A recent amendment to the Foreigners Law created article 87.º-B, entitled “Jurisdictional protection”apparently intended to reinforce the protection of foreign citizens in the face of decisions or omissions by AIMA, IP – Agency for Integration, Migrations and Asylum.
However, a careful reading reveals a serious problem, which calls into question an essential principle of the Rule of Law: the right to a fair and timely response. Paragraph 3 of this new article establishes that, in subpoena processes due to lack of action by AIMA, “the judge must consider, if requested, the number of administrative procedures carried out by that entity, in the face of possible abnormal pressures of requests and requests, the human, administrative and financial resources available, (…) as well as the consequences that may result from the subpoena for the equitable treatment of all requests addressed to AIMA”.
In simple terms, this means that, whenever it is taken to court for not deciding within the legal deadline, AIMA will be able to ask the judge to take into account its own internal limitations – lack of resources, excessive processes or operational difficulties – to justify the delay.
The legislator’s intention may have been to humanize the judicial decision, recognizing the complex conditions in which AIMA operates. But the result is dangerous: it transfers the weight of AIMA’s own structural deficiencies to the citizen.
In practice, this rule weakens the usefulness of subpoena actions, whose purpose is precisely to ensure a speedy decision in matters of fundamental rights. If the judge can dismiss AIMA’s delays based on its internal constraints, the citizen will no longer have effective protection. The result is unfair: the citizen ends up losing, not because he has no reason, but because the State has no means.
This is where an unavoidable doubt of constitutionality arises. The Portuguese Constitution guarantees everyone the right to go to court to defend their rights and interests. By allowing courts to consider the internal limitations of the Administration – instead of focusing only on the legality of its decisions or omissions – the legislator risks making this right dependent on the conditions of the State machinery itself. The risk is that a fundamental guarantee will be transformed into a privilege that depends on the means available.
Imagine the case of a foreign citizen waiting for the renewal of their residence permit so they can work or travel. The delay in the decision is not up to him, but the rule now created allows the court to accept this delay as inevitable. Guardianship stops being a remedy and becomes a postponed promise.
The legislator had – and still has – instruments at his disposal to respond to AIMA’s overload without weakening fundamental rights: reinforcement of resources, simplification of procedures, digitalization. The path can never be to condition justice to scarcity – it would be beneath the dignity of the Portuguese State.
It is not unknown that AIMA faces an exceptional overload, in a context of increased migratory flows and complex institutional restructuring. But the rule of law is not suspended in the face of administrative difficulties. Operational deficiencies must be resolved with investment, reorganization and efficiency – not with rules that, even if unintentionally, institutionalize slowness and lack of accountability.
Allowing administrative delays to be considered as a judicial criterion is opening the door to a dangerous precedent: the acceptance that non-compliance can be justified by incapacity. Today we talk about AIMA; Tomorrow we may see the same logic applied to other public services in situations of overload.
The hope, however, lies in the judges who decide these cases. In fact, paragraph 3 of article 87-B does not deprive the courts of their freedom of judgment: it only allows them to consider these elements, if AIMA so requests. It will therefore be up to the judges’ prudence and legal awareness to ensure that this possibility does not become a systematic justification for administrative inertia. The judges’ mission is, first and foremost, to ensure respect for fundamental rights – not to balance institutional omissions at the expense of citizens.
In a State of Law, everyone – including the Administration itself – is subject to the law and judicial decision. Admitting that internal limitations can justify inertia is reversing this essential logic. The State’s response cannot be conditional on its own inefficiency.
Portugal must assert itself as a country that protects the rights of everyone, including those who seek a dignified and legal life here. Justice cannot be selective or delayed. The effectiveness of judicial protection is the boundary that separates a State of Law from a State of excuses.