The Constitutional Court's five rejections and the future of the Foreigners' Law

Marcelo Rebelo de Sousa issued warnings about the constitutionality of the Foreigners' Law, the Government showed itself prepared to stay the course even in the face of criticism and doubts, and the Constitutional Court (TC) confirmed this Friday the rejection of five norms of the controversial diploma that alters the legal regime of entry, stay, exit and family reunification of foreigners in the national territory.

During the public reading of the decision in the Public Prosecutions Room of the Ratton Palace, reporting judge Joana Fernandes Costa and the court's president, José João Abrantes, summarized a decision that almost entirely addressed the President's concerns, which led him to request urgent preventive oversight in late July. However, the position was far from unanimous, with split votes among the judges occurring across all the standards analyzed.

At issue were, essentially, rules on the right to family reunification and the conditions for exercising it, the timeframe for reviewing applications by the Agency for Integration, Migration and Asylum (AIMA), and the right to appeal. Faced with the Constitutional Court's rejection, the head of state wasted no time and, in a note from the Presidency of the Republic, announced a mandatory veto of the bill approved last month in Parliament by the PSD, CDS-PP, and Chega parties.

The various parties with seats in parliament were quick to react to the decision immediately after it was read publicly, even without knowing the details of the Constitutional Court's ruling, specifically the scope of the objections analyzed and possible alternative paths to follow with this legislation. According to constitutional experts interviewed by Observador, there are four possible paths following this rejection, although only one seems likely at this point: the reformulation of the decree-law and the rules rejected by the Constitutional Court by the majority that approved the Foreigners' Law.

Restricting family reunification (for foreign citizens legally residing in Portugal) to minor family members—excluding the spouse or common-law partner of the holder of a residence permit valid in Portugal for less than two years—could result, in the view of the Constitutional Court's ruling, in "family separation," as it "seriously affects the preservation of family unity." For the judges at Palácio Ratton, this limitation, provided for in Article 98.1 of the statute, has negative consequences in two ways: it restricts the right to "conjugal or similar cohabitation," and also imposes "the disintegration of the nuclear family of the foreign citizen" legally residing.

"The new family reunification regime (...) radically restricts the right to coexistence between family members," reads the decision, which emphasizes that this measure contravenes the State's constitutional obligation to protect the family. The Constitutional Court also clarifies that, according to the interpretation of the legislation under review, foreign citizens legally residing in Portugal will have to wait two years to access family reunification with their adult family members.

"The Constitution does not allow for models of governance that treat foreign citizens based solely on their economic usefulness, accepting their presence for productive purposes without recognizing their fundamental rights," the ruling states, also highlighting that legislative choices, when they have this type of impact on families, "cannot fail to be subject to rigorous proportionality scrutiny."

Article 98.3 of the Foreigners' Law states that "a citizen with a valid residence permit who has resided legally in the national territory for at least two years has the right to family reunification with family members residing outside the national territory." At the same time, the Constitutional Court ruled that this period also applies to family members of the residence permit holder who are of legal age and legally residing in the national territory.

This deadline does not exist in current legislation, and Marcelo Rebelo de Sousa added that, by increasing the timeframe for reviewing family reunification requests by AIMA from three to nine months (with an extension for the same period), a foreign citizen may have to wait up to three and a half years to reunite their family in Portugal. Therefore, the ruling argues that imposing a minimum two-year period to request family reunification conflicts with constitutional protections for families, youth, and especially vulnerable individuals.

"It remains to be demonstrated that the expulsion of the spouse or de facto partner of citizens holding a valid residence permit who have resided in national territory for less than two years, who have legally entered Portugal and are currently here, constitutes, given the existence of a series of instruments that allow for a reduction in the presence of foreign citizens in Portugal through the reinforcement of entry controls, a necessary measure to safeguard the country's demands and its reception capacity," the judges observed.

However, the Constitutional Court acknowledges that the Constitution may even accommodate the definition of a time limit as a criterion for family reunification : "This does not mean that the Constitution prevents the legislator from using (...) the length of stay of the individual in national territory. Or even from establishing a rule-of-thumb. What can no longer be accepted (...) is the exclusion of the possibility of demonstrating that, despite the lack of an expiry of the legally established time limit, the entry into Portugal of the specific family members to be reunified is justified, in the specific case and in light of a considered assessment of all relevant factors."

The legislation approved by the PSD, CDS-PP, and Chega parties includes, in the wording of Article 101, stricter requirements for exercising the right to family reunification. While current legislation stipulates that the citizen submitting this request must have adequate housing and means of subsistence, the new framework goes further, specifying that the housing must be owned or rented and must be sanitary and safe, in addition to the means of subsistence not requiring social support.

At the same time, legal foreign citizens and their family members “ must comply with integration measures, particularly those relating to learning the Portuguese language and Portuguese constitutional principles and values , as well as attending compulsory education in the case of minors.”

The point is that these integration measures are to be defined by executive order issued by the government members with jurisdiction over these matters, something the Constitutional Court (TC) deemed unconstitutional. And why? For a very simple reason: it considers that these matters are the exclusive jurisdiction of the Assembly of the Republic. In other words, they cannot be defined by a mere executive order , as this would violate the principle of the reserve of the law. "The primary regulation of these conditions must be enshrined in law and cannot be referred to an act of another nature," the TC ruling states.

Until now, AIMA had three months to review family reunification requests, which could take up to six months. If there was no response, the request was tacitly granted.

This model is profoundly altered in the so-called Foreigners' Law, as (in Article 105.1 of the law) the deadline increases from three to nine months, with the possibility of an equal extension, thus reaching a total of 18 months (a year and a half) for that entity to decide on the application , with automatic approval also being dropped in the absence of a response. And to this year and a half, two years of residence are added to qualify for the application for family reunification.

"What is important now is to verify whether the total waiting period (...) is compatible with the 'principle of family unity and the best interests of the child', as indicated by the Applicant. As can easily be anticipated, the answer cannot but be negative," the judges state, understanding that such a period of time "is not compatible with the State's obligations of protection" towards the family.

By imposing conditions (through Article 87.º-B) on the use of the legal mechanism of summons to protect the rights, freedoms, and guarantees that immigrants use to assert their rights in court, the Constitutional Court (TC) considers that the legislation "clearly intended to restrict the application of the general summons regime in the context of requests related to residence permits." Indeed, the use of this mechanism only becomes admissible if "the actions or omissions of AIMA demonstrably seriously, directly, and irreversibly compromise the timely exercise of that right."

For the judges at Palácio Ratton, the change fails “the tests of necessity and proportionality” by constituting a restriction on access to the law.

"The Constitutional Court asserts itself as the primary guarantor of the fundamental rights of foreign citizens residing in national territory, and is responsible for ensuring that any breach of the principle of equal treatment complies with constitutional parameters and does not result in disproportionate or arbitrary limitations," the decision announced this Friday reads.

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The decision of the 13 judges of the Constitutional Court regarding the five provisions rejected in the Foreigners' Law was far from consensual. The final provision for which a ruling of unconstitutionality was issued, concerning judicial protection and access to legal recourse, was even decided by the narrowest margin, with seven votes in favor and six dissenting.

There was, however, a majority 'block' that remained constant in voting for the unconstitutionality of the five norms of the diploma: counselors Joana Fernandes Costa (rapporteur), José Eduardo Figueiredo Dias, Mariana Canotilho, Rui Guerra da Fonseca, Dora Lucas Neto and António Ascensão Ramos always voted in the same direction , to which were also joined the president of the TC, José João Abrantes, and counselor Afonso Patrão in four of the five rejected measures.

Conversely, the vice-president of the TC, Gonçalo Almeida Ribeiro, and the counselors José Teles Pereira, Maria Benedita Urbano and João Carlos Loureiro always voted in defense of the norms approved by the diploma, with three norms also having the support of counselor Carlos Medeiros de Carvalho, while José João Abrantes and Afonso Patrão each supported the constitutionality of one norm.

In short, the first two rejected norms had an expression of eight votes in favor and five against, the third measure declared unconstitutional had the greatest imbalance (9-4), the fourth norm was also rejected with a partial of 8-5 and the last, as mentioned previously, was decided by just one vote: 7-6.

The voting statements attached to the ruling reflect the division in the matters subject to analysis by the advisory judges over the last 15 days, with particular emphasis on the joint statement by Gonçalo Almeida Ribeiro and José Teles Pereira, suggesting that the decision was based on personal convictions and that some of the rules now rejected were “perfectly reasonable and legitimate”.

"Intense judicial scrutiny cannot be a pretext for judges to transfer to the constitutional plane the convictions they legitimately hold as citizens — violating democratic equality — but rather constituting an increased duty on them to familiarize themselves with the relevant facts, examine the applicable texts, consult authorized doctrine and articulate consistent arguments," stressed the two counselors, who consistently voted in favor of the five rules rejected by the plenary majority.

There are now four possible paths for the Foreigners' Law, according to constitutional scholar Raquel Brízida Castro. Following the rejection of five legislation by the Constitutional Court, the expert argued to Observador that the majority that approved the law could " withdraw, remove the unconstitutionalities (without compromising the essentials), reformulate the law's rules, and possibly secure parliamentary confirmation by a two-thirds majority of deputies."

Regarding this last, more academic scenario, it would be necessary for the PSD, CDS-PP, and Chega to join the IL (which abstained from the parliamentary vote), thus reaching the two-thirds of deputies that also allows for a constitutional review. However, the constitutionalist points out that, in this case, Marcelo Rebelo de Sousa would not be obliged to enact the law.

However, based on the signals already given by the parties, a reformulation of the law is on the horizon, and Raquel Brízida Castro emphasized that, if she believes there are new doubts, " the President of the Republic can request a new preventive review of its constitutionality ." Without stating whether she was surprised by the Constitutional Court's decision, as she admits not having closely followed the legislative process, the constitutionalist emphasized that the arguments put forward by Palácio Ratton prioritize "the protection of the family and the principle of effective judicial protection regarding the AIMA."

For his part, constitutional lawyer Gonçalo Fabião stated that he was not surprised by the Constitutional Court's rejection of the legislation's provisions. "The major concerns that were more or less consensual among the constitutional scholars who spoke were rejected: the issue of spouses, the two-year time limit, and the increased difficulty for these individuals to seek legal protection for their rights," he noted.

In the view of the professor at the University of Lisbon's Faculty of Law, the now-rejected rules "will not be easily circumvented," but this depends on the scope granted by the Constitutional Court for possible changes. "Regarding the issue of spouses or equivalent for family reunification, if we understand that this violates the principle of equality, discriminating between family members who can and cannot come, it will be very difficult to circumvent. Now, regarding deadlines, it's not so much a matter of discrimination as it is of proportionality, and there may be alternative measures," he explained.

Gonçalo Fabião also argued to Observador that the restriction of foreign citizens' rights in family reunification and in exercising their rights before the courts provided for in the Foreigners Law requires a "bulletproof" justification and that this has yet to be demonstrated at a legal level.

"The key to the Foreigners' Law is understanding that fundamental rights can only be restricted if there is a bulletproof justification. I don't believe there has been any legal debate as to whether or not there is a security issue regarding these aspects. From then on, if the justification is adequate, the measure must be monitored taking into account constitutional principles that, under the rule of law, will never change," he concluded.