Wait time now counts toward 5 year residency?

Residencies & citizenships Portugal Golden Visa đŸ‡”đŸ‡č
82

Not to be overly pedantic, but I’ve only ever heard of jus soli meaning citizenship by birth within the state’s territory.

By residence is always called naturalization. Which is not uniformly 5 years in the EU. E.g. Spain allows naturalization in 2 years for anyone born in Latin America or Portugal. France allows naturalization in 2 years if you got a degree there. The Nordic countries allow naturalization in 2 years if you’re from another Nordic country. Italy and Romania allow naturalization in 4 years if you already have another EU citizenship. Etc.

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83

I think that the real objection by the EU all along has been that the RBI/CBI programs have been
indiscriminate. If you dig through the various memos/etc from the EU, they have called out some fairly lazy practices - no vetting criminal records or backgrounds, no followup on investments, no evidence of the investments having any sort of social good, no good documentation processes, just rando handing out permits to anyone with cash. Certain countries were called out by name as being particularly egregious.

So while we take the whole “RBI/CBI is selling our citizenship to criminals” as hyperbole
 like most things, there was something to it. It wasn’t all programs of course, or most applicants of course, but the bad apples always spoil the barrel. And of course while there were details and if you saw them it made more sense, stuff like this never bubbles up to the surface, all that makes it is news bites and hyperbole.

What has happened under the hood is that the processes around the programs have been cleaned up. Guidelines were issued by the EU saying " we wish you’d stop the programs entirely, but you need to do X Y Z at a bare minimum". That doesn’t mean the EU likes RBI/CBI, but it at least makes it tolerable.

The thing is, Portugal isn’t one of these countries. They have processes and procedures. We can’t necessarily extrapolate from our experiences in Portugal.

No, I don’t have references. I dug through a lot of memos and docs, but didn’t save any of it since I more or less blundered across it and was reading it for my own edification, and writing a whole report for the benefit of NG is well beyond the level of effort I’m willing to commit to. FWIW, it’s like anything else - there’s what you see as the high-line soundbites, but under the hood there is a lot of thought and work that goes into these topics, and a lot of memos from people and groups who are really trying to do the right thing. It’s not hard to follow the chain if you dig through all the committee reports and the like - it’s all public, just like all other EU reports and memos, but easily lost in the big online filing cabinets.

Underlying it all is of course a general belief that European citizenship is for people who care about Europe, who are invested in Europe in a cultural sense and believe in the European project. Many people in the EU still believe this and thus really do object to CBI/RBI, and frankly I would agree with it even. But this of course is hard to adjudicate - what does it mean? And so you get divergent answers. Just as people’s situations are individual and complex. </shrug/>

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84

A friend just forwarded me a statement from their lawyer suggesting that because it was not expressly stated in the proposed rule, we do not yet know if this change will benefit existing applicants or only new ones going forward. I would like to think that it doesn’t make sense to only benefit new ones, but I guess that is another ambiguity.

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For the record, what my lawyer said

it is only approved - not yet in force.
If the changes now approved by Parliament are promulgated by the President, under the new rule the 5-year count will start from the date of request for the residence title.

The information is still not entirely clear: It remains to be seen whether AIMA will consider “the date of the request for the residence title”, which could be the date of submission of the request on the AIMA platform or the day of the AIMA appointment. We’ll have to wait for the law to come into force for more clarification.

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Global Citizen Solutions recent Youtube post -

Portuguese Nationality Law Changed: Find Out How It Benefits You

  • Discussion around 7 day stay requirement around the 14:20 mark
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87

The news is quite interesting to follow. At this point anything could happen including the President vetoing the legislation. So I think it’s worth waiting for a few weeks or months to see what comes from this. Watching this video, Joana made me realize another compelling factor supporting the interpretation of many lawyers that the time to start counting is at the initial application point.

Changes to article 15 (adding now paragraph 4) of the Nationality Law establish that “for the purposes of the counting of the time of legal residency foreseen in this law, the time between the moment when the temporary residency permit was requested will also be considered, provided that it comes to be approved”.

4 - Para os efeitos de contagem de prazos de residĂȘncia legal previstos na
presente lei, considera-se igualmente o tempo decorrido desde o
momento em que foi requerido o tĂ­tulo de residĂȘncia temporĂĄria, desde
que o mesmo venha a ser deferido.

Some have suggested that for ARI this could mean either the counting starts from the moment of paying application fee for pre-approval or the moment of biometrics. If we were to assume that the latter scenario is correct; that the counting of time starts from the moment of biometrics then practically the language in bold “provided that it comes to be approved” could be argued to be pointless because it is the same documents used for pre-approval as for final approval. The requirements for criminal record and investments are provided and approved at pre-approval stage.

It would also make no sense to theorize that the moment of time starts at final approval because there is no request made by the applicant at that time. The only two points in time that a request (application) are made to AIMA are at the initial application stage and at the biometric stage.

In my estimation, the initial application is the correct time to start counting based on the wording of the changes to the nationality law.

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88

Practically, the huge delay is at least half with pre approval so it would be odd to have it start at biometrics

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89

I don’t disagree but the law takes meaning from the actual words used. Simply trying to use common sense is not necessarily a valid basis to interpret a law.

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90

Are you saying that “approval” actually happens before biometrics? I hadn’t considered that but I don’t recall having to submit any new information at biometrics that would have been taken into consideration and thus be subject to approval. Therefore the biometrics is only a step in the issuance of the card?

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No, i wasnt that clear I guess. I will edit my original post but I meant only that its the same documents submitted just updated so there is nothing further to approve. I would guess that practially no one is even pre-approved and then not receive final approval unless they don’t update documents.

92

This was discussed previously, in the law it actually says that you must be in Portugal to request a residence permit: ::: Lei n.Âș 23/2007, de 04 de Julho

Artigo 77.Âș

CondiçÔes gerais de concessĂŁo de autorização de residĂȘncia temporĂĄria

1 - Sem prejuĂ­zo das condiçÔes especiais aplicĂĄveis, para a concessĂŁo da autorização de residĂȘncia deve o requerente satisfazer os seguintes requisitos cumulativos:
a) Posse de visto de residĂȘncia vĂĄlido, concedido para uma das finalidades previstas na presente lei para a concessĂŁo de autorização de residĂȘncia;
b) InexistĂȘncia de qualquer facto que, se fosse conhecido pelas autoridades competentes, devesse obstar Ă  concessĂŁo do visto;
c) Presença em territĂłrio portuguĂȘs;

Which suggests that since you can apply for pre-approval outside Portugal, that cannot legally count as requesting a residency permit.

There was even a court case in 2015 where a GV applicant was denied because he wasn’t in Portugal at the time the application was filed by his lawyers (despite obviously being in Portugal later to do biometrics):

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/0184459ed0922987802583150034db3d

He fought the case to the supreme court which upheld the decision to deny his residency based the above law.

This is possibly why the application for pre-approval is no longer called an application for residency by SEF/AIMA anymore, but an application for “analysis”.

Based on this precedent, I would expect the time before biometrics to not count.

But I’m not a lawyer.

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93

There is certainly an argument to be made there, but I don’t see that being how it plays out.

Those are conditions for granting a residence permit, not for submitting an application, as the title of the provision indicates.

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94

It relates them - it says the permit can only be granted if you were in Portugal when submitting the application.

So if your permit is ultimately granted, then any step where you were outside Portugal (e.g. when requesting pre-approval) cannot have been the moment of submitting the application. Otherwise, it wouldn’t have been granted!

95

Well, I am going to disagree with that interpretation and leave it at that.

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96

See this jurisprudence: http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/0184459ed0922987802583150034db3d

  1. O autor esteve presente em TerritĂłrio nacional nas seguintes datas:
  • De 08/08/2015 a 19/08/2015
  • De 04/09/2015 a 11/09/2015
  • De 29/11/2015 a 12/12/2015
  • De 21/12/2015 a 16/01/2016.
    (cfr. documentos n.Âș 5 e 10 juntos com a PI e documentos de fls. 79, 80, 82 e 83 e 88 a 105 do PA).
  1. Em 17/11/2015, data em que apresentou o pedido de ARI, o autor não se encontrava em território Nacional (confissão e documento n. 5 junto com a PI).”
  1. The author was present in the national territory on the following dates:
  • From 08/08/2015 to 08/19/2015
  • From 09/04/2015 to 09/11/2015
  • From 11/29/2015 to 12/12 /2015
  • From 12/21/2015 to 01/16/2016.
    (see documents no. 5 and 10 together with the PI and documents on pages 79, 80, 82 and 83 and 88 to 105 of the PA).
  1. On 11/17/2015, the date on which he submitted the ARI request, the author was not in National territory (confession and document no. 5 together with the PI).”

He was subsequently denied.

I would be VERY happy to be proven wrong on this, I’m just curious how lawyers would reconcile this past case with the interpretation that time from the analysis/pre-approval application will count for citizenship.

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97

This is only good news IF residency is ultimately granted. We still haven’t seen a ‘22 application receive pre-approval.

98

Overall though, faster naturalization should mean people need to renew residency fewer times which should consequently reduce load on the system overall.

99

High quality analysis from @Garbonzo and @anonymous69 above.

Just to throw in another thought: Article 82 of Law 23/2007 sets out the number of days in which AIMA is supposed to decide on applications. As we know, these deadlines are routinely ignored. But I recall hearing about several cases in which a court has ordered SEF/AIMA to issue preliminary approvals and make biometrics appointments, presumably because they view Article 82(5) as having been breached. That suggests that these courts regard the initial online submission as something more than an expression of interest, and that it has the characteristics of an ‘application’ - or at least a ‘request’ (in the language of the new amendment).

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100

Just to add to the analysis above, the now famous Dispatcho that regularised stay for those who applied before 2022, would also imply that the initial application is more than just an expression of interest: https://dre.pt/dre/analise-juridica/despacho/12870-c-2021-176908200

On the other hand, this discussion reminded me of my recent visa renewal in a different country where you had to being a comple pack of documents to a table manned by a non-immigration person who would check all of the documents and give you a number to go inside. Once your number was called you would hand over the documents to an immigration official who would do the actual process. I assume they instituted this to speed up the process once you’re inside, but the person at the intial table had a lot of power in handing out those numbers and sometimes he would refuse to give someone a number just because he felt their visa wasnt due soon enough.

It feels like the ‘analysis’ step of the process was set up for a similar purpose give the original timelines set out for review of the documents, but obviously given the delays, this is not exactly fit for purpose. Still, it feels like it could be decided by the courts at the end of the day if AIMA refuses to consider the original application date as the date for the clock to start.

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101

Yes, but this law hasn’t been drafted with GV applicants in the forefront.