The Portuguese State's difficulty in offering efficient and effective responses to immigrants seeking assistance from the Agency for Integration, Migration and Asylum (Aima), the successor to the former Foreigners and Borders Service (SEF), is evident.
With no alternatives to the frequent delays in regularization processes, immigrants are flooding the courts with thousands of lawsuits. To overcome this scenario, two steps are necessary: first, to recognize that we are facing an unconstitutional state of affairs, characterized by massive, widespread and systematic violations of the fundamental rights of immigrants; second, to establish a structural dialogue between the authorities and society to overcome political and institutional blockages.
The Constitution of the Portuguese Republic recognizes the rights of immigrants as fundamental. Foreigners and stateless persons who are or reside in Portugal enjoy the rights and are subject to the duties of Portuguese citizens. These rights include education, health, work, political participation, family reunification and protection against discrimination.
In addition to constitutional guarantees, Portugal is a signatory to several international conventions, such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which aims to protect the rights of migrant workers and their families. Despite these legal protections, Aima has repeatedly and daily violated these fundamental rights.
The violation of the fundamental rights of immigrants is massive, widespread and systematic, easily perceived by the increasing delay of Aima in meeting deadlines and providing reasonable responses to legitimate requests awaiting an official position. Rui Barbosa, a renowned Brazilian jurist and internationally known as the Eagle of The Hague, stated that the lack of an official response is worse than a bad decision.
This legal limbo, which causes immigrants to sink deeper and deeper into an unknown quagmire, makes it clear that the Portuguese State needs to recognize an unconstitutional state of affairs in the migration issue. Although it is a typically Latin American phenomenon, originating in the Constitutional Court of Colombia and expanded in the Brazilian Supreme Federal Court, it is a typically structural decision with structuring claims.
And let's see, it was in this sense that the Portuguese Supreme Court of Justice itself made an important decision that impacts the lives of many immigrants in Portugal. From now on, Aima is obliged to comply with the 90-day deadline to decide on applications for residence permits.
This measure is above all an impetus to ensure that the rights, freedoms and guarantees of applicants are respected, putting an end to situations of “indignity” caused by the delay in analyzing these requests.
This is because, as we have mentioned, although this delay not only compromises the stability of applicants, it also places them in vulnerable situations, such as the impossibility of working legally, accessing public services or even guaranteeing the support of their families.
Therefore, Aima has a legal deadline of 90 days to decide on residence permit applications. If the deadline is not met, applicants have the right to file a lawsuit in the competent court.
Given the clear and continuous affront to fundamental constitutional rights, even after the creation of a specific agency to deal with the issue, the growing legal demands require a new stance from the Portuguese Judiciary.
The legal and factual scenario requires decisions of a structural nature and perspective, leading the Judiciary to no longer focus on individual and specific demands – clearly insufficient – but rather to establish a dialogue between the powers and society, with the aim of building bridges that overcome political and institutional blockages.
The traditional individual procedural approach, rooted in the 19th century, has been overcome by the current reality, putting pressure on States and their powers to recognize contemporary challenges and seek collaborative and joint responses.
The classic separation of powers and the traditional balance between checks and balances require new perspectives, visions, thoughts and actions that, no longer being essentially individual, begin to take on increasingly collective, diffuse and dialogical contours, guided by the structural path.
And it is from this perspective of understanding the collective and respect for oneself that we will always defend the equal deserving of dignity by all – as Immanuel Kant also said, “Everything has its value. The human being, however, has dignity”!