Last week, the Council of Ministers approved proposals to change immigration and asylum laws regarding return. It is important to look at them seriously.
The first note must be positive. There was public debate and prior consultation, and everything indicates that the contributions received improved the initial version. It is also important to remember an essential fact: effective return measures are a requirement of the European Union. His absence could have serious consequences for Portugal, including a Schengen suspension. At the same time, the much-contested European Pact on Migration and Asylum has made the European framework tougher and more secure. And Brussels is also negotiating new regulations on the return of people in an irregular situation, which worsens the current regime. But… precisely because a new European instrument on return is being discussed, it is barely clear that Portugal wanted to move forward now.
This process does not, therefore, dispense with a national judgment of prudence and proportionality.
Let’s start with the good news. The main one is the proposal of alternative measures to the detention of irregular migrants. If the person has an address, a job, social ties, what sense does it make to lock them up in an overcrowded center? Here, finally, voices that have long advocated for these solutions, such as the IOM and UNHCR, were heard. But the basics still need to be ensured: that every person deprived of liberty is heard by a judge. For months, works have been announced at the airport to create a room for this purpose, but it seems that ANA hired one of those contractors who disappear in the middle of the work. Meanwhile, people without true judicial control are detained and sent back. In a rule of law, this is truly unacceptable.
The most serious doubts arise, however, in terms of proportionality. The maximum period of detention for irregular migrants (people who, remember, have not committed any crime) is increased from two months to one year. And this is decided when Portugal has only one temporary installation center, in Porto. Furthermore, there are only “spaces” at airports, which the National Mechanism for the Prevention of Torture has been saying for years that they do not offer the minimum conditions for prolonged reception.
It remains to be hoped that the final version will have corrected some excesses of the initial proposal, notably the possibility of expulsion, in certain cases, of those with Portuguese children (a solution judged unconstitutional in 2004, with general mandatory force), as well as the excessiveness of re-entry bans, which could last up to 20 years. If so, the public consultation will not have been a mere ritual, and will have served, at least, to purge some of the worst excesses.
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