Constitutional Court rejects Aliens Act – Marcelo has exercised veto
Two weeks later, the Constitutional Court upheld most of the President's concerns and ruled five articles unconstitutional. The plenary decision was not unanimous. Marcelo has already exercised his veto.
Portugal’s Constitutional Court (TC) ruled five articles of the draft Aliens Act unconstitutional, after the bill was previously referred to the Court by President Marcelo Rebelo de Sousa. Judge Rapporteur Joana Fernandes Costa read the ruling's conclusions after the plenary session. Minutes later, the Presidency announced on its official website that the President had vetoed the amendments and returned the bill to Parliament.
The ruling was not unanimous within the Constitutional Court, but a majority of judges found that new rules on family reunification and restrictions on the right to appeal were unconstitutional. However, the judges ruled that granting 'positive differential treatment' in family reunification for foreigners holding a 'Golden Visa', working in higher education, possessing high-level skills or working in cultural fields, or holding an EU Blue Card, does not constitute disproportionality or discrimination.
Regarding the provision on the job-seeking visa for highly skilled workers, although the President pointed to the use of 'uncertain concepts', he did not request the Court to review this section, so it was not included in the judgment.
During the reading of dissenting opinions, clear internal divisions were evident, with even the Court’s president and vice-president holding opposing views on most articles. Nonetheless, the majority of judges ruled the provisions unconstitutional, supporting most of the President’s concerns.
Marcelo wins
This ruling marks a legal victory for Marcelo in his clash with the government, coming at a time when the Presidency has been increasingly critical of government actions. During the legislative process, several parties and legal scholars had already questioned the constitutionality of certain articles. The President had also hinted the bill might face this outcome, using such warnings to push for amendments in Parliament—efforts that ultimately failed.
In justifying the request for preventive review, the President listed potential constitutional issues, including 'violations of the principles of equality, proportionality, legal certainty, disproportionate restrictions on rights, denial of judicial remedies and effective judicial protection, harm to family reunification, and the obligation for public authorities to act within the Constitution.'
Additionally, the President highlighted the lack of clarity in the bill, criticizing the use of 'uncertain or nearly indefinable concepts.' He also strongly criticized the government for neglecting 'mandatory or required constitutional, legal, and/or parliamentary hearings' and for failing to meet established deadlines.
The Constitutional Court’s ruling fully supports the President’s prior decision. Last weekend, the President said he chose preventive review because 'it is more useful to first determine whether there are actual constitutional doubts,' emphasizing that 'prevention is better than cure.' In his remarks, he also hinted at political disagreement with the government’s direction on reforming the Aliens Act, stating that 'history will record that majorities chose these solutions, and there will be judgment.'
Change of route, same destination
Change of route, same destination
For the government, the focus now shifts to analysis, but the direction remains unchanged. On Thursday, during a visit to the São Mateus Market in Viseu, the Prime Minister said he is 'calmly' awaiting the ruling, adding: 'If the Constitutional Court finds that certain articles or solutions do not fully align with constitutional principles, I guarantee we will accept that decision and seek a legal solution that respects the Court’s opinion while still achieving our goals.'
António Leitão Amaro, Minister of the Presidency standing beside the Prime Minister, stated at a press conference after the Council of Ministers that the government will not abandon the bill. He emphasized: 'If necessary, we will make adjustments along the way, but the destination remains the same and unchanged: Portugal needs and will have a more regulated immigration system.'