The Foreigners Act provides a number of reasons for expelling an alien Here we will focus on the lack of a valid residence permit.
A foreigner is irregular when:
1. No temporary visa has expired or her term.
2. Has not obtained an extension of stay.
3. No residence permit has expired or more than 3 months.
4. And provided that the foreigner had not applied for renewal within three months after the effective loss of resolution (art.53.a LEx).
A foreigner who has no residence permit may be detained by the police to consider its case of expulsion by the preferred method.
What rights do abroad?
a) A statement to the police or judicial authority regarding the cause of expulsion.
b) assistance of a lawyer
c) assistance of a lawyer / y of free trade and if you do not have sufficient financial means (art. 22.1 LEx)
d) Art. 520 Criminal Procedure Act: "Anyone arrested or detained shall be informed, so that is understandable, and immediately, the facts alleged and the grounds for his detention and the rights assist him and especially the following:
- To remain silent is not stating if you will, not to answer any or some of the questions raised, or state that only testify before the judge.
- Not to testify against himself or to confess guilt.
- To choose a lawyer and request your presence to attend the police and judicial proceedings involved in reporting and verification of identity that is the subject. If not designated, it shall appoint counsel.
- To be brought to the attention of the family or person you want, the fact of detention and place of custody in which it is at all times. Foreigners / as entitled to the above circumstances are communicated to the Consular Office in your country.
- To have the free assistance of an interpreter when, try foreigners do not understand or do not speak the official language.
- To be recognized by the coroner and, failing that, by the institution where you are.
Recommendations:
a) Designate a trusted lawyer specializing in immigration;
b) Do not lose touch with the lawyer;
c) Notify the police and the judge's home from abroad.
Upon notification of the agreement to initiate the deportation procedure abroad has a period of 48 hours to make submissions and provide documents
What should the lawyer?.
- Provide your details: name and telephone number.
Tell you about your situation and rights:
- Examine the reasons underlying the processing of the application via preferred.
- If there are criminal appeal case for reform to the service of the order in which they agree to follow summary procedure in speedy trial. Importantly, the assistance of counsel in the criminal case is different from this assistance in the expulsion.
- To examine the justification for the preventive measure of detention.
- Examine the respect for the principle of proportionality.
- Use the evidence and discharge its disposal.
- Avoid at all costs post of helplessness (the absence of allegations is admitted facts or grounds alleged), and it must provide the remedies available to administrative or judicial.
- Assist, where appropriate, the stranger in the process of detention before the judge.
- Require the take-over apud acta (Art. 32.3 Law 30/1992). Namely the requirement that the formally designated foreign to the Clerk of Court the name of the lawyer to represent.
- Ask if appropriate, the petition for habeas corpus. Procedure for obtaining the immediate release of the individual freedoms available to the competent judicial authority of any person illegally arrested. May request the opening of a writ of habeas corpus: a) the detainee, his spouse or united by a similar relationship, descendants, ascendants, brothers, b) the prosecution, c) the Ombudsman; d) the competent judge (art. 3 LO6/1984, 24 May).
Recommendations:
a) Request the revocation of the procedure and the punishment of a fine alternative.
b) The claims must be stated all the information available
For example, registration, marital status (single, married, partner), living together or not Spanish, EU or overseas / a resident, holding children in Spain, previous permits, economic status, asylum, having been born in Spain and have resided legally in the last 5 years (the foreigner or his / her spouse), receiving a disability benefit, unemployment or program insertion (the foreigner or his / her spouse), have been of Spanish origin (the foreigner or his / her spouse ) and being younger than 18 years for working with the Justice providing data of illicit human beings, have previously requested a temporary residence permit for exceptional circumstances, be pregnant and that removal endangers pregnancy, have a criminal proceedings against the penalty is requested more than 6 years and less than 6 years and there are exceptional circumstances to avoid expulsion, the clear possibility that deportation will not be able to be done during the stipulated period of detention .
c) Collaborate with the attorney to furnish all information necessary for the defense.
d) request the attorney a copy of the allegations.
Once a reasoned proposal by resolution of expulsion. The police must notify the proposal to expel the person concerned. It opens a hearing procedure for the foreigner can make submissions and present documents within 48 hours.
Once the Government Office of signing the decree of expulsion:
- Police must immediately notify the decision on the case abroad.
- The maximum time limit for the issuance and reported the resolution to resolve the procedure is 6 months from the initiation agreed it (art. 121 REx). After this period without obtaining resolution may request the revocation of the expulsion.
- The resolution must be motivated to resolve all issues raised in the record, you can not accept facts other than those identified in the course of the proceedings, should contain the resources that come before it, the body to which they had submitted and the deadline for such remedies (REx art.132.1 and 3).
What effect does the resolution of the case?
- A foreigner may be expelled immediately.
- The execution of the expulsion order is suspended if the foreigner makes application for asylum, until it is inadmissible for pending or resolved, and also in cases of pregnant women as a risk to the pregnancy or to life or physical integrity of the mother.
- It extinguishes any permission to stay in Spain and is filed any procedure whose purpose is the authorization to reside and work in Spain.
What should the lawyer?
- Attempt to revoke the deportation order by filing an administrative appeal and request as a precautionary measure to suspend the deportation order until a decision on the appeal.
- Lodge an administrative appeal is within two months from the day after its notification.
- If dismissing the administrative appeal may be brought an appeal before the High Court of Justice. (Within 15 days).
- If the alien is free and there are new elements to claim may be filed a motion for reconsideration, prior to judicial review, within one month from the day following the notification. If denied, you can lodge an administrative appeal.
It is important to seek appropriate resources and especially to obtain the injunction to suspend the expulsion order. While the trial is being processed and the time is passing abroad buy time, in the sense that it may take 3 years to apply for the roots in exceptional circumstances, for it must meet the requirements for obtaining the necessary authorization and apply to the agency that the expulsion decree revoking the same, because the circumstances that generated it, have disappeared.
Moreover, the expulsion order may be revoked if the alien contract a marriage with a Spanish or EU citizen resident in Spain, regardless of their sexual orientation..
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