Portugal's president sends hardline migration decree to Constitutional Court over child welfare and detention concerns

Presidential review

On 7 August 2026, Portuguese President António José Seguro submitted the decree on the granting of asylum, detention, and return of foreigners to the Constitutional Court for preventive review. The request spans 34 pages and questions the constitutionality of 11 provisions approved by Parliament. The Constitutional Court has 25 days to complete its analysis. Seguro acknowledged the need to combat illegal immigration and control legal immigration effectively, but stated that border security is not incompatible with human dignity.

The decree was approved in a final global vote on 17 July 2026, based on two government proposals from PSD and CDS-PP. It received votes in favor from PSD, IL, and CDS-PP, abstention from Chega, and votes against from PS, Livre, PCP, BE, PAN, and JPP. The conservative government of Prime Minister Luís Montenegro first announced the initiative in December 2025 as part of a tightening of migration policy.

Constitutional concerns

The President raised several specific concerns in his note. He cited the possibility of separation between parents and children, and the expulsion, even if indirect or consequential, of minor Portuguese children. He also questioned the coercive removal and expulsion of foreign children under five years old born in Portugal. Seguro wrote that some legislative solutions in the decree raise founded doubts about whether the best interests of the child are safeguarded.

The President further questioned the substantial increase in administrative detention periods for foreign citizens who have not committed any crime, extending to up to 180 days. He argued that while the Constitution allows deprivation of liberty in abstract terms, it also requires proportionality of duration and the possibility of judicial review. Seguro also expressed doubts about the execution of expulsions before judicial decisions in asylum and subsidiary protection processes, which he said could jeopardize the effectiveness of judicial oversight.

Political and civil society reactions

Left-wing parties welcomed the President's decision. Eurico Brilhante Dias, PS parliamentary leader, told TSF that the presidency's note corresponds to a set of concerns the Socialist Party had already flagged.

“It will not be the first time that this Government legislates against the Constitution. It has already done so on other occasions, in the foreigners' law, in the nationality law, and in this case, in the return law, it also seems to us that, once again, it ends up legislating wrongly and against constitutional law.”

Fabian Figueiredo of BE called the law cruel and a shame for the democratic tradition. Paulo Muacho of Livre said the decree raises doubts not only of constitutionality but of basic sense. The PCP said the decision does not surprise, arguing the law contains gross violations of rights, freedoms, and guarantees, including the extension of detention to 180 days, norms allowing separation of parents and children, and the revocation of the suspensive effect of appeals against expulsion decisions.

Timóteo Macedo, president of the Solidariedade Imigrante association, which has 1,300 members of 105 nationalities, told Lusa that the President did no more than his duty before a badly made law that removes rights. He called the decree an authentic civilizational regression and said the country needs policies of attraction, not expulsion.

Broader pattern

All immigration legislative reforms by the current government have been sent for constitutional review, whether under Seguro or his predecessor Marcelo Rebelo de Sousa. The President's note cited Portugal's commitments under the European Convention on Human Rights and the Convention relating to the Status of Refugees, stating that restrictions on rights, freedoms, and guarantees in a rule-of-law state must always align with international instruments.