Under Spanish law, devolución is a form of expedited repatriation applicable to two categories of migrants, those found illegally entering Spain (such as migrants arriving to Spain along the Andalucian coast across the Gibraltar Strait and to the Canary Islands from the North African coast by raft-like boats) and those migrants previously expelled from Spain by the standard expulsion process.

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Under Spanish law, devolución is a form of expedited repatriation applicable to two categories of migrants, those found illegally entering Spain (such as migrants arriving to Spain along the Andalucian coast across the Gibraltar Strait and to the Canary Islands from the North African coast by raft-like boats) and those migrants previously expelled from Spain by the standard expulsion process.

Devolución of migrants found illegally entering Spain must be executed within seventy-two hours of entry by returning applicable migrants to the country from which they departed or transited: Spanish law prohibits the detention of any person beyond seventy-two hours without a judicial order and Spanish Law 8/2000 does not provide for the prolonged (beyond seventy-two hours) detention of this particular category of migrants, even by judicial order. Thus, these migrants can only be detained for seventy-two hours, during which time devolución must be executed or the migrant should be released. For example, migrants attempting to enter Spain via the North African cities of Ceuta and Melilla, along the Andalucian coast, or from the Canary Islands may under Spanish law be repatriated by devolución to Morocco. Because the Moroccan government does not generally permit the repatriation to its territory of non-Moroccan nationals such as Algerians and sub-Saharan African migrants, the practice of devolución has become an immigration procedure used almost exclusively for the repatriation of Moroccan migrants from Spain back to Morocco.

Unlike deportations carried out by ordinary expulsion procedures, which have the effect of registering the migrant in the Schengen database system and preventing future regularisation in Spain and other Schengen countries, deportations by devolución are not recorded and have no lasting effect on the ability of migrants to regularise in Spain. Although a previous regularisation program for foreigners in Spain permitted migrants with expulsion orders to apply for an annulment of their orders for the purpose of regularising their status, this possibility does not exist for migrants who arrived in Spain after June 1999. Specifically, the regularisation that took place when the government replaced Spanish Law 7/85 on Foreigners with Law 4/2000 permitted all migrants who could prove they were in Spain prior to June 1999 to annul past expulsion orders. Despite this provision, however, organisations working with migrants in Madrid have expressed concern that a number of their clients coming from Ceuta-some of whom have been in Spain more than five years-have expulsion orders that cannot be annulled and are, consequently, unable to regularise their situations.

In Spanish legal system, an expulsion order may be issued to expel or deport a person from Spanish territory for reasons such as illegal presence in the country or conviction of serious crimes. An expulsion order may be issued in lieu of the sanction of a fine to migrants who violate certain Spanish laws, for example, by living and working illegally in Spain. Authorities may also issue expulsion orders to foreign nationals who have been convicted of crimes sanctioned with a penalty of more than one year of imprisonment. Migrants may be held in detention pending the issuance of an expulsion order once the proceedings have been initiated, but have the right to appeal the request for expulsion as well as the right to counsel and translation and interpretation services in connection with the expulsion process. Depending on the type of expulsion order, migrants may be expelled from Spanish territory either immediately or within a fixed time period of not less than seventy-two hours.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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