From Voluntary Departure to Coercive Removal: Human Rights as a constraint on State action
- FIO Legal Solutions
- May 21
- 5 min read
On 3 May 2025, the Portuguese government announced its intention to serve notices on foreign nationals residing illegally in Portugal, instructing them to depart voluntarily. This development sparked a range of public reactions, raising legal and procedural questions around the scope and limitations pertaining to deportation in such contexts.
This article aims to provide an accessible yet legally precise overview of the administrative procedures applicable to the coercive removal of foreign nationals in an irregular situation, with particular emphasis on the human rights legal framework that governs and limits such measures under both national and international law.
Preliminary notes
As a starting point, it is important to clarify that unlawful residence or stay in Portugal does not constitute a criminal offence per se, but rather an administrative offence punishable by a fine, pursuant to Law No. 23/2007 of 4 June (commonly referred to as the "Immigration Act").
The management of migration flows, and the enforcement of immigration control measures fall within the sovereign competence of Member States and are also framed within the European Union legal order. In this regard, Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 (the Return Directive) requires Member States to ensure that the termination of unlawful stays is carried out through fair, transparent procedures that respect fundamental rights.
The Return Directive defines an “irregular situation” as the presence of a third-country national on the territory of a Member State who does not meet, or no longer meets, the conditions for entry, stay, or residence laid down in Article 5 of the Schengen Borders Code or in other applicable provisions.
Importantly, such status does not deprive individuals of their fundamental rights.
Any removal procedure must therefore comply with the full spectrum of legal safeguards provided under domestic, EU and international law — including the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).
This legal framework is reinforced by the UN Global Compact for Safe, Orderly and Regular Migration, which emphasises the need to expand legal pathways for migration and to uphold the dignity and rights of all migrants, recognising their contribution to both host and origin countries.
In Portugal, in summary, the procedure takes place as follows:
Foreign citizens who are identified in an irregular administrative situation are notified that they must voluntarily leave the national territory within 20 days.
If they are identified again in the territory in an irregular situation by a police authority, they may be detained.
If the detention continues for more than 48 hours, a judge of the lower criminal court must validate the detention, determine another coercive measure or order the citizen to be released.
The AIMA, I.P. must be informed so that, where appropriate, it can initiate the procedure for the coercive removal of the foreign citizen.
Let us look at what the legislation provides for voluntary departure and coercive removal.
Notification for Voluntary Departure (NAV – notificação para abandono voluntário)
Under Article 6(1) of the Return Directive, Member States are required to issue a return decision to any third-country national found to be unlawfully present within their territory. Article 5 of the Directive further obliges States to consider the best interests of the child, family unity, the individual’s health condition, and the principle of non-refoulement before proceeding with removal.
Wherever feasible, the voluntary return of the individual should be prioritised. Article 7 of the Directive sets out a minimum period of seven days and a maximum of thirty days for compliance with a voluntary return decision.
In Portugal, this is implemented under Article 138 of the Immigration Act, whereby the individual is served with a Notification for Voluntary Departure (NAV) and granted 10 to 20 days to leave the country.
NAVs may be issued by:
The Agency for Integration, Migration and Asylum (AIMA, I.P.);
The National Republican Guard (GNR); or
The Public Security Police (PSP).
Details of the notification are recorded in the Integrated Information System of the Border and Foreigners Coordination Unit (SII UCFE). A corresponding entry is also made in the Schengen Information System (SIS) with an indication of the expected date of departure, which is removed should the individual regularise their situation.
Where there is an identified risk of absconding, the person may be instructed to leave the country immediately, with failure to do so constituting the criminal offence of aggravated disobedience. In cases involving uncertainty over the individual’s identity or suspicions of fraudulent entry, the authorities may proceed directly to coercive removal, pursuant to Article 146 of the Immigration Act.
Portugal also operates voluntary return programmes in partnership with the International Organization for Migration (IOM) and other stakeholders.
Individuals who benefit from such support may be barred from re-entry to Portugal or other Schengen States for a period of three years, unless the financial assistance is repaid, subject to exceptions on humanitarian grounds.
Coercive Removal Procedure
Where the deadline for voluntary departure lapses without compliance, and the individual is subsequently identified as remaining in the country unlawfully, they may be subject to a coercive removal procedure, as outlined in Article 145 of the Immigration Act.
This procedure begins with detention by the relevant police authority (GNR, PSP, Judicial Police, or Maritime Police). Within 48 hours, the individual must be brought before a judge sitting in a criminal magistrates’ court or a district court, who shall determine the legality of the detention and consider any applicable coercive measures, as provided under Article 142.
Where there is a risk of absconding, the judge may impose:
Periodic reporting to the police authorities;
House arrest with electronic monitoring; or
Placement in a temporary holding centre or equivalent facility, not exceeding 60 days, and subject to weekly judicial review.
Under Article 142(5), the risk of absconding is assessed based on a holistic evaluation of the individual's personal, familial, social, and economic circumstances, including:
Absence of a known address in Portugal;
Lack of family ties within the country;
Doubts as to identity;
Indication of preparatory acts to fleeing.
The AIMA, I.P. is the competent body to issue a formal decision of coercive removal, which must be duly reasoned, notified to the individual, and may be challenged before the administrative courts. Although such appeal has devolutive effect (i.e. it does not suspend the removal), the law guarantees access to urgent proceedings with suspensive effect (to suspend the effect of the removal decision), where appropriate.
Legal Limitations on Coercive Removal
In accordance with Article 135 of the Immigration Act, coercive removal shall not be enforced against foreign nationals who:
were born in Portugal and are habitual residents;
are the parent of a minor of Portuguese nationality, residing in Portugal;
have minor children of foreign nationality, also residing in Portugal, for whom they are demonstrably responsible;
have been residents in Portugal since before the age of ten.
In addition to these legal protections, the Portuguese State remains bound by its obligations under the European Convention on Human Rights. Jurisprudence from the ECtHR and CJEU may further constrain removal where it would breach fundamental rights such as:
the right to family and private life (Article 8 ECHR);
the prohibition of inhumane or degrading treatment (Article 3 ECHR);
the principle of non-refoulement under both international refugee and human rights law.
Final considerations
An accurate understanding of the domestic and European legal framework, together with the relevant jurisprudence from international courts, is essential to the effective protection of foreign nationals facing removal. Timely legal representation and the summoning of applicable human rights norms may, in many cases, prevent unlawful or disproportionate removals.
At FiO Legal, our Human Rights Department was established precisely to support clients navigating these complex issues. We provide strategic legal advice grounded in international and European human rights law, and remain committed to upholding the dignity, equality, and rights of all individuals — regardless of nationality or status – in full accordance with the values that guide our professional practice.
By Emellin de Oliveira and Victória Costa.
