Originally Published 16th December 2008
The legal regime applicable to the entry and exit of foreign citizens into and out of national territory is disciplined, in Portugal, by Law No. 23/2007 from July 4, which regulates the conditions and procedures of entry, stay, exit and removal of foreign citizens into and out of national territory1, considering, for legal purposes, foreign citizen any national of a country not belonging to the European Economic Area2 and, furthermore, not a contracting party to the Application Convention.
The enactment of the new legislation, streamlined by ideas of promotion of legal immigration and the inherent discouraging of illegal immigration, allied to the goal of desbureaucratization and use of new technologies, has implied significant changes in the labor market opportunities, as well to procedures aiming to ease the access and circulation of highly skilled human resources, investors, inter alia.
Particularly, concerning the entry of foreign citizens into Portuguese territory, except for certain cases expressly foreseen in the aforementioned legislation3, the foreign citizens shall, in the first place, hold a travelling document deemed valid, usually with a validity exceeding the duration of their stay (e.g. passport, safe-conduct); in second place, hold a valid visa, adequate to the purpose of their visit; and, finally, possess sufficient subsistence means for the period of the stay and/or the return trip to the country in which their admission is guaranteed.
In matter of visas, there should be a distinction according to their type and the place in which they are granted. In effect, whenever they are granted abroad, they may be i) stopover visas (their purpose is to allow their holder, in case of an international connection, the passage through an airport/port of a State which is party to the Application Convention, granting only access to the international area of the airport or maritime port), ii) transit visas (their purpose is to allow the entry in national territory of persons from a third State heading to a third country in which their entry is guaranteed4), iii) short stay visas (visa to be granted on a residual basis, to the extent it is designed to allow entry into national territory to its holder for purposes other than the ones justifying the concession of another type of visa – e.g. tourism, visiting or accompanying relatives holding a residency visa), iv) temporary stay visas ( their purpose is to allow their holder to enter in Portuguese territory for, among other purposes5, scientific investigation in investigation centers, teaching in a higher education institution or the exercise of a highly qualified activity for a time period of less than one year, exercise in national territory of a professional activity either dependent or independent, of a temporary nature whose duration does not exceed, as a rule six months6, etc) and, finally, v) residency visas (they aim to allow their holder the entrance in Portuguese territory for the purpose of applying to a residency permit, being valid for two entries and for a period of 4 months). On the other hand, if the visa is granted on border posts, only transit visas, short term visas or a special visa (granted to foreign nationals that do not fulfill the necessary requirements in the grounds of humanitarian or national interest), may be granted.
As mentioned above, the new legal regime has implied significant modifications to specific groups, namely investors, highly qualified professionals, as well as employees and liberal professionals. Indeed, in the particular cases of economic agents willing to invest in Portugal, a residency visa will be granted upon verification of one of the following conditions: i) performance of investment operations; or ii) proof of possession of available financial means in Portugal, including those stemming from financing obtained by recourse to a financial institution in Portugal, and demonstration, by any means, of the intention to carry out an investment operation in Portugal. The Regulation Decree No. 84/20077 does not require any amount, only referring to its nature, worth and duration. However, the motivation behind the investment should always be subject to a balance of interests, namely as to its economic, social, scientific, technological and cultural relevance, envisaging the determination whether the investment represents a truly advantageous and dynamic enterprise. Anyhow, the present legal regime clearly shows some interest in attracting investment leading to the creation of employment and wealth, by captivating investors willing to dynamize the national economy.
Concerning investigation activities (being it scientific investigation in an investigation center or teaching in a higher education institution) and highly qualified activities, the law makes the attribution of a residency or temporary stay visa dependant on a labor contract or its promise or of a contract for the rendering of services or its written proposal.8 Regarding the concession of a residency permit to nationals of third countries for the exercise of an investigation activity, a further requirement is imposed: the person that applied for the permit shall register at the Portuguese social security.
Finally, as regards employees and independent professional activities, one should distinguish between transfer of employees and cases of a temporary subordinated professional activity. In the first case, for the concession of the temporary stay visa to nationals of States parties to the WTO, it is required that the transfer is operated between branches of the same corporation or corporate group, and, that it refers to partners or employees9. In the second case, the existence of a labor contract or its promise, usually at least equal in duration to that of the labour contract, is a prior requirement. Regarding the granting of a residency visa and its consequent residency permit, a line should be drawn to separate the cases in which its purpose is the exercise of subordinated professional activity or the exercise of an independent professional activity.
The granting of the visa and permit under the former case remains dependent upon the existence of employment vacancies which have not been fulfilled, of a labour contract or its promise, as well as of proof of possession of professional qualifications, skills and, or, qualifications appropriate to the carrying out of the proposed activity.
In addition, to the granting of the permit, the entry and stay under the applicable legal terms and registering and clearing of any outstanding debts to the social security, are required in the case of an independent10 professional activity.
The referred visa and permit will be granted to the nationals of third States, when, cumulatively, in the scope of liberal professions, a contract for the rendering of services or its written proposal exists and, when required, the professionals are entitled to exercise the independent activity under which they apply for the visa.11
The conditions for the attribution and acquisition of Portuguese citizenship are regulated in Portugal by Law No. 37/81, from October 312, usually designated by citizenship law.
In matter of attribution of Portuguese citizenship, it must be noted that this will imply the production of effects since the birth date. Without prejudice of the originary Portuguese citizens (individuals born to a Portuguese mother or father, in national territory; individuals born to a Portuguese mother or father, abroad if the Portuguese parent is in that country at the service of the Portuguese State; individuals born to a Portuguese mother or father, abroad, whenever their birth is registered in the Portuguese Civil Registry or that have declared that they want to be Portuguese; individuals born in national territory, to foreign parents, if at least one of the parents has been born in Portugal and has its residency, at any title, in Portugal at the birth time; individuals born in national territory, to foreign parents that are not at the service of their State of origin, if they declare that they want to become Portuguese, provided that at the date of their birth, one of the parents had been a legal resident for at least 5 years in Portugal; and the individuals born in Portuguese territory and that do not possess any other citizenship), derivatively, other citizens may acquire Portuguese citizenship, through act of will, adoption or naturalization. The law, when referring to act of will means, in particular, the acquisition of citizenship by individuals who have not yet reached their majority or by incapacitated individuals or even through marriage or companionate marriage. In effect, the law provides the possibility of acquiring Portuguese citizenship by minors or by incapacitated individuals whose father or mother had acquired Portuguese citizenship.13 In the same line of thought, the foreign nationals married for more than 3 years with a Portuguese national may acquire Portuguese citizenship, stating that they will to do so during the marriage14.
Concerning adoption, the law confers to the fully adopted person, insofar as adopted by a Portuguese national, Portuguese citizenship. Finally, in what concerns naturalization of foreign nationals, the law makes the attribution of Portuguese nationality dependent upon the verification of some requirements, such as their majority or emancipation, legal residence in Portugal for at least 6 years, sufficient knowledge of the Portuguese language and not having been condemned by a crime punished with imprisonment for 3 or more years.
In a citizenship application an issue of great importance arises: the effective connection with the Portuguese community. This issue is of extreme relevance, for its lack may be conducive to the non attribution of Portuguese citizenship. Also for this reason, lawyer counseling is essential, insofar as the latter has knowledge and sensibility to, in each particular case, indicate which elements make better proof and evidence of the effective connection of the applicant citizen with the Portuguese community, being it by means of photographs, statements of friends, Portuguese language exams, proof of residency in the national territory, inter alia.
Weighing the recent amendments, obvious organizational improvements in the processing and treatment of processes for granting of visas, residency permits and of attribution of Portuguese citizenship are noticeable, and are related with the simplification of procedures and with the higher degree of technical knowledge evidenced by the services. However, one has to remark that the lawyer's role is still of paramount importance, not only because it ensures a more qualified service, emerging from a privileged perspective and of a deeper knowledge of these matters, as well as from the time standpoint, guarantees prioritary treatment by the services.
Facing the expectations created and the subsequent affluence as a consequence of the modifications that have been analyzed, the outcome is favorable, showing an undeniable evolution in the treatment and adequacy of the legal solutions to these matters in Portugal, nonetheless, there is still room for reformulation and improvement, that will only be attained through legal practice.
- Cf., also, Regulamentary Decree No. 84/2007, regulating Law No. 23/2007 from July 4;
- The 27 countries comprised in the European Union plus Iceland, Norway and Liechtenstein (countries forming EFTA, with exception of Switzerland)
- In relation to the travelling document, see paragraph 3 of Article 9 of Law No. 23/2007, from July 4: "The foreign citizens specified below may equally enter or leave Portugal: a) Nationals of States with which Portugal has international conventions and therefore may enter the country with an identity card or equivalent document.; b) Those that are covered by relevant conventions between the States which are Parties to NATO; c) Those that hold a laissez-passer issued by authorities of their home countries or of the countries that represent them; d) Those who hold a flight licence or a crew membership certificate as per annexes numbers 1 and 9 of the Convention on International Civil Aviation, or other documents that replace them when on service; e) Those that hold an identification document of maritime worker as per Convention number 108 of the Labour International Organization when on service; f) Those who are nationals of States with which Portugal has international conventions under which entry is permitted with a maritime identity card, when on duty." To visas, paragraph 3 of Article 10 of Law No. 23/2007, from July 4, applies: "May, nonetheless, enter the Country without holding a visa: a) Foreign citizens holding a valid residence permit, prorogation of permanence or identity card as specified in paragraph 2 of Article 87; b) Citizens that are entitled to do so within the terms of International Conventions subscribed by Portugal."
- Insofar as transit does not exceed five days, one, two, or, exceptionally, multiple entries may be allowed.
- See Articles 54 and following of Law No. 23/2007 from July 4.
- Generally, the temporary stay visa is valid for 3 months, but regarding the exercise of a subordinated professional activity on a temporary basis, it will be granted for the whole duration of the labour contract. Exceptionally, a short stay visa for the exercise of a subordinated professional activity on a temporary basis lasting for over 6 months may be granted, provided that the activity is comprised in an investment contract.
- See Article 31 of the Regulamentary Decree, from November 5.
- In the cases of scientific investigation in an investigation center, a visa of temporary stay or residency is also granted to foreign citizens which have been admitted through a scholarship for scientific investigation (Articles 58 and 61 of Law No. 23/2007, respectively).
- The partners and employees to which the transfer refers shall: i) possess managing powers, work as senior officers of the company and manage a branch or department; ii) possess specific technical knowledge essential to the activity, investigation equipment, its techniques or managing, or iii) receive professional training in the undertaking located in national territory.
- Defined in Paragraph b) of Article 3 of Law No. 23/2007, as "any activity carried out personally, within the scope of a contract for the supply of services of the independent professional sector (liberal professions), or by means of a company."
- In addition, for residency permit purposes, the following requirements apply: a) Forming of a company under the applicable law and declaring its entering into activity to the tax administration and social security as a natural person or entering into a contract for the rendering of services as a liberal professional; b) Qualification for the exercise of an independent activity, when applicable; c)Possessing subsistence means; d) registering with the social security; e) Presenting, whenever applicable, the declaration of the competent professional association as to the fulfillment of the relevant requirements for registration.
- See also Decree-Law No. 237-A/2006 that approved the Regulation on the Portuguese Citizenship.
- Pursuant to issuing, by the legal representatives, of a declaration in that sense (Article 13 of the Regulation on the Portuguese Citizenship).
- Pursuant to a judicial process for recognizing the existence of such a state of affairs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.