How does a law firm not consider changing which visa we get as retroactive?
In the interim between the 30 March announcement and the announcement on Friday I reviewed 100ās of cases and their results that were filed in the past 15 years. While pleaded every time in such cases, retroactivity is not the silver bullet we all thought. The reason being if you really apply retroactivity, then any law that impacts people in a way they deem bad cannot change.
The best argument alongside retroactivity that won most of the time before the Constitutional Tribunal (court) were those of protection of trust as implied by Article 2 of the constitution. In essence, this means that the outcome you planned on via the current law needs to be the same if that law is changed. That is what the government is doing via this change. I do not feel as it is being done as clearly or concisely. Also the lack of a clear definition of this special D2 visa for former ARI investors is that in2-7 years from now memories will have faded and the courts will be needed to hopefully call on this history in a favorable manner.
The process is not done, so there is still hope, but we need to put pressure on people to get this cleaned up to save us time, money and frustration in going to the courts in the future.
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You are both too kind, but they would fire me for being too clear and concise! 
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My own proposal:
a) junk all the governmentās drafting
b) replace with the following:
Law no. 23/2007, of July 4th, Article 90-A is amended by the addition of New Clause 4:
āNo residence authorization under this Article will be granted if the application therefor is submitted to the competent authorities after [date]ā
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That would have made life so much clearer for everyone not just ARI investors, but the government agencies that have to figure this out. I hope there is a decree about this new law that follows so we can see how they plan to implement at the ministerial, agency and departmental level.
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itās the fact that government does not use this obvious way to end GV make me really worry
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I share your concern. On the one hand, I understand that the government wants to be able to say āWe abolished GVs. See, no-one has a GV any more - theyāre all entrepreneur permits now.ā
But I suspect the clear distinction between already-issued GVs and to-be-issued GVs is intentional; and that the Government is trying to force the latter group to sell their existing investments and instead provide risk capital for innovative startups. Obviously, thatās not going to work, and I hope the community can force changes to that approach.
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On another forum a member has highlighted two additional requirements of a D2 visa.
- Holder to have an accommodation on lease for the period of the visa
- Holder to have health insurance
Whole the draft rules give a relaxation from the stay requirements and reduce them to 7 days per year, should we also seek explicit exemption from the above two requirements also.
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Requiring accommodation would run counter to their goals of scapegoating GV holders for competing with locals for housingā¦hopefully the special D2 is VERY special.
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And doesnāt one automatically become eligible to join the National Health Service with first card issuance ?
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Also makes you a tax resident, so you pay taxes in addition to the VERY special GV fees.
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FYI @tkrunning has put up an article on the ending of the GV at Final Proposal for Ending Portugal's Golden Visa: How To Apply in Time
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Does it automatically, even if you donāt live there?
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Might be hard to argue: yes, I have an apartment or house in your country. No, I do not ever visit it.
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You donāt need to argue that. Just that you donāt stay there over 182 days
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183 days is one path to being a tax resident. Having a permanent place of abode at the end of the year triggers a different path. Also, if you were later determined to be a tax resident but hadnāt been filing, you would bugger up the NHR.
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What if you have a permanent abode in two countries? Iām assuming you canāt be determined to be tax resident in both.
E.g. if you are primarily living and working in the US, sending your kids to US schools, I doubt just having a 12 month lease in Portugal would allow Portugal to claim you are tax resident there?
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Of course you can. Or three. Why have a dual tax treaty?
My understanding is that āmaintainingā a āhabitual residenceā in Portugal would trigger tax residencyā¦but Iām not convinced that having a āproperty leaseā but not using the accommodation more than 7 days pa qualifies.
One usually confirms a āhabitual residenceā by applying for NHR, without doing that I donāt know that coming on āvacation while maintaining a residence elsewhereā, would necessarily trigger residence? It will be interesting to see.
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