Crime of Solidarity in Spain: Is Helping Migrants Illegal?

Updated on 12 October 2026.

The “crime of solidarity” in Spain is an expression used in public debate, rather than the name of a specific offence in the Spanish Criminal Code. Giving someone food, helping them obtain legal advice or responding to an emergency does not become a criminal offence simply because that person lacks a residence permit.

The law nevertheless draws important distinctions. Article 318 bis regulates intentional assistance with unlawful entry, transit and stay, with different requirements for each situation. It also expressly protects conduct whose sole purpose is humanitarian assistance in the entry-and-transit provision.

If you are supporting a friend, family member or someone through a community organisation, the useful question is what your assistance involves: where the person is, what you are helping them do, whether payments are involved and which rules apply. This guide explains those distinctions and when to obtain advice from an immigration lawyer in Spain.

What does “crime of solidarity” mean?

The Spanish expression delito de solidaridad describes concerns about humanitarian assistance being investigated or treated as facilitation of irregular migration. The expression itself does not identify the legal elements that prosecutors or administrative authorities must establish.

A proper assessment starts with the applicable provision. A criminal allegation under Article 318 bis, an administrative immigration penalty and a trafficking investigation concern different conduct and procedures.

For that reason, two broad statements can mislead: that helping an undocumented person is always punishable, and that only people who make money can commit any facilitation offence. The answer depends on the specific form of assistance.

Article 318 bis: entry, transit and stay have different rules

Article 318 bis of the Spanish Criminal Code concerns assistance to people who are not nationals of an EU Member State. The person providing the assistance can have a different nationality; the provision is not restricted to foreign helpers.

The distinction between entry or transit and remaining in Spain is essential:

Assistance with unlawful entry or transit

The basic entry-and-transit offence requires intentional assistance that contravenes the rules governing entry or transit. Not receiving payment is not, by itself, a complete defence to this offence.

The humanitarian exception must also be considered. Paragraph 1 states that the conduct is not punishable when the helper’s objective is solely to provide humanitarian assistance to the person concerned.

A free arrangement to move someone across a border and emergency assistance to someone in danger therefore require different factual assessments. Whether a journey is unpaid does not answer every legal question.

Assistance with an unlawful stay

Paragraph 2 concerns intentional assistance, with an intention to make a profit, enabling a non-EU national to remain in Spain in breach of the rules on stay.

That profit requirement matters when assessing free support for someone already in Spain. Offering food or temporary accommodation without a profit motive does not, by itself, establish the offence described in paragraph 2.

Payments require examination in context. An authority must assess the conduct, purpose and applicable legal elements; a payment alone does not explain the whole transaction. Other administrative, employment, housing or criminal rules may also be relevant.

What penalties does Article 318 bis provide?

For the basic offences in paragraphs 1 and 2, the statutory penalty is a criminal fine of three to twelve months or imprisonment of three months to one year.

A fine expressed in months is a criminal penalty whose monetary amount is determined under the Criminal Code. It is different from the fixed euro ranges used for administrative immigration infringements.

For the profit-related form of the entry-and-transit offence, the penalty is imposed in its upper half. Where the underlying offence is established, the aggravated circumstances in paragraph 3 carry four to eight years’ imprisonment. Those circumstances include conduct within an organisation dedicated to unlawful facilitation, or endangering life or creating a risk of serious injury.

The article contains further provisions for people abusing public authority, legal entities and assessment of the circumstances of the offence. These are statutory frameworks; the outcome of an individual case depends on the proved facts and the applicable provisions.

How does the humanitarian exception work?

The exception in Article 318 bis(1) focuses on the sole objective of providing humanitarian assistance. It is an express part of the criminal provision.

A legal assessment may therefore examine the person’s immediate needs, what assistance was provided, the helper’s purpose, the involvement of other people and any financial arrangements. Describing an activity as “solidarity” or “volunteering” does not replace that assessment.

For an organisation, accurate records can help explain its activity: what was supplied, why assistance was needed, who organised it and how any expenses were handled. Records should be truthful and managed with appropriate respect for personal information.

The exception is located in the entry-and-transit paragraph. For unlawful stay, paragraph 2 has its own requirement of an intention to make a profit. Keeping those provisions separate helps avoid the mistaken claim that every form of unpaid facilitation is automatically exempt.

Everyday assistance: food, accommodation, transport and legal support

The following examples illustrate questions to ask when assessing conduct. They are not determinations of an individual case.

Transport needs particular care because the journey and its purpose matter. Taking someone to seek emergency assistance and organising an unlawful border crossing raise different issues. Describe the actual route, circumstances and objective before seeking advice.

Accommodation also requires a factual assessment. Free emergency shelter, an ordinary housing arrangement, support following an invitation to enter Spain and an organised profit-making arrangement can engage different provisions. Immigration status alone does not describe all those circumstances.

Administrative immigration infringements are a separate issue

The Ley de Extranjería, Organic Law 4/2000, includes administrative infringements. Article 54 should not be presented as though it were itself the criminal offence in Article 318 bis.

Facilitation for profit: Article 54(1)(b)

Article 54(1)(b) concerns inducing, promoting, favouring or facilitating clandestine immigration, transit or stay with an intention to make a profit, individually or within an organisation, where the conduct does not constitute a criminal offence.

It is classified as a very serious administrative infringement. The general fine range for this provision under Article 55 is €10,001 to €100,000, with the particular sanction assessed according to the legal criteria.

A criminal charge and an administrative penalty have different elements and procedures. Identify which provision an official notification relies on before assessing the response.

An invitation followed by irregular stay: Article 53(2)(c)

Article 53(2)(c) addresses promoting a foreign national’s irregular stay where their lawful entry relied on the infringer’s express invitation and the person continues at that infringer’s expense after the authorised period.

This administrative provision does not contain the same express profit requirement as Article 318 bis(2). It also requires its own circumstances; it should not be reduced to a rule that every host is liable whenever a visitor overstays.

The law expressly requires personal and family circumstances to be considered when grading the sanction. The general range for serious administrative infringements is €501 to €10,000.

False municipal registration: Article 53(2)(d)

Article 53(2)(d) concerns consenting to a foreign national’s registration in the Padrón Municipal at a dwelling that is not their actual home.

Supporting someone with paperwork should therefore involve truthful information about where they live. Registering an address does not provide a substitute for a residence authorisation, and the humanitarian nature of other assistance does not make false address information accurate.

Facilitation and human trafficking are different offences

Facilitation of irregular migration is frequently discussed alongside human trafficking, but the legal concepts must be assessed separately.

Article 177 bis of the Criminal Code regulates trafficking in human beings. It concerns specified acts such as recruitment, transport, transfer, harbouring or receipt for purposes including forced labour, sexual exploitation and other forms of exploitation, using the means described in that provision.

Those means include violence, intimidation, deception or abuse of vulnerability. The law has specific rules for minors, including situations where those means are not required.

Trafficking can occur within a country and can affect people with regular immigration status. Conversely, an irregular border crossing does not by itself establish all the elements of trafficking.

Where a person is being coerced, exploited or threatened, their safety and access to appropriate protection require attention alongside their immigration position.

In an emergency, assistance may be a legal duty

Spanish criminal law also addresses failure to provide assistance. Article 195 concerns a person who is helpless and in manifest, serious danger where help can be given without risk to the helper or third parties.

It also addresses urgently seeking outside assistance when someone is unable to provide help themselves. This is relevant to understanding why emergency assistance cannot simply be treated as suspicious because the person needing it lacks immigration documents.

In an immediate emergency, contact 112 and explain the situation. Follow the instructions of the emergency services and avoid creating further danger.

EU law, family life and the Kinsa judgment

EU law also shapes the interpretation of facilitation offences. In Kinsa, Case C-460/23, decided on 3 June 2025, the Court of Justice of the European Union examined a person bringing accompanying minors into a Member State in breach of border rules, while exercising actual care over them through a family relationship.

The Court held that this conduct fell outside the general facilitation offence under Directive 2002/90/EC. Its reasoning relied on respect for family life and the rights of the child, including Articles 7 and 24 of the EU Charter.

The case is important for its particular family-and-care circumstances. It should not be presented as blanket immunity for every volunteer, every relative or every transport arrangement. Entry, residence and protection issues still require their own assessment.

The EU proposal to replace the existing facilitation framework, 2023/0439(COD), remained pending in the European Parliament’s Legislative Observatory when this article was prepared. Proposed changes must be distinguished from rules already in force.

Humanitarian support and residence permission are different questions

Receiving assistance does not itself grant someone permission to enter, remain or work in Spain. Their immigration position must be assessed separately from the helper’s conduct.

For a person already in Spain without a residence permit, relevant questions include their immigration history, family circumstances, any protection claim, the requirements of a possible residence route and whether there is an official decision requiring a response.

Our guide to living in Spain without a residence permit explains the importance of identifying a route under the current rules.

Access to legal assistance is also relevant. Article 22 of Organic Law 4/2000 provides for legal assistance in specified immigration and international protection procedures, including interpretation where needed. Free assistance depends on the conditions established by the legal-aid rules.

A community organisation or friend can help someone understand where to obtain that advice and organise genuine documents. A residence application must then be prepared according to its own requirements.

Practical steps for people providing assistance

A clear description of the activity is more useful than a broad label. Before organising ongoing support:

1. Identify the activity: emergency aid, support with paperwork, accommodation, employment or transport.
2. Distinguish entry, transit and stay: explain where the person is and what the proposed assistance would enable.
3. Record the financial arrangements accurately: identify payments, expenses and their purpose without assuming that one feature determines the legal result.
4. Use truthful documents and address information: ensure applications and registrations reflect the actual circumstances.
5. Obtain advice for complex arrangements: especially where border movements, organised activity, invitations, employment or an official investigation are involved.
6. Act promptly on official notifications: retain the documents, check the stated deadlines and obtain advice on the appropriate response.

An investigation, an allegation and a conviction are different stages. If contacted by the authorities, establish what procedure is involved and seek legal advice suited to it.

Frequently asked questions

Is there a specific offence called “crime of solidarity” in Spain?

No. It is an expression used in public debate. The relevant assessment usually starts with the actual criminal or administrative provision, including Article 318 bis where facilitation is alleged.

Is it illegal to give food to someone without a residence permit?

Giving food to a person in need does not become a criminal offence merely because they lack a residence permit. The relevant legal elements and humanitarian purpose must be distinguished from their immigration status.

Does helping without payment always exclude criminal liability?

No. Financial gain is not required for the basic unlawful-entry or transit offence in Article 318 bis(1). The exclusively humanitarian exception and the facts must be assessed. Paragraph 2, concerning unlawful stay, does require an intention to make a profit.

Can inviting someone to visit Spain create responsibilities?

Yes. Article 53(2)(c) addresses a particular combination of lawful entry based on an express invitation, promotion of irregular stay and continued support at the inviter’s expense. Advice should consider the actual invitation, arrangements and personal and family circumstances.

Does humanitarian assistance give the recipient permission to stay or work?

It does not itself create a residence or work authorisation. The person’s eligibility for a residence route and their current immigration position require a separate assessment.

Legal review: Francisco Javier Theuer Carmona, immigration lawyer and member of the Granada Bar Association (ICAGR 7984).

Last reviewed: 12 October 2026

Discuss the immigration questions with Nodisea

If you are supporting someone in Spain, gather the relevant dates, their immigration documents, details of the proposed assistance and any official correspondence. That information helps identify the questions requiring legal advice.

At Nodisea, we can assess the immigration position and available residence options. Where a criminal investigation is involved, obtain advice that also addresses the criminal proceedings and any immediate deadlines.

Book a free immigration consultation to discuss the immigration aspects of the situation.

Official sources

• Spanish Criminal Code: Article 318 bis, facilitation of unlawful entry, transit and stay.
• Spanish Criminal Code: Article 177 bis, trafficking in human beings.
• Spanish Criminal Code: Article 195, failure to provide assistance.
• Organic Law 4/2000: legal assistance, administrative infringements and sanctions, Articles 22, 53, 54 and 55.
• Court of Justice of the European Union: official summary of the Kinsa judgment, C-460/23, 3 June 2025.
• European Parliament: status of legislative procedure 2023/0439(COD).