I can attest to that. I bought a property in the historic centre of Evora, and the permissions were an absolute nightmare. the redevelopment was delayed by more than 8 months
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You have no idea how frustrating it is for the developers themselves! They were literally ācrying on my shoulderā being stuck in the endless bureaucratic quagmire awaiting certifications, approvals, reviews, and, God forbid, any deviations from the original plans.
My apartment was held for 11 months after completion of all work before the final certificate of occupancy was issued!
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To this forum, I agree this proposed amendment to the existing law is an improvement over what Prime Minister Costa had stated in his press conferences with PowerPoints. However, my analysis of the proposed amendment as outlined to the 23/2007 of 4 July law (The Law) is as follows:
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Article 43
The revocation of the existing parts of The LAW as outlined is very thorough and complete in its removal of all sections that created the ARI scheme under which we all invested and were protected even revoking paragraph r) of paragraph 1 of Article 122 which in reviewing the laws before investing I did not even know existed. -
Article 44
a) In Paragraph 1 they have complied with the precepts of paragraph 2 (protection of trust) and paragraph 18, non-retroactivity of any new law enshrined in the constitution.
b) In Paragraph 1, hurry up, because the ARI schema and the laws which underpinned it will be revoked in a matter of months.
c) Paragraph 2 is a positive because as written it appears to be the way those that have gotten residence permits to date are allowed to renew under the ARI schema as we know it now (which is being revoked as noted above)
d) Paragraph 3 is a positive in that it accommodates family reunification as defined under Article 98 of The Law
e) Paragraph 4 is where the old and the new start to collide. In referencing paragraph 2 (c above) it appears to be positive, but then it states, "ā¦who meet the requirements set out in Article 80 of The Law in its current wording. In its current wording Article 80 includes ā1) d) have accommodationā which is good for those with housing real estate or can somehow claim accommodation, but bad for investments in which you cannot claim accommodation. There is more confusion created in that Article 85 āCancellation of Residence Permitā of The Law references in paragraph 2)a) the residence permit can be cancelled "Being the holder of a temporary residence permit , six consecutive months or eight interpolated months, within the the total validity of the permit. 2)a) of Article 85 is not excepted. Is this where the (7 or 14 day clause of paragraph 5 which has not been read yet trumps 2)a). Paragraph 2)b) and paragraphs 3 and 4 are excepted. This may have been covered previously and I missed it but with Article 43 revoking the ARI scheme, people are relying on references to a revoked law.
f) Paragraph 5 is where the old enshrined in paragraph 2 (c above) runs head long into the new (existing) laws of a non - ARI investment.
i) By stating, "the renewal determines the conversion of the residence permit into a residence permit for entrepreneurial immigrants (not ARI immigrants) under the terms of paragraph(no.) 4 of Article 89 of The Law in its current wording. The current wording of paragraph(no.) 4 is āA residence permit is granted to a third-country national who develops an entrepreneurial project, including the creation of an innovative based company, integrated in a certified incubator under the terms defined by decree of the members of the Government responsible for the areas of internal administration and the economy, provided that fulfills the general requirements of article 77, with waiver of the established in paragraph a) of its paragraph 1ā. Perhaps some ARI investors did this, but not if you invested in real estate or funds.
ii) Article 77 of The Law is lengthy but the problematic sections are paragraph 1)c) presence in the Portuguese territory (I doubt the 7days or 14 days are what is contemplated here but maybe this is why it is stated later?) 1)e)accommodation, 1)f) enrollment in social security, whenever applicable (the whenever applicable may negate the concern) . So we are back to at least accommodation, which is not a hotel stay.
iii) The exception of paragraph 1)a) of Article 77 may be appropriate because people will have a residence permit, not a residence visa when applying for a renewal, but the fact they got this detail right and others are confusing seems odd. -
Article 45
a) Applications in process but not granted temporary residence permits yet are still valid under paragraph 1 and 2 of Article 90-A (which is being revoked in Article 43). Awesome!
b) Paragraphs 1 and 2 of Article 90-A are lengthy but reference article 77 which has the problems outlined in 2(f)(ii) above which may be overcome with the 7-14 day of Article 44 paragraph 4, but accommodation is worrying.
c) Also paragraph 1)c) of Aricle 90-A states āregularize their stay in Portugal within a period of 90 days from the date of first entry into national territoryā. Perhaps this is where the 7 or 14 day stays in Article 44 paragraph 5 saves us, but why not make this more clear like was done when the ARI scheme was created.
d) Paragraph 1)d) of Article 90-A (which is being revoked) has to be the savior for the type of property, because it references the lengthy ARI list from Article 3 paragraph 1(d) of The Law which everyone has been using.
e) Lastly on this section, paragraph 2 of 90-A of The Law, states that the residence permit is renewed for a period of 2 years. Great! Howeverā¦Paragraphs 3, 4 and 5 of Article 45 got included and confusion starts.
f) Paragraph 2 - Great thanks!
g) Paragraph 3 is so confusingly written when its meaning is literally applied. It throws everything in the first 2 paragraphs of Article 45 (which were great wins!) into complete question because, āWith the necessary adaptationsā of paragraph 5 of Article 44 are not defined anywhere. Are we now D2 Entrepreneurial Investors with the requirements of paragraph (no.4) of Article 89. I hope not, I already invested and had my application accepted.
h) The fact that paragraphs 4 and 5 are included seems to reinforce the point that we are D2 Entrepreneurial Investors per the language of paragraph (no.) 4 of Artcle 89 of The Law, so I need to sell my investment and find a certified incubator.
i) Lastly, none of the list of agencies that will certify any of the investments is SEF or its successor agency APMMA the only possibly help is the line for āOthers that prove appropriate due to the matterā
j) In light of Paragraphs 3-5 how much longer will it take to get my application approved now?
In conclusion everyone got a win with this draft, NO DOUBT! However, the devil is in the details and until we all push the appropriate people to advocate for the details to be cleaned up we are not out of the woods. Any legal document should be written so it is clear, concise and leaves no confusion. If it does, you have failed. A wise person texted me to look at how clean and simple the real estate purchase contracts are in Portugal.
If we do not get these details cleaned up many of us could face very differing outcomes based on how the new laws are finally written and if unclear applied by whomever is sitting in a particular chair on a particular day.
P.S. For those doing cultural heritage. You are safe. I wish it had been available because I would have done it. However, the fact that avenue is still open seems a bit hypocritical because I thought all golden visas were to be stopped. I hope not, because many of them need funds.
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It IS very strange to carve out the cultural heritage pathway as being maintained under ARI. I almost hope they rename it because of that pending EU legislation. I want to be a real PR holder, not an investment visa second class non citizen!
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What pending EU legislation?
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More or less what weāve already heard but thereās a couple of new points regarding potentially retaining other types of investment programs apart from the arts, and a proposal to keep the program running in the autonomous regions.
Joel, thank you so much for your thorough and obviously time consuming analysis!
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Do we have any examples of investments that would be eligible under the new entrepreneur rules? Maybe a fund of Portuguese startups? I imagine the typical IMGA and other fund options are no longer applicable?
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Wait I missed some stuff-tldr please?
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@joelvogel , re your comment on Article 44 para 4: I think para 4 is fine, it merely carries forward the status quo (warts and all) regarding the ability of ARI holders to apply for an investment-based PR to the new regime.
The accommodation condition for PR was there earlier as well, in both Article 80 of the Aliens Act and Article 64 of the associated Regulatory Decree. The SEF page for PR also mentions accommodation as a requirement.
I suggest that Para 2a of Article 85 of the Aliens Act applies to temporary permits, not PRs. ARI temporary permits have an overriding 7/14 day special provision anyway. The exclusion of 2b, 3 and 4 is sufficient to protect investment PRs from getting cancelled for non-presence in the manner of regular PRs. This is exactly what the current regulatory degree excludes as well, in Article 65-K:
Citizens who hold a residence permit for investment activity and their family members, who meet the requirements set out in article 80 of Law No. of permanent residence, a residence permit will be issued for permanent investment activity, except for this regime as provided for in paragraph b) of paragraph 2 and paragraphs 3 and 4 of article 85 of the same diploma.
Ref: consolidated latest versions of the Aliens Act, Regulatory Decree. SEF page on PRs with ARI conditions
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Maybe you can double check my logic.
ARI is a temporary residence permit. No accommodation required, just an average of 7 days/yr in country.
Permanent Residence is one potential next step, but it logically requires accommodation as I imagine most countries donāt grant PR to people who donāt actually live there at least part of the year. Australia, for example, basically rescinds your PR if you donāt spend a certain number of months in country over the renewal period of PR (yes, you renew PR!) thus requiring accommodation.
I am not surprised to see this requirement for PR. Might as well go for citizenship if you donāt actually want to live in PT.
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Your logic is correct, in that most countries have mimimum stay requirements for PR (UK ILR, US green card, PT normal PR, EU long term PR, etc) and cancel the PR if they are not met.
However, Portugal, in addition to a normal PR, has a special āgolden PRā which can be availed after holding 5 years worth of ARI temporary permits, which is exempt from the stay requirements of the normal PR (Article 65-K in the regulatory decree linked above). One pays a hefty ~ā¬7k for the ARI PR, in contrast to a few hundred for the normal PR. Article 65-C (minimum period of stay) and 65-E (evidence for renewal of permit) appear to hold for both temporary and permanent ARI permits, so I assume that the ARI PR also requires an average 1 week per year of stay and maintenance of investment to be valid for renewal.
Given the low stay requirements for this particular variety of PR, IMHO it doesnāt make sense to insist on having accommodation, though I appreciate that the very term āpermanent residentā implies non-trivial residence and accommodation. Whether the accommodation requirement is justified or not, my point in the earlier post was that it is simply a continuation of the existing rules, not a new kink introduced by the proposed law.
Article 85 has an escape hatch for those with a normal PR; if they can āprove that during their absence from the national territory they carried out professional or business activities or activities of a cultural or social natureā they will not have their PR cancelled. This clause used to have the qualification āprofessional or business activities in the country of originā, which was omitted in the latest revision.
Note that the escape hatch is not available for ARI PRs, as that paragraph is among those exempted.
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There is apparently a new EU law (whether pending or actually passed to date Iām not sure) that will allow ANYONE who has been a legal resident of an EU member state for THREE (3) years to gain a new EU-wide permanent resident status which would allow them to live, work, study, travel, retire, etc throughout the entire EU.
My understanding of this is that such an EU permanent resident would no longer be subject to the 90/180 day limit for travelling within the EU (or Schengen area - not sure which).
It also means you would not have to wait for five years of PT residence followed by a successful citizenship application to have gained real freedom of movement within the EU.
Iām not saying that I would abandon the path to PT citizenship via the new special D2. But to my mind the special D2 is far preferable to having the old GV if indeed it effectively brings with it this added bonus of being regarded as a ānormalā resident of PT and not someone who got their residence via a GV. Because residence obtained via a GV is specifically excluded from this new EU permanent resident status.
To my mind if this goes through then this is massive!
After the good news, following weeks of worry, that the PT-GV is to be made into a special D2 entrepreneur visa - albeit with the same terms for investments, renewals, stay requirements, etc as under the GV - and I know we are still awaiting concrete clarification on this - I sincerely hope that being a resident under the special D2 (rather than under the old GV) will eventually also carry the added bonus that we will all be able to apply for the new EU residence after THREE (3) years of PT residence under the special D2.
If it transpires that this is the case then I will be applying for that EU residence on Day 1 of completing 3 years of PT residence.
I await with bated breath for final clarification on all these changes and what they may or may not eventually mean for obtaining an EU-wide permanent resident status after only 3 years.
There has been this thread on the subject - Proposed EU Long Term Residency Changes as Alternative to Portugal GV - #22 by PCERoman
ā¦ and this article - https://www.schengenvisainfo.com/news/meps-want-to-make-it-easier-for-third-country-citizens-to-obtain-eu-long-term-resident-status/
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Spark Capitalās views:
This weekend, we had major news from the government. This news, will accelerate the legislative process, allowing us all to see and clearer end to the program. As of now, these are the key aspects the government has revealed:
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It has been confirmed that there will be no retroactive effects, meaning that present and new applications can be submitted until the new legislation is in force. This ends the so-called rumor āGolden Visa applications after the 16th of February will no longer be valid or consideredā.
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Pending applications or future applications will be converted into an Entrepreneurs Residency Permit, with minimum stay requirements of 7 days in the first year and 14 days in subsequent two-year renewal periods. This means that, once the new law comes into force, your golden visa application will be considered asEntrepreneurs Residency Permit, retaining all its original requirement stays.
This important news, further bring two important insights we would like to share with you:
On one hand, one of the most important concerns for our clients has been cleared out: If you apply to the GV before the law changes, your GV will pass on as Entrepreneurs Residency Permit, retaining both its end (A Portuguese passport) and its advantages throughout the process (7 days the first year and 14 days on the subsequent two-year renewal periods). On the other hand, this new development accelerates the conclusion of this process: The legislative process has now lost one of its major obstacles: the possibility of the president vetting it for being unconstitutional. Because of this, we expect to hear definitive news when it comes to deadlines on the next update.
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Hi,
I wonder if there is any clarity yet on how āpending applicationsā are being defined?
For e.g., I have pre-approval and have done the biometrics, but do not have the card yet, am I classified as pending? What about my wife who has applied in June 2022 as a dependent, but is still waiting for her pre-approval?
Thanks
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I believe you would both be regarded as āawaiting a decision from the competent authorities on the date on which this law comes into forceā, so treated under Article 45 rather than Article 44. Although youāve done biometrics, you are still awaiting final approval.
That said, one of the many points on which there is lack of clarity is the treatment of dependents - while Article 44 covers family reunification, Article 45 is silent on this.
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I started a company in Portugal as part of my GV profess (March 23). I think the new ruling wonāt impact me since Iām technically a D2 without the residency.
@cj807 I think itās a matter of time before the draft law gets revised to remove ambiguity on the points youāve raised. In essence, it does strongly seem the law is headed towards all applicants being grandfathered into the GV process till the last day the law is in-force with the same condition.
@consultant2b Iād categorise a pending application as one where it hasnāt yet received its final approval (pre-approval + biometrics + approval). Iād say both you and your wife have applications āpendingā, as does anyone who has submitted and is awaiting a pre-approval (like your wife).
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Hope all the ambiguity which is still present in the draft law gets ironed out.
Do realize, also that even those who have been granted final residency, wonāt completely escape this retroactivity, because when they have to renew, they still might have to prove D2 compliant.
Perhaps the govt should hire @joelvogel to draft the law!
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