President submits foreigner law to Constitutional Court, drawing government concern
Marcelo expressed concern that restrictions on family reunification processes violate family rights. He also harshly criticized the government
On Thursday afternoon, the President of the Republic submitted a parliamentary decree to the Constitutional Court, which amends provisions concerning immigration entry, residence, and expulsion, and raised constitutional challenges against seven of its clauses, most of which restrict family reunification for foreign citizens. Marcelo Rebelo de Sousa requested an urgent response and set a 15-day deadline for judges at the Palace of Justice to issue a ruling.
According to a statement published on the presidential website, which reproduces information sent shortly after the hearing with the coordinator of the CDS party, Marcelo Rebelo de Sousa believes the new regulations endanger constitutional principles regarding family reunification rights. Among other arguments, he claims that 'it takes at least three and a half years for a family to reunite,' which violates the principle of administrative efficiency and is detrimental to children.
They also violate constitutional principles of equality and non-discrimination, as they establish different rules based on 'immigration classes,' distinguishing between immigrants holding student or teacher residence visas, investment visas, and work visas. Moreover, they may also violate the principle of legal certainty due to the use of undefined concepts.
PÚBLICO learned that the rapporteur for the ruling will be Judge Joana Fernandes Costa, who was formerly a TC advisor and was appointed by the PS in July 2016 (her term has expired).
Let's take it step by step. The new regulation requires foreigners to apply for family reunification only for minor family members who have legally entered and are currently in the country. This excludes reunification with other family members already in the country, especially spouses and cohabiting partners, since residence permit holders must now wait two years before applying.
Three and a half years to reunite families
Furthermore, the bill discriminates against children of various types of immigrants, Marcelo pointed out: 'The bill relaxes family reunification standards for those holding residence permits,' such as so-called 'golden visas' and foreign professors and researchers, allowing them to reunite with all family members, but making it more difficult for those holding 'other residence permits,' i.e., work visa holders.
For these people, it 'restricts' their rights because it only allows reunification of minor family members (i.e., children and siblings), not spouses, parents, or in-laws, and also imposes 'new burdens,' namely 'waiting two years after obtaining a residence permit' before holders can request reunification of other family members 'who can prove they live with or depend on them in another country.'
The President of the Republic stated that 'this change affects important mechanisms for social integration and family life, disproportionately and unequally restricts the principle of family unity, and may fail to protect the best interests of children forced into long-term separation.' He calculated the minimum time as three and a half years and expressed regret over the failure of the default extension mechanism.
Marcelo Rebelo de Sousa also believes that the new wording of the law 'introduces or changes a set of important concepts whose nature has not yet been determined, or at least is difficult (even impossible) to specify specifically, in some cases attributing regulatory decrees to mere government regulatory decrees.'
Now, besides serving as a discretionary means to grant more power to the executive branch and further tighten some rules that fall under parliamentary exclusive jurisdiction (thus violating the constitution), Marcelo also believes these concepts 'naturally hinder the implementation of the law, are detrimental to the necessary and expected legal security and certainty, contrary to constitutional guarantee principles, and may even lead to discriminatory treatment.'
The president has repeatedly warned about ensuring legislative rigor, but ultimately believes this matter is too sensitive to 'completely unsuitable' contain conceptual uncertainty, and resorting to uncertain concepts may violate the constitutional principle of legal certainty. He gave examples of what concepts should be included in approving family reunification standards, such as 'normal housing equivalent to reconstituted families for similar families,' and 'means sufficient to maintain all family members' livelihoods.'
There is another constitutional question regarding so-called judicial protection, related to procedural errors by the Immigration and Asylum Service (AIMA) making it more difficult for immigrants to appeal to courts.
Criticized for acting too hastily
Besides expressing doubts about the constitutionality of these new rules, the president also critically evaluated how parliament conducted the legislative process without 'effective consultation and hearings, i.e., constitutional, legal, and/or procedural hearings (whether mandatory or not)'—as emphasized by IL, Livre, PCP, and Bloco during the hearings.
Or, in cases where requests were made, 'the legally prescribed [response] deadlines were not met and/or responses were given within timeframes inconsistent with effective consultation.' The parliamentary-approved decree was based on a government bill and a bill from Chega, but the government requested acceleration of parliamentary procedures while PSD refused to seek opinions.
Marcelo pointed out that the law requires consultation of several institutions established by the constitution, such as courts, judicial bodies, the Higher Council of the Public Prosecution, and the Portuguese Bar Association. Moreover, consultation extends beyond this: 'Other hearings and consultations need to be organized, particularly with entities directly or indirectly related to the relevant matters, although these entities are not legally required, but as a way to ensure the democratic legitimacy of approved laws and prevent problems that may arise during their implementation, it is reasonable.'
Left-wing cheers, Chega laments
Reactions were swift, especially from left-wing parties and André Ventura. The decision by Chega leader Marcelo Rebelo de Sousa is a 'mistake,' he said he 'regrets' it, and claimed 'the political system must realize that postponing the Foreigners Law may lead to greater chaos in population control and immigration.' However, he understands that constitutional concerns must be clarified and acknowledges 'this is the rule of the game.'
In the left-wing camp, Socialist Pedro Delgado Alves welcomed the president's decision, recalling warnings the Socialist Party has issued since the legislative process began, and expressed hope that the Constitutional Court could 'make a decision within the expected timeframe to get this process back on track, which is exactly the path it shouldn't have taken.' Livre, through Paulo Muacho, called this 'the wisest decision so far,' while Portuguese Communist Party's Paula Santos called it 'a necessary decision considering the legislative content.'
Reported by Felipe Santa Bárbara