Speaking to Lusa, the public law specialist and one of the experts consulted by the Assembly of the Republic when drafting the nationality law explained that the possibility of expelling foreigners with Portuguese children goes against long-standing Constitutional Court rulings and that extending the maximum detention time (from two months to up to a year and a half, including the deadline for effective expulsion) is disproportionate for people who have not committed crimes.

The changes to the legislation defining return extend the detention period in line with what is happening in the European Union under the European Pact on Migration and Asylum, which "imposes very specific rules on return for all states. All of these rules are aimed at tightening people’s guarantees, with a view to greater security and faster and more effective removals," said Ana Rita Gil.

“Portugal is taking advantage of the European context to tighten the rules, but in my opinion, it wasn’t necessary to tighten them so much,” she said.

For Ana Rita Gil, the increase in the penalty for returning foreigners from the current two months to one year in prison plus an additional six months to enforce the decision is “a very disproportionate extension” in the context of Portuguese legislation.

“I am also concerned about a rule that raises very clear doubts of unconstitutionality, because it allows the removal of those who have children of Portuguese nationality,” when the “Constitutional Court in 2004 had already said that foreigners cannot be removed in this situation and, if they have committed crimes, they are subject to exactly the same criminal measures as Portuguese citizens.”

The lawyer also pointed out that the return decisions are accompanied by a re-entry ban, which has been increased from five years to 20 years.

“This seems excessive to me, with a sentence only five years below the maximum sentence handed down by the Portuguese justice system (25 years in prison),” she said.

On the other hand, the law stipulates that “appeals to the courts, even in asylum matters, will no longer suspend the removal of the person”, which puts the integrity of applicants at risk if they are subjected to “torture in their country of origin”, warned Ana Rita Gil, who foresees an increase in litigation.

In many cases, applicants who are entitled to judicial protection will be able to file precautionary measures, which are more expensive and independent from the main action, to try to prevent the execution of decisions.

However, in many cases, “many people are not aware of their rights, nor are they necessarily read or communicated with transparency,” he said, emphasising that the system should be “clearer” in the information given to foreigners.

“I’m worried that people won’t be able to take advantage of these rights because they clearly don’t know,” she said.

Despite everything, the bill has positive solutions, said Ana Rita Gil, pointing to “alternative measures to detention”, something that until now didn’t exist in the case of foreigners, allowing them to hand over documents to the authorities.

“Without their documents, foreigners can’t move around and this avoids the danger of flight,” explained the researcher, who pointed out the costs of this legal tightening.

“Extending detention periods will mean an increase in costs for the state, firstly with the construction of temporary accommodation centres, which we don’t have, to detain foreigners at risk of deportation,” she said.

In the case of passengers who are prevented from entering national territory, the state can demand responsibility from the carriers, “who can be held responsible for paying for their stay” in the detention centre, “because they didn’t make sure that the people had the right documents”.

However, in cases where a citizen is identified by the authorities as being in an irregular situation, the Portuguese state will be responsible for paying the costs of detention, which can last up to a year and a half.

“There are many calculations that have been made that say this: all the money that any state spends on border police, on control systems, on installation centres, on return flights, on monitoring return flights, is much higher, in numerical terms, than what would be spent if these people were to live off social security,” explained Ana Rita Gil.

That’s why “it’s not for security reasons, it’s not for cost reasons that we want to go ahead with these measures, but for identity reasons,” she summarised.