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Portugal permanent residency requirement

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Thought we would create a specific post for those of us on a D7 process. We are set to go to SEF this month for our residency permit which will be good for 2 years. We will then renew for a subsequent 3-year residency permit. Prior to the 5-year mark we have to make a decision.

Do we apply for another 3-year temporary residency permit while simultaneously applying for citizenship which can take up to 2 years?

Do we apply for the permanent residency permit which is now valid for 10 years and decide if and when to apply for citizenship?

We have been following the paths for almost 4 years now and things have changed. One caveat we heard of was the permanent residence time in country not aligning with the temporary residency requirements. 

This has been discussed on the forums on this post.

The question was asked to Cristina from Ei! on the "Everything you need to know about moving to Portugal Q&A with CRISTINA on the GMP! 25-07-22". Follow this link to the show. The question is brought up at the 1:17 mark. Don't forget to hit the Like, Subscribe and Notifications options so you can stay informed. Thank You to @CarlM for all he does keeping us informed.

We asked our immigration lawyer the same question and she replied in accordance with Cristina. We are waiting for her return from Holiday to get the full understanding.

Thank You to members @misticjeff and @old-bloke for sharing!

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 Bert
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Can't get that to pull up on my computer. If you are a dual citizen there should not be minimum residence requirement. Right? 
If you have permanent residence is there a minimum residence requirement different than 8 out of every 12 months? Thanks

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@bert If you are a Portuguese Citizen then this does not apply. This is for D7 non-eu folk specifically. A Portuguese citizen does not have these requirements as far as I know. They can declare residence outside Portugal for limiting their Portugal tax residence status I believe. That is what you have done as a dual citizen of the US and Portugal?

Yes, there is no limits on permanent residence like the 8 out of 12 months for the temporary residence. That said I did find the following "A permanent residence permit may be cancelled if the holder, without an acceptable justification, is away from Portugal for a period of 24 consecutive months."

I found that on a website but need to validate it with the current law.

 

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 Bert
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Thanks

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Posted by: @jonesdn2020

That said I did find the following "A permanent residence permit may be cancelled if the holder, without an acceptable justification, is away from Portugal for a period of 24 consecutive months."

I found that on a website but need to validate it with the current law.

It's contained in Article 85.2(b).

Note that it's 24 consecutive months or 30 non consecutive months in 3 years.

Article 85

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@old-bloke Thank You! I thought it changed for non-consecutive when the permanent residence changed from 5 years to 10 years. I didn't want to guess. I believe when the permanent residence was for 5 years the non-consecutive was 30 months over 5 years?

 

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@jonesdn2020 

Article 85 has been subject to two amendments since it was written in 2007, firstly in 2012 and then again in 2017, neither of which altered the text of 85.2(b).

I've not heard of a permanent resident's permit for non EU citizens being issued for 10 years, Article 77 still says they're issued for 5 years.
Permanent resident's permits for EU citizens are issued for 10 years.
I suspect their non EU family member might also get a 10 year permit as their initial permit lasts for 5 years to match the residency of their EU citizen spouse.

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@old-bloke 

This is actually fun! Brings back memories of taking an Intellectual Property Law course in college.

This is what I found. Law No. 23/2007, of July 4 including the amendments is not the final say. It always has this without prejudice wording.

I went to Article 75.1 to prove this. It states "Without prejudice to the applicable special legal provisions, the temporary residence permit shall be valid for a period of one year from the date of issue of the respective security and shall be renewable for successive periods of two years."

Knowing that is not the current law I went looking for it.

I found one instance of it Here

Publication:Journal of the Republic No. 122/2022, Series I 2022-06-27
Issuer(s): Assembly of the Republic
Source:DIARIO DA REPUBLICA - 1st SERIE, No. 122, de 2022-06-27, Page 2 - 291
Entry into Force:2022-06-28

31. The temporary residence permits provided for in Article 75(1) of Law No 23/2007 of 4 July, which are issued in 2022, shall be valid for a period of two years from the date of issue of the respective security and renewable for successive periods of three years (Art. 153)

I am now on the hunt for other elusive laws.

Thanks for pointing me in the right direction.

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@jonesdn2020 

That was the 2022 state budget, the change to 2+3 resident's permits was also in the 2021 state budget and (I could be wrong) I seem to recall it first appeared in the 2020 state budget.

Whenever it was first introduced it was done so due to Covid lock-downs limiting the ability of SEF to process such permits (i.e. a special legal provision).

If the 2023 state budget doesn't have the same in it the permits will revert to 1+2+2 in accordance with Article 75.1 of Lei 23/2007.

From what I have read there is talk about changing Article 75 to 2+3 on a permanent basis. Their choices are amend Article 75 or have every future state budget include the special provision.

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@old-bloke Thank You!

I just saw that on this page at SEF for the reference to the 2021 budget. What I have not found is the change in the time in country based on the change. I believe that it is somehow inferred from the initial Article with a 1 year permit to just apply that to each year? 

 

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Posted by: @jonesdn2020

@old-bloke Thank You!

I just saw that on this page at SEF for the reference to the 2021 budget. What I have not found is the change in the time in country based on the change. I believe that it is somehow inferred from the initial Article with a 1 year permit to just apply that to each year? 

 

In law you can't infer something what isn't specifically written into the law, only a court interpret what the words in legislation mean when they are not clear. The wording of Article 85.2(a) of 23/2007 regarding permitted absences for a temporary resident's permit are crystal clear "Sendo titular de uma autorização de residência temporária, seis meses consecutivos ou oito meses interpolados, no período total de validade da autorização" (relevant words empahsised by me using bold font).

So the permitted absences apply to each temporary permit no matter that such permit may be valid for 1, 2 or 3 years.

It's a bit daft really because under the old 1+2+2 system the immigrant could still have a valid first year permit despite only spending 4 months and a day in PT if they split their absences. 

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Posted by: @jonesdn2020

This is what I found. Law No. 23/2007, of July 4 including the amendments is not the final say. It always has this without prejudice wording.

Lei 23/2007 does not have that "without prejudice" proviso affecting the entire legal text, that proviso only applies in whatever Articles it has been included in.

No such "without prejudice" proviso is written in Article 126.

Full marks to you if you can find a piece of legislation which negates subparagraph 4 of Article 126.

P.S. -  Article 85 of Decreto Regulamentar 84/2007 informs what must accompany an application for a permanent resident's permit which makes no mention of 126.4 limitations. The 64 dollar question is "is that because Article 85 of 84/2007 deals with what documents must accompany the application whereas Article 126 of 23/2007 states what conditions must be complied with for its issue"?

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@old-bloke

This is as bad as the US and figuring out the laws. We had City, County, State and finally Federal Law that overrules everyone. 

When I am in dre.pt at the Lei 23/2007 I see General Data, EU law, Regulations, Modifications, Adjustments and finally Jurisprudence. Making my way through these.

I keep getting thrown for a loop when EU directives are mentioned in Portugal directives, etc.. and their application to each member state. Seems to be on par with the US Federal Law.

 

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@jonesdn2020 

EU Regulations = a law immediately in force in every EUMS that can be enforced by national or EU courts. (e.g. EU Regulation on permitted driving times and minimum rest times for drivers of large goods and passenger vehicles)

EU Directive = a law that applies to all EUMS but they have to write national law to bring it into force and transgressions against that national law are dealt with by national courts. If an EUMS fails to adopt an EU Directive into national law the EUMS can be taken to the EU court for failing to implement it. (e.g. EU Directive on mutual recognition of driving licences)

National law = law that only apply in national territory (sometimes with exemptions for the autonomous regions).

Autonomous Region law = law that only apply in the relevant autonomous region (Azores, Madeira).

Municipal law = law that only apply in the municipality.

Jurisprudence = (judicial prudence) where cases have gone through the appeal process/supreme court and high ranking judges have adjudicated how the law is to be interpreted. (e.g. the Supreme court case deciding the law allowing Airbnb doesn't allow them in primarily residential condominiums).

Modifications/adjustments = amendments to national law (often used to comply with changes in EU Regulations/Directives).

So when a PT law refers to it being written to comply/adopt an EU Regulation/Directive you needn't worry about the EU law except if you think PT hasn't implemented the EU law correctly (it happens often both in PT and the other EUMS).

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