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Portugal / Constitutional Court / 296/2015 and 1057/14

Legality and constitutionality of certain rules contained in the Law on the Social Integration Income

Policy area:
Free movement and equality
Deciding Body type:
National Court/Tribunal
Type:
Decision
Decision date:
25/05/2015

Key facts of the case:

The Public Prosecutor’s Office sought to obtain a declaration pertaining to the illegality and the unconstitional nature of Article 6 (1) a) and b) and (4) in Law 13/2003 of 21 May in the amended version of Decree Law 133/2012 of 27 June that states: 1 – Recognising the right to the social integration income depends upon the applicant, the date on which the application is made, and the full compliance with following requirements and conditions: a) Has been a legal resident in Portugal for at least one year if the applicant is a national citizen or a citizen from a European Union Member State, a State that belongs to the European Economic Space or a third-country State that has entered into an agreement with the European Union in terms of the free circulation of its citizens within the EU; b)  Has been a legal resident in Portugal for the last three years if the applicant is a  third-country national of a State not mentioned in the previous point. (…) 4 – The provisions laid down in 1 - a), b), e), f), g), i), j) and k) are applicable to the immediate family members of the applicant with the exception of the minimum term of legal residence of children less than 3 years of age. It should be clarified that the Social Integration Income (RSI) is a temporary cash subsidy which is variable according to the applicant’s income and immediate family members.  It is a sort of minimum income covering basic needs. In grounding its general refutation of the rules given above, the Public Prosecution namely referred to the Article 63 (1) in the Portuguese Constitution that states that Everyone shall have the right to social security, where the word “everyone” (“Todos”) denotes the universal nature of the fundamental right to social security. Therefore, in accordance with the letter and spirit of the Constitution, the right to receive the Social Integration Income is universally applicable to all Portuguese, foreigners and stateless persons who are found or reside in Portugal.

Outcome of the case:

The Constitutional Court did not find Article 6 (1) a) of the Law 13/2003 of 21 May (amended version of  Decree Law 133/2012 of 27 June), to be illegal in the part that demanded that recognising the right to the Social Integration Income depended upon at least one year of legal residence for national citizens or citizens from a European Union Member State, from a State that belongs to the European Economic Space or from a third-country State that has entered into an agreement with the European Union in terms of the free circulation of its citizens within the EU.  It also did not find illegal the application of this provision to the immediate family members of the applicants citizens of these countries, with the exception of children aged less than 3 years (article 6 (4)).

On the contrary, the Court declared Article 6 (1) b), and (4) to be unconstitutional because these provisions breached the principle of proportionality, when it was demanded that recognising the right to the RSI depended upon at least three year of legal residence for the citizens from a third country not included in Article 6 (1) a).