President sends Foreigners Law to Constitutional Court over family separations and child expulsions – Portugal Resident

President António José Seguro has sent Portugal’s revised Foreigners and Asylum law to the Constitutional Court, citing “well-founded doubts” over provisions that could separate children from their parents and allow minors born in Portugal to be expelled.

Seguro has requested a preventive constitutional review of the decree before deciding whether to promulgate it.

The president said he supports measures to combat illegal immigration, manage legal migration effectively and protect Portugal’s borders in cooperation with other Schengen countries. But he draws a clear line over the treatment of migrants, asylum seekers and their families.

“The security of our borders is not incompatible with human dignity,” he said, in a statement published by the Presidency.

His concerns focus on the protection of children and families, and longer periods of administrative detention and rules that could allow asylum seekers to be removed from Portugal before courts have ruled on their appeals.

Risk of separating parents and children

Seguro said he attached “enormous importance” to protecting families and minors and questioned whether the legislation adequately safeguarded the best interests of the child.

Some provisions could lead to parents being separated from their children following an expulsion order.

The Presidency has also raised concern over Portuguese minors who could be indirectly forced to leave their own country if one or both foreign parents were expelled.

In certain circumstances, the decree could permit the forced removal of foreign children under five who were born in Portugal.

These provisions have now been referred to the Constitutional Court for examination against fundamental rights, including human dignity, proportionality and protection of family life.

Longer detention without a crime

Seguro has also challenged provisions that substantially extend the periods for which foreign citizens may be deprived of their liberty through administrative detention.

Those affected would not necessarily have committed any criminal offence.

The president acknowledged that the Constitution allows administrative deprivation of liberty in certain circumstances. However, he said its duration must remain proportionate and subject to adequate judicial oversight.

Removal before an appeal is decided

A further concern relates to appeals brought by applicants for, or recipients of, international protection after an unfavourable administrative decision.

Under the proposed law, an appeal would no longer automatically suspend the decision being challenged. It would instead have only a devolutive effect, meaning the administrative order could continue to be enforced while the court considered the case.

In practice, this could allow an asylum seeker to be forcibly removed from Portugal before a final judicial decision had been issued.

The Presidency highlighted the potentially irreversible consequences of this measure: a court might subsequently find that the person was entitled to refugee status or international protection, but its ruling would have little practical value if that individual had already been expelled.

Seguro believes the provision may conflict both with the fundamental right to asylum and international protection, and with the right of effective access to justice.

Protection for people fleeing persecution

The president noted that many people seeking refuge in Portugal have fled wars, armed conflicts, political persecution and other serious humanitarian emergencies.

He accepts that abuses of the asylum system must be prevented and addressed. But this should be achieved through effective public administration and properly functioning courts, rather than rules that may conflict with constitutionally protected rights.

Reform of immigration and asylum legislation may be desirable, Seguro said, but it must provide legal certainty and comply with Portugal’s Constitution and international obligations, including the European Convention on Human Rights and the Refugee Convention.

The legislation approved by parliament cannot now come into force unless Seguro eventually promulgates it. The Constitutional Court must first determine whether the provisions identified by the president comply with the Constitution.

Source material: Executive Digest