The Supreme Court sees it as unjustified to order the expulsion of a man for not carrying a passport when the Police requested it

The man accredited before the courts that he had a valid Peruvian passport, as well as a certificate of registration in Madrid

MADRID, 24 Jun. (EUROPA PRESS) -

The Supreme Court (TS) has considered unjustified that the expulsion of a man was ordered after being detained by the Police for not having any documentation when he asked him to identify himself, but who later accredited before the Justice that he had a valid Peruvian passport, as well as a certificate of registration in Madrid and an insurance policy.

The magistrates have made it ugly that the courts did not take into account the documentation provided. "He did have supporting documentation on her identification, without prejudice to the fact that he did not take it with him at the time he was required to do so," they have pointed out.

In addition, they have stressed that the passport also included the form of entry into the country and that, if these details are not taken into account, "the mere formal fact of not carrying the documentation personally at a certain time would be penalized, not its non-existence ".

Thus, in the sentence to which Europa Press has had access, the Contentious-Administrative Chamber has concluded that "it cannot be accepted" that in this case "there are circumstances added to the mere irregular stay in our country that justify the expulsion order, as required by the settled jurisprudence of this court".

On the sidelines, the court has explained that in regards to the rooting, "permanence, with verified registration for more than a year at the date of initiation of the file, with proof of receipt of remuneration, allows to conclude in the exercise of activity of who would obtain some type of remuneration, as evidenced by the remittance of money to his country".

In this case, the facts date back to April 2020, when the man was arrested in Madrid. The Police required his documentation and he did not have his passport with him. After the actions carried out later, it was verified that he did not have any document that accredits his stay or residence status in Spain.

The man explained that he had a Peruvian passport and that he was in Spanish territory after having entered through a border post. He assured that he had a job and that he lived with a relative who had legal residence in Spain. He asked that he not be expelled from the country, but that he be fined.

He provided his valid passport "with a stamp of entry into Spain", his certificate of registration in Madrid and a health care insurance policy, "also including documentation proving sending money to his country." Five months later the Administration ordered his expulsion.

The Government Delegation in Madrid considered that he had committed a "serious infraction" and issued his order of expulsion from the country and the express order of entry within a period of 3 years. The man unsuccessfully appealed the decision before a contentious-administrative court, which concluded that he had not incurred in any "lack of proportionality". Dissatisfied, he also went to the Superior Court of Justice (TSJ) of Madrid, which confirmed the resolution.

Thus, the man took his case before the Supreme Court, considering that the conclusions of several sentences handed down by the High Court of Justice of the European Union and the Supreme Court itself had not been taken into account, which order the sanction of a fine to prevail to expulsion.

The State Attorney's Office, representing the Government Delegation, opposed the appeal and defended that the grounds for agreeing to the expulsion are "fully adjusted" to the jurisprudence.

The magistrates have studied whether the mere fact of being in a situation of irregular stay and lacking documentation at the time the sanctioning procedure begins should be translated into an expulsion order or it is enough to apply a fine.

In the resolution, for which Judge Wenceslao Olea has been a rapporteur, the Supreme Court has emphasized that the debate focuses not on the correct application of jurisprudence, but on determining whether the circumstances of the foreign citizen "should be taken into consideration only initiation of the administrative procedure or if, on the contrary, they must be assessed in view of the evidence provided both in the previous administrative procedure, at a time after its initiation, or even according to the evidence provided in the jurisdictional channel".

In this case, the court has stressed that, although the man "did nothing" in the administrative phase, "it is true that together with the lawsuit he made an evidentiary effort" and provided his passport "and other elements." In other words, neither the court nor the TSJ took the evidence he provided into consideration.

In this sense, the magistrates have established that it is up to the courts and tribunals to make a "trial of proportionality" when they review the resolutions of the Administration on these matters. As they have concluded, they must take into account "the evidence that has been provided, not only administratively but also judicially."

In 24 pages, the court has declared the appeal filed by the man against the sentence of the Madrid Supreme Court.