Some users have had success suing the sef to get timely preapproval and such. Certainly much faster than waiting
Garrett - Can you explain this strategy to me? On what grounds would I have to sue the SEF?
I did this all via Prime Legal - my Portuguese real estate lawyers. I was recommended to them via somebody I met here on Nomad Gate. If I wanted to sue the SEF, what would my POV be? What have they theoretically done wrong at this point? Thanks very much.
Currently theyāve done nothing wrong to you. Which is why I say have the suit ready for as soon as they take longer than theyāre allowed for preapproval, which they almost certainly will.
I am fairly certain thereās a legal time limit for preapproval, @cj807 can comment more authoritatively I think
Garrett - are you saying that 90 days is the legal limit, and this whole entire ~2 years waiting process is technically illegal? thus the ability to sue?
The law says 90 working days from biometrics to final approval (assuming you get approved) - it gives you very strong standing when you go to court to demand instant approval under the law.
I asked this very same question multiple times to my lawyers, I got the same response each time 'no, the 90 business-day rule only applies to the initial analysis - preapproval- ā They told me SEF has 9 months to make a decision on final approvals.
I think the question of these deadlines is murky at best. People seem to have settled on periods of 60 days for pre-approval and 90 days for final approval. But itās not clear to me where these come from.
Article 82(1) of Law 23/2007 of July 4, as amended, says āthe application for a residence permit shall be decided within 90 daysā. But when is the āapplicationā? Is that the initial filing, or the biometrics session itself? After all, the in-person appointment isnāt just for biometrics - weāre submitting a sheaf of forms, signing them in front of the SEF officer, etc.
Consider the SEF manual. It talks about five parts of the process: (i) reception of documents, (ii) analysis/instruction, (iii) Regional Directorās decision, (iv) security control, (v) National Directorās decision. The manual says echoes the Law: āAfter receiving the completed documentation, the following steps must be observed within a maximum period of 90 days.ā The steps described include checking the documents are complete, preparing a draft report, getting RD sign-off, sending it up to the National Directorate, etc. It goes on to describe the Decision process (notification, payment etc) and specifies āscheduling within 10-60 days for the collection of biometrics, if is has not been carried out at the beginning of the procedure, at the request of the interested partyā. So the 60 days seems like a red herring - it applies in the unlikely event biometrics hasnāt already been done.
Then thereās a bit of case law at the SEFās helpful Legispedia site (LEGISPĆDIA SEF - Artigo 82.Āŗ ā DecisĆ£o e notificaĆ§Ć£o) that seems to suggest that the initial application is only an āexpression of interestā which does not ātrigger the administrative procedureā, and that the SEFās duty to make a decision only exists when they decide to open the administrative procedure.
My interpretation then is that the formal process kicks off at the in-person session, when the forms are signed. Then SEF has 90 days to decide. (NB these are business days, not calendar days - thatās set out in DL n.Āŗ 4/2015, de 07 de Janeiro at Article 87(c))
Article 82(3) also introduces the idea of tacit approval - that if SEF fails to meet the deadline, the permit is granted automatically. Reading Art 82, Iām pretty sure this only applies to renewals, not the initial issue of a permit.
So my feeling is that the SEF is under no time constraints to give pre-approval, schedule biometrics or conduct biometrics. I think they have 90 business days from biometrics to decide. But the only remedy is to file suit at that point.
Having said all that, it seems that courts are ordering SEF to issue pre-approvals and schedule biometrics. Iām not clear on what legal basis thatās being decided. Iād be interested to learn more on this, as this feels like an area I havenāt fully understood. (And eg itās the opposite of what servetttasmanās lawyer says.)
Is there any way to get a copy of the court decision to see the courts thinking on this?
Not sure. There is a court rulings database at http://www.dgsi.pt/home.nsf?OpenDatabase
This seems to cover:
Supremo Tribunal de JustiƧa (Supreme Court of Justice)
Tribunal Constitucional (Constitutional Court)
Tribunal Central Administrativo (Central Administrative Court)
Tribunal dos Conflitos (Court of Conflicts)
Tribunais da RelaĆ§Ć£o (Courts of Appeal)
Tribunal Central Administrativo (Central Administrative Court)
But I donāt think it includes lower courts (Tribunais de Primeira InstĆ¢ncia) where Iām guessing most of the regular cases are heard.
The case I mentioned above is at AcordĆ£o do Tribunal Central Administrativo
Perhaps one of the lawyers on this community can point us in the right direction to educate ourselves.
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