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The new changes to the regime of entrance, stay, exit and expulsion of foreign citizens from national territory

The new Regulatory Decree 4/2022, of 30 September, implements what has been the promotion of relations between the territories belonging to the Community of Portuguese Speaking Countries (CPLP), through the ninth amendment, by Law 18/2022, to the commonly called “Lei dos Estrangeiros” (In english, “Foreigners’ Law”), which we have previously analysed and which you can (re)read here.

With the new changes, introduced at the end of last September, it is our duty to update this issue, in a more practical way and in a question-and-answer format.

What were the main changes concerning the latest regulatory decree dated 11 September 2018?

Article 8 aims at the importance of the prohibition of the return of a refugee to a country where he or she may be subject to persecution or torture, through the express reference to the principle of non-refoulement, with its paragraph 3 having been amended for cases of refusal of entry and return of an unaccompanied minor.

Still within the scope of the protection of the entry and exit of minors, the following articles are added (i) 8-A, which aims to guarantee access to the asylum procedure and subsidiary protection by the competent authorities to all foreigners who need or request it (ii) 8-B, which, through adequate diligence, requires the authorities to identify and refer minors and vulnerable adults to the competent services, namely the National Referral System for (presumed) Child Victims. Article 8b, which, through adequate diligences, entrusts the authorities with the identification and referral of minors and vulnerable adults to the competent services, namely the National Referral System for (presumed) Child Victims of Trafficking in Human Beings; and, finally, (iii) article 8c, which creates the presumption of minority, in case of doubt, to people travelling without documents.

In relation to the visa request, there is also a significant change in paragraph a) of number 6 of article 10: it is no longer necessary for the applicant, who is a citizen of a third State, whose official language is Portuguese, to be admitted in a higher education institution so that the applicant for a residence and temporary stay visa only needs to be a citizen of a State where the CPLP Agreement is in force or, furthermore, a citizen of another State to whom this dispensation is extended by international agreement.

As for the necessary documents to present for visa applications, as provided in article 12, the applicants for temporary stay or residence visas who are nationals of a State where the CPLP Agreement is in force, are now exempt from presenting a valid travel insurance, which covers necessary expenses for medical reasons, a proof of the existence of means of subsistence, and a copy of the return transport ticket, except when a residence visa is requested.

As for the extension of the temporary stay visa, it ends up being specified for all those who exercise a professional activity, subordinate or independent, by the provisions of article 49, provided in national territory or remotely to a natural or legal person with residence or head office outside national territory. There is thus a (necessary) reduction of bureaucracy in the procedure, namely as to the number of documents required, since, for example, the presentation of the company or service provision contract for the exercise of a liberal profession, whenever we are dealing with a remote self-employed activity, may be replaced by a document demonstrating the services provided to one or more entities.

Also, those who intend to exercise their professional activity, and who are holders of a residence permit for research, study, professional internship or volunteering, now have privileges regarding access to the procedure (article 58). This means that the requirement to communicate to SEF (Portuguese Immigration and Borders Service) with a request for substitution of the residence permit, accompanied by an employment contract, a contract for the provision of services or a declaration of commencement of activity with the tax authorities is no longer in force.

In addition to all these novelties, the new regulatory decree has also simplified the application process for the “Visa for Job Seekers” (i) the temporary stay or residence visas will now also have the purpose of the providing remote work and accompaniment, from the country of origin, of the family member who holds the respective visa, allowing the family to enter national territory, in a regular manner (ii) and the elimination of the existence of a global quota of employment opportunities to be fixed by the Council of Ministers, for the purpose of granting a visa to obtain a residence permit to exercise a professional activity.

Bearing in mind these and other changes that have come about this year, we have been able to show the importance that this new regulatory decree brings when it comes to strengthening relations between citizens of the CPLP Member States in Portugal and the so-called “significant boost” that the new Mobility Agreement has brought about, as well as the new procedures and measures that allow for a regulated and integrated immigration, enabling a better development of our country.

Marta Valente, Maria Beatriz Silva @ DCM | Littler