Portugal's Constitutional Court ruled on 28 August that none of the eleven contested provisions of the country's new foreigners and asylum law are unconstitutional. The decision, Acórdão 736/2026, answers a request for preventive review from President António José Seguro and covers the parts of the law dealing with expulsion, the detention of adults and children, border procedures and the right to stay in the country while challenging a decision. The law is not yet in force. It now goes back to the President, who has 20 days from publication of the ruling to promulgate it or use his political veto.
Background
The text at issue is Decreto da Assembleia da República n.º 105/XVII, approved by parliament on 17 July 2026 with votes from PSD, Iniciativa Liberal and CDS-PP, an abstention from Chega, and PS, Livre, PCP, BE, PAN and JPP voting against. It is Portugal's implementation of the European Union's migration and asylum package: seven EU regulations adopted in 2024, including the screening regulation and the crisis regulation, plus two directives. It amends three existing laws — Law 34/94 on temporary reception centres, Law 23/2007 on the entry, stay, exit and removal of foreign nationals, and Law 27/2008 on asylum and subsidiary protection. The decree reached the Presidency on 30 July. Rather than sign or veto it, Seguro sent eleven specific provisions to the Constitutional Court on 7 August under the preventive review procedure in Article 278 of the Constitution.
What the court decided
The court decided "não se pronunciar pela inconstitucionalidade" — not to declare the provisions unconstitutional. That covers all eleven, so nothing in the decree has to be rewritten before it can become law. The ruling was signed in Lisbon on 28 August, with Conselheiro António José da Ascensão Ramos as rapporteur; court president João Carlos Loureiro told a press conference the decision was unanimous among the court's 13 judges. Its reasoning turns on the point that none of the consequences in the law are automatic. Removing a parent of a Portuguese child requires an individual assessment weighing the child's best interests. Detaining a minor who has applied for international protection is permissible only exceptionally, as a last resort, after less severe alternatives have been considered, and the court held that the Constitution does not impose an absolute prohibition on it. Long detention periods are acceptable because extensions remain subject to judicial oversight. And removing the automatic suspensive effect of appeals is acceptable because interim measures are still available to stop irreversible harm before a court rules.
Some of the eleven provisions the court upheld
- Removal of foreign nationals who have dependent minor children of Portuguese nationality living in Portugal
- Removal of foreign children under five who were born in Portugal
- Detention of accompanied and unaccompanied children who have applied for international protection
- Detention in a temporary reception centre for up to 180 days, renewable for a further 180, where the person does not cooperate or documents from a third country are delayed
- A border return procedure requiring people to remain in an airport or port international zone, or a reception centre, for up to 12 weeks, extendable by six weeks during a crisis under Regulation (EU) 2024/1359
- Screening with an obligation to stay put for up to seven days at an external border, or three days inside the country
- Appeals against inadmissibility and refusal decisions no longer having automatic suspensive effect, so removal can proceed before a court has ruled
Who it affects
This law is about removal, detention and asylum procedure. It does not change the rules for ordinary residence permits, work visas or student visas, and it does not alter what someone does to move to Portugal legally and renew a permit. Where it matters is at the edges of legal status: people whose applications have been refused, people who arrive at a Portuguese border post and claim protection, families where one parent has no permit and a child is Portuguese, and anyone whose case turns on being able to stay in the country while a court reviews a decision. One of the contested provisions allows a recognised refugee or beneficiary of subsidiary protection to be removed before a challenge to the loss of that status is decided.
What to do now
Nothing changes today. Preventive review is a check on a text that is still a decree, not a law. If the President promulgates it, the decree is published in the Diário da República, and the entry-into-force date will be the one set out in the text itself. If you are planning a move to Portugal on a work, study or residence route, this decision does not affect your paperwork, and our Portugal country guide (/country-guides/portugal) still describes the process that applies. If you are already in Portugal and your status depends on an appeal or a pending protection claim, the question to put to a lawyer now is whether your challenge would still suspend removal under the new text. The field guide section on visas and status (/field-guide/visas-status) explains why the difference between having a case pending and having permission to stay while it is pending matters so much.
When it takes effect
Not yet. The Constitutional Court ruled on 28 August 2026. The President has 20 days from publication of that ruling to decide, and the decree needs promulgation and publication in the Diário da República before any of it applies.
The signature is still open
A favourable constitutional ruling does not oblige the President to sign. Seguro had not said by 30 August whether he will promulgate the decree, and he retains a political veto that would send the text back to parliament. No entry-into-force date has been published.
Key Takeaway
Portugal's top court found no constitutional defect in the new removal and asylum rules; the law now waits on the President's signature, due within 20 days.