Reference: CNN Portugal
Written by: Patrícia Pires
MAI has already lost 18 court cases due to delays in SEF scheduling. These are investors who have already spent thousands of euros and are desperate to file applications or renew authorizations. But there are more lawsuits in court and the defeats may not stop there.
The Ministry of Internal Affairs (MAI) has already lost in court 18 cases filed by foreign investors who, after investing in Portugal, had to go to court to obtain, for example, a simple appointment at the branches of the Foreign Service and Borders (SEF) and thus start the process to obtain the 'promised' golden visas. But there are more lawsuits running in court and decisions unfavorable to the State may not stop there. There are those who wait "two years" for the first appointment to start the process of obtaining a visa, when the law provides for a period of 90 days.
63 cases were filed in the courts, requesting the scheduling, granting, renewal of residence permits for investment (ARI)", the SEF told CNN Portugal, adding that of these, "unfavorable judgments were notified to the SEF in 18 cases , which are complied with within the period determined by the Court".
In response to TVI/CNN Portugal, the Ministry of Internal Affairs responded that "it was directly sued in two administrative actions condemning the practice of due act, related to requests for Residence Permit for Investment Activity (ARI), both in 2020" and that "in one of the cases the action was upheld (sentence in June 2021) and in the other it was dismissed (sentence in April 2022).
One of the cases won against the MAI/SEF is that of the lawyer Bettino Zanini, who in recent years has accompanied several foreign clients who invested thousands of euros in Portugal to apply for the gold visas. Faced with the desperation of some customers, who after investing thousands of euros could not manage a simple appointment at the SEF, it decided to take the MAI to court, of which (SEF) is dependent. The lawyer assured CNN Portugal that he has already won four cases and is awaiting the decision of another five.
“I know of former clients who invested at the end of 2021 and who so far have not had their initial applications approved. This is just the first step. And once approved, appointments cannot be made”, explains the lawyer. Before the arrival of the pandemic, there were already problems, but later, with the covid-19 pandemic, vacancies began to “run out” and since last year, “all stages have simply stopped”, he laments.
The first case of Bettino Zanini concerns an investor from the United Kingdom, who wanted to come and live in Portugal with his family. He acquired a property and, months later, he couldn't even deliver the first document. The process has not been resolved, but it has already been achieved through the courts the scheduling, some steps have been passed and now it is awaiting final approval.
The decision determined that if the applicant met the criteria, the SEF had "to provide an appointment for him and his family within 10 days". The process was filed in April 2022 and in July they received a favorable decision.
The proceedings filed by this lawyer are aimed only at non-compliance with the deadlines and, thus, obliging the SEF to make the appropriate appointments so that it is possible to formalize the requests: “The State has the duty to manifest itself within a reasonable period on the questions put to them. The processes have to move forward”, he adds.
In another case, Bettino Zanini, represented an Indian citizen, who also got an appointment. A Brazilian and a Russian. Each time, the judge's decision "was favourable". In the case of the Russian citizen, he already had “residence permit. It was a case of family reunification”, he recalls.
The lawyer explains that magistrates base their decisions on the fact that “the SEF's delay in these processes, often exceeding one year for each phase, is not legal”. Only in the case of the Russian citizen, he explains, Bettino Zanini, there were different contours because it was a family reunification and the court decision ended up being more based on that issue.
Proceedings were brought against the MAI because, despite the fact that the omitted act was from the SEF, this service is dependent on the MAI and, as such, “the MAI is the required entity”, explains Bettino Zanini, adding that not all customers admit the possibility of legal action because they fear “being harmed later”.
No process was requested to resolve the cases, it was only required to comply with all stages of the process in a reasonable time, explains the lawyer. “My goal is for things to get better. All lawyers experience the same difficulty and receive the frustration of clients who trusted a program, within a reasonable period of time and, after a year and two months, are still stuck in the first stage and with no prospect of seeing the situation resolved”, he adds. Before, the process was faster and each stage took one to two months. Now, the first one alone takes more than a year.
And how does the process unfold? It starts with the investment. Bettino Zanini sums it up: “The investor makes the investment after submitting an initial application on the SEF online platform. This initial application is approved and after this approval, the investor can schedule a visit to the SEF. In this appointment, at any branch of a SEF delegation, the investor actually presents the application for the residence permit. Afterwards, the procedure is analyzed and a receipt is issued for the payment of the last fee for issuing the card. Finally, the residence permit, the card, is issued.”
And what are the deadlines for golden visas provided by law?
A SEF source explained to CNN Portugal that there is no specific legislation regarding the time limit for analyzing and deciding on golden visas. Therefore, "what is expressed in the law in relation to the others" applies. And what does the law say? Despite the deadlines being indicative, and there are situations in which its extension is admitted, "all decisions have a deadline of 90 days". For example, when "additional investigations are necessary" to proceed with the approval of a request, the deadline can be extended, but when all the assumptions are met, the deadline must be met.
In statements to CNN Portugal, the president of the Lisbon Regional Council of the Bar Association, João Massano, clarifies that "after the investment, it is necessary to gather the requested documentation and make the 'instruction' of the process on the SEF portal, in the investor's account". From then on, the SEF would have 10 days to verify the documentation and to decide "whether or not the process can proceed" and, if so, "indicate the available dates". Then the law provides for 60 working days. That is, 90 days in a row.
This is also an area where he has professional experience and João Massano confirms that the situation is dramatic. "I have residence permit processes for investment in the office that have been waiting for more than two years" and "the current situation regarding these processes is that we have not even received the email informing that we can schedule a trip to the SEF to complete the process," he adds.
The lawyer points out that, in the case of golden visas, "we are talking about people who have already made a very large initial investment and still cannot enter Portugal without a visa". However, it recognizes that this is a drama experienced by all immigrants.
Online renewal for immigrants who already have residence permits
The impossibility of getting appointments does not only affect those interested in gold visas. This is a transversal problem and one that the authorities are aware of. For this very reason, it was recently announced that foreigners residing in Portugal whose residence permits expire by March 31 can Renew the document automatically via the page from the SEF website.
According to the SEF, around 21,500 foreigners can automatically renew their residence permits (AR) using the automatic renewal feature, available in the "Personal Area" of the SEF portal. A source from the SEF told the Lusa agency that 6,000 foreigners with a residence permit for investment activity, known as 'gold visas', and which expire until March 31, can also access this functionality, being the first time that renewals of this type have been carried out. AR can be done automatically over the internet.
CNN Portugal also sought to find out how many online renewals had already been entered into the services, but the SEF justified that "at the moment, due to the recent extension of the availability of the automatic renewal functionality to ARI beneficiaries, it is not yet possible to indicate the requested data, which are in the process of being systematized".
The high number of pending issues was explained to TVI/CNN Portugal by the Ministry of Internal Affairs due "on the one hand, to the global pandemic of COVID-19 and its impact on services and the number of available workers and, on the other hand, to the high and growing number of requests from migrant citizens, which has conditioned the assistance and availability of vacancies for the same".
To help resolve this volume of processes, the MAI explained that measures have already been taken: "The completion of the admission competition for 116 new technical assistants, who are already reinforcing the service posts, and the procedural and the reactivation of the “SEF Goes to School” program, are some of the measures implemented in order to correct this situation in the short term, as well as the availability, from October 2022, of more than 60,000 vacancies for attendance". >
On the other hand, "the Government understood (again) to adopt a simplified procedure for processing applications for granting and renewing a residence permit, included in the State Budget Law for 2023, applicable during the year 2023 and until the APMA and the IRN assume competences in terms of granting and renewing residence permits, under the terms of Law n.º 73/2021, of 12 November".
The MAI also guaranteed that "in line with this measure, the SEF makes available, within the scope of renewals, the functionality of automatic online renewal of the residence permit, through which foreign citizens can request it. This functionality has already allowed renewal more than 200,000 residence permits in the last 3 years, without the need to go to a SEF service point".
The official MAI data on automatic renewals for the last three years made available to TVI/CNN Portugal are:
2020 - 87,644 renewals
2021: 76,071 renewals
2022: 78,437 renewals
Prime Minister admits end of program
Recall that in November of last year, the Prime Minister, António Costa, considered that "probably" the objectives of the golden visa program had already been fulfilled. Without committing to a decision, he admitted that the end is one of the hypotheses on the table.
There are programs that we are currently reassessing and one of them is the golden visas, which, probably, has already fulfilled the function it had to fulfill and that at this moment it is no longer justified to maintain", said the prime minister, speaking to journalists after a visit to the Web Summit in Lisbon.
A few days later it was the turn of the Minister of Economy to address the issue and confirm that the Government was creating a working group with the ministries of Economy, Foreign Affairs and Internal Administration, to assess the end of golden visas.
“Following the Prime Minister's announcement, a working group is being created with the Ministry of Economy, the Ministry of Foreign Affairs and the Ministry of Internal Administration”, said António Costa Silva.
In this matter, questioned by TVI/CNN Portugal, the MAI explained that "as regards the revision of the current regime of residence permits for investment activity (ARI), commonly called "Gold Visas", the Government created a group of interministerial work - integrating the governmental areas of Culture, Internal Administration, Economy, Foreign Affairs (which it coordinates), Justice and Housing - with the objective of carrying out a reflective and evaluation study on the current state of this regime, its impact and the results obtained during a decade of validity (2012-2022) - which is expected to be concluded during the first quarter of this year".
In ten years, gold visas 'gave' the country nearly seven billion euros in investment
Since the golden visas were created – in 2012 with the PSD/CDS coalition government, Miguel Macedo was holder of the Internal Administration portfolio – they have been invested almost seven billion euros (6.54 billion). The vast majority (about 90%) in the real estate market. According to SEF data over the ten years of the program's life, officially called the Residence Permit for Investment (ARI), 11,180 investors and 18,368 beneficiary family members were registered.
Investors were almost 50% Chinese, followed by Brazilians, Turks, South Africans and, finally, North Americans. But there are also visas granted to Angolans and Russians.
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