Thank you so much for sharing. I did a quick search on the backgrounds of Jorge Miranda, SĂ©rvulo Correia and Rui Medeiros. They are all professors emeritus of University of Lisboaâs Faculty of Law. Note that Portugal is a typical civil law country that follows the Roman law tradition. In civil law tradition, constitutional jurists - the likes of Mssrs. Miranda, Correia and Medeiros - play a critical role in the development of constitutional law. Whereas the US / UK common law system is largely shaped by judges, the continental / civil system is shaped by interpretation of jurists and constitutional law professors. A quick check shows Jorge Miranda himself served on the constitutional commission in the 70-80s and was dubbed in the article âone of the fathers of [the Portuguese] constitutionâ. Now the fathers of the constitution have spoken. This, my friends, should give us courage and hope. The Portuguese Constitution is on our side.
While I am still running through the constitution to see how a change in the entire 5 year ARI program would go against the constitution can anyone determine in the amendments make to set up the ARI which outline the 1 week a year stay, because we need to have the legal framework/language that set that up. Also, the other points. I had to take a break for family reasons, so am on Aritcle 55 of the constitution. There are over 200 articles which I hope to be able to skip.
It would be great if we have our legal argument laid out so we could then go to a prominent constitutional lawyer and ask for help, but then we would have to crowd source funding to pay this person.
https://www.servulo.com/en/team/partners/Jose-Manuel-Servulo-Correia/22/
I think Servulo himself is a constitutional lawyer and a prominent one at that - and he has spoken out against this proposal, so perhaps we could try him.
Jason, he looks awesome. I did not look at who wrote the article. I am still trying to digest the constitution and my brain is starting to turn to mush flipping between articles to make sure I understand. I will reach out to him tomorrow to find out if he would represent a group of us, how that would work and what the charges would be. We could get him to write as many articles as possible attacking every piece of what they are doing to the GV.
Summary of Legal Requirements for ARI Card Issuance and Renewals
Initial Period|
2 years
Stay Requirements: 14 Days per period
See Article 65c and fn3
Starting point is article 90-A pasted below.
Additional requirements;
Clean Criminal Record.
Maintain Investment
Renewal Periods
2 Years
Stay Requirements: 14 days per period
Additional Requirements:
Clean Criminal Record.
Maintain Investment
Permanent Residency
5 Years
Stay requirement: None specified, but a 7 day stay requirement per year may be inferred. See fn 1.
Citizenship
Stay Requirement: None
See Fn4.
Fn1 Regulatory Decree no. 9/2018 11 September . Pursuant to Article 65-K of this decree, it appears that ARI applicants seeking permanent residence are exempted from paragraph b) of paragraph 2 and in paragraphs 3 and 4 of article 85. These articles address stay requirements for permanent residents.
Fn2. Article 65b
Minimum time requirement for investment activity
The minimum time requirement of five years for the maintenance of the investment activity shall be counted from the date of granting the residence permit.
Fn3. Article 65c
Minimum periods of stay
For the purpose of renewing a residence permit, applicant citizens referred to in Article 90a of Law No 23/2007of 4 July, in their current wording, shall comply with the following minimum periods of residence:
(a) 7 days, followed or interpolated, in the 1st year;
(b) 14 days, followed or interpolated, in subsequent two-year periods.
Without prejudice to any special legal provisions (in this case the renewal deadlines), with the amendment introduced to article 75 of the Aliens Act, by article 192 of Act n.Âș 75-B/2020 of 31 december â State Budget to 2021 in force since 01/01/2021 and to 2021, the temporary residence permit for investment purposes is valid for two years [and not just one] from the date of issue of the corresponding title.
Fn4.
âą Applying for Portuguese citizenship, by naturalization, provided all other requirements set out by the Nationality Act are fulfilled (Act number 37/81 of 3 October, with the current wording);
1 â The Government grants Portuguese nationality, by naturalisation, to foreigners who satisfy each of the following requirements: a) Be of age or emancipated under Portuguese Law; b) Have resided lawfully in Portuguese territory for a minimum of six years; c) Have sufficient knowledge of the Portuguese language; d) Have not been convicted of a crime punishable under Portuguese Law with imprisonment up to a maximum equal to three years or more.
Note: it is believed that six year period was amended to five years.
Article 90 âA
(May not be most current version)
Residence permit for investment activities
- A residence permit for purposes of performing investment activities shall be granted to the third- country citizens who, cumulatively:
a) Meet the general requirements laid down by Article 77, with the exception of paragraph 1 (a); b) Hold a valid Schengen visa;
c) Regularise their stay in Portugal within 90 days of their first entry into national territory;
d) Meet the requirements laid down by paragraph 3 (d). - The residence permit shall be renewed for a period of two years pursuant to this Act, provided that the requirements laid down by Article 3 (d) 3 remain valid.
- Conditions for enforcing the special framework provided for in this Article, specifically with regard to minimum quantitative requirements, minimum periods of permanence, and means of evidence, shall be defined by regulatory order of the members of the government responsible for foreign affairs and internal affairs.
Garbanzo this is awesome. There it all is the legal framework. Now I need to finish the constitution and read some other articles or constitutional court rulings ( anyone can join in) that address the legal concepts that were in the article written by the prominent lawyer.
"Filipe EusĂ©bio, a partner at Ana Bruno & Associados and also a specialist in public law, underlines that, given the amendment to the law that is on the table, those who already have ongoing investments have, in the future, legitimacy to demand compensation from the State that may reach âunsupportableâ values. And he warns that âthe way in which the measure is intended to be implemented will bring reasons for distrust in Portugal as a safe destination for international investmentâ. In practice, he concludes, âit is demonstrated that a law that aimed to attract such investment, can after all be revoked with retroactive effects, irreversibly affecting acquired rights, without any care for the legitimate interests of those who invested in national territoryâ.
I will reach out to my law school classmate whoâs Portuguese and he has a family law firm with his dad. I will let him know whatâs going on and get his take. Stay tuned. Get some rest guys
All - these people who have spoken out for us they built their careers around the interpretation of the Portuguese constitution. Letâs now focus on mobilization, strategy and participation. Letâs not distract ourselves anymore.
A full translation of that article below:
Legal opinions by Jorge Miranda, SĂ©rvulo Correia and Rui Medeiros conclude that the end of the gold visa regime, with the prohibition of still considering applications submitted after 16 February, violates the principle of the protection of confidence.
The Governmentâs draft law which determines the end of the gold visa regime - and, at the same time, stipulates that visa applications filed after 16 February (the date on which the proposal was made public) will no longer be considered - is unconstitutional, essentially due to the violation of the principle of the protection of citizensâ trust and legitimate expectations. This is the conclusion reached by constitutionalists Jorge Miranda, SĂ©rvulo Correia, Rui Medeiros and Gonçalo Bargado, who looked at the Mais Habitação package and have no doubt that the proposal is unconstitutional in the part concerning gold visas.
The version of the text submitted to public consultation, on which the specialists had looked at, ends with the Investment Residence Permit (ARI) regime and puts a brake for the future, insofar as it foresees that only requests âawaiting decision by the competent entities on 16 February 2023â, date when the measure was first announced, will remain valid. The idea was to avoid a gold visa race, with potential applicants trying to take advantage of the law while it was still in force, that is, until the enactment and publication of the Mais Habitação laws.
The problem, constitutionalists say, is that this violates the fundamental law. Jorge Miranda, professor and one of the fathers of the Constitution, recalls that âcitizens are entitled to the protection of confidenceâ and âthe confidence that they can put in the acts of political power that conflict with their legal spheresâ. The State, on the other hand, has a âduty of good faithâ and, since it is true that the law may change, in addition to the restrictions that exist with regard to retroactivity, reasonable periods of âvacatio legisâ must be ensured" in any case, that is to say the period between the publication of a law and its effective entry into force.
In the opinion of the constitutionalist, the Executiveâs proposal âaffects the guarantee and the confidence of those directly interestedâ and in it âa vacatio legis period is not even contemplatedâ, and as such âit suffers from material unconstitutionalityâ.
Jorge Miranda is echoed in another opinion, this one signed by SĂ©rvulo Correia, Rui Medeiros and Gonçalo Bargado, who also have no doubt that the proposal calls into question the constitutional principle of the protection of confidence. And, equally, that since the legitimate expectations of citizens are affected, then the legislator should âadopt a transitional regime that ensures that the implementation of the new measures is done gradually and deferred over timeâ. However, they stress, âuntil the enactment of the law in question, any ARI applicant had and still has a legitimate expectation of obtaining this residence permitâ, even if they submitted their application after February 16.
In this case, the specialists also point out that the protection of confidence is verified in relation to those who âhave in the meantime effectively made an investment, namely through the acquisition of real estateâ or âthe signing of a promissory contractâ, which having values of 500 thousand Euros or more, are âsignificant expensesâ.
Both opinions were requested by the law firm Ana Bruno & Associados and were issued before the new version of the Mais Habitação, which maintains the revocation of the gold visas and the retroactive effects to February 16, determining that the requests made after that date will be processed according to the residence permit regime for entrepreneurial immigrants.
Filipe EusĂ©bio, partner at Ana Bruno & Associados and also a specialist in public law, points out that, given the change in the law that is on the table, those who already have investments underway will, in the future, have the legitimacy to demand compensation from the State that may reach âunaffordableâ amounts. And he warns that "the way the measure is intended to be implemented will bring grounds for mistrust in Portugal as a safe destination for international investment.
In practice, he concludes, "it is demonstrated that a law that aimed to attract such investment can after all be revoked with retroactive effect, irreversibly affecting acquired rights without any care for the legitimate interests of those who have invested in the national territory.
This is the guy that has been handling our GV process.
I wrote to him earlier this morning
can you sound this idea out with him by any chance
Thanks great. fn4 does not mention proving relationship to Portugal . Is this still required ?
Which idea are you referring to Jason? I chatted to him last week and he echoed everything they are now saying, namely that it is unconstitutional and that it wonât pass. One of his other partners told me that he would âgive his lawyers license back should this law pass.â Time will tellâŠ
Harris - I was just wondering if heâs willing to take the lead in getting ready for any class action, if push comes to shoveâŠ
A concern I have regarding constitutionality arguments on all this is that there seems to be enough votes to pass the relevant new law with 2/3rds majority, rendering constitutional impediments irrelevant (unless Iâve misunderstood).
Hi Nik - the way I read it is there is a 2/3 majority required to change the constitution. Just because 2/3 support is for the law doesnât mean thereâs 2/3 support to remove a fundamental constitutional right
Excellent point, thanks
It may be worth noting that the various legal opinions that have been mentioned in the last couple of days were, I think, commissioned on the basis of the comments by the Government in February, and with reference to the original draft legislation. I donât believe they reflect the latest Government position about converting ARIs to other types of permits, which is yet more egregious.
Of course it is required . Visiting Portugal, learning to speak Portuguese, opening bank account. I suggest more things but itâs already there.
Help your neighbors , join mentor programs, do good things basically for a country and people that is hosting you.