Discussion of the potential unconstitutionality of the proposed GV law changes

Moving this discussion to a dedicated thread.

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For those counting on “promises” and constitutionality, it’s important to note that it will likely only apply to pending applications and those who are able to renew before the law passes.

The law never promised the renewal requirements will be constant for 5 years, let alone in perpetuity. That’s part of the reason that the permits are issued for 2 years at a time and not 5 years.

Countries change their visa regimes all the time. As long as they don’t retroactively revoke issued permits, they can change renewal requirements at anytime.

This isn’t unique to Portugal. The US did the same thing to the EB-5 investors: Congress approved EB-5 authorization a year at a time, and when the authorization lapsed for nearly a year all pending applications were put on hold. When it was resumed, adjudication standards changed.

It was some unscrupulous consultants that promised that you could renew your way to citizenship. Ethical lawyers I spoke to emphasized that GV renewal requirements and citizenship application requirements can change; only the initial permit is guaranteed. The deal as expressed in law was: “in exchange for your investment, you get a 2 year GV. if the law remains unchanged in 2 years because we continue to value your investment, we will offer you a 2 year extension.”

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Spencer, though I have little experience with law, I see your point and it sounds right. I guess what I’m wondering is , if PT passed the retroactive law, will there be consequences for them. I know we can do class action against them, but they can de-motivate us by prolonging the process indefinitely until the results don’t matter anymore. In this case, I can’t think of any way to protect my rights.

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Depends on which part you’re referring to.

On the matter of changing adjudication standards for pending applications (eg to that of entrepreneur visas), I think it’s quite likely unconstitutionally retroactive.

On the matter of denying applications past 16 Feb 2023, it is probably unconstitional but less certain.

On the matter of changing renewal requirements, it is prospective for future renewals and thus I am doubtful it will be considered retroactive.

The good news is that in most court systems, if a lower court sides with you, even if the government appeals the ruling the appeals court will often let the lower court’s ruling stand until they make a decision. As a result, the delays may not impact your rights even if frustrating. There’s also a chance the constitutional court will be asked to exercise it’s authority to review the law beforehand, in which case it must render a decision in 25 days with no appeals.

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Thank you for the explanation, it seems going to court with PT may not be as hard as I thought, though I’m still hoping that I don’t have to take it that far.

I quite agree with your analysis here, and quite align with what the PM said on renewal. My assumption on the final outcome is:

  • GV will officially end the time the law is passed by Parliament or signed by the president.
  • Application made before the official GV end date is still valid, so it won’t be unconstitutional
  • All current benefits of GV holders will be continue to be valid until renewal which will be converted to other visa types, and yes, benefits of 7 days stay/year will be gone.

I think it will also be aligned with the timeline that all GV must be faded out latest by 2025. Remember that the government nor written law never says your GV will get you PR or citizenship.

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This almost feels like a satire article? https://www.portugalresident.com/global-investors-wowed-by-portuguese-golden-visa-upgrade-to-platinum/

Did you check the date of the “article” ?

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:rofl::rofl: hope it gave anyone else on this forum a microsecond of optimism

Happy April Fools day :grin::rofl::rofl:

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Hey, thanks for the uncalled-for personal attack.

Yep, turns out I’m more interested to post when the situation is in flux, as opposed to the relative stability in the past few years.

If it’s not already obvious, I’m never claimed to be a lawyer and am posting what I’ve gathered from my lawyer, reading a couple of legal summaries and constitutional court opinions. I acknowledge and even agree some of the retroactive components are problematic. Changing renewal conditions is less clear, and my lawyer has said that the constitutional court may let it stand.

I’ve nothing to sell you. I stand to gain nothing; these discussions are helping inform what I should do with my investment.

You’re free to continue listening to the very people who told you things like “you will definitely be grandfathered in if the rules change”, “the government has no incentive to end GVs because of the money it brings” or “we can fight this case for you (for a fee)”.

The PT government has shown extreme disdain for GVs, going so far as to insist on a retroactive termination even after public consultation, as well as changing the terms of renewals.

I’m a strong believer in not trying to fight expensive battles and lawsuits (in time and money) that will likely result in Pyrrhic victories. Yes, you may win a court case on this particular issue. The government could then perfectly legally pass physical residence requirements for PR/citizenship in response.

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I don’t see how that will be constitutional to change to other visa types for which most GV holders won’t qualify either by their investment type or their stay durations in the country. The key to the GV was not having to reside in the country. I think ultimately it will be the courts to make it so that all GV requirements will apply retroactively including the stay requirements.

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In this case it would be better for pending applications (and probably existing visa holders) if they retroactively change the rules enough for lawsuits against the government to work out. I don’t want a GV for 2 years which then reverts to requiring 6+ months spent in PT every year; it has no value to me, and could be achieved without dumping 250K.

At this point I hope the pressure from the EU is strong enough that PT gives our lawsuits a LOT of merit by making big changes.

I think spencer is probably right, however, in that the 2 year renewal period is designed to let them make changes to existing visas. Sure, it sounds like we should be able to renew every 2 years until we die, but if they wanted it to be permanent it would be.

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Not to worry Nik, happens to the best of us … probably even Spence…

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Thank you, Spencer. I enjoy reading your analyses, even though I don’t always agree with them. Diversity of opinions is essential for a balanced view.

The situation is indeed tricky, as the government is about to breach the initial terms and conditions. I was once in a similar situation in the UK with the HSMP program. The government at the time, namely the Foreign Office under Theresa May stewardship, applied retroactive changes (though not as egregious as the proposed set). We all collectively went to court and won the judicial review.

In my experience, the UK is a superb country when it comes to the rule of law. Therefore, a similar collective judicial action seems to be the most rational way forward, even though the outcome is far from guaranteed. But given what is at stake, it is worth a try.

Please keep the good analysis coming…

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Here’s what I’m struggling to understand at this point.

The draft law that emerged at the beginning of March explained into considerable detail that pending GV applications would be allowed to proceed if submitted by 16th Feb, and that they would be deemed valid applications for residents permits for carrying out an investment activity. The draft law also set out detailed terms for renewals, including the lease requirements for residential property.

The comments made by Costa on Thursday seem to ignore all that, suggesting that permits for carrying out an investment activity will no longer exist in any form; everything will be some other type of permit under the general law.

So either (a) having published the draft law, the Government had a radical re-think, and completely changed the plan, or (b) we are misunderstanding what Costa said. It would seem odd to publish a draft law, launch a public consultation, take submissions, and then entirely change the basis of what was being proposed.

I’ll be fascinated to see the new draft when it’s published - and whether it junks the previous Articles 31 and 32.

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I agree, that’s been confusing me and you put it to words better than I could have.

I’ll be meeting my lawyer in person on monday, and will be asking about renewals (I’d expect my initial application to go through fine, we’re doing biometrics in a couple weeks in faro).

I’d even be ok with 3 years in portugal I think, if I must, but would strongly prefer not. I plan to even visit for several months each year, but 183 days is a lot!

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Very good point, Chris. I was also bracing myself for a 5-year lease, which I was prepared to accept. Only then to find out that the rules for the stay are about to change drastically in a completely different direction (183 vs 7 days under the initial regime is quite extreme). Could that be that the government is testing ideas? If so, there should probably be some feedback loop to forewarn of potential legal backlash.

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Guys, I am not quite sure where “183 days” is coming from.
Have just checked the current laws, it looks like ~240 days per year bare minimum for any non-GV temporary residence permits.
See my post in another thread:

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I am wondering on what basis everyone is saying that people can be forced renewed into other visas. There was no law that set guidelines for a renewal process for GV applicants? Can someone point to the section of law that SEF is looking to for renewal approvals?

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