Constitutional Court rules ‘Return Law’ for immigrants is not unconstitutional  – Portugal Resident

The Constitutional Court has ruled that there is no “unconstitutionality” in the Foreigners and Asylum Law, commonly known as the Return Law, after the President of the Republic requested a preventive review of the legislation earlier this month. 

The draft law will now return to Belém Palace, where António José Seguro will either promulgate it, or exercise his political veto.

Constitutional Court President João Carlos Loureiro told a press conference yesterday that the ruling on the constitutionality of the legislation was approved unanimously by the seven judges who examined it. The judgment runs to more than 160 pages and addresses the 11 questions raised by António José Seguro who was particularly concerned over the rights of children, and preservation of human dignity.

Judge Loureiro said that, unlike the Foreigners Law, the Return Law “arises within the framework of the European Union’s new Pact on Migration and Asylum”. He said the questions submitted to the judges on this occasion were “substantially different” from the five provisions of the Foreigners Law that the court previously rejected.

Indeed, he said, judges found that the parliamentary decree contains important safeguards protecting the “best interests” of children. 

Regarding the provision allowing the forced removal and expulsion of foreign citizens responsible for minor children of Portuguese nationality who live in Portugal, the judges concluded that lawmakers have not framed the specified grounds as “automatic causes for removal”. The text “expressly safeguards the ‘assessment of the circumstances of the individual case’ and, in particular, consideration of the best interests of the child and the unity of family life”.

As for the provision allowing the forced removal and expulsion of foreign children under the age of five who were born in Portuguese territory, the court found that it “does not follow that children under five may be expelled automatically”. Any decision must consider “the best interests of the child, family life, their state of health, reception conditions in the destination country and the proportionality of the measure”.

When President Seguro requested a review of the Return Law, he asked the Constitutional Court judges to assess “whether the specific choices adopted by the national legislature comply with the fundamental principles of the Constitution, namely the principles of human dignity, proportionality, effective judicial protection and the protection of personal liberty”.

Seguro’s reservations essentially concerned three aspects: the maximum period for which illegal immigrants may be detained in Portugal, the proposed possibility of deporting minors and the shortening of appeal periods. The President nevertheless acknowledged “the need to combat illegal immigration, effectively control legal immigration and guarantee the defence of our borders within a framework of cooperation among the European states belonging to the Schengen Area”.

“The security of our borders is not incompatible with human dignity,” he concluded.

The legislation declared constitutional by the court was already a compromise devised by the PSD, writes Lusa. “The government initially attempted to pass a “Return Law” that attracted considerable opposition because of the proposed deadlines for holding illegal immigrants in reception centres and removing them from Portugal. The PSD parliamentary group eventually replaced that proposal with the Foreigners and Asylum Law, reframing it as the transposition of the European Pact on Migration and Asylum.”

Among other measures, the new version of the bill provides that the maximum detention period for anyone entering the country irregularly will increase to 360 days, extendable by a further 180 days to enforce the decision; deadlines for appealing asylum decisions will be shortened; when an application for international protection is refused, a border procedure will be adopted involving immediate return without formal entry into the country; and screening, biometric data collection, health checks and security checks will become compulsory for illegal immigrants.

The legislation was approved with votes in favour from the PSD, CDS and Liberal Initiative. CHEGA, surprisingly abstained (surprising, because when President Seguro sent the draft law to the Constitutional Court, CHEGA was the first party to complain…) All left-wing parties in parliament voted against the changes.

Bugalho speaks of “a sense of duty fulfilled”; believes Seguro will promulgate

The ruling PSD has responded through its spokesman Sebastião Bugalho, who said the party views the prospect of promulgation with “a sense of duty fulfilled”.

Bugalho said the “political conclusion” the governing party drew from the court’s decision was that “while many around us waste time on noise and smokescreens, we continue to solve the problems faced by the Portuguese, which require solutions — in this specific case, the issue of immigration”.

“From now on, with the completion of this structural immigration reform, we will have greater security and greater proportionality, always with respect for our constitutional values: those who obey the rules stay; those who do not, leave”.

Bugalho believes António José Seguro will promulgate the law rather than block it with a political veto.

“Taking into account the Constitutional Court’s ruling, as well as the statement issued by the President of the Republic when he requested the preventive review, we have reason to be optimistic.”

Presidency Minister António Leitão Amaro is also of the opinion that the Return Law will help authorities combat illegal immigration.

Writing over social network ‘X’, he said: “The Constitutional Court’s decision gives the green light to the final element of the regulated and humane immigration reform that we have been carrying out for two years. Our focus is on solving problems. The Return Law helps our authorities combat illegal immigration. Breaking the law has consequences.” 

PS “respects” decision

PS Socialist leader José Luís Carneiro has responded to the Constitutional Court’s decision by saying that the PS will respect it.

“When we respect the decisions of the sovereign bodies, we respect them in full — both when we agree and when we disagree,” he conceded.

LIVRE MP Paulo Muacho, meanwhile, believes there is still “scope for a veto”, despite the Constitutional Court’s green light, because of the bill’s “inhumanity in providing for the possibility of detaining and expelling children”.

In a statement sent to Lusa, the MP said his party respects the Constitutional Court’s decision but “fully maintains its criticisms”.

PCP communists have said the Constitutional Court’s ruling could worsen “existing constraints” and generate injustice for many immigrants.

“We are following the Constitutional Court’s ruling closely because it could exacerbate existing constraints and generate injustice for many immigrants, not least because of the slow response to applications that have been submitted,” the PCP told Lusa.

Source: LUSA