That’s the attitude that wins litigation - spoken as a lawyer.
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GB, if necessary you want your soccer field, soccer ball, the stadium refunded and you are going to take your ball and go play someplace else. I love it. I wish I could do that, but I also bought a house separate from my investment because I got a great deal. It may just be a rental, because it is a low density area. I was a post 1/1/2022 investor so hedged in two directions. Now I wish I had gone to Greece or one of the others.
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Little update from me. I spoke with my lawyer (Catarina Garrett) today and she agreed the law is stupid and embarrassing for Portugal. Nothing notable there, all the lawyers have been saying that.
BUT
I questioned her on a few things and one of those was “can portugal change the citizenship law before I can apply for citizenship” and she reacted sort of like “I wish you hadn’t asked that” and said that yes that could happen, but she thought it unlikely at least in the current round of laws going through, and it didn’t seem to be on the short list of goals of the government.
She’s overall hoping that this attempt collapses due to opposition by the President, and was confused when I asked about being able to override the president’s veto and the constitutionality stuff, but I’ll take the blame for that since I probably didn’t describe it well.
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I agree with you. However, it is a start to let the people in power and politics know that many think that the proposed law is not constitutional and will affect Portugal negatively etc. etc. It informs them that there will be many law suits if not changed. Something quick while we work out the details of how proceed in a very organized and formal way. The count of signatures is close to 2300 now and increasing pretty quickly
Not being “terminated” … ?
Here is my draft of the whole saga. Which needs lots of clean-up. Thank you to those who sent me ideas and information so I could formulate the write language from the different articles of the constition I had highlighted.
I see this as a letter/email/text to every member of the Portuguese Assembly, the President. Shortened versions can be the basis for articles in the press. We can pick a violation per article and put a face on it. Just thinking outload. My brain is now mush!
Background:
In 2012 the Republic of Portugal through its elected Assembly of the Republic and the President of the Republic promulgated an extensive scheme referred to as ARI - Autorização de Residência para Atividade de Investimento also known as the Golden Visa or Golden Residence Permit in shorthand.
At the time this ARI scheme was put in place, Portugal among other countries had gone through the great recession followed by the sovereign debt crisis that impacted the entire Euro union of countries. Portugal like many other countries needed direct foreign investment and therefore created the following ARI Scheme via extensive amendments to existing Acts of the Portuguese Republic to entice investors and guarantee their rights while going through this process to gain Permanent Residence and/or Citizenship.
This ARI scheme was amended once going into effect on 1/1/2021 in an effort to address what was a perceived, but not proven belief that ARI real estate investment along the densely populated coastal regions was impacting housing.
The ARI scheme was amended, not repealed, to only allow for certain types of real estate investments in the coastal and densely populated areas and all types of real estate investment in interior areas depending on the defined criteria of population density and GDP.
The English version of the requirements as captured on 3 April 2023 from the Serviço de Estrangeiros e Fronteiras (SEF) web-site at conteudo-detalhe (sef.pt): are as follows: (the Portuguese language version is attached as captured on 2 April 2023)
ARI - Residence permit for investment activity
What is required:
The rules governing the granting of Residence Permit for Investment (ARI / Golden Visa), in force from 8 October 2012, enable third country nationals to obtain a temporary residence permit to conduct business activities with visa waiver to enter national territory. The beneficiaries of ARI / Golden Visa are entitled to:
• Residence visa waiver for entering Portugal;
• Living and working in Portugal, on condition that they stay in Portugal for a period of 7 or more days, in the first year, and 14 or more days, in the subsequent years;
• Visa exemption for travelling within the Schengen Area;
• Family reunification;
• Applying for permanent residence (pursuant to the Aliens Act – Act number 23/2007 of 4 July with the current wording). To the citizens holding a residence permit for investment purposes and their family members, complying with the requirements provided in article 80 of the Aliens Act and wish to be granted with a permanent residence permit, a permanent residence permit for investment purposes shall be issued, exempt of the provided in article 85, n.ºs 2, 3 and 4, subparagraph b) of the same diploma (cancellation of the right due to absences from the national territory, see article 65-k of the Regulatory Decree 84/07 of 5/11, as amended). The Permanent Residence Permit for investment purposes may be subject to specific fees of analysis and issuance, to be regulated by amendments to Ordinance 1334-E/2010, of December 31;
• 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);
Eligibility – Who may apply?
All third country citizens who conduct an investment activity, as an inpidual businessperson or through a company set up in Portugal or in another EU Member State and who, in addition, are stably settled in Portugal, provided these citizens fulfil the quantitative requirements and the time requirements set out by the relevant legislation, may apply for a Residence Permit for Investment, by one of the following routes:
All third country citizens who conduct an investment activity, as an individual businessperson or through a company set up in Portugal or in another EU Member State and who, in addition, are stably settled in Portugal, provided these citizens fulfil the quantitative requirements and the time requirements set out by the relevant legislation, may apply for a Residence Permit for Investment, by one of the following routes:
i. Capital transfer with a value equal to or above 1.5 million Euros;
ii. The creation of, at least, 10 job positions;
iii. The purchase of real estate property with a value equal to or above 500 thousand Euros;
iv. The purchase of real estate property, with construction dating back more than 30 years or located in urban regeneration areas, for refurbishing, for a total value equal to or above 350 thousand Euros;
v. Capital transfer with a value equal to or above 500 thousand Euros for investing in research activities conducted by public or private scientific research institutions involved in the national scientific or technologic system;
vi. Capital transfer with a value equal to or above 250 thousand Euros for investing in artistic output or supporting the arts, for reconstruction or refurbishment of the national heritage, through the local and central authorities, public institutions, public corporate sector, public foundations, private foundations of public interest, networked local authorities, local corporate sector organizations, local associations and public cultural associations, pursuing activities of artistic output, and reconstruction or maintenance of the national heritage;
vii. Capital transfer of the amount of 500 thousand Euros, or higher, for the acquisition of units of investment funds or venture capital fund of funds dedicated to the capitalisation of companies, capital injected under the Portuguese legislation, whose maturity, at the moment of the investment, is, at least, of five years and, at least, 60% of the investments is realized in commercial companies with head office in national territory;
viii. Capital transfer of the amount of 500 thousand Euros, or higher, for constitution of a commercial society with head office in the national territory, combined with the creation of five permanent working jobs, or for the reinforcement of the share capital of a commercial society with head office in national territory, already existing, with the creation or keeping of working jobs, with a minimum of five permanent jobs, and for a minimum period of three years.
Portuguese, EU and EEE nationals are not eligible for the ARI / Golden Visa scheme.
Where may I apply?
Mandatory Online pre-registration is available at http://ari.sef.pt.
For more information, please contact SEF’s Contact Centre, available from 09:00 to 17:30, through the numbers – 217 115 000 (fixed network) or 965 903 700 (mobile network).
What is required to apply?
What is the cost?
Fees - in maintenance
Additional Information
Applicable Law
The Aliens Act - Law n. 23/2007 of 4 July (as subsequently amended)
Regulatory Decree n. 84/2007 of 5 November (as subsequently amended)
Decree n. 305-A/2012, of 4 October
For further information, please consult:
Portuguese Immigration and Border Service [Serviço de Estrangeiros e Fronteiras - SEF]
Ministry for Foreign Affairs [Ministério dos Negócios Estrangeiros - MNE]
Development Agency [Agência para o Investimento e Comércio Externo de Portugal - AICEP]
Also including the specified times for renewals of the temporary residence permits, application for permanent residence and citizenship as follows:
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.º 75-B/2020 of 31 december – 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.
• 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 – 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.
Current Situation:
On February 16, 2023, The Government of Prime Minister Antonio Costa at a Press Conference announced a proposal to address the issues of affordable housing in the country, but especially the larger cities such as Lisbon and Porto. One of the items he addressed was the ARI Scheme stating incorrectly that only 22 ARI investors had invested to create jobs. Astonishingly, a group within the Council of Ministers was established in the fall of 2022 by The Government of Prime Minister Costa which was to examine the impact of the ARI program and present a report. Such report has not been forthcoming to date.
However, real facts are being published on blogs by many ARI real estate investors and Mercan Properties, one of the largest ARI investment developers, the number of people employed because of the ARI program is in the 1000’s if not 10,000’s because of commercial real estate investments via companies such as a Mercan Properties. Yet on March 30, Prime Minister Costa stated that no one should get special treatment and that the Government of Prime Miniter Costa would end the ARI scheme effective February 16, 2023.
Analysis:
The Government of Prime Minister Costa has determined that neither he nor his Government is bound by the Constitution of the Republic of Portugal. As many constitutionalists and lawyers have stated, his proposals:
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Violate Article 13 of the Constitution of the Republic of Portugal which affirms the principle of equality and consider nationality as a factor that should NOT result in negative discrimination. Prime Minister Costa’s Government’s proposals clearly violate this principle of equality, as a specific group of citizens – foreign citizens and investors in Portugal – are treated discriminatorily based solely on their status. A status which until 1/1/2022 when the ARI scheme was amended were encouraged, welcomed and promoted by 100’s of advisory firms, lawyers, real estate firms and equity investors.
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Violate Article 15 of the Constitution of the Republic, such that the rights system of the Constitution of the Republic of Portugal favors equal treatment between Portuguese and foreign citizens. This implies that the lack of equal treatment under the Constitution couple with the principle of equality will results in claims to the European Court of Human Rights, European Courts of Justice and the UN Human Rights Authorities because of the diversity of nationalities.
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Violates the principle of the protection of citizens’ trust and legitimate expectations derived from the rule of law principle in Article 2 of the Constitution of the Republic of Portugal. Per Article 18 changes to legislation should not be applied retroactively, jeopardizing rights, freedoms, and guarantees, such as the right to private economic initiative. Additionally, such changes should not be unjustified to the extent that they frustrate the legitimate expectations of investors.
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Violates Portuguese Republic’s “duty of good faith” and, since it is true that the law may change, in addition the restriction exists with regard to retroactivity into force. This just clearly demonstrates from this day forward that ANY law aimed to attract investment can later 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.
If the Government of the Prime Minister, the Assembly of the Republic or the President of the Republic do not act in accordance with the Constitution of the Republic of Portugal, all ARI investors will have not choice but to appeal to administrate courts in which they can request the annulment or nullity of the administrative act which deny an individuals legitimate claim which can then involve recourse to the Constitutional Cort for the above violations of the Constitution of the Republic of Portugal
Also, as recourse, all ARI investors should take action under Article 22 of the Constitution of the Republic of Portugal which allows for the compensation of damages caused. Based on the current action of the Government of Prime Minister Costa which has already obtained international press in Forbes, on Reuters, in the Financial Times of London to name a few, all ARI investors already have a claim that the value of all possible investments is now diminished because of the above carelessness. As stated early such changes are justified to the extent that they frustrate the legitimate expectations of investors to the return on their investment, i.e. permanent residence and then citizenship in the Republic of Portugal and increase in property values over the required period to obtain such rewards, i.e. 8-10 years based on SEF response time.
Finally, the Government of the Prime Minister and the Prime Minister himself is liable for the fraudulent claims made that all ARI investments and applications filed in the ARI portal after February 16 will not be adjudicated as and ARI investment because his and other statements willfully violate article 18 regarding retroactivity of laws. The Prime Minister and many of his Fellow Ministers have made fraudulent statements which will never be true because until whatever proposal is voted into law by the Assembly of the Republic and promulgated by the President of the Republic any change will not take effect. Unknowingly he has frustrated the legitimate expectation of investors who were planning to make an investment but did not because of his purely fraudulent claims.
Solution:
If the Assembly of the Republic as representatives of all Portuguese citizens wish to eliminate the ARI investment scheme and the President of the Republic agrees, then a sunsetting of the ARI scheme should be set with ample time for all applicants to obtain permanent residence or Citizenship or drop out of the ARI program. This will not be a year or two, but rather 10-15 years because of the speed at which the SEF and other authorities work to process the applications, temporary residence permits, renewals and permanent residence permits and citizenship. This should allow sufficient time as of a future date outlined in the promulgated law for all ARI investors to complete the process as outlined above to obtain permanent residence or citizenship.
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Well done!
I’m not entirely sure where to fit it in, but I think we should point out that the GV is inferior to the D7 in every way - requires an investment, far more expensive fees, and also takes much longer to process - except one: the residency requirement. It should therefore be safe to assume that most or all GV applicants and holders need the flexibility, made the investment in good faith, and would be injured by these proposed changes. The government proposal does not just remove some side perk, but reneges on the core right that must have been central to every GV application.
Also, I suggest getting actual estimates from Mercan and others regarding direct and indirect employment figures. The “1000’s if not 10,000’s” phrase seems weak.
Thanks for your efforts!
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Wonderful!!!
Wasn’t the GV amended 1/1/22 not 1/1/21? I think we applied dec 2021 right before the change.
Also, does anyone think there is ANY way we can fight for time counted toward requirements when the government has failed to provide us approvals and/or biometrics?
For example, we applied dec 2021. We still do not have pre approval. We met our time in country requirement by being in Portugal for 2 months in 2022 and will do the same this fall for 2023. I believe these two years should be counted toward our 5 years even though we aren’t even approved yet.
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On this point, the law is clear - no, that time does not count towards naturalization. It only starts once your residency is approved (this will be the date on your first residence card). This is very unfortunate, but not ambiguous.
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I would sincerely suggest you remove all references to citizenship.
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I don’t think you have a leg to stand on there. Nowhere in the legal framework is there anything linking ARI to citizenship, nor does it provide any unique benefit in attaining citizenship. There are a couple of references on the SEF page, sure, but all they do at best is say you can apply for citizenship. Which you might, or might not be granted, based on whatever the legal framework around the nationality act is at the time of your application. Garrett’s statement coming from Ms. Garrett matches with my interpretation of the legal framework surrounding the nationality act and information from my own lawyer.
(As an aside, you cannot take the nationality act at face value. All major organic laws have a separate decree-law passed that sets out the regulations around the act - basically, all the ifs-ands-buts. In this case, it’s I think 237A/2007 as amended, but I forget, it’s been quite a while since I’ve dug through all of that. You can search the archives for my extensive musings on the topic.) -
Citizenship isn’t part of the legislation you are contesting. You are contesting the treatment and handling of the ARI within the scope of the aliens act (which does not mention citizenship). That is what is being directly affected. Focus.
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Given the current political, economic, and societal environment, do you really want to be highlighting the idea that people are getting GVs for the express purpose of citizenship? Ok, yes, of COURSE that’s the end game for many of you, but do you really want to highlight it in big bold type all over the funny pages for people to take out of context?
(You’re quoting the wrong nationality act anyway. It’s been updated since with the requirement down to 5 years. It’s something like 2/2020 or the like. pdglisboa is quite useful for this kind of thing. )
I would also remove all references to the SEF web page. Stick to the text of the Aliens Act, since that is the legislation under question which is being abrogated in such a way as to violate the Constitution.
$0.02.
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Strongly agree
Hi Jeff,
Thanks for your post and input. Every comments helps make things better and those of us question and research what we are seeing. Garbonzo Bean and another users who is a lawyer researched the guarantee to permanent residency after the required number of years as well as ability to apply for Citizenship and found that it is enshrined in the amendments. Do you have something counter to that that you can site from the amendments of 2012 and again 2021 that put and then modified the ARI scheme?
On the highlighting point, you are correct, but I want to make sure the rights offered to entice the ARI investment are clearly outlined. The AC Government is trying to make it seem like the ARI scheme is nothing different than a D2 investor visa. It is not, never was intended to be and as far as we are concerned should never be allowed to become that because many of us who cannot live in the country 183 days out of the year for obvious reasons will have to take legal action to get our money back.
With that said your point is well taken. I am rolling ideas around after drafting my treatise, which came out somewhat angry…SORRY ALL, on how to soften it and give it a different perspective. I know the Salazar years are still very fresh in the elderly’s mind and the younger generations are taught extensively about those years in very negative light. My new sleep aid, the Portuguese Constitution, clearly gives the Constitutional Court the right to ensure no Fascist party is allowed to exist in the country.
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I agree the chaos is silly especially when you dig into the law and see how UNCONSTITUTIONAL this is and how it goes against the concepts enshrined in the Portuguese Republic. So sad for Portugal.
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So, this is not quite what I’m hearing, but the difference is somewhat subtle. First, the law firm expects the current draft of the law to be found unconstitutional. They think that the government is reacting to EU pressure as much as local pressure, though, so they expect to see changes that bring the Portuguese requirements closer to other EU states.
To handle that, they expect D2 to be changed to allow for renewals from former ARI investor, without requiring a business plan or any of the other steps. Essentially, if you had an ARI, you are assumed to match the “new D2” and can renew within it. To get around the problem of the very different residency requirements, they expect the “new D2” to have a requirement for fiscal residency (which normally occurs with 183 days) but to have a process to allow someone to acquire fiscal residence by declaration if they are “new D2” holders.
The logic here is that the EU is complaining in part about lost tax revenue. By pushing these holders to become fiscal residents, the tax issue is reduced to some degree. With NHR, this isn’t a big deal for Portuguese visa holders in their early years of residence.
My lawyer’s take on this is that this “new D2” allows the government to kill the thing called a golden visa, but to construct a visa with many of the same characteristics almost immediately; the only difference will be that buying real estate won’t be allowed as an investment for new holders.
The firm is somewhat politically connected, but I don’t think this is a revelation of a state secret; I think it is cynical projection after a close read of the landscape. Take the rumor with the usual grain of salt.
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It may to premature to even discuss this rumour. It sounds like this is a backstop idea being tossed around by the government in case their original plan is rejected (as it should be).
I would want to be careful to make sure that we have equivalent terms and rights under any such new D2 as are existing under the ARI.
For example, adding a provision to the D2 law something to the effect:
any person (including those under family reunification) originally granted residence under Article 90-A are exempted from the stay requirements pursuant to 65c (as it existed as of Jan 1 2023) and such persons (including those under family reunification) qualify for a permanent resident permit for those who have held a Golden Visa (or equivalent under D2) for at least 5 years pursuant to Article 65-K of Regulatory Decree no. 9/2018 11 September (as it existed as of Jan 1, 2023).
Edit: to be clear, Article 80 of the law of 2007 grants Permanent Residence. Article 65-k is important because it eliminates the stay requirements for GV with respect to Permanent residence. If they don’t include 65-k provisions into the D2 law, then those would be lost. Sorry, i was in a hurry.
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I wonder if they can say “you have 3 renewals to make your endgame choice” without it being unconstitutional. give everyone a reasonable GV runtime, but not open ended.
But, agreed with other posters, why would anyone want to just keep their GV forever? Because they love paying the fees?
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I have no idea what a renewal costs, I assume from the response it’s the same as the first application ( I haven’t got to pre-approval yet…I assumed thereafter it was an easy rolling process )
I don’t want citizenship, just to live in PT
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D7 might fit your purposes better then
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Completely agree GB.
FOR ALL ON THIS FORUM. I am noticing the articles we are seeing in the press are addressing the constitutionality of what is proposed and it seems to slant towards the Government of PM Costa’s claim that 2/16/2023 was the cut-off date for Golden Visa applications, which is purely unconstitutional under Article 18. Understandable that is the easiest to discuss. IMHO Asked and Answered.
**What we need to focus on getting out there from a legal standpoint is the longer term rights that all Golden Visa/Golden Residence Permit/ARI Investors have through their trust and confidence placed in the Government at the time we made 100,000’s of Euros in purchases, got our paperwork together and got application numbers through the ARI portal.
It was not for a month, a quarter, a year, it was for at least 6 to 8 years depending on how fast SEF acted on our applications, residence permits, renewals and permanent residence. We MUST NOT lose sight of this or many of us are going to lose one or more of the implied guarantees under the various articles I outlined of the constitution. We are talking about a long term relationship with clear parameters, not a casual dating thing that can change as either party sees fit
We went the GV/ARI route because we could not move to the country for 183 days and we wanted a path to Permanent Residence and eventually citizenship. Those are our rights under the constitution as I laid out in my long post yesterday. There should be no question as to the unconstitutional nature of changing the ARI in such a way that the requirements change any of those rights such that they disadvantage even one person per Article 13 and/or Article 15.
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I’m with garrett, you may have chosen the wrong visa.