Hi, just now reading this discussion (and I am Russian). How can âsummarily deniedâ be constitutional if this represents direct discrimination based on personâs nationality/country of origin? And in your view, the fact that it only applies to a couple of nationalities should alleviate other peopleâs fears as if itâs no big deal that some groups of people would be considered inherently inferior? Any such discrimination is explicitly banned both in Portuguese Constitution and EU laws, as well as the Universal Declaration of Human Rights. The only restrictions that can be legal are those introduced against sanctioned individuals, and certainly not âsummarilyâ. Having said that, SEF is in fact discriminating against Russians since in the 15 months after the start of the war SEF has not issued a single first-time ARI residence permit to Russians (per the info on their website), all the while issuing D7 and other permits. I see no logic in their decisions and no respect to investors of all nationalities, and not just Russians. If this is not a red flag for anyone, I donât know what is. Weâve done âour homeworkâ back in 2020 and still havenât gotten anything back after investing a huge amount of money. There will be legal actions if they introduce retroactivity.
Can an entire country be considered sanctioned individuals?
A sanction is a punishment for an offence. Punishing an entire nation is collective punishment which is explicitly considered a crime and is prohibited by The Geneva Convention. No one can be punished for an offence they did not personally commit, or for an offence committed by someone else. Sanctions against individuals is not the same as sanctions against a country which apply against specific government entities, companies and positions that are directly responsible for crimes and offences.
The EU Convention on Human Rights says: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. https://www.echr.coe.int/documents/convention_eng.pdf
The Portuguese Constitution has a similar provision and anything like selecting and treating individuals differently based on their inherent characteristic which they cannot choose (like country of birth) is illegal. You may also want to check the definition of âracismâ - a prejudiced and discriminatory treatment of people based on race or ethnic group.
My point is that if this draft law is going in the direction of the de-facto discrimination, this is a real cause for concern for anyone, since then discriminatory treatment can be applied to others as well, once the precedent is set. Hence I am appalled at your statement that there is not much to worry about if the amendments will âonlyâ affect people from Russia and Belarus who will be âsummarily rejectedâ (which equals collective punishment and explicit discrimination based on nationality/ethnicity). However, I believe that your interpretation is wrong and Portugal will never adopt such clause in the meaning that you implied. It will and should be applied only against sanctioned individuals, like I said before. You may check out EU sanctions which are imposed only against âlistedâ individuals with respect to any country: EU Sanctions Map
As far as I can see, the current PS draft doesnât deny permits to Russians and Belarusians in general, just those specific individuals who are subject to EU sanctions. This is covered in Article 77(2), which currently says
âPode ser recusada a concessĂŁo ou a renovação de autorização de residĂȘncia a nacionais de paĂses terceiros, alvo de medidas restritivas da UE.â
or (translated)
âThird-country nationals who are the subject of restrictive EU measures may be denied the granting or renewal of a residence permit.â
Yes, exactly. I was responding to this incorrect interpretation which I believe portrays Portugal is an unduly negative manner and dismissively talks about perceived discrimination.
To my knowledge, based on articles in the Portuguese news media, Portugal has suspended all visa issuance for targeted nationalities for quite some time now. This is even after soliciting their investments and collecting their fees. I consider that bitterly disappointing and illiberal. It seems incongruent with the âEuropean valuesâ that Iâve heard so much about.
I believe national security considerations trump any other concerns, which I am sure the above-mentioned nationals have full experience and understanding of given the countries in question.
Hello Olga,
Unfortunately you are mixing various types of visas and not reading the whole text of the Portuguese Constitution coupled with the actions of the EU in response to Russianâs special military operation in Ukraine which the EU, over a majority of the UN General Assembly and the G7 nations have agreed is an illegal invasion of a sovereign country. Whether that is a war depends on which side you ask, I guess.
You are correct, individuals do have separate rights, but exercising those rights by means of various agreements between countries can be eliminated, curtailed or outright stopped, such that the ease and time it takes to exercise those rights can become difficult and long. Many call it a slow roll process of any action.
The thing that everyone forgets is the Portuguese Constitution does allow for those stated rights in the Constitution to be limited. This is done primarily through Part I âFundamental rights and dutiesâ Article 18 No. 2 which states, âThe law may only restrict rights, freedoms and guarantees in cases expressly provided for in the Constitution, and such restrictions must be limited to those needed to safeguard other constitutionally protected rights and interestsâ.
In this case, the Portuguese Constitution in many places which first appears in the Fundamental Principles of the Constitution, i.e the Preamble from which the state derives its existence/authority/etc. refers to maintaining International Relations (especially regarding the EU) as outlined in Article 7 International Relations: Nos 5 and 6,
â5. Portugal is committed to reinforcing the European identity and to strengthening the European statesâ actions in favor of democracy, peace, economic progress and justice in the relations between peoples.
6. Subject to reciprocity and with respect for the fundamental principles of a democratic state based on the rule of law and for the principle of subsidiarity, and with a view to the achievement of the economic, social and territorial cohesion of an area of freedom, security and justice and the definition and implementation of a common external, security and defence policy, Portugal may agree to the joint exercise, in cooperation or by the Unionâs institutions, of the powers needed to construct and deepen the European Union.â
Also in the same Fundamental Principles under Article 8 International Laws it states, (please take special note of no. 4)
- The norms and principles of general or common international law form an integral part of Portuguese
law. - The norms contained in duly ratified or approved international conventions come into force in
Portuguese internal law once they have been officially published, and remain so for as long as they are
internationally binding on the Portuguese state. - The norms issued by the competent organs of international organisations to which Portugal belongs
come directly into force in Portuguese internal law, on condition that this is laid down in the respective
constituent treaties.
4. The provisions of the treaties that govern the European Union and the norms issued by its institutions
in the exercise of their respective competences are applicable in Portuguese internal law in accordance
with Union law and with respect for the fundamental principles of a democratic state based on the rule of
law.
In the case of visas which as a member of the Schengen Treaty which became an EU law in 1999 ( EUR-Lex - schengen_agreement - EN - EUR-Lex (europa.eu), Portugal as a full EU member must follow all laws, treaties, conventions, directives, etc. unless they wish to go against them (which has its own repercussions, just ask Poland and Hungary). Portugal was an early member of the EU and is faithful to its constitution in following what the EU legislates, directs, etc.
So now, for visas which are essentially allowances under the EUâs Schengen Area law. There are many different types from short stay, multi-entry and longer terms. The longer the visa for which you are applying the more restrictions and diligence is applied to the visa. However in the case of the ARI program, also known as the Golden Visa there was an early and special call by the EU after the conflict in Ukraine.
In the case of Golden Visas (in Portugal called an ARI program) the EU Commission put pressure on the EU member states in March 2022 to eliminate all Golden Visa programs for all the reasons we have all heard over the past 6-12 months. But in the commissions communication it stated, " * Suspend the issuance of residence permits under investor residence schemes to all Russian and Belarusian nationals. Commission urges Member States to act on âgolden passportsâ (europa.eu).
**Portugal did this and was already taking steps to follow the elimination of the ARI program/Golden Visa based on what was coming from the EU.
This is the reason I stated that any application by a Russian or Belarussian would be summarily denied because the EU has said to do this and Portugal has confirmed it is following that EU guideline which is also why we have all gone through such hell over the past 6 months over our ARI investments and the process.**
Now that temporary resident permits or permanent resident permits were addressed for Russian and Belarussian nationals. On September 9, 2022 all EU member states agreed to take measures to suspend the visa facilitation agreement with Russia in response to the conflict in Ukraine. Council adopts full suspension of visa facilitation with Russia - Consilium (europa.eu). This was then followed by guidelines to the EU member states to help them coordinate without the facilitation agreement. Guidelines on stricter visa processing for Russian citizens (europa.eu).
As for retroactivity for Russian and Belarussians who have a temporary residence permit there is EU statements that those should not be renewed. Your guess is a good as mine how this will all play out.
As you and others state whether this entire process is legal, I would imagine that all the countries who have put such restrictions in place have done it ensuring they were not breaking the law or walking right up to the line. As to the individualâs right that is a case to take up in Portugal, the EU and then the UNHRC. My experience in the precepts, concepts and foundation of the changes to existing laws during an invasion of a recognized sovereign nation/territory (essentially a war) is old and my books are not with me.
In your case, I would definitely make sure you are talking with your Portuguese lawyers to see what avenues you have.
Best of luck,
Joel
Correct. That is essentially how the UN, EU and then Portugal are restricting rights I outlined below, however they use other legal measures to achieve that goal. Once a person is in the Schengen Zone under a visa you can move freely between countries for the defined period visa period. Therefore they are limiting access to any country to protect the whole.
Thank you for your response. No, I am not mixing the types of visas. In the case of ARI, it is not âgoverned by means of agreement between countriesâ and therefore there is nothing that can be canceled between Portugal and Russia or Belarus. In the recommendation that you cited (which has no legal power, by the way, and cannot precede the national laws) it is stated:
Banning all Russians an Belarus citizens would be against the principle of proportionality, fundamental rights and the national law of Portugal. On top of that, no law can contradict the Constitution of a country.
Having said that, I do believe that Portugal will uphold the European values and the Human Rights Declaration and will not adopt any such discriminatory measures. With this, I will allow myself to exit this discussion, and if you still prefer to believe that it is correct and legal to discriminate against the whole nations, it is up to you. I just wish you to never experience anything like that with respect to your nationality and in the time when you hoped to escape a dictatorship, having fulfilled everything that you were supposed to (almost 3 years ago) and being given nothing in return.
And yes, Iâve been seeking legal advice and so far every single lawyer I talked to shares the above opinion.
My beliefs are entirely separate, I was just outlining what I have read and been told regarding limitations on ARI investor visas for Russian and Belarus citizens and the legal framework being used. Unfortunately the additional evaluation with regard to the withdrawal or denial is probably not that well known or being followed because the veracity of its implementation would be hard to check.
I hear and read the blanket statement of no Russian or Belarus citizens can get ARI temporary resident permits and those with them should be denied upon renewal. Hopefully when that happens an education process can take place.
Again, I wish you best of luck in getting your situation resolved. Yours is a difficult situation.
Thank you, Joel. Appreciate your sympathy.
I do agree that discrimination is bad which is why a great many people from a great many countries are queueing up to get out now, lest they end up being discriminated against once their own governments become excessively annoying.
Malta is also refusing Russian requests for passports and investment visas. Yes it is discrimination. And they are using Fatca, AML and banking due diligence as well. But they are renewing standard work visas, as probably are Portugal.
No one is denying Russians ânormalâ visas - but these investment programs are by their definition special and reliant on background checks, which can be used to justify pretty much any result.
Individual nationality and visa decisions in most countries (esp the US) are not subject to any law based review because they apply to âforeignersâ (residents, even if foreign, are treated differently). Germany and a few other countries are honourable exceptions to this.
Unfortunately, in this case, âcollectiveâ punishment is the goal to create tension within the elites of Russia. As much has been said by many a Western politician.
However, denial of a visa does not generally fit the bill of âpunishmentâ.
I agree with what you say except the last phrase. Taking money, fees and taxes and not giving anything in return simply because of the âwrongâ nationality - how would you qualify this?
That definitely seems like a punishment, but the EU and its member states will likely be seen as on the right side of history here.
From other posts, I read that SEF is still processing GV applications filed in late 2021. BTW, do you know whether approved Russian GV investors can get their residence cards renewed. It is unfair. But in the worst case, can Russian GV investors living in Portugal switch to other types of visas to stay and wait for the situation gets better?
I see it as unjust. But I am pretty sure the money will be returned if you make only that demand if and when your visa is turned down.
And if you bought a house you may have turned a profit. I think I have.
Sincerely,
If you are in Portugal and ready to work try for a normal work visa. I do not know what the story is in Portugal but it appears that these types of visas are not yet embargoed.
Dear Olga,
I wholeheartedly share your opinion, but I would like to add the following observations:
In Portugal, as well as in several Eastern European Union countries, the prevailing notion has become that someone is inherently better or worse based on their place of birth. This manifests in the direct discrimination faced by many individuals born in Russia or even the former Soviet Union on multiple levels.
In Portugal, this discrimination extends beyond the issuance of golden visas. Based on the information I have, even those who arrived on D visas do not receive the actual plastic residency card, which would enable them to freely move within the EU and conduct activities in other countries.
Thus, Portugal does not openly acknowledge its violations, but in reality, you are deprived of the opportunity to conduct business beyond the countryâs borders. I assume that, like myself, your participation was aimed at accessing the EU as a large market and experiencing the cultural diversity, despite the advantages of staying in Portugal.
Regarding how some individuals on this forum attempt to justify the blatant discrimination by referencing vague and contradictory statements, I want to emphasize that it only characterizes these people as supporters of a policy that promotes racial superiority based on birth. No person who has experienced discrimination can accept or justify what is happening as a âhigher justiceâ or a ârighteousness of history.â
As a gay man, a Jew, and a refugee from the war, currently living with my Russian husband and being a descendant of Polish refugees during the Soviet occupation, I have built my business in Europe and brought capital here that far exceeds the capabilities of any other European. I want to ask those who justify discrimination: which one of us is more European? And if I were to obtain German citizenship, would Portugal dare to behave in the same manner? No.
Those who advocate racial superiority would probably respond to me, âWell, then leave if you donât like it here.â This is often encountered in Eastern Europe.
However, the essence of my position is that once this âpandoraâs boxâ is opened in Western Europe, there will be no turning back. There is a modern concept of global order where people are helped to develop by granting visas for education, work, humanitarian reasons, or investments (which is also excellent! Where does the hatred from socialists come from? After all, external capital was brought to you, and jobs were created). Currently, in Europe, with the influx of refugees who do not contribute (there are no complaints against them, just an observation), but when Ukrainians, Russians, or Belarusians come and work hard to improve their lives, they encounter obstacles and various baseless justifications. What future does such a society have if there are no ideals or aspirations? If Portugal and Eastern Europe will become the countries they were before the EU. If we look at recent history, was life there any better?
Fortunately, there are many countries that issue visas perfectly well, including to citizens of Iran who have been under sanctions for over 40 years.
I can think of another method which may work, which is simply obtaining another CBI, renouncing your ânativeâ one (i.e. RU or BY) and then renewing your PT GV. Hope SEF IT systems would not break down on seeing thisâŠ
Some CBIs can be obtained faster than the wait for biometrics, I have tested this 