Portugal's Constitutional Court Says Deportation Bill Is Not Unconstitutional

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After Portugal's President, António José Seguro, requested a review of the lei do retorno e asilo, citing doubts about respect for the principles of proportionality and dignity, the Constitutional Court decided "not to rule on the unconstitutionality" of the decree, reported SIC Notícias (August 28).

The decision, which validated the decree's constitutionality, was announced publicly by the Court on August 28. It was 160 pages long, according to RTP Notícias (August 28). President Seguro had submitted a 34-page review request to the judges at the Ratton Palace on August 7, querying the constitutionality of 11 rules, including those separating families, the length of detention in temporary centers and the rules for appeal, reported Público (August 7).

The President of the Constitutional Court, João Carlos Loureiro, said at a press conference that the decision was approved unanimously by the seven of the 13 justices who reviewed the document, according to Observador (August 28).

President João Carlos Loureiro said that, unlike what happened with the Lei de Estrangeiros (Foreigners' Bill), the bill of return and asylum "arises within the framework of the new pact on migration and asylum of the European Union". He said that the issues submitted to the judges this time were "substantially different" from the five provisions of the Foreigners' Bill, which were rejected by the Constitutional Court.

The Constitutional Court decided that the deportation bill contains guarantees which safeguard the "best interests" of children.

Regarding the rule which allows for the forced removal and expulsion of foreign citizens who have dependent children of Portuguese nationality residing in Portugal, the judges considered that the text "expressly reserves the assessment of the circumstances of the specific case" and, in particular, the consideration of the best interests of the child and the unity of family life".

Regarding the rule which allows for the forced removal and expulsion of foreign children under the age of five born in Portuguese territory, the Court understood that "it does not imply that children under the age of five can be automatically expelled" and that the decision is subject to an assessment of "the best interests of the child, family life, state of health, reception conditions in the destination State, and the proportionality of the measure."

The Constitutional Court had 25 days to respond to President Seguro's request.

The legislation will return now to Belém Palace, where Seguro can either promulgate it or exercise his veto, reported Observador.

The final text of this legislation was based on two bills from the PSD/CDS-PP (Social Democratic Party and the People's Party) government. It was approved in plenary in an overall vote on July 17, but it was opposed by PS (Socialist Party), Livre, PCP (Portuguese Communist Party) , BE (Left Bloc) , PAN (People Animals Nature) and JPP (Juntos Pelo Povo), reported TSF Rádio Notícias (August 8).

Change in Constitutional Court Makeup

Since its past rulings on parliamentary decrees on immigration and changes in the penal code for naturalized citizens, the composition of the Constitutional Court has changed with four new members and two resignations. President Seguro swore in the new justices, who were elected by Parliament on a list from PSD (Social Democratic Party), Chega and PS (Socialist Party) on June 15, reported Observador (June 15).

Two judges were nominated by PSD, one by Chega and one by PS. On the same day, the president of the Court resigned, as planned, as did another member of the Court, who had exceeded her nine-year term. Both had been elected on recommendation from PS.

This was the first decision since the change in the court's makeup, reported SIC Notícias.