretary from a criminal court expressed her concerns and admitted that: 'I feel this causes us grief, that these people have had to go through this so bad situation; and then also bad because they have an uncertain future; and finally, also bad, because this is a cost for Spain, a useless cost… it is a formality, but what else can we do? This also represents a personal and material cost for us, for an end that is not meet… These things are a bit too automatic…'

Similarly, administrative judges maintain, in general, a critical stance towards criminal judges. Most of them believed they should be responsible for detention decisions given their general competence in immigration law matters. Relatedly, many of them contended that criminal judges are not experts in immigration law, and do not have an adequate idea of such crucial concepts as family and social links. Indeed, one of these judges said that criminal courts do not substantiate their decisions appropriately, and another argued that these shortcomings are caused by the urgency and rush that characterizes criminal courts’ work.

Time constraints are a major concern for immigration lawyers too. Most of them complained about the limited time they have when dealing with such cases in their duty guards. They claimed that it is difficult to gather the documents required to prove family or work roots within the few hours given until the case is heard. Moreover, most of them criticized the thoughtlessness which characterizes the decision-making process, as well as the lack of knowledge by criminal judges about immigration law and the purpose and nature of CIEs. One of the most experienced lawyers I interviewed said that judges are in general more cautious when sending someone to prison than to a CIE, because they do not really know what the conditions and characteristics of CIEs are.

Even though these findings are based on just one location, it seems that the operation and nature of criminal courts can possibly explain the causes of the disproportionate number of non-deportable detainees. Arguably, this is the ultimate consequence of legislative and governmental decisions, which have established CIEs and granted criminal courts the power to authorise immigration detention. Still, a broader and crucial definition is at stake: What is the role of the judiciary in a democratic system of rule of law? In the current European context, the protection of immigrants’ rights -including asylum seekers and refugees- is crucial given the increasingly restrictive EU policies. As Spain plays a major role in the implementation of EU border controls, with contested policies, such as the ‘hot returns’ policy, its return agreements with Morocco, and its ineffective asylum system, a vigorous and independent judiciary is fundamental to curtail the excesses from other powers and safeguard people’s rights. However, my research findings question the extent to which this ideal is attainable within immigration law enforcement in Spain.

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