The Portuguese government is committed to a profound migration reform which will tighten immigrants’ access to the country. But its guidelines, restrictions and agreements with the far right come up against the courts. The Portuguese Constitutional Court this month published four articles of the nationality law approved in October, as well as the modification of the Penal Code which aimed to withdraw citizenship from naturalized foreigners who committed serious crimes, an additional penalty according to which their judgments constitute a violation of the principle of equality.
A few months ago, the same court declared certain aspects of the foreign law unconstitutional and forced him to modify the text. On this occasion, I was the President of the Republic himself, Marcelo Rebelo de Sousa, who asked the magistrates for their decision. In this case, it was the Socialist Party that demanded a prior constitutional evaluation before the promulgation of the norm. “Fortunately, legal lucidity prevailed today, we hope that political lucidity will also prevail in the future,” said socialist deputy Pedro Delgado Alves, who deplored that the Hubiese government preferred to “walk with a socio radical” to change the nationality law.
The court, which rendered its decision unanimously on four articles and by a majority on one of them, considers that it violates the principles of proportionality and criminal necessity. Among the articles declared unconstitutional are those that veto access to citizenship to those who have been sentenced to sentences exceeding years in prison, which the magistrates see disproportionately, in addition to violating the principle that a conviction cannot lead to an additional loss of civil and political rights. Those who wanted to eliminate the nationalization process also stop those who reject membership in the Portuguese community, its institutions and its symbols.
The nationality law was approved in the Assembly of the Republic at the end of October with 70% of the votes in the chamber, which were in the hands of the right-wing parties. But it is above all the result of negotiations between the Social Democratic Party (PSD, central government and main force of the government coalition) and Chega, the formation of an extreme leadership led by André Ventura. The new standard included demands from the ultras, such as requiring that the applicant not receive aid or subsidies at the time of petition and that they be able to demonstrate that they had the necessary resources to earn a living in Portugal.
The aspect that raised the most legal doubts within the Socialist Party concerned the withdrawal of nationality as an additional penalty for foreigners of Portuguese nationality who committed serious crimes. The measurement in IBA is as far as it was intended, which was supposed to be automatic, and is left to the judge’s criteria.
The socialists interpreted that this measure could be unconstitutional and requested a prior assessment from the High Court. In the case of organic laws like those under study, in Portugal it is possible to request a prior opinion from the Constitutional Court before the final promulgation of the norm in three ways: from the President of the Republic, the Prime Minister or a fifth of the representatives of a chamber of 230. Even if the High Court does not rule, the law does not receive the green light from the chief of staff. The state, which has the power to enact or veto laws.
The reform of the nationality law, which expands the space needed to opt for citizenship (between seven and ten years) and requires people to take Portuguese language and culture exams, is part of the major legal reform promoted by the conservative Luís Montenegro in matters of migration policy. The government has modified foreign legislation to strengthen both family reunification and access to residence permits and is currently preparing the third major change in this area through the law which regulates the return of irregular immigrants.
The proposed return law approved by the Council of Ministers, which is in the public consultation phase, implies that undocumented immigrants can stay in detention centers for up to 18 months – compared to the current months – until the deportation process is resolved. It aims to ensure that expulsion orders are carried out before migrants leave the centers. Returns will also be slowed down by the presentation of an appeal by the persons concerned, as is currently the case. And what’s more, the voluntary return option is removed. The only aspect in which Portugal stands out from the hard line of other European countries is the refusal to relocate internment centers to third countries.
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