Last updated: December 2010
Spain Country Profile
Introduction
Although Spain receives a disproportionate number of undocumented migrants and asylum seekers compared to many of its European Union neighbours, the country is generally considered an exception to broader European trends on immigration, showing increased tolerance, a greater enthusiasm with regard to immigration, and a stronger acceptance of multiculturalism in opinion polls. This reputation, however, has been challenged in recent years as the country has seen increasingly larger waves of sub-Saharan Africans attempting to reach the country. Responding to this situation, Spain introduced in 2009 several amendments to its Organic Law—which provides, inter alia, the grounds for the detention of migrants—that aligned the country with key European Directives relating to immigration and increased the amount of time a non-citizen can be held in administrative detention. The country has also come under increasing criticism for conditions at some of its facilities, which gained international attention in November 2010 when several detainees at a Barcelona facility went on hunger strike to denounce “degrading treatment” there (Villa 2010).
Detention policy. The norms regarding the detention of migrants in Spain are established in Organic Law 4/2000. This law was amended in 2009 to incorporate a number of European directives, following the signing of the European Pact on Immigration and Asylum on the 16 October 2008, and rulings from the Spanish Constitutional Court in reference to the rights of foreigners (Fabre 2010). The legislation now includes amendments relating to European Directives on, inter alia, assistance in cases of transit for the purposes of removal by air; the issuing of residence permits to victims of human trafficking or victims of illegal immigration; and the rules and procedures in Member States for returning illegally staying third-country nationals (Organic Law 2/2009, Preamble).
The law does not specify which particular agency can detain irregular non-citizens for purposes of deportation, providing only that detention can be undertaken by a government authority or its agents for a maximum of 72 hours prior to referral to a judge to authorise the confinement of an irregular migrant at an officially designated detention centre (Article 61.1.d. of Organic Law 4/2000). Migrant detention centres cannot be penitentiaries. Migrants can only be detained under the following conditions: (1) for purposes of expulsion from the country because of alleged violations listed under Article 53 and 54 of the Organic Law 4/2000, including being on Spanish territory without proper authorisation, posing a threat to public order, and/or participating in clandestine migration; (2) when a judge issues a judicial order for detention in cases where authorities are unable to carry out a deportation order within 72 hours of its having been issued; (3) when a non-citizen fails to depart the country within the prescribed time limit after being issued a deportation order.
A detained migrant cannot be held longer than is necessary for expulsion to take place, and amendments made to the Organic Law in 2009 increased the maximum detention period from 40 days to 60 days (Article 62.2 of Organic Law 2/2009). The 2009 amendments also prohibit the detention of minors, where previously the law provided for the detention of children when a judicial authority, the Attorney General’s office, and the parent(s) of the child (who must also be detained) in question requested and agreed to be accommodated together in a detention centre that contains appropriate facilities for family accommodation. Children are to be referred to Protection of Minors services (Article 62.4 of Organic Law 2/2009).
Detainees are to receive in a timely manner written information on their rights and obligations, the functioning of the centre, disciplinary norms and the methods to present complaints or petitions in a language they can understand upon entry into a detention centre. Any complaints or petitions will be presented to the director of the centre, who will, in turn, respond, or redirect to the appropriate authority. Notices of expulsion, devolution, or return must be communicated with the consulate of the national detained, as well as to family members or others residing in Spain if so requested by the detainee (Articulo 62 bis. of Organic Law 4/2000).
Detention infrastructure. As of 2010, Spain appeared to be operating nine dedicated immigration detention centres ("centros de internamiento de extranjeros") as well as one ad hoc facility ("habilitado") that is supposed to be used when other facilities are at capacity (Fabre 2010; Fiscalia General del Estado 2010, p. 888). Spain also operates shelters for immigrants in the North African enclaves of Ceuta and Melilla. These non-secure facilities are termed "centros de estancia temporal," or temporary residence centres. Detention facilities are mostly located in Andalusia, the Canary Islands, and major cities. An active NGO network and the National Ombudsperson (“Defensor del Pueblo”) regularly report on conditions at the centres. Unaccompanied minors are housed in children’s shelters (“centros de acogida de menores”) (DPE 2007, APDHA 2008).
The nine dedicated facilities are located in Algeciras, Barcelona, Gran Canaria, Fuerteventura, Madrid, Malaga, Murcia, Santa Cruz de Tenerife, and Valencia (Fabre 2010). The ad hoc facility is located in Tarifa. Although it is meant to be only an ad hoc facility used exceptionally (when the Algeciras centre is full), the Tarifa centre appears to operate continually (Fiscalia General del Estado 2010, pp. 888). According to an official report, the Tarifa facility, despite its ad hoc status and lack of official regulations, has much higher operating standards than other nearby dedicated facilities in Malaga and Algeciras (Fiscalia General del Estado 2010, pp. 888-889).
A decrease in the numbers of immigration-related detainees in 2009 (16,590, compared with 26,032 in 2008) and opposition from the local council led to the cancellation of construction of a new centre in Zaragoza in 2010 (Fabre 2010).
In the past , Spain has made extenisve use of “ad hoc” centres, especially during annual immigration surges. These facilities, which are otherwise not used as detention centres, include former military bases, retrofitted abandoned buildings, and tarps placed over parking lots. Spain has been criticised for providing very poor conditions at some of these ad hoc centres, as well as for not adhering to its non-refoulement obligations and not ensuring the wellbeing and safety of detainees at these sites (Crépeau, et al. 2007). Spain has made an effort to build and/or renovate dedicated detention centres for use during migration peaks, namely at the Port of Almeria and the Las Canteras detention centre at La Laguna, Canary Islands (DPE 2007, APDHA 2008).
Spain has worked closely with African states and European Union partners to coordinate border and interdiction measures (De Witte et al 2007; Flynn 2006). In one case in 2005, media outlets reported that Spanish authorities aided Mauritania in establishing a detention centre in a former school house in Nouadhibou, Mauritania, that was aimed at confining migrants transiting Mauritania to take boats heading to the Canary Islands (Flynn 2006). According to a 2008 report by the UN Working Group on Arbitrary Detention (WGAD), “The delegation of the Working Group visited the migrants’ centre in Nouadhibou, which is in fact a former school that has been converted into a detention centre. According to the authorities, this is not a prison, but a ‘social’ centre that houses foreigners for very short periods (a week at most) pending their repatriation. The authorities maintain that the police can only arrest illegal aliens (undocumented, without visas) and persons who are caught in the act of attempting to embark for Europe by sea (shipwrecked persons or those found at sea)” (WGAD 2008).
Facts and figures. Spain operates ten dedicated migrant detention centres, two centres of temporary stay for immigrants (Centros de Estancia Temporal para Inmigrantes), and several “ad hoc” facilities (Fabre 2010).
In 2009, Spanish authorities authorised the detention of 11,573 persons on immigration-related grounds (Ministerio de Justicia 2010, p. 888). 55 percent of these were apprehended and detained while attempting to enter the country. An additional 1,930 migrants were held in detention centres in order to facilitate their expulsion from the country, in lieu of fulfilling a penal sentence of less than six years (Ministerio del Justicia 2010, p. 888). The total number of immigration-related detainees registered in Spain during 2009 was 16,590, down from 26,032 in 2008. 90 percent of these were male, and 53 percent were expelled from the country (Ministerio de Justicia 2010, p. 889).
Detainees held at the detention centres situated in the Canary Islands, North Africa and Southern Spain predominantly originate from Sub-saharan African countries, while those detained in the centres located in major cities primarily come from Latin America, Morocco and Eastern Europe (Fabre 2010).
While economic challenges stemming from the global financial crisis have led to major difficulties for migrants—with unemployment among immigrants reaching 69 percent, three times the national average (Govan 2008)—regular reports of clandestine migration from Africa continued apace in 2008 and early 2009. Spain has 5 million immigrants, 11 percent of its population (Donadio, et al. 2009), and the estimated number of irregular immigrants stands at around 1,200,000 (Fabre 2010). Most irregular migrants in Spain are from sub-Saharan regions of Africa (De Witte, et al., 2007).
Between 2004 and 2007, 370,000 persons were deported, an increase of 43.4 percent compared to the previous four-year period. Over the same period, Spain increased the number of border police and frontier personnel by 25 percent. In 2007, 55,938 persons were deported, up 4 percent compared to a year earlier, despite the fact that the number of irregular migrants reaching the Canary Islands fell by 61 percent that year (MIR 2008).
