Legislative Amendments to the Legal Regime on the Entry, Residence, Exit and Expulsion of Foreigners
The Law no. 18/2022, of August 25, amended the Legal Regime of the Entry, Stay, Exit and Expulsion of Foreigners from the National Territory (the “Legal Regime”), approved by Law no. 23/2007, of July 4, introducing and concretizing significant measures of promotion of regulated immigration and of guarantee of integration conditions.
Among these measures the following should be highlighted:
i) The Temporary Stay and Residence Visa for the Exercise of Professional Activity Remotely Provided;
ii) The Work Seeker Visa; and
iii) The necessary measures for the implementation of the Agreement on Mobility between the Member States of the Community of Portuguese Language Countries (CPLP).
Furthermore, Law no. 18/2022:
i) Simplified the procedures for granting Visas and Residence Permits;
ii) Densified the regime concerning to the Residence Visa for family accompaniment of a citizen holding a temporary residence visa; and
iii) Ensured the possibility of the exercise of professional activity by the holder of a Residence Permit for Research, Study and Professional Internship.
II. Temporary Stay and Residence Visa for the Exercise of Professional Activity Remotely Provided (“Digital Nomads”)
Nowadays, two types of Visas may be granted, in order to exercise a professional activity, remotely provided, more specifically:
i) The Temporary Stay Visa, provided for in subparagraph d) of Article 45.º of the Legal Regime; and
ii) The Residence Visa, provided for in subparagraph e) of Article 45.º of the Legal Regime.
The first, under the terms of the first paragraph of Article 54.º of the Legal Regime, “is intended to allow entry and stay in the national territory for a period of less than one year (…)”, only in the cases stipulated in the respective subparagraphs of the first paragraph.
The second, according to first paragraph of Article 58.º of the Legal Regime, “is intended to allow its holder to enter in portuguese territory in order to apply for a residence permit”.
The granting of a Temporary Stay Visa, for the purpose of exercising a professional activity, remotely provided, became possible with Law no. 18/2022, which amended subparagraph i) of the first paragraph of Article 54.º, introducing the “exercise of a subordinate or independent professional activity, remotely provided, to a private or legal person with residence or head office outside national territory“, as a situation in which this type of visa can be granted. Following the aforementioned, regarding to the Temporary Stay Visa, Law no. 18/2022 introduced a fourth paragraph to Article 54.º, from which it is extracted that “the emission of the temporary stay visa provided for in subparagraph i) of the first paragraph requires the demonstration of the employment bond or provision of services, as the case may be“.
In turn, this Residence Visa can now be granted, for the purpose of exercising a professional activity, remotely provided, with the introduction of Article 61.º-B by Law no. 18/2022. This article provides that “a residence visa is granted to subordinate employees and independent professionals for the exercise of professional activities, remotely provided, to private or legal persons with residence or head office outside of the national territory, and the employment bond or provision of services, as the case may be, must be demonstrated“.
The arising of the aforementioned possibilities was the result of an increasing adaptation of our society to the new communication technologies, impelled by the appearance of the Covid-19 disease and consequent pandemic that forced, namely, most of the companies to resort to remote working. One of the many advantages usually associated to remote working and new technologies, in general, is that they allow people to work from anywhere in the world, needing only a portable device/computer and Internet access.
Therefore, allowing people from other countries to come to Portugal to exercise their activity, remotely, represents, without any doubt, a measure that aims to stimulate the economy. Considering the possibility of granting Residence and Temporary Stay Visas for the so-called “Digital Nomads”, it is important to mention that, under the terms of subparagraphs c) and e) of the first paragraph of Article 72.º, the holders of these Visas may benefit of the concession of an extension of their permanence in the country up to 90 days or up to 1 year, respectively, without prejudice to what is stated in the second paragraph of the referred Article.
III. Work Seeker Visa
The Law no. 18/2022 has introduced a Work Seeker Visa, whose legal provision is in Article 57.º-A of the Legal Regime. We now reproduce it:
“1 — The Work Seeker Visa:
a) Enables its holder to enter and stay in national territory with the purpose of seeking employment, through the fulfilment of the requisites foreseen in article 52;
b) Authorizes its holder to exercise dependent labour activity, until the term of duration of the visa or until the concession of the residence permit;
c) It is granted for a period of 120 days, extendable for a further 60 days and allows one entry into Portugal.
2 — The work seeker visa integrates an appointment date in the competent services for granting residence permits, within the 120 days referred to in the previous number, confers to the applicant, after the constitution and formalization of the labour relation in that period, the right to request a residence permit, as long as he/she fulfils the general conditions for granting a temporary residence permit, under the terms of article 77.
3 — At the end of the maximum limit of validity of a work seeker visa without a labour relation having been established and without the subsequent process of documentary regularisation having been initiated, the holder of the visa must leave the country and may only re-apply for a new visa for this purpose, one year after the expiration of the validity of the previous visa.
4 — The rules applicable to temporary stay visas, provided for in subparagraph b) of first paragraph and second paragraph of Article 56-A, first and second paragraph of Article 56-B and 56-C to 56-G applies, with the necessary adaptations, to holders of work seeker visa that constitutes an labour relation within the term of validity of the visa.
In this context, some considerations are relevant. By work search/seeking it seems should be understood active job search, which, in accordance with the first paragraph of Article 12.º of Decree-Law no. 220/2006, of November 3, consists in the continuous performance of a set of steps by the jobseeker aiming at the socio-professional integration in the labour market by his/her own means. In turn, the second paragraph of the same article concretises the steps in which the active work search for employment is materialised through its subparagraphs a) to f), namely:
i) Written answers to work advertisements;
ii) Answers or appearances to work offers advertised by the employment centre or the social media;
iii) Presentation of spontaneous applications;
iv) Diligences for the creation of self-employment or for the creation of a new business initiative;
v) Responses to offers available on the Internet; and,
vi) Registration of curriculum vitae on Internet sites.
Barring a better opinion, other forms of demonstration and/or proof of work search should not be admitted, under the risk of giving rise to situations of fraud against the law.
Concerning to subparagraph b) of the above mentioned first paragraph, it should be noted that the work seeker visa ceases its effects, in the labour area, specifically in the situation of dependent employment, after the residence permit is granted. It is perceived, therefore, that the ratio of the creation of this visa is aimed at the mere settlement of the person and, in certain cases, of his/her family, for the quick start of his/her professional activity, no longer fulfilling its purpose after obtaining the residence title.
The second paragraph of Article 57.º-A reinforces this character of an “initial step” for the entry and stay in national territory as well as, accordingly, the immediate entry into the portuguese labour market. This is due to the fact that it is stipulated, in this second paragraph, that the “work seeker visa integrates an appointment date at the services competent for the granting of residence permits“. Thus, the Work Seeker Visa ends up being a mere moment downstream of the issuing of the residence permit.
The validity period of the visa is 120 days, extendable for a further 60 days, making a total of 180 days (6 months), according to subparagraph c) of the same first paragraph, in conjunction with subparagraph b) of the first paragraph of Article 72.º of the Legal Regime.
In turn, the third paragraph of Article 57.º-A establishes the consequences of exceeding the “maximum limit of validity of the work seeker visa without the employment relation having been established“. In this situation, “the visa holder must leave the country and can only apply again for a new visa for this purpose one year after the expiration of the validity of the previous visa“. On the other hand, this third paragraph confirms the need for the mere celebration of the employment contract until the last day of the visa’s validity period (of 6 months, with the referred extension) and not the effective beginning of the development of the activity, object of the employment contract.
In what concerns to fourth paragraph of Article 57.º-A it is highlighted that, in case the documents presented have been obtained in a fraudulent, falsified or adulterated way, the application for a Work Seeker Visa is rejected, in accordance with subparagraph b) of the first paragraph of Article 56.º-A of the Legal Regime. Within this scope, another cause for refusal shall be the third state citizen permanence in national territory for other purposes than those for which the permanence was authorized, according to the first paragraph of Article 56.º-B.
In case of a decision to cancel the visa, the second paragraph of Article 56.º-A applies, which states that “decisions rejecting an application shall take into account the specific circumstances of the case, namely the interests of the employee and respect the principle of proportionality”. It should be noted that decisions refusing to grant a Work Seeker Visa, and “as well as the respective extension of stay, are notified in writing to the applicant, indicating the respective grounds, the right to judicial appeal, the competent court and the respective time limit“, according to the eighth paragraph of Article 56.º-C. In turn, the decision to cancel the visa, provided for in Article 56.º-B, is also “notified in writing to the applicant, indicating the respective grounds, the right to judicial challenge and the respective time limit”ninth of Article 56.º-C.
Regarding the issue of accommodation for third country nationals who come to Portugal with a Work Seeker Visa, the Article 56.º-D gives the employer the possibility to guarantee accommodation to the employee. The guarantee of accommodation to the employee must also ensure the existence of salubrity and safety conditions and/or standards in force, and the same must be subject to a written contract or clauses of the employment contract, with an indication of the accommodation conditions, to avoid situations of precarious housing of migrants such as those that marked the year 2020, on the liveability conditions of migrants in Odemira.
iv) Residence Visa
About the Residence Visa, Law no. 18/2022 added the fifth paragraph to article 58.º of the Legal Regime, which states that the “residence visa also has the purpose of accompanying family members of the applicant of a residence visa, in the sense of the first paragraph of article 99.º, and the applications may be submitted simultaneously”. It is denoted the legislator’s concern in keeping the family united at the time of entry and stay in national territory, with this type of visa. The possibility that the applications may be requested simultaneously is emphasized.
For the purposes of the above, the following are deemed members of the resident’s family, according to the first paragraph of Article 99.º of the Legal Regime:
i) The spouse;
ii) Children who are minors or incapacitated and are dependants of the couple or of one of the spouses;
iii) Minors adopted by the applicant when not married, by the applicant or by the spouse, as a result of a decision of the competent authority of the country of origin, provided that the law of that country recognizes the adopted children as having the same rights and duties as those of natural parentage and that the decision is recognized by Portugal;
iv) Adult dependent children of the couple or one of the spouses, who are single and are studying in an educational institution in Portugal;
v) Adult dependent children of the couple or one of the spouses, who are single and studying, whenever the holder of the right to regroup has a residence permit granted under Article 90.º-A;
vi) Ascendants in the direct line and in the first degree of the resident or his/her spouse, if they are dependent on him/her; and
vii) Minor siblings, if they are under the resident’s guardianship, in accordance with a decision issued by the competent authority of the country of origin and provided that such decision is recognised by Portugal.
According to the second paragraph of the same article, “the following shall also be considered as family members for the purposes of family reunification of a refugee who is an unaccompanied minor”:
i) His direct ascendants in the first degree; and,
ii) His legal guardian or any other relative if the refugee has no direct ascendants or it is not possible to trace them.
V. General Notes of Visas
Within the scope of the possibility of extension of stay, there were alterations made by Law no. 18/2022 in the second paragraph of Article 72.º of the Legal Regime, whose wording states that “the extension of stay may be granted, beyond the limits foreseen in the previous number, while a residence permit is being requested, as well as in duly founded cases, namely in the case of holders of temporary stay for medical treatment and those accompanying them“.
Bearing in mind that there were no alterations as regards the limits, the second paragraph stands out, where is highlighted the legislator’s will to safeguard the cases of foreigners with a visa for a temporary stay for medical treatment, as well as those accompanying them, with the introduction of the extension beyond the legally foreseen limits. Portugal’s role in the field of solidarity is thus highlighted, guaranteeing legal cover, in terms of residence, for those who need medical treatment in Portugal.
VI. Legislative changes resulting from the Agreement on Mobility between Member States of the CPLP
Following the XXVI Meeting of the Ministers Council of the CPLP held on 16 July 2021, in Luanda, Angola, an Agreement on the mobility of citizens of the Member States of the CPLP was approved. The Agreement on Mobility between Member States of the CPLP aims to contribute “to greater proximity between citizens of the Member States of the CPLP and to increase cooperation relations in all areas”. The Agreement shall enter into force on 1 January 2022 and remains in force for an unlimited time, pursuant to Article 31.º thereof.
Furthermore, the CPLP Mobility Agreement applies to those Member States that have deposited their instruments of ratification with the Executive Secretariat, in accordance with first paragraph of the Article 30.º, namely Portugal, São Tomé and Príncipe, Timor-Leste, Brazil, Cabo Verde, Guinea-Bissau, Angola and Mozambique.
Therefore, after the ratification of the CPLP Mobility Agreement, signed in Luanda on 17 July 2021, Portugal proceeded to amend the Law on the Entry, Stay, Exit and Expulsion of Foreigners. In this regard, Law no. 18/2022 added Articles 52.º-A and 87.º-A to the Legal Regime and amended Article 75.º.
Regarding the granting of visas to citizens of CPLP Member States, Article 52.º-A of the Legal Regime establishes special conditions for granting, more specifically:
i) Without the need for a prior opinion from the Foreigners and Borders Service (“SEF”), the services responsible for issuing the visa will directly and immediately consult the databases of the Security Intelligence Services (“SIS”);
ii) The refusal to issue the visa will only occur in the case where there is an indication of a prohibition of entry and stay in the SIS or, if applicable, when the applicant does not have parental authorisation or equivalent document, in the case of a minor that is not accompanied by those exercising parental responsibilities; and
iii) The issuing of the visa is automatically communicated to SEF.
The third paragraph of the Article 52.º-A provides that the simplified visa procedure may be extended to nationals of other States by way of international agreement. In other words, the national legislator has established a rule that enables the extension of this simplified procedure for granting visas to nationals of other States for future mobility agreements.
Concerning the Temporary Residence Permit, Law no. 18/2022 amended Article 75.º of the Legal Regime to make it conform to the CPLP Agreement on mobility. In this sense, the second paragraph of Article 75.º states that “When the applicant is covered by the CPLP Agreement and is the holder of a short-stay visa or has a legal entry in national territory, he may request a temporary residence permit for more than 90 days and less than 1 year, renewable for the same period.” In this sequence, the third paragraph of the Article 75.º establishes the need for official consultation of the applicant’s Portuguese criminal record, for the purposes of issuing the temporary residence permit.
Regarding the residence permit for CPLP citizens, Law no. 18/2022 added Article 87.º-A to the Legal Regime. Under the terms of the first paragraph of this article, “citizens who are nationals of States where the CPLP Agreement is in force and who are holders of a short-stay visa or a temporary stay visa or who have legally entered national territory may apply for a CPLP residence permit in national territory, near the SEF”.
So, citizens of CPLP Member States may apply for a residence permit by complying with the following cumulative requirements:
i) Inexistent measures banning the applicant from entering the host country; and
ii) Inexistent evidence of a threat by the applicant to public policy, public security or public health in the host country,
enshrined in subparagraphs a) and b) of the first paragraph of Article 19.º of the Agreement on Mobility between Member States of the CPLP, ex vi second paragraph of the Article 87.º-A. As occurs with the third paragraph of Article 75.º above mentioned, the third paragraph of Article 87.º-A establishes the need to consult the Portuguese criminal record of the applicant by the competent services to issue the residence permit.
VII. Residence Permits for Research, Study and Professional Training
According to second paragraph of Article 91.º of the Legal Regime, as amended by Law no. 18/2022, “the residence permit granted under the present Article to college students is valid for three years, renewable for equal periods and, in cases where the duration of the study programme is less than three years, is issued for the period of its duration“.
Previously the duration of this authorization was of one year, however, Law no. 18/2022 has extended it, which is proving beneficial for college students. Besides this, there is the possibility of renewal for equal periods, without the need to evaluate if the holder still fulfils the concession conditions, thus simplifying the procedure. In addition, the referred Law also made a reservation for cases in which the duration of the study programme is inferior to three years: in these cases, the duration of the Residence Permit matches the duration of the referred study programme. Thus, it is not possible for someone to enjoy a Residence Permit for three years when the duration of his/her study programme is shorter than that period.
Still in what concerns the Residence Permit granted to college students, Law no. 18/2022 introduced the eighth paragraph to Article 53.º from which it is extracted that “without prejudice to the provisions set forth in subparagraph b) of the first paragraph, granting of a residence visa to attend a college study programme does not require a prior opinion from SEF, provided that the applicant is admitted in a university in national territory”. This change unequivocally expresses a simplification of the procedure.
The referred Law no. 18/2022 also amended the subparagraph a) of the first paragraph of Article 83.º, regarding the right of the Residence Permit’s holder to education, teaching, and vocational training, including subsidies/allowances and scholarships in accordance with the applicable legislation. We highlight that from the previous wording we could not extract a right to benefits such as subsidies/allowances and scholarships, which are fundamental in situations of economic and financial needs of college students.
With regard to the Residence Permit for Researchers, Law no. 18/2022 amended the sixth paragraph of Article 91.º-B of the Legal Regime, whose current wording prescribes that “the residence permit granted to researchers is valid for two years, renewable for equal periods or for the duration of the host agreement, if this is less than two years“.
Previously it was valid for one year and the renewal was carried out under the general terms of Article 78.º of the Legal Regime. Therefore, beyond the extension of the duration of the Residence Permit in question, the procedure for its renewal was also simplified, given that the conditions set out in the second paragraph of Article 78.º of the Legal Regime, for the renewal of the Residence Permit, do not have to be fulfilled anymore.
About the Residence Permit for Trainees, Law no. 18/2022 amended the second paragraph of Article 93.º of the Legal Regime, which states that the “residence permit granted to trainees is valid for six months, for the duration of the traineeship programme, plus a period of three months, if this is less than six months, or for two years in the case of a long-term traineeship, in which case it may be renewed once for the remaining period of the traineeship programme“.
Previously, the duration of the Residence Permit was six months, or corresponded to the duration of the internship programme, when it was longer than six months, without the possibility of renewal for either case. Currently, the Residence Permit is valid: (i) for six months; or (ii) for the duration of the internship programme, plus a period of three months, if the duration is less than six months. In the case of a long-term internship, the validity period of the Residence Permit is two years, with the possibility of a single renewal for the remaining period of the internship programme.
It should be noted that Law no. 18/22 changed the first paragraph of Article 97.º of the Legal Regime, which now states that “the residence permit holders granted under the present subsection may exercise a professional, subordinate or independent activity, complementary to the activity that originated the visa”, revoking the remaining paragraphs. In this sense, if previously students and trainees were forbidden to have any kind of professional activity, this is no longer the case. Regarding researchers, the type of activities they may carry out has been broadened, given that the previous version of the Article under analysis, more specifically its third paragraph, only allowed for teaching activities.
VIII. Permanent Residence Permit and Residence Permits of Family Members
In relation to the Permanent Residence and Residence Permits for Family Members, the changes made by Law no. 18/2022 have an impact on the second paragraph of Article 107.º of the Legal Regime, which currently provides that the family member of the permanent residence holder of an authorisation is issued with a residence permit, valid for two years, renewable for successive periods of three years. Once again, we denote the legislator’s concern in keeping families together, by allowing the issuing of a residence permit, valid for two years, renewable for successive periods of three years, to family members of permanent residence permits holders.
We observe a much greater flexibility, from the legislator, regarding the authorization of family members who do not enjoy a Permanent Residence Permit. It should be remembered that before the entry into force of Law no. 18/22, there was no possibility of renewal, which meant that, in the past, after two years of the residence permit period, in this legal and family situation, the foreign citizen could be forced to leave the country.
About the third paragraph, also amended by Law no. 18/22, it states that two years after the emission of the first residence permit referred to in the previous paragraph and as long as the family relationship subsists or, regardless of the said period, whenever the holder of the right to family reunification has a minor children residing in Portugal, the members of the family are entitled to an autonomous permit, of identical duration to that of the holder of the said right.
The main change set out in this third paragraph is in the same direction as the spirit of the law in the second paragraph. The legislator offers further evidence of its intention to safeguard family unity by providing for another situation in the case of families who have applied for family reunification. Thus, Law no. 18/22 adds a duration to the already existing “autonomous permit”. However, this is not a pre-established duration, but rather flexible since the duration of this “autonomous permit” will be identical to that of the holder of the right to family reunification.
Moving on to the fourth paragraph, it is stated that “in exceptional cases, namely judicial separation of persons and goods, divorce, widowhood, death of ascendant or descendant, accusation by the Public Prosecution Service for the practice of domestic violence’s crime and when the person reaches the age of majority, and even if the facts occur during the examination of the family reunion’s application, an autonomous residence permit may be granted before the deadline referred to in the previous paragraph“, valid for two years, renewable for periods of three years. We observe here the same renewal’s possibility for three years, similarly to what is observed in the second paragraph of the same Article.
In relation to the fifth paragraph, it should be noted that the first “residence permit granted to the spouse under family reunification is autonomous whenever he/she is married or in a non-marital partnership for more than five years with the resident and is issued with a residence permit of the same duration as the resident“. Regarding this fifth paragraph, we find the same solution adopted by the legislator in the third paragraph of the same Article.
With regard to the changes made by Law no. 18/22, in the context of the entry and exit of minors and vulnerable adults who are prevented from travelling or with an indication of prohibition to leave the territory, the second paragraph of Article 31.º of the Legal Regime now states that “except in exceptional cases, duly justified, the entry into Portuguese territory of a foreign minor is not allowed when the person exercising parental responsibilities or the person to whom they are formally entrusted is not admitted into the country”.
In turn, the fourth paragraph of Article 31.º provides that “national or foreign minors travelling unaccompanied by the person exercising parental responsibilities and who are not in possession of legally certified authorisation granted by the latter, shall be refused exit from Portuguese territory”. In this fourth paragraph, the main innovation relates to the incorporation of Portuguese minors in the list of refusals to leave Portuguese territory when they are not accompanied by the person exercising parental responsibilities and who, in this case, do not have authorisation granted by that person. Before the entry into force of Law no. 18/22, only resident foreign minors were covered by this prohibition.
IX. Final Notes
The legislative changes to the Legal Regime on the Entry, Residence, Exit and Expulsion of Foreigners had the general objective of facilitating the entry and residence of citizens, by simplifying procedures, extending deadlines and creating new instruments, namely the Temporary Stay Visa and the Residence Visa for Professional Activity of Digital Nomads.
As a final note, it should be mentioned that the way to obtain residence in Portugal remains dependent on the presentation of an expression of interest, under the terms of the second paragraph of Articles 88.º and 89.º of the Legal Regime. This expression of interest is made by registering as a user on the SEF website. The mechanism of expression of interest maintains its relevance, although, due to the simplification of procedures operated by Law no. 18/2022, it is expected to be less used.
 CPLP Resolution on the Agreement on Mobility among the Member States, of 16 July 2021.
 Notice no. 7/2022, of March 4.
 Notice no. 11/2022, of March 7.
 Notice no. 83/2022, of August 22.
 Notice no. 93/2022 of September 27.
 Notice no. 8/2022 of March 4.
 Notice no. 9/2022 of March 7.
 Notice no. 84/2022 of August 22.
 Notice no. 10/2022 of March 7.
 Rectification Declaration no. 27/2022, of October 21.