I think we might be using â183â as a placeholder for âway more than 7â! The actual number doesnât matter as much as the relative change, which is extreme in either case.
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Thanks Tommy, this is very informative.
Do you, or anyone else, know what happens at the end of period if you donât meet the residency requirements?
Does it just effect any subsequent citizenship application, but you can start a fresh D7 and remain in Portugal. Or do you physically have to leave the country because youâve broken the rules of the visa?
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I believe D7 and others have 183, exactly, as the requirement. This aligns with other EU countries, and typically is a backstop for tax residency.
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Tommy, I came across the 183-day rule checking requirements for D2 visas. Apparently, thatâs the one we would be converted to. It seems to be a very common and standard requirement in the EU. I have two friends based in Italy and Germany. Both observe the 183-day rule religiously to stay compliant with the residency and tax domicile regime.
Thanks for alerting about the 240-day. Iâll keep an eye out for it.
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I think there is a lot of merit to Spencerâs theory that the absolute most the government âowesâ existing applicants is one term of GV, and they do not owe GV renewals to anyone. So a lawsuit might earn us the one GV term we paid for, but nothing else.
We will have more standing (IMO) if they say, all existing applications will become other types of visa. Then we are NOT getting what we are âowedâ.
Edit: this appears to be wrong, per further discussion.
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With the usual disclaimer that âI am not a lawyerâ, I would like to respectfully disagree.
We (GV applicants) are actually âowedâ the right to renovation by the current law.
Check out clause 2 of Article 90-A of the Lei n.Âș 23/2007, de 4 de julho:
https://dre.pt/dre/legislacao-consolidada/lei/2007-67564445-200304180
â2 - The residence permit is renewed for periods of two years, under the terms of this law, provided that the applicant proves to maintain any of the requirements of paragraph d) of no. 1 of article 3â
So, of course, the Parliament may change this law any time they like, but revoking the right of renovation to existing GV holders would amount to retroactive restriction of rights.
For example, if this paragraph was saying smth like â⊠is renewed under the terms of the law applicable at the time of the renovationâ - it would be then a different story and not âowedâ.
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I disagree and should have read Spencerâs post closer. The premise of Spencerâs argument is flawed.
We all applied through the ARI SEF program and have those application numbers which had a prescribed manner to qualify, which many chose real estate investment. As the amendment was written as long as you maintained that manner to qualify for the designated periods in the law you would get renewed because they could not reject you. Once you get a residence permanent they have to have a reason to reject you or you can sue which was not their intentâŠthey wanted foreign direct investment.
Also, the ARI amendments to the immigrant law initially and again to change where you could buy property, etc are very specific about how the ARI program works from temporary residency to then applying for permanent residency and then citizenship.
By trying to scrap the entire ARI law in full, the Government of the Republic is retroactively changing the premise and implied promise that the government made in the ARI law because of how the immigration law was amended in the first place.
Remember, the ARI law was implemented to bring in new foreign direct investment during the Great Recession and was very specific.
To that end, trying to eliminate the ARI entirely should be judged unconstitutional, because it is retroactive and disadvantages a minority by a majority. The latter is one of the core principles of the constitutional court. The former is specifically called out in a ruling for the amendment that went into effect at the start of 2022 with many months notice.
The best they can do is amend the ARI law that states it will stop taking applications as of x date in the future and the ARI amendments to the immigration law will cease to have force in 10 years or after the last application granted has been adjudicated.
This is the legal and constitutional way to do it, otherwise the Government of the Republic is committing fraud, i.e. misleading individuals to spend money for x reward and then eliminating the reward or requiring you to spend more money or lose something implied to you, i.e. the use of your real estate, residency, citizenship. And as described there is still no guarantee you still may not get your reward. I cannot imagine the EU Court of Justice would go for this.
I need to dig more on the rulings the last time they made the change which took over a year because it had to be done very carefully and the constitutional court was very involved.
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This is the reason we need to get organized get a constitutional lawyer who points this out. New are just talking in an echo chamber, we need to get a megaphone that gets the flaw out now and saves us time and money if we were to wait and challenge the law in the constitutional court.
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I will add to this a common sense interpretation. The cost of application for the ARI is very high. It is precisely for the reasons you stated. The ARI is specifically meant for people who stay in the national territory for approximately 7 days a year. If there was no renewal option guarantee, why would anyone pay these fees for the ARI cards? I myself can already stay in Portugal 90 days every 180 days without an ARI card. I donât need an ARI permit to do this. If the law stated " Portugal reserves the right to revoke ARI at any time and cancel your renewal rights." then this would be a different story. In addition, the investment was mandated for a 5 year period. Portugal specifically contemplated a scheme where renewals would be guaranteed for 5 years. Portugal needs to honor the terms of the program they created.
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Good points!
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One thing that puzzles me is that, donât the people making the draft know about the constitution? If they knew about retroactive ruling cannot be constitutional, why are they proposing so? So Iâm afraid that since they proposed so, they must have reasons to believe that it can pass constitutional o
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My theory is that this is all politics. Even the President stated as much. The ruling party was pressured to do something about housing and ARI was a scapegoat. Everyone knows that ARI is not causing the housing bubble - they restricted it out of major areas and yet the market continues to rise. The ruling Socialists wrote this proposal to placate the masses and know it wonât pass thru the constitutional court but at least they tried, right (they will say)? So while we should prepare and do our own posturing by talking about legal action, the reality is that no one actually thinks this action will apply retroactively when all is said and done. Will the ARI end going forward? - most definitely. But retroactively? Nope.
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If people do not mind, I am going to include notes as I see them in the Constitution of the Republic which I am reviewing.
Article 18
âŠ
3. Laws that restrict rights, freedoms and guarantees must have a general and abstract nature and may not
have a retroactive effect or reduce the extent or scope of the essential content of the constitutional
precepts.
This article is why the change that went into effect on 1/1/2022 was well known ahead of time. No retroactive nature to any law that restricts rights, freedoms or guarantees This would indicate they cannot change the ARI retroactively because it was a guarantee. You do and pay X and Y and you get X. They can stop the ARI from continuing, but not the program itself. It restricts our rights.
If we have to go to court, although I am not advocating this approach
Article 20
(Access to law and effective judicial protection)
- Everyone is guaranteed access to the law and the courts in order to defend those of his rights and
interests that are protected by law, and justice may not be denied to anyone due to lack of sufficient
financial means. - Subject to the terms of the law, everyone has the right to legal information and advice, to legal counsel
and to be accompanied by a lawyer before any authority. - The law shall define and ensure adequate protection of the secrecy of legal proceedings.
- Everyone has the right to secure a decision in any suit in which he is intervening, within a reasonable
time limit and by means of fair process. - For the purpose of defending the personal rights, freedoms and guarantees and in such a way as to
secure effective and timely judicial protection against threats thereto or breaches thereof, the law shall
ensure citizens judicial proceedings that are characterised by their swiftness and by the attachment of
priority to them.
Article 22
(Liability of public entities)
Jointly with the officeholders of their entities and organs and their staff and agents, the state and other
public entities are civilly liable for actions or omissions that are committed in or because of the exercise
of their functions and result in a breach of rights, freedoms or guarantees or in a loss to others.
This is my favorite clause so far coming from the litigious American system. If they restrict our rights and make our investments lose value, not have the value they would have⊠Here is the Prime Minister said everything in his bill has to go through the Assembly and the President who decide, so he is not held liable. Very smart.
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Great stuff! 
Keep it coming! My optimism is surging, and I donât think thatâs just wishful thinking. Many many thanks!
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Nice find Joel.
Here is another sef page that mirrors what you already posted but also adds a bit more color to some provisions.
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Not only are there web pages that summarize the entitlement to permanent residence for ARI investors, it is also enshrined in the law itself.
Article 65k
Granting a permanent residence permit to holders of a
residence permit for investment activity
Citizens who hold a residence permit for investment
activity and their family members, who meet the
requirements foreseen in article 80 of Law 23/2007, of
4July, in its current wording, and request the granting of
a permanent residence permit, will be issued a residence
permit for permanent investment activity, with the
exception of the regime foreseen in paragraph b) of no. 2
and in nos. os3 and 4 of article 85 of the same diploma.
Article 80 is the general law regarding granting of permanent residence. It requires 5 years of a temporary residence permit.
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There are a few variations of the law on renewals because of multiple amendments including adding fund investments in around 2018, but the gist of it is found in
Act 23/2007 of July 4, amended by Act 29/2012 of August 9
Article 90-A addresses the ARI and cross references Article 3(d) âdefinitionsâ relating to the investment. So it seems to be saying that as long you maintain the investment, they âshallâ renew the permit for 2 years.
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Article at Jornal de NegĂłcios
Legal opinions put the brakes on gold visas
Legal opinions by Jorge Miranda, SĂ©rvulo Correia and Rui Medeiros conclude that the end of the golden visa regime, with the prohibition of still considering applications filed after February 16, violates the principle of the protection of trust.
The Governmentâs bill that determines the end of the gold visa regime - and, at the same time, stipulates that visa applications that have entered after February 16 (date on which the proposal was made public) will no longer be followed up - is unconstitutional, essentially for violating the principle of safeguarding the trust and legitimate expectations of citizens. This is the conclusion reached by constitutionalists."
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Constitutionalists to the government or just private constitutionalists?
In my opinion it does not matter. The legal arguments are getting out there and will influence the Governments (Prime Minister and Council of Ministers) drafting of the bill which is due sometime in the week of April 10. After that we need to influence the members of the Assembly of the Republic to make them just vote it down like they did last fall, which very few of us knew even happened.
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