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D7 residency reqs - how strict for EU travel

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Posts: 103
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(@emergentt)
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Hello. 

My wife and I are considering the D7 visa. I will have to return every few months to the US to continue working. I have a question about the D7 residency requirements.

 

 

As I read the requirements you are required to be in Portugal for eight months interpolated throughout the year. So for instance a 4 month stay and then a short break and another 4 months stay.  I assume we will have NHR status but we will be paying our (higher) taxes in the US. 

My question is the following. During that four months stay can you leave Portugal briefly for a short trip to say… Seville or Barcelona? Would ground or air travel be different? I’m not trying to get out of residency requirements but I’d like to have the chance to go watch a football match in another country once in awhile. 

thanks

 

gene

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Posts: 2170
VIP Member
(@old-bloke)
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Joined: 14 years ago

Being pedantic, it's not you have to be in Portugal for 8 months every year, it's you can't be ABSENT from Portugal for 6 continuous or 8 interpolated months DURING THE VALIDITY of a temporary resident's permit.

Whilst that arrives at the same result as you have described above for the initial 2 year temporary permit, it doesn't for the subsequent 3 year temporary permit. An important distinction if you don't want to risk your permit being cancelled.

Sem prejuízo da aplicação de disposições especiais, a autorização de residência pode igualmente ser cancelada quando o interessado, sem razões atendíveis, se ausente do País:
a) Sendo titular de uma autorização de residência temporária, seis meses consecutivos ou oito meses interpolados, no período total de validade da autorização;
b) Sendo titular de uma autorização de residência permanente, 24 meses seguidos ou, num período de três anos, 30 meses interpolados.

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19 Replies
Premium Member
(@jeanne)
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Posts: 347

@old-bloke   yes, as old bloke correctly  points out, what are counted are days OUT of the country.  It doesn't matter if the days are spent in the USA or Seville or Barcelona - those locations are all out of the country and count equally.

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Premium Member
(@emergentt)
Joined: 1 year ago

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Posts: 103

@old-bloke Wow. Thank you for the clarification. That changes everything I suppose especially for the second temporary permit. So 8 months total absence for first two years and 8 months TOTAL absence in the following three years. Interesting.

Do you know how it is tracked? eg. my question of during my official "in Portugal time" can I go to Spain for the weekend or would the weekend count against my time absent from Portugal?

Also have you heard of anyone petitioning for professional duties requiring a longer absence? A few of the websites suggest that is allowable but I'm not sure I want to chance it.

Again thanks for your time and suggestions! Gene
 

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VIP Member
(@old-bloke)
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@emergentt 

SEF have access to the SIS (Schengen Information System - to be replaced by ETIAS next year). They do consult it, even for EU citizens as us Brits used to be. They asked me what my absence was for, it was one of the permitted long absences (different rules for EU citizens).

The 64 dollar question would be, do the Spanish authorities make an entry on SIS when a third country citizen with Portuguese residency registers their entry into Spain when crossing by land as required under Spanish law. If they do then that absence from PT would become visible to SEF.

Longer absences are also permitted under the non-EU citizen rules, they are referred to in Article 85 (paragraphs 3 and 4) albeit not as generous as those for EU citizens.

Article 85, Lei 23/2007

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Premium Member
(@emergentt)
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Posts: 103

@old-bloke thank you again.   Very helpful.

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Community Member
(@vianina)
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Posts: 47

@old-bloke , was your absence beyond the borders of Schengen? The Schengen Information System as I recall does not track people unless they are suspected of criminal activity. The Passenger Name Record, for air travel, does, but is supposed to be anonymised after 6 months. So I wonder how SEF got your info, unless you left Schengen.

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VIP Member
(@old-bloke)
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@vianina 

Yes it was outside the Schengen area (southern hemisphere). They had the record of my flight from PT to the UK and flight from the UK and my later return through the UK, they had no details of the rest of my travel after leaving the UK.

When you leave the Schengen area your carrier (ferry, plane, train) is legally bound to submit your details and passport number to the immigration authorities of the country of departure and country of arrival where it is recorded on SIS.

Whist the carrier can only hold onto your information for a specified period of time, the immigration authorities (and SIS) can hold onto it forever. 

Honest citizens have nothing to fear from SIS (or EITAS), it's just a record of their entry/exit that can be searched by approved authorities if the need arises (i.e. compliance with Schengen 90/180 rule). Naughty people however will trigger the alert system whereby they are likely to be met on arrival with increased scrutiny or arrest.

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Community Member
(@vianina)
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@old-bloke , thank you for the clarification. I know that there is a database on crossings of the external Schengen border, though I think it is separate to the SIS. The SIS is not even allowed to hold data on EU citizens, which I’ve always assumed (perhaps wrongly) that you were. But more to the point, there are strict criteria for creating an SIS entry. The French data protection authority provides a good summary, in English, as follows:

Information contained in this file

The second generation Schengen Information System ("SIS II") is a large database containing information on wanted or missing persons, persons under police surveillance and persons who are not nationals of a Schengen Member State and who are prohibited from entering the Schengen area, as well as information on stolen or missing vehicles and objects, such as identity documents, vehicle registration certificates and vehicle number plates.

The information on persons in relation to whom an alert has been issued shall be no more than the following:

  • surname(s) and forename(s), name(s) at birth and previously used names and any aliases, which may be entered separately;
  • any specific, objective, physical characteristics not subject to change;
  • place and date of birth;
  • sex;
  • photographs;
  • fingerprints;
  • nationality(ies);
  • whether the person concerned is armed, violent or has escaped;
  • reason for the alert;
  • authority issuing the alert;
  • a reference to the decision giving rise to the alert;
  • action to be taken;
  • link(s) to other alerts issued in SIS II in accordance with Article 37;
  • the type of offence.

The N-SIS II (national system) includes the following data:

  • marital status (surname, first names and aliases, date and place of birth), gender and nationality;
  • specific, objective, physical characteristics not subject to change, as well as an indication on whether the person concerned is armed, violent or has escaped;
  • photographs;
  • fingerprints;
  • the reason for the alert;
  • what to do in case of discovery;
  • authority issuing the alert;
  • the references of the decision which gave rise to the alert;
  • links to other alerts entered in the SIS II;
  • the type of offence.

For alerts on objects, the data recorded in the national computer system N-SIS II is as follows:

Nature, category, type, trademark; Serial number, registration or other identification number; Nationality or country of registration; Photograph(s) and date; Date of theft, loss, report of loss or complaint; Marital status of owner, complainant or holder; Additional descriptions and characteristics, including currency, face value and issuing body; Action to be taken in the event of discovery.

 

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(@old-bloke)
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@vianina 

Perhaps SEF were talking about Frontex rather than SIS (despite saying SIS) when they were discussing my permanent residency application with me.

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 JW88
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(@jw88)
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@old-bloke 

Hi

I have been reading your reply above which was useful. I would like to make sure I understand this correctly and is there any govt site we could refer to about this rule?

Am I right in thinking that when you have a 2-year residence permit you cannot be out of the country

for 6 continuous months for each of the first two years?

or 6 continuous months within the total two-year period?

  Does it matter if the 6 months falls into two fiscal years?

 

How does the situation work for 3 year permit?

We want to use Portugal as a base and do some travelling around Europe and as UK citizens and French residents we are subject to the 90/180 rule and we would be very limited in how we do this.

 

Hubby and I are interpreting it differently, hence the need for clarification.

Thanks in advance

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(@old-bloke)
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@jw88 

It is no continuous absence that exceeds 6 months at any time whilst holding a temporary resident permit, and no cumulative periods of absence exceeding 8 months during the validity of each temporary resident permit be that the 2 year one or the 3 year one.

If your intention is towards gaining a permanent resident's permit in Portugal you can't be absent for more than 10 months in total during the 5 years before applying for it.

Permitted absence periods are listed in Article 85, and conditions for getting a permanent permit in Article 126 of Lei 23/2007

UK citizens are limited to the 90/180 Schengen rule outside of their state of residence no matter which state they have residency in, so PT doesn't offer you any more flexibility than what you've already got with your French residency.   

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 JW88
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(@jw88)
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Posts: 10

@old-bloke   Many thanks

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Community Member
(@aspidistra)
Joined: 11 months ago

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Posts: 428

@old-bloke I've just been re-reading this and two things jump out. The first is, I didn’t know until I read this that for permanent residency you can only have been absent for 10 months in the five years, as the two year temporary visas allow more than this - as I understand it, you can be absent for 6 months each year for two years on the first temp visa. That is less than the two months only absence required by the permanent residency, It’s surprising and I wonder how many people realise that you could be assuming you would get your permanent visa despite not having been there enough.

The second thing is, I wonder if you can confirm from what you said that I understand this correctly, if I have residency in Portugal, temporary or permanently, I will as a UK citizen still have the 90/180 days visa going, so the temporary visa doesn’t ’use up' any of my 90 days which I can squander in other European countries every 180 days? 

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Premium Member
(@jeanne)
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Posts: 347

@aspidistra You CANNOT be absent for six months EACH year per residency permit. As @old-bloke indicates above, there are two conditions (1) no continuous absence that exceeds 6 months AND (2) no cumulative periods of absence exceeding 8 months during the validity of each temporary resident permit.

If you want to divide the absences equally, this would allow you max four months absence per year during your initial 2yr permit, and less than that per year during any subsequent 3yr permit.   

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VIP Member
(@old-bloke)
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@aspidistra 

To clarify, the 6 months continuous/8 months non-continuous are the requirements to maintain temporary residence. The 10 months relate to the condition for gaining permanent residence. So anyone using their maximum permitted absences allowed under a temporary resident's permit during the 5 years prior to applying for a permanent resident's permit won't qualify for it and will just get another temporary permit.
However that is the rule for third country citizens. EU citizens and Brits with protected rights under the Withdrawal Agreement are subject to different rules which is no continuous absence exceeding 6 months per year (a rolling year so being absent for the last 6 months of 2021 and the first 6 of 2022 wouldn't comply) there are some exemptions allowing longer absence (pregnancy, health, military/Gvt service). There is no 10 months in 5 year rule for them to gain permanent residency.
I would agree, the 10 month rule for gaining permanent residency is not widely published and I think a lot of people could get caught out by being unaware of it.

You are correct, days spent in your Schengen state of residence do not count towards your 90 day limit, only days in other Schengen states count. It applies whether you're in the initial 5 year residency period or have permanent residency. Just be aware that as a third country citizen (even one with PT residency) if you enter another Schengen state through an uncontrolled border you have to report your entry to the immigration authorities/police of that other state.

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Premium Member
(@jeanne)
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@old-bloke  Does the 10 month rule for gaining permanent residency also apply if applying for PT citizenship after 5 years?

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(@old-bloke)
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@jeanne 

I would guess not. To obtain PT citizenship you just have to have been legally resident in PT for 5 years. Even if you used your maximum permitted absences under the temporary permits you would still have been legally resident for those 5 years.

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Community Member
(@aspidistra)
Joined: 11 months ago

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Posts: 428

@old-bloke and Jeanne, gosh this is confusing. So you could qualify for citizenship but not residency, if I understand that right.

On another note I am realising my confusion about the D7 periods of absence is because Brits who were there pre-Brexit are allowed the same absences as EU citizens, I think, hence my having this idea about being allowed to stay away for 6 months. Which doesn’t apply to UK applicants now. Ah, to be able to set the clock back and have been buying my house two or three years ago, sigh.

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Premium Member
(@jeanne)
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Posts: 347

@aspidistra   I also wish I could turn back the ⏰.

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Community Member
(@aspidistra)
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Posts: 428

@old-bloke thanks so much, very helpful at clarifying as always.

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Posts: 47
Community Member
(@vianina)
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Joined: 2 years ago

Could it have been the Visa Information System (VIS) for third-country nationals with visas? That would indeed hold info on external Schengen border crossings, and SEF would have full access to it. Operational since 2015 and holds data for 5 years.

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VIP Member
(@old-bloke)
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@vianina 

Unlikely as I didn't need a visa to move to Portugal as a UK citizen in the pre-Brexit days.

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Community Member
(@vianina)
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Posts: 47

@old-bloke , agreed

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Posts: 428
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(@aspidistra)
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Hi all, while on this topic and apologies if it has been covered and I have failed to spot that. If you are going to be based in mainland Portugal, does being in Madeira and the Azores also count, so if I was notching up my months living there, could I nip off to either of those without it counting as being away?

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VIP Member
(@x-camone)
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@aspidistra Yes, that would be fine. You're not leaving the country if you go to either of the autonomous regions.

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(@aspidistra)
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Joined: 11 months ago

Ah that's good, thanks. I wondered as they are kind of autonomous regions on some things. Presumably that also means if you applied for residency in say, Madeira, you are could spend your time in Portugal mainland. 

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