What does the new Foreigners Law stipulate: Why it raises so many concerns and worries for President Marcelo
To understand the various issues that the head of state focused on in his request sent to the judges of the Palace of Justice, one must first clarify the main amendments to the Foreigners Law - the law was approved by votes from PSD and Chega, with IL abstaining and the remaining parties voting against.
This Thursday, the president submitted to the Constitutional Court the amendment to the Legal Regime on Entry, Stay, Departure and Expulsion of Foreigners from the National Territory, approved by Parliament.
Marcelo has many concerns and worries about the following matters: possible violations of the principle of equality, the principle of proportionality, legal certainty, proportionality in restricting rights, the right to judicial remedy, equality in substantive legal protection, the right to family reunification, and the binding force of administrative activities to the Constitution.
Constitutional and procedural concerns
This proposal is one of the three components of the first legislative package of the government elected in May, alongside the National Unit for Immigration and Borders (UNEF) established within the PSP (Public Security Police), and the new Nationality Law. UNEF has already been enacted, while the Nationality Law, which involves numerous constitutional concerns, is expected to be discussed in September.
Criticism of the Foreigners Law focuses on the procedural flaws caused by the emergency procedures imposed by the government and the potential unconstitutionality of some content.
Controversies include the requirement for opinions from the Supreme Council of Justice (CSM) and the Supreme Council of Administrative and Tax Courts (CSTAF) to be submitted within just two days without receiving replies; meanwhile, the opposition formally requested hearings but the opinions of constitutional scholars and immigrant groups were not heard.
Furthermore, if AIMA (Service for Immigration and Border Management) makes administrative decisions, the bill reduces the right of affected individuals to appeal to courts, which may constitute a violation of the right to judicial remedy.
The bill stipulates that only when AIMA's actions or omissions, evidenced by solid proof, seriously, directly and irreversibly affect the timely exercise of individual rights, freedoms and guarantees, and these guarantees cannot be effectively maintained through existing interim measures, can a request be made to defend rights, freedoms and guarantees through summons procedures.
The Immigrant Organizations Coalition submitted documents to the president on Tuesday, warning that the drafting of the bill draft makes interview arrangements and family reunification request reviews dependent on AIMA's administrative capacity, failing to ensure that legal time limits and fundamental rights are fulfilled.
This wording creates risks of unequal access to procedures, systematic delays, and violations of the principle of substantive rights protection guaranteed by Article 268 of the Constitution, especially for more vulnerable immigrants. In addition, the bill does not set time limits, nor does it require AIMA to publicly disclose scheduling methods, weakening administrative transparency and the supervisory capacity of citizens and the judiciary.
Restrictions on immigrant family reunification
The bill allows immigrants whose minor dependents have legally entered the country, are currently residing in the country, live with them and depend on them for support to immediately apply for family reunification.
In other cases, only immigrants who have obtained valid residence permits and have legally resided continuously for at least two years may apply for family reunification. In practice, this measure means that the family reunification applications of more than 300,000 immigrants who obtained residence permits through the legal regime of expressing intent (allowing people to apply for regularization with tourist visas) must be deferred for two years.
Since these applications can only be made two years after the residence certificate is issued, their families will have to follow the new nationality acquisition time limits to be established in September.
To complete the reunification application, applicants must provide proof of ownership or rental housing that meets general standards comparable to similar families in the same area and complies with safety and hygiene requirements, and must also have sufficient economic capacity to support all family members without relying on social subsidies.
In addition, applicants must comply with integration measures, particularly including learning Portuguese and the principles and values of the Portuguese Constitution, and if minors are involved, they must also receive compulsory education.
Unlike the previous three-month time limit, reunification applications must be decided within nine months and may be rejected for reasons of public order or security and public health.
Immigrant organizations point out that rejecting minor family reunification requests for those residing outside Portugal would be incompatible with European and international law, as it excludes legitimate families, violates the best interests of children principle, and weakens social integration and inclusion mechanisms.
Elimination of preferential treatment for CPLP nationals
Another controversial measure is the elimination of preferential systems for CPLP citizens, requiring them to apply for work visas or residence visas in their country of origin to obtain residence permits.
Currently, through bilateral agreements, citizens of East Timor and Brazil can enter Portugal visa-free for tourism and then apply for residence permits; other CPLP nationals must enter with tourist visas and then apply for residence permits.
This move has triggered protests from Lusophone immigrants, with even the President of Angola considering this legal regression as causing some inconvenience:
Portuguese people live all over the world, and what we basically require is that Portugal should not treat immigrants who choose Portugal... their treatment should not be worse than what Portuguese people have received in accepting countries over the years.
The new bill states: If applicants are protected by CPLP agreements and hold residence visas, they may apply for temporary residence permits, and CPLP citizens holding residence visas may apply for CPLP residence permits to AIMA within Portuguese territory.
In practice, except for Brazil and East Timor, immigrants from other Portuguese-speaking countries must apply for entry visas at Portuguese consulates to benefit from this mobility agreement.
Even though the government has increased staffing, delays in processing applications at Portuguese consulates remain frequent.
Immigrant organizations believe that changes to the residence conditions for CPLP citizens represent a regression of a system built on historical, linguistic and cultural ties.
The CPLP system has always been a positive model for regional mobility and integration, recognized by bilateral and multilateral agreements. Making changes without clear guarantees may undermine trust and damage the principle of Lusophone solidarity.
Highly skilled immigrants and investors as the only beneficiaries
In this legislative proposal, the only beneficiaries among foreigners are highly skilled immigrants, who will become the only group eligible to apply for job-seeking visas, as well as those holding investment residence permits (i.e., golden visas), who are exempt from the two-year family reunification requirement imposed on others.
According to the bill, job-seeking visas can be issued to applicants with professional technical capabilities, allowing them to enter and stay in Portuguese territory for the purpose of seeking employment.
However, according to the immigrant organizations whose opinions Marcelo Rebelo de Sousa heard, restricting job-seeking visas to highly professional activities is completely disconnected from the reality of the Portuguese labor market.
The Portuguese economy - particularly in sectors such as agriculture, construction, hospitality and care services - is highly dependent on low-skilled labor, and such restrictions encourage elitist immigration policies centered on so-called talent, ignoring the important contributions of grassroots workers.
According to the bill, job-seeking visas must schedule interview dates within 120 days, and if applicants start working during this period, they are entitled to apply for residence permits, provided they meet general conditions.
If residence permits are not obtained, the immigrant will be required to leave immediately, a move that immigrant organizations question, arguing that it violates the principle of proportionality, a fundamental principle of the rule of law and established by relevant European immigration law precedents.