The Constitutional Court Cleared All Eleven Norms of the Return Law by Unanimity, and Seguro Now Has Twenty Days to Sign or Veto It

The Tribunal Constitucional (Constitutional Court) spent Friday evening doing what governments rarely expect of it: it read eleven contested norms of the new return and asylum law, agreed that several of them touch fundamental rights, and then declined, unanimously, to strike down a single one.

The decree now goes back to Belém. President António José Seguro sent it to the court himself on 7 August under Article 278 of the Constitution, and the court's answer removes the one route that would have forced his hand. What it does not remove is his choice.

What the court actually decided

The ruling runs to more than 150 pages and works through the decree norm by norm. The formula the judges used is the technical one: they chose "not to pronounce for the unconstitutionality" of the provisions submitted to them. That is not the same as endorsing the policy. It means the court could not find, on the text as drafted, a violation of the Constitution.

The reasoning turns on a single idea repeated throughout the ruling: nothing in the law happens automatically. Where the decree allows a severe consequence, the judges read into it a requirement of individual assessment, a judge somewhere in the chain, and a route to the administrative courts. That reading is what saves the provisions.

"The decision on coercive removal from national territory does not follow automatically and immediately from the decision refusing admission or refusing the application for international protection."

The eleven provisions, in plain terms

• Expelling a foreign parent of a Portuguese minor. Not unconstitutional, because having a Portuguese child does not absolutely bar removal of the foreign parent. The authorities must first weigh the child's best interest and the family unit case by case.
• Expelling foreign children born in Portugal. The judges accept these may be children who have known no other country, and still conclude that neither the Constitution nor the applicable European and international instruments grant "absolute immunity from expulsion to every foreign child born in the host State".
• Detaining child applicants for international protection. Permissible in principle, provided it is exceptional and carries the reinforced guarantees the law sets for minors. "The Constitution does not establish an absolute prohibition on depriving minors of liberty."
• Detention for up to 360 days. The two 180-day periods, initial and extension, are not disproportionate on their face. The court reads them as ceilings rather than allowances, and says the administration must cut detention "to the minimum indispensable".
• Detention while an appeal is pending. Continuing to hold someone who is appealing a negative decision does not violate the right of access to the courts, because the detention does not flow from the act of appealing.
• No automatic periodic re-examination. The new Article 35-B does not delete review; it complements the general regime, which already imposes a judicial re-examination every 30 days.
• Forced stay in airports, ports and designated places. Bounded in time, inside a defined procedure, and justified by border integrity and public order.
• Screening, including of children. Being required to remain available to the authorities during screening "does not constitute a detention measure".
• Appeals without automatic suspensive effect. The Constitution does not require every appeal against an administrative act to freeze it. The court points to interim relief, a providência cautelar, as the mechanism that dissipates "irreparable risks".
• Removal before a final court ruling. The protection decision and the removal decision are legally distinct, and the second has its own procedure.
• Loss of international protection. Stripping the automatic suspensive effect from an appeal against withdrawal of refugee or subsidiary protection status does not, by itself, breach effective judicial protection.

Seven judges, not thirteen

One detail separates this ruling from other recent constitutional fights. The Palácio Ratton has thirteen judges, and this decision was taken by seven of them: António José da Ascensão Ramos as rapporteur, alongside Gabriela Cunha Rodrigues, Paula Ribeiro de Faria, Rui Guerra da Fonseca, Carlos Medeiros de Carvalho, Luís Filipe Lameira and the court's president, João Carlos Loureiro. The decision was unanimous.

That matters mainly because it removes the reading some parties had prepared in advance. There is no dissent to quote, no narrow majority to attack, and no split bench to blame. The court that struck down the loss-of-nationality penalty twice this year, and that received this decree in August with the President's own doubts about child welfare attached, found nothing to strike.

How the decree got here

Parliament approved the final text on 17 July, with PSD, Iniciativa Liberal and CDS-PP voting in favour and Chega abstaining. PS, Livre, PCP, Bloco de Esquerda, PAN and JPP voted against. Seguro then used his preventive-review power rather than signing, and the court had 25 days to answer under Article 278(8) of the Constitution.

The reactions on Friday were as choreographed as the vote. Sebastião Bugalho, speaking for PSD at the party's summer university in Castelo de Vide, called it a "duty fulfilled" and said the party had "reasons to be optimistic" about promulgation. PS leader José Luís Carneiro, in Vila Real de Santo António, said only that his party respects court decisions "when we agree and when we disagree". Livre repeated that the changes are inhumane and said there is still room for a veto. PCP warned of "aggravated constraints" for immigrants.

What happens next, and the exact clock

This is the part that is widely misread. A Constitutional Court that does not find unconstitutionality does not oblige the President to sign. Article 279(1) of the Constitution forces a veto only in the opposite case, when the court does rule a norm unconstitutional.

What applies now is Article 136(1). From the publication of a Constitutional Court decision that does not pronounce for the unconstitutionality of a norm, the President has twenty days to promulgate the decree as law or to exercise his political veto with a reasoned message returning it to parliament. If he vetoes and parliament confirms the text by an absolute majority of serving deputies, he must then promulgate within eight days.

So the decision that lands next is political, not judicial, and it is Seguro's alone. The government's arithmetic in a confirmation vote is not obviously comfortable either: the July majority was PSD plus IL plus CDS-PP with Chega abstaining, and an absolute majority of serving deputies is a higher bar than a plurality of those present.

What this means for foreign residents

• Legal residents are not the target, but the appeal architecture changes for everyone. The provisions the court cleared are about entry, irregular stay, asylum and removal. The structural change worth noting is the shift away from appeals that automatically freeze the decision being appealed. If this becomes law, the practical answer to a bad decision is an urgent interim application, not simply a notice of appeal.
• The 360-day detention ceiling survives with a judicial reading attached. The court explicitly refused to treat 180 plus 180 days as time the administration may use at its discretion, and said detention must be reduced to the minimum indispensable, with judicial re-examination every 30 days under the general regime. That language is now part of the law's authorised interpretation.
• Having a Portuguese child is a factor, not a shield. Families with mixed nationality should read the first provision carefully. The court's answer is that removal is not barred, only that the child's best interest and the family unit must be weighed in an individual, reasoned decision.
• The administrative courts absorb the pressure. Much of the ruling rests on the assumption that the administrative courts can and will grant interim relief in time. Those courts are already carrying a caseload that grew forty-five fold in fifteen months on deportation-order challenges alone.
• Nothing is in force yet. Until the President promulgates and the law is published in the Diário da República, the current rules stand. Anyone with a pending asylum or removal file should be checking dates against the existing regime, not the new one.

The wider enforcement trend has been visible for a year and a half: Portugal issued roughly 23,000 deportation orders in 2025, and the border layer around it has been hardening in parallel, with the last derogation on the EU biometric border closing on 6 September. Friday's ruling did not create that direction of travel. It removed the last legal obstacle standing in front of it, and handed the remaining decision to one person.