Two hours after a majority decision by Portugal’s Constitutional Court sent the government’s Foreigners Law back to first base, a rickety wooden boat arrived in the failing light at Vila do Bispo’s Boca do Rio inlet carrying 38 migrants (including two children and five teenagers).
The timing could not have been more perfect for everyone who believes that the time has come to control immigration into this country.
For the overwhelmingly male Moroccans, it was the start of a new nightmare: none of them is being given permission to stay in this country. They are being distributed among ‘temporary installation centres’ (in Porto, Lisbon and Faro) ahead of return to Morocco within 60 days. Arriving without documents, authorities have the responsibility to establish identities before they are returned.
But the migrants’ mere arrival came so close to news that the government has to ‘rework’ its intentions over how best to control immigration that there was a veritable explosion over social media – with many calling for the Constitution to be ‘rewritten’ so that the country does not remain at the mercy of values from another time; a time when Portugal was not an entry point to thousands simply ‘seeking a better life’.
As commentators recalled, the introductory text of the Constitution, drawn up in the 70s, refers to the nation’s desire to “defend national independence; guarantee the fundamental rights of citizens; establish the fundamental principles of democracy; ensure the primacy of the democratic rule of law and pave the way for a socialist society, respecting the will of the people”.
That will, many insist, was expressed clearly at the last elections: Portuguese citizens want a radical change to the current pattern of immigration.
Thus, a ruling by the Constitutional Court suggesting proposals violate a document from the last century is not sending people scuttling back into their boxes. Far from it.
Reactions over the weekend saw not only members of the coalition government say “we are not giving up” (CDS-PP MP João Almeida being particularly scathing, saying the Constitutional Court – and the President who has vetoed the Foreigners Law on the basis of the court’s decision-making – “cannot give the Left the majority that the people took away from it”); CHEGA too has lambasted “the spirit of the Left that has taken over institutions to contradict what people voted for on May 18”, while Iniciativa Liberal has stressed it is ready to negotiate around the perceived inconstitutionalities to see the law passed “as soon as possible”.
In other words, it is only a matter of time, and the law will be enacted.
But a factor does need mentioning: not all the Constitutional Court judges see flaws in the government’s diploma: five of the 13 did not agree with Friday’s ruling, including the court’s vice-president, who said as far as he could see, the document was “perfectly reasonable”, given the reality that Portugal is experiencing (a migrant influx, a housing shortage, a crisis in the state health service and in institutions of public administration generally).
Indeed, vice-president Gonçalo Almeida Ribeiro suggested in his note attached to the ruling announced on Friday that his colleagues had been acting more on their own ideological beliefs than on constitutional law.
He wrote: “Legislation in a constitutional democracy should not be the product of a transaction between the political preferences of the parliamentary majority and the majority of the members of the constitutional judiciary, but an exercise of programmatic freedom limited by respect for the fundamental rights and structuring principles of a republic of free and equal people.”
Be all this as it may, there is now enough behind the government, in terms of parliamentary support, for the offending clauses to be reworked, and the law to pass.
In the meantime, ‘complaints’ by foreigners queuing outside AIMA offices for documents that they claim are taking too long to process continue.
The clauses Constitutional judges didn’t like:
These essentially relate to limitations to ‘rights to family reunification’ and to judicial appeals (over decisions/situations that have gone contrary to the immigrants’ desires).
Expresso explains that if an immigrant travelled to Portugal with their spouse, they cannot ‘reunify them’ as part of their family unit. According to the Constitutional Court, “by failing to include the spouse or equivalent, this may force the disintegration of the foreign citizen’s nuclear family and is, therefore, likely to lead to the separation of family members validly residing in Portugal – which constitutes a violation of the rights enshrined in the Constitution.
“The law also stipulates that, regarding family reunification outside of Portugal, immigrants may only initiate the application process two years after their residence permit is granted”. This, said the majority of judges, is unconstitutional because it is “incompatible with the constitutional protection granted to the family, especially the cohabitation of spouses or equivalent spouses and of either spouse with their respective minor children”.
Again, the judges are seen to be ruling on the basis of a Constitution drawn up for the citizens of Portugal but applying it to citizens from outside the country (something that will never have been the document’s intention).
A third clause objected to relates to the government’s requirement that incoming foreigners learn Portuguese, make efforts to integrate and appreciate Portuguese constitutional principles and values. This, according to the majority decision, “violates the principle of the reserve of the Law”.
The fourth objection relates to the nine-month period, extendable by another nine months, for AIMA (the agency processing immigrants’ claims) to decide on family reunification claims. The court simply found that it is ‘too long’ a period, “incompatible with the State’s obligations to protect the family”.
Finally, the fifth ‘blooper’: the government’s attempts to limit immigrants’ power of appeal for speedier hearings/faster processing. Right now, immigrants can lodge “urgent summonses” to force AIMA’s hands when they feel the agency is moving too slowly. The government seeks to abolish this mechanism, requiring appeals to be filed through the administrative courts “in the form of ordinary proceedings”. Judges ruled this too was unconstitutional.
It is here that we need to mention the comments of another dissenting Constitutional Court judge: a woman praised repeatedly over social media for ‘standing up and saying it like it is’:
Judge Maria Benedita Urbano wrote in her note attached to the majority ruling that the decision announced on Friday has “the consequence of maintaining an open-borders policy” and “shows itself to be oblivious to (or does not take due consideration of)” the “current socioeconomic reality of the country, with vital sectors, such as health, housing and education, at risk of collapse.
“All you need to do is live in Portugal and pay attention, and more than that, feel the reality that surrounds us, to be sure that the catastrophic situation we are currently witnessing in our country does not fall into the category of ‘fake news’.”
