To specialist in public law criticizes the extension of the detention period from two months to up to a year and a half, the possibility of expulsion of foreigners with Portuguese children and the increase in the re-entry ban to 20 years.
Jurist Ana Rita Gil considers that the new law for the return of foreigners, proposed by the Government, has unconstitutional and disproportionate rules, but follows the security line promoted by the European Union.
Speaking to Lusa, the public law specialist and one of the experts consulted by the Assembly of the Republic in the drafting of the nationality law diplomas explained that the possibility of expulsion of foreigners with Portuguese children contradicts old decisions of the Constitutional Court and that the extension of the maximum detention time (from two months to up to a year and a half, including the period for effective expulsion) is disproportionate for people who have not committed crimes.
The changes to the legislation that defines return extend the period of detention in line with what is happening in the European Union within the framework of the European Pact on Migration and Asylum, which “imposes very concrete rules on return to all States. All these rules aim to increase people’s guarantees, from a more security perspective and faster and more effective removals”, said Ana Rita Gil.
“Portugal is taking advantage of the European context to tighten the rules, whereas, in my opinion, it was not necessary to tighten them so much”, he considered.
“There cannot be an almost infinite detention of a person”
For Ana Rita Gil, the increase in the penalty in foreign return processes from the current two months to one year of detention plus an additional six months to execute the decision is “a very disproportionate extension” within the framework of Portuguese legislation.
“There cannot be an almost infinite detention of a person who, it should be noted, has not committed any type of crime. In many cases, we could be talking about families with minors”, warned the university professor, who is also a member of the National Council for Migration and Asylum.
“I am also concerned about a rule that raises clear doubts of unconstitutionality, because it allows the removal of those who have children of Portuguese nationality”, when the “Constitutional Court in 2004 had already said that foreigners cannot be removed in this situation and, if they have committed crimes, they are subject to exactly the same criminal measures as Portuguese citizens”.
The jurist also pointed out that return decisions are accompanied by a re-entry ban that increased from five years to 20 years.
“It’s something that seems excessive to me, with a sentence just five years below the maximum sentence in Portuguese justice (25 years in prison),” he said.
On the other hand, the diploma provides that “resources to the courts, even in matters of asylum, will no longer suspend the person’s removal”, which puts the integrity of the applicants at risk, if they are subject “to torture in their country of origin”, warned Ana Rita Gil, who foresees an increase in litigation.
In many cases, applicants, who are entitled to judicial protection, will be able to take precautionary measures, more expensive processes that are independent of the main action, to try to prevent the execution of decisions.
However, in many cases, “many people do not know about their rights, nor are they necessarily read or communicated transparently”, he considered, highlighting that the system should be “clearer” in the information given to foreigners.
“I am concerned that people will not be able to enjoy these rights due to a clear lack of knowledge”, said the jurist.
Despite everything, the proposed law has positive solutions, said Ana Rita Gil, pointing out, “alternative measures to detention”, something that until now did not exist in the case of foreigners, allowing the delivery of documents to the authorities.
“Without their documents, foreigners cannot move around and this avoids the danger of escape”, explained the researcher, who recalled the costs of this legal tightening.
“The extension of detention periods will imply an increase in costs for the State, first with the construction of temporary installation centers that we do not have, to detain foreigners at risk of expulsion,” he said.
In the case of passengers prevented from entering national territory, the State may demand liability from the carriers, “who may be responsible for paying for the stay” in the detention center, “for not having ensured that the people had the appropriate documents”.
However, in cases where the citizen is identified by the authorities as being in an irregular situation, the Portuguese State will be responsible for paying the costs of detention, which can last up to a year and a half.
“There are many calculations made that say this: all the money that any State spends on border police, on control systems, on installation centers, on return flights, on monitoring return flights, is much higher, in numerical terms, compared to what would be spent if these people eventually lived off social security”, explained Ana Rita Gil.
Therefore, “it is not for security reasons, it is not for expense reasons that we want to move forward with these measures, but for identity reasons”, he summarized.
The Government has already announced that it will introduce changes after public consultation before submitting the proposal to parliament for approval.
