Framework

With the end of the residence regularisation mechanism known as the Expression of Interest, defined by Decree-Law no. 37-A/2024 of 3 June, a Transition Regime was established. This regime provided for the assessment of residence permit applications only for nationals of third countries who had legally entered in Portugal, but did not hold a residence visa, as long as such processes had been initiated before the decree-law came into force (pursuant to Articles 88, no. 2, and 89, no. 2 of Law no. 23/2007 of 4 July).

However, this change took many foreign residents in Portugal by surprise, leaving them insufficient time to submit their applications to AIMA (Agência para a Integração, Migrações e Asilo).

Many of these immigrants were already employed or providing services in Portugal and, in a way, had a legitimate expectation of regularising their status through the Expression of Interest.

Several had already regularised their situation with Social Security, awaiting completion of the 12 months required under the now-revoked Articles 88, no. 6, and 89, no. 5 of Law no. 23/2007, and were socially and economically integrated in the country, along with their families.

This scenario created uncertainty and a lack of protection for many of these individuals, some with minor children already integrated into the Portuguese school system. Several immigrant advocacy associations expressed their concerns, considering the imposed transitional regime to be insufficient and unjust.

What has changed?

To amend Decree-Law no. 37-A/2024, the Liberal Initiative Parliamentary Group presented Draft Law no. 220/XVI/1, which, having been approved by the Assembly of the Republic, proceeded to promulgation, giving rise to Law no. 40/2024 of 7 November.
The proposed new text includes the following provision:

    […]
   Article 2
  Amendment to Decree-Law no. 37-A/2024, of 3 June
  Article 3 of Decree-Law no. 37-A/2024, of 3 June, is amended to read as follows:
   “Article 3
   1 – […]
   2 – This decree-law does not apply:
    a) To residence permit procedures initiated before its entry into force;
  b) To cases where it can be proven that, prior to its entry into force, the individual was registered with Social Security and making contributions under a subordinate or independent professional activity, aiming to complete the 12 months specified in Article 88, no. 6 of Law no. 23/2007 of 4 July, in its previous version, regardless of whether an expression of interest had been submitted.
   3 – The cases referred to in the previous number shall continue to be governed by Law no. 23/2007 of 4 July, in its previous version.”

In summary, new Expression of Interest processes may be accepted provided the applicant can demonstrate that, prior to the effective date of Decree-Law no. 37-A/2024 (3 June 2024), they were registered with Social Security and making contributions under a subordinate or independent professional activity, aiming to complete the 12-month requirement.

Objective of the Amendment

The objective of this amendment was to find a solution that respects the “principle of protection of trust,” which should be assessed in light of several conditions, namely:

• The action of a party that generates trust, either in maintaining a legal situation or in adopting a different conduct;
• The existence of justified trust by the party on the receiving end, with concrete elements supporting this conviction;
• The investment of trust, i.e., the development of actions or omissions that, even if without patrimonial implications, result from this trust;
• The causal link between the action generating trust and the situation of trust, as well as between the latter and the investment of trust;
• The frustration of trust by the party who generated it.

These assumptions must be assessed holistically, and the lack of one of them may be outweighed by the greater relevance of another or by other circumstances, such as the passage of a long period of time, as applies to the current context of the Agency for Integration, Migration and Asylum – AIMA.

Conclusion and Recommendations

In this case, the principle of protection of trust is of particular importance, as it aims to protect individuals against unforeseen changes by the authorities with whom they interact.

However, it is essential that immigrants in this situation regularise their status with Social Security as soon as possible to be prepared to submit their Expression of Interest applications, provided they meet the new requirements.

Written by Franck Mattos, lawyer of  the Private Clients Department.