The emigration has never been experimental. Can the country imposes a Portuguese who returns to Portugal and their families a minimum period of one year before accessing the Social Integration Income (RSI)? The Constitutional Court (TC) says no, that doing so violates the principle of equality.
The Ombudsman, José Francisco de Faria Costa, is that the TC asked to examine the ordinance approved on 27 June 2012. It did not seem right that was required to Portuguese citizens one year of residence. Understood that distinguish Portuguese because the residence time “disregarded the constitutional principles of universality and equality.”
The Prime Minister, Pedro Passos Coelho, refuted the accusation in its reply to the TC. Justified the minimum to the nature of the benefit. Financed exclusively by transfers from the state budget, the RSI is part of the solidarity subsystem, a non-contributory scheme which guarantees a minimum standard of living.
Passos Coelho advocated “the need to ensure some prior connection to country to avoid situations of shifting residence and any wicked benefits. ” It further argued that, under the EU rules, EU citizens who live in Portugal would have to be treated equally. By setting the minimum period of one year residence, prevented there who wanted to come to Portugal just to enjoy the system.
The allocation of non-contributory social benefits, such as RSI, depends on the legal residence in Portugal . However, TC believes that it is not like being a national citizen or a citizen of another EU country.
At any Portuguese “are guaranteed the right to move or fix freely anywhere in” the country . The concept of legal residence can not in this case be confused with the place of residence. And that same principle holds true for migrants returning to Portugal.
According to the TC, is illogical to require a minimum of Portuguese legal residence. “No Portuguese can be found in illegal residence status in Portugal,” he emphasizes. Also it seems “difficult to understand that the ordinary legislator to see the need to require, in relation to Portuguese citizens, further requirements which could prove the existence, for each one, of effective union links with the national community”.
With the citizens of other Member States is different. Freedom of movement is not unconditional. Beyond the first three months, the right of residence depends on the exercise of activity or features that prevent “become a burden on the social system of the host Member State.”
The judgment recalls that “there always follows the European Union uniform treatment between nationals and citizens of other Member States”. For example, out of the Regulation on the coordination of social security systems are non-contributory benefits such as RSI.
“The Court of Justice of the European Union has already held that, in certain situations it is legitimate a Member State to grant certain benefits to nationals of other Member States to demonstrate a certain degree of integration into the society of that State, and the requirement of a minimum period of residence can just serve this purpose, “reads the document .
The Ombudsman welcomed the decision of the TC. The office of the Minister for Social Security, Mota Soares, issued a notice to remember that what we wanted “was to avoid the so-called ‘social tourism’,” by which “preserves the essence of the measure and its justification.”
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