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EXPULSION FROM NATIONAL TERRITORY | FOREIGNERS WITH UNDERAGE CHILDREN WHO ARE PORTUGUESE NATIONALS | SEPARATION BETWEEN PARENTS AND CHILDREN | CITIZEN OF PORTUGUESE SPEAKING COUNTRY

 

Constitutional Court, judgment no. 181/97, 05.03.1997

 

JURISDICTION: Constitutional

CASE: 402/96

SUBJECT: Constitutional appeal

RAPPORTEUR: Luís Nunes de Almeida

RULING: Grants the appeal, holding unconstitutional the norm in Article 34(1) of Decree-Law no. 15/93, of 22 January 1993, when applicable to foreign citizens who have underage children of Portuguese nationality with whom they reside in national territory. Orders the amendment of the appealed judgment in accordance with the ruling on unconstitutionality.

DOMESTIC LAW:

Portuguese Constitution [Articles 30(4), 33(1), 36(6), 67, 68]

Constitutional Court Act [Article 70(1)]

Code of Criminal Procedure (Article 410)

Law no. 15/94, of 11 May 1994

Decree-Law no. 430/83, of 13 December [Articles 23(1), 34(2)]

Decree-Law no. 15/93, of 22 January 1993 (Articles 21, 34)

Constitutional Court, judgment no. 284/89, 09.03.1989

Constitutional Court, judgment no. 434/93, 13.07.1993

INTERNATIONAL LAW:

European Convention on Human Rights (Article 8)

ECtHR, Moustaquim v. Bélgica, 1991

ECtHR, Beldjoui v. França, 1993

FOREIGN LAW:

France, Ordonnance of 2 November 1945, as amended by Law of 29 October 1981 [Article 25(5)]

KEYWORDS: Expulsion from national territory; foreigners with underage children who are Portuguese nationals; separation between parents and children; citizen of Portuguese speaking country; Cape-Verdean nationality; drug trafficking; accessory penalty; unity of the family; profound social imperative; fundamental rights of underage children; effective exercise of parental responsibilities; priority to public order and safety considerations; children’s stability; ban from our society; foreigner who can’t adapt to the ethical and moral values in force in the Portuguese society; expulsion of Portuguese citizens; weight of the defendant’s personal, social and family situation; proportionality assessment; parents’ entitlement not to be separated from their children; children’s entitlement not to be separated from their parents; safeguard of children’s rights; constitutional protection to the family; paternity; maternity; dependence of the harmonious development of the human being on the relations established with the family; development of one’s personality; individual and collective conscience; worldview; core family; self-identification; their roots; first emotional ties; parents’ primordial and irreplaceable role in their children education and upbringing; right to family life; imperative social needs; expatriation of underage children; avoid the separation of the family; indirect expulsion; British; Austrian; Swedish; Finish; separation between parents and children due to incarceration

COMMENTS: Coming soon.

REFERENCES IN THE LITERATURE:

CANOTILHO, J.J. Gomes, e MOREIRA, Vital, Constituição da República Portuguesa Anotada [Annotation to the Portuguese Constitution], vol. I, 4.ª ed. revista, Coimbra, Coimbra Editora, 2007.

MIRANDA, Jorge, e MEDEIROS, Rui, Constituição Portuguesa Anotada [Annotation to the Portuguese Constitution], tomo I, 2.ª ed., Coimbra, Wolters Kluwer/Coimbra Editora, 2010.

 

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Posted inCITIZEN OF PORTUGUESE SPEAKING COUNTRY FOREIGNERS WITH UNDERAGE CHILDREN WHO ARE PORTUGUESE NATIONALS EXPULSION FROM NATIONAL TERRITORY SEPARATION BETWEEN PARENTS AND CHILDREN
TagsAustrian Ban From Our Society British Citizen of Portuguese Speaking Country Individual and Collective Conscience Drug Trafficking Personality Development Right to Family Life Children's Entitlement Not to be Separated From Their Parents Parents' Entitlement Not to be Separated From Their Children Fundamental Rights of Underage Children Children's Stability Foreigner Who Can't Adapt to the Ethical and Moral Values in Force in the Portuguese Society Foreigners With Underage Children Who are Portuguese Nationals Avoid the Separation of the Family Effective Exercise of Parental Responsibilities Expatriation of Underage Children Expulsion of Portuguese Citizens Expulsion From National Territory Indirect Expulsion Core Family Finish Worldview Dependence of the Harmonious Development of the Human Being on the Relations Established With the Family Self-Identification Profound Social Imperative Proportionality Assessment Maternity Cape-Verdean Nationality Imperative Social Needs Paternity Accessory Penalty Weight of the Defendant's Personal Social and Family Situation First Emotional Ties Parents' Primordial and Irreplaceable Role in Their Children Education and Upbringing Priority to Public Order and Safety Considerations Constitutional Protection to the Family Safeguard of Children's Rights Separation Between Parents and Children Separation Between Parents and Children Due to Incarceration Their Roots Swedish Unity of the Family