AD and Chega ready to respond to the TC. Decision will be announced at 5 p.m.

Everything depends on the response of the Constitutional Court (TC), but Nascer do SOL has learned that the intention of both the parliamentary majority that supports the Government, PSD and CDS, and Chega, which approved the legislative package known as the Foreigners' Law with the AD benches, is to immediately begin talks to correct whatever needs to be corrected and submit the law, purged of any unconstitutionalities, to a vote in the Assembly of the Republic as soon as the parliamentary recess ends.

"There will be no agreement or negotiations before the Constitutional Court's decision is known," a source from the Social Democratic leadership told Nascer do SOL, explaining that new talks with the leadership of the Chega parliamentary group are only planned if any provision of the Foreigners' Law is declared unconstitutional.

"What is agreed is that we will move forward quickly if there is any unconstitutionality," a source from the leadership of André Ventura's party confirmed to this weekly.

Priority for the rentrée

The idea of the two benches that approved this Foreigners Law is to purge any unconstitutionalities pointed out by the TC and present the new, corrected version of the legislative text immediately after the reopening of the Assembly of the Republic, after the holidays, and reschedule its vote for the first days of the new legislative session.

It should be remembered that today is the 15-day deadline set by the President of the Republic for the Constitutional Court to rule on the doubts raised by Marcelo Rebelo de Sousa regarding the diploma approved by the parliamentary majority formed by the PSD, CDS and Chega benches.

Marcelo sent the Foreigners' Law to the Ratton Palace hours before the President of Angola landed at Lisbon airport for a two-day official visit to Portugal.

Prior to the visit, João Lourenço had praised the "courage" of his Brazilian counterpart, Luís Inácio Lula da Silva, in his reaction to news about changes to Portuguese immigration law and the possible non-recognition of special status for citizens from member states of the Community of Portuguese-Speaking Countries (CPLP). He had also threatened to speak out strongly against any more restrictive regulatory revisions for his Angolan compatriots. He added that the matter was causing "great diplomatic discomfort" and could even jeopardize the future of the CPLP.

During their visit to Lisbon, the two heads of state, Marcelo and João Lourenço, emphasized that relations between the two countries have never been so fruitful, as did Prime Minister Luís Montenegro, who received the Angolan President in São Bento.

Belém with political criticism, but without veto

Marcelo Rebelo de Sousa has already made it clear that he disagrees with the new law—and therefore requested a preemptive review of its constitutionality—but he has also stated that he will not politically veto the legislation unless the Constitutional Court upholds his doubts and declares all provisions in accordance with the Basic Law. Considering that a political veto would be easily overridden by the parliamentary majority, and noting that it would only delay the legislative process by "two or three weeks," Marcelo was clear during his recent visit to the Azores: "I promulgate it, but I politically disagree. The majority will be judged on this in due course."

These statements by the President raised hopes among the benches that approved the law that the former professor of Constitutional Law himself will not have much hope for a ruling by the advisory judges in favor of the constitutionality doubts he raised.

"This is the only way to understand why he has already pre-announced a promulgation accompanied by a message to the Assembly of the Republic strongly critical of the new rules," a Social Democratic MP told Nascer do SOL.

Marcelo's doubts

Considering that "prevention is better than cure", Marcelo Rebelo de Sousa asked the Constitutional Court to pronounce itself on the conformity, or otherwise, of several rules of the new Foreigners Law, namely related to the right to family reunification and conditions for its exercise, with the deadline for the assessment of applications by the Agency for Integration, Migration and Asylum (AIMA) and with the right of appeal.

In the letter sent to the president of the TC, Marcelo presents reservations and requests the assessment of the judges' assessment of the compliance with the Fundamental Law of the "rules contained in paragraphs 1, 2 and 3 of article 98, amended by article 2 of the Decree; (…) rules contained in paragraphs 1 and 3 of article 101, amended by article 2 of the Decree; (…) rule contained in paragraph 1 of article 105, amended by article 2 of the Decree; and (…) rule contained in article 87.º-B, added by article 3 of the Decree".

The President further writes:

«Despite the fact that preventive supervision focuses exclusively on analyzing the compliance of standards with the Constitution, and therefore does not consider questions of legality, it is important to note that this legislative process was processed in the Assembly of the Republic as a matter of urgency, and there were no – effective – consultations and hearings, namely constitutional, legal and/or procedural hearings – mandatory or not –, or, when requested, they were requested without respecting the legally established deadlines and/or within deadlines incompatible with effective consultation.

«Some of these hearings are enshrined as mandatory in legal provisions, such as the hearing of the Superior Council of Administrative and Tax Courts (cfr. the provisions of article 74, paragraph 2, letter l) of the Statute of Administrative and Tax Courts); the consultation of the Superior Council of the Judiciary (as a result of the provisions of article 155, paragraph b) of the Law on the Organization of the Judicial System), as well as the Portuguese Bar Association and the Superior Council of the Public Prosecutor's Office (as follows, respectively, from article 46, paragraph 1, letter c) of the Statute of the Portuguese Bar Association and article 21, paragraph 2, i) of the Statute of the Public Prosecutor's Office). Other hearings and consultations would need to be organized, particularly with entities directly and/or indirectly related to the matters in question, which, although not legally mandatory, would be justified as a way of guaranteeing the democratic legitimacy of the approved law and anticipating problems in its application.

«(…) On the other hand, it is also clear that this Decree introduces or alters a significant set of concepts of an undetermined nature or, at least, of difficult (or even impossible) concrete determination, referring regulation, in some situations, to a mere Government Ordinance, broadening the scope of densification of concepts in this way.

"(...) Such concepts can, naturally, hinder the application of the Law, failing to contribute to the necessary and desired legal certainty and legal certainty, constitutionally guaranteed principles. They may even lead to differential and discriminatory treatment and, certainly, pose a significant increased risk of litigation in a matter of fundamental importance to our country and its stakeholders. Furthermore, in a matter of this sensitivity, it is not at all advisable to have conceptual uncertainty and resort to indeterminate concepts, which potentially violate the constitutional principle of legal certainty." Examples of such concepts include the following: the concept of “specialized technical skills” (Article 57-A, paragraph a), “accommodation, “…”, considered normal for a comparable family in the same region and which meets general standards of safety and health”, “means of subsistence sufficient to support all members of the family group” (Article 101, paragraphs ), “…” “exceptional circumstances associated with the complexity of the analysis” (Article 105), “…” gravity of the evolution of the public order or public security situation in part or all of the national territory” (Article 106).

«In other words, the Decree does not densify concepts that inform the approved regime itself and which should, therefore, be included in it, especially since regulatory acts, such as ordinances, are secondary sources of law and cannot invade the reserved legislative competence of the Assembly of the Republic.

Concluding that "this Decree deals with a matter of high political, social and legal sensitivity, and it is essential to urgently ensure legal security and legal certainty, in relation to the approved legal provision, avoiding potential differential and discriminatory treatments, also taking into account that the Government considers it imperative and urgent to regulate this matter."

And it set a 15-day deadline for a response, which ends today. Meanwhile, the Constitutional Court announced that it will announce its decision at 5 p.m.