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D7 residency reqs - how strict for EU travel


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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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(@old-bloke)
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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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17 Replies
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(@jeanne)
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@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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(@emergentt)
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@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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(@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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(@thomasribatejo)
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Further to @old-bloke's last point, even if you don't register in Spain (as you are legally obliged to, although many people don't realise, or actually do this), your accommodation is obliged to register all guests with the Spanish authorities... so in the absence of any clear confirmation that it won't track back, it would be advisable to assume that being in Spain will become visible to SEF, however you enter, if you stay overnight in recognised accommodation.  Better safe than sorry!

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Premium Member
(@emergentt)
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@thomasribatejo thank you. Appreciate it. Seems like it’s easy to track us anywhere. Good to know.

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(@thomasribatejo)
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@emergentt I think it's relatively easy in theory, but in practice the joined-up-ness is not always there.  However, it's best to know that there is a process by which this could track back, and take decisions accordingly.

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(@emergentt)
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@old-bloke thank you again.   Very helpful.

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(@vianina)
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@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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(@thomasribatejo)
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@vianina one of the established purposes of SIS is exactly in relation to migration, in the context of the abolition of border controls.

"A criação do Sistema de Informação Schengen (SIS) constitui uma das principais medidas adotadas para compensar a abolição do controlo nas fronteiras internas. Trata-se de uma base de dados comum aos países que integram o espaço Schengen, e que possibilita às autoridades nacionais responsáveis pelo controlo de fronteiras, pela imigração, pela aplicação da lei e pela emissão de vistos desses Estados, o acesso a informações sobre pessoas (não autorizadas a entrar e/ou permanecer no espaço Schengen, a deter, desaparecidas, notificadas para comparecer perante uma autoridade judiciária ou a submeter a controlos discretos ou específicos, entre outras) e objetos (documentos em brancos ou já emitidos, veículos e chapas de matrícula, armas, notas de banco, entre outros)."

I imagine it won't red-flag people in some automatic way; however, SEF could quite legitimately use to see whether you're compliant.

(PNR is maintained for serious crime/terrorism, not immigration purposes; and as you rightly say is anonymised and then deleted.)

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(@vianina)
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@thomasribatejo , this is the limiting part in what you cite:

, o acesso a informações sobre pessoas (não autorizadas a entrar e/ou permanecer no espaço Schengen, a deter, desaparecidas, notificadas para comparecer perante uma autoridade judiciária ou a submeter a controlos discretos ou específicos, entre outras) e objetos (documentos em brancos ou já emitidos, veículos e chapas de matrícula, armas, notas de banco, entre outros)."

in other words, the SIS does not hold info on ordinary citizens, and therefore logically SEF can’t use it to count people’s residence days.

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(@thomasribatejo)
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@vianina 

I don't read that as a limitation (there's no "only"), and the first section (pessoas) ends with "entre outras"...  Nothing states that it cannot be used for the purpose we're talking about.

I could answer at more length (having read much about this topic), but put simply: I would advise anyone with conditions on their visa or residency to take no chances, and make no assumptions.  SEF are entitled to use legitimate means to check compliance - and whether it's using SIS, or a bilateral relationship with the Spanish equlivalent, or something else, is beside the point in the end.

There is anecdotal evidence of people being asked to explain absence (@old-bloke is not the first to have said this).  So, I cannot advise someone to assume their comings/goings won't be tracked - I believe they may well be.

If I am wrong, at worst I have advised compliance with the relevant law/conditions...

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(@vianina)
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@thomasribatejo , if you don’t see a limitation in the text you site, there’s always EC 1987/2006:

Article 21

Proportionality

Before issuing an alert, Member States shall determine whether the case is adequate, relevant and important enough to warrant entry of the alert in SIS II.

Basically, the SIS stores alerts on people of interest. (It also expressly excludes EU nationals.) There is no reason to think it spies on ordinary people’s cross-border movements, but the good news is that anyone interested may apply to the data protection authority of his Schengen state of residence to see exactly what the system has on him. 

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(@thomasribatejo)
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@vianina I think we're at risk of perpetuating a discussion (and I have no wish for an argument) which doesn't help the original poster, who didn't ask about specific systems, but the general strictness.

I responded to the SIS discussion because, in my reading of it (from the SEF site, and from EUR-Lex), we cannot rule out SEF's ability to use it; and that even if they don't use SIS, they can access information on movement elsewhere, as there are several data sets in existence.  These are mostly passive, not generating alerts or spying, but some will be available to be accessed by legitimate bodies like SEF.

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(@vianina)
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@thomasribatejo , what the OP asked for, I think, was factual information. "Cannot be ruled out" is applicable to almost any situation, but where in your reading, especially of Eur-Lex, did you find anything that would suggest that specifically SIS could contain any data on otherwise blameless people's border crossings inside Schengen?

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(@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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Premium 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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VIP Member
(@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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(@vianina)
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Joined: 1 year 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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(@vianina)
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@old-bloke , agreed

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Posts: 120
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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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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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