Constitutional Court, judgment no. 470/99, 14.07.1999

BREACH OF EXPULSION ORDER | FOREIGNERS WITH UNDERAGE CHILDREN WHO ARE PORTUGUESE NATIONALS | SEPARATION BETWEEN PARENTS AND CHILDREN | RIGHT TO LIVE TOGETHER

 

Constitutional Court, judgment no. 470/99, 14.07.1999

 

JURISDICTION: Constitutional

CASE: 535/98

SUBJECT: Constitutional appeal

RAPPORTEUR: Tavares da Costa

RULING: Rejects the appeal, holding unconstitutional the norm in Article 90(2) of Decree-Law no. 59/93, of 3 March 1993, when applicable to foreign citizens who have underage children of Portuguese nationality with whom they reside in national territory.

DOMESTIC LAW:

Portuguese Constitution [Articles 1, 15, 30(4), 33, 36(6), 44(1), 67(1)]

Law no. 28/82, of 15 November 1982 [Article 70(1)(a)]

Criminal Code [Article 65(1)]

Civil Code (Articles 82 and ff.)

Decree-Law no. 15/93, of 22 January 1993 [Article 34(1)]

Decree-Law no. 59/93, of 3 March 1993 (Article 90)

Decree-Law no. 244/98, of 8 August 1998 [Articles 125, 162(a)]

Supreme Court of Justice uniformity judgment no. 14/96, of 7 November 1996

Constitutional Court, judgment no. 284/89, 09.03.1989

Constitutional Court, judgment no. 16/84, 15.02.1984

Constitutional Court, judgment no. 310/85, 11.12.1985

Constitutional Court, judgment no. 75/86, 05.03.1986

Constitutional Court, judgment no. 94/86, 19.03.1986

Constitutional Court, judgment no. 282/86, 21.10.1986

Constitutional Court, judgment no. 224/90, 26.06.1990

Constitutional Court, judgment no. 249/92, 01.07.1992

Constitutional Court, judgment no. 434/93, 13.07.1993

Constitutional Court, judgment no. 442/93, 14.07.1993

Constitutional Court, judgment no. 288/94, 23.03.1994

Constitutional Court, judgment no. 41/95, 01.02.1995

Constitutional Court, judgment no. 181/97, 05.03.1997

Constitutional Court, judgment no. 690/98, 15.12.1998

Constitutional Court, judgment no. 327/99, 26.05.1999

INTERNATIONAL LAW:

European Convention on Human Rights (Article 8)

FOREIGN LAW: n.a.

KEYWORDS: Breach of expulsion order; foreigners with underage children who are Portuguese nationals; separation between parents and children; right to live together; accessory penalty; rights of the defendant’s underage children; effective exercise of parental responsibilities; public order and safety considerations; expulsion of Portuguese citizens; proportionality assessment; parents’ entitlement not to be separated from their children; children’s entitlement not to be separated from their parents; primordial and irreplaceable nature of the parents’ role in the task of educating and accompanying their children; imperative social needs; expatriation of underage children; avoid the separation of the family; indirect expulsion; foreign citizen; right to enter and stay in Portugal; rules on entry, stay, exit and expulsion of foreigners from national territory; loss of professional, civil and political rights; offender’s social reintegration; citizen’s civil, professional or political death; principle of guilt; humanistic motivation; human dignity; illegal entry in Portuguese territory; family situation acquired afterwards; right to settle in any part of the national territory; kinship; family as a fundamental element of society; protection due to the core family; interest in preserving the family unity

COMMENTS: Coming soon.

REFERENCES IN THE LITERATURE:

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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