The hidden cost of staying too long: What happens if you overstay your visa in Spain?

The allure of Spain is undeniable.

From the sun-drenched beaches of the Costa del Sol to cultural life in Barcelona, Valencia, and Madrid, it is a country that captures the heart and makes leaving a difficult prospect.

For many non-European Union (EU) citizens, a short-term visit under the Schengen rules is perfect for a holiday, but overstaying your visa in Spain can lead to grave consequences.

What is the 90/180-day rule?

For citizens of countries outside the Schengen Area, including the United Kingdom, the United States, Canada, and Australia, the standard rule for short-term visits is the 90/180-day rule.

This regulation permits a stay of up to 90 days within any rolling 180-day period.

This is not a Spanish rule but a Schengen-wide regulation, meaning that time spent in any Schengen country (such as France, Italy, or Germany) counts towards the 90-day limit.

Overstaying your visa in Spain, past the 90-day limit without having secured a valid extension of stay (prórroga de estancia) or a formal residence permit (autorización de residencia), you are considered to be in an irregular situation (situación irregular).

This status immediately triggers the application of Spain’s immigration law, specifically the regime of infractions and sanctions.

Overstaying: Classified as a ‘serious infraction’

In Spain, immigration violations are governed primarily by the Organic Law 4/2000, of 11 January, on the Rights and Freedoms of Foreigners in Spain and their Social Integration (Ley Orgánica 4/2000 or LOEX).

This law categorises administrative infractions into three levels: light (leves), serious (graves), and very serious (muy graves).

Overstaying the authorised period of stay is explicitly defined as a Serious Infraction (Infracción Grave) under Article 53.1.a of the LOEX.

“Serious infractions are: a) Being irregularly in Spanish territory, for not having obtained an extension of stay, lacking a residence permit, or having the aforementioned authorisation expired for more than three months, and provided that the interested party has not requested the renewal of the same within the regulatory period.”

This classification is crucial because it determines the range of penalties that the Spanish authorities, typically the Government Sub-delegation (Subdelegación del Gobierno) or the National Police (Policía Nacional), can impose.

The penalties: Fines, expulsion, and entry bans

The consequences for committing a serious infraction are twofold: a financial penalty (fine) and, potentially, an expulsion order (orden de expulsión) from Spanish territory.

Financial penalties

The Ministry of Interior outlines the financial penalties associated with each category of infraction.

For a Serious Infraction, such as overstaying, the fine is substantial.

The final amount of the fine for overstaying your visa in Spain is determined by the competent authority based on several factors, including the degree of culpability, the damage caused, and the economic capacity of the offender.

The threat of expulsion and the entry ban

The most severe consequence of a serious infraction for overstaying your visa in Spain is the issuance of an expulsion order.

An expulsion order is not merely a request to leave; it is a formal administrative decision that carries an automatic prohibition on re-entry (prohibición de entrada) to the entire Schengen Area.

The duration of this entry ban is determined by the severity of the case, but it can range from three to ten years.

A ban means the individual will be denied entry at any Schengen border for the specified period, severely impacting future travel, tourism, or any attempt to apply for a long-term visa or residency in Spain or any other Schengen country.

Judicial nuance: Is there a preference for fines over expulsion?

While the law permits expulsion for a serious infraction, a significant judicial precedent has introduced a crucial nuance.

The Court of Justice of the European Union (CJEU), in a ruling on 3 March 2022, clarified the application of the EU’s Return Directive in the context of a simple irregular stay.

The CJEU’s position, which Spanish courts must follow, is that for a simple irregular stay, where there are no aggravating circumstances (such as a criminal record, a threat to public order, or a previous expulsion order), the Spanish authorities should generally favour a fine over an expulsion order.

This means that for a tourist who has simply overstayed their 90 days and is not working illegally or involved in any other illicit activity, the most likely outcome is a fine.

However, this is not a guarantee.

The authorities retain the discretion to issue an expulsion order, and any aggravating factor, even minor ones, can tip the balance towards deportation and a ban.

Fine vs. expulsion

The following table compares the two primary outcomes of an irregular stay in Spain:

The path to regularisation: Arraigo

For those who have overstayed and established deep roots in Spain, there may be a complex path to regularisation known as Arraigo (literally, “rooting” or “establishment”).

This is not a consequence of overstaying, but a mechanism to resolve the irregular status.

The most common routes are:

•Arraigo Social: Requires proof of continuous residence in Spain for at least three years, a clean criminal record, and a work contract or sufficient economic means.

•Arraigo Laboral: Requires proof of continuous residence for at least two years and evidence of having worked illegally for a minimum of six months.

It is vital to understand that pursuing Arraigo is a lengthy and complex legal process.

It is not a simple amnesty, and the process itself requires navigating the very laws that classify the irregular stay as an infraction.

Consequences of overstaying your visa in Spain

Overstaying your visa in Spain is a serious administrative infraction with clear and potentially life-altering consequences.

While judicial precedent leans towards a fine for simple overstays, the risk of an expulsion order and a multi-year Schengen entry ban remains a very real possibility.

The Spanish authorities have the legal mandate to impose fines up to €10,000 and to enforce deportation.

If you have overstayed your authorised period of stay, or if you are approaching the 90-day limit and wish to remain in Spain, you must seek professional legal counsel immediately.

Only a qualified Spanish immigration lawyer can assess your specific situation, advise on the likelihood of a fine versus expulsion, and guide you through the complex process of regularising your status or preparing for a voluntary departure.

Do not risk your future travel and residency prospects by ignoring this serious legal matter.