Despacho n.º 5793-A/2020, de 26 de maio / TRANSLATION

Emellin de Oliveira/ May 28, 2020/

Emellin de Oliveira[1]

FREE TRANSLATION: Order No. 5793-A/2020, of 26^th May 2020[2]

Summary: Implementation of a simplified instruction procedure for the applications for granting a residence permit.

The health emergency situation caused by the disease COVID-19 led to the declaration of a state of emergency, by the Decree of the President of the Republic no. 14-A/2020, of March 18^th, which was successively renewed and maintained until May 2^nd. Subsequently, the situation of calamity was declared by the Resolution of the Council of Ministers no. 33-A/2020, of April 30^th, taking effect on 3^rd May, extended by the Resolution of the Council of Ministers no. 38/2020, of May 17^th.

The Government, through Decree no. 2-A/2020, of March 20^th , which implemented the declaration of the state of emergency, and through the Decree-Law no. 10-A/2020, of March 13^th, which established a set of exceptional and temporary measures relating to the epidemiological situation of the new coronavirus – COVID-19, adopted a set of measures that had an impact on the activity of public services.

The Order no. 3863-B/2020, of March 27^th, issued by the Presidency of the Council of Ministers, Ministry of Internal Administration, Ministry of Labour, Ministry of Solidarity and Social Security, and Ministry of Health, complemented the exceptional regulatory framework, determining that the management of face-to-face services and appointments had to be made in such a way as to unequivocally guarantee the rights of all foreign citizens with cases pending in the Foreigners and Border Service (SEF).

It is now important to mitigate the consequences of the health emergency by adopting exceptional and temporary measures, in compliance with the current legal framework, that will allow a recovery of the pending issues and an efficiency gain in the management of foreign citizens’ documents, which is a reserved competence of SEF.

Finally, the consequences of the health emergency situation on the country’s economic activity and on the labour relations between economic agents and their human resources must also be taken into consideration.

Thus, the following is determined:

1 – The implementation of a simplified procedure for preparatory inquiries of applications for granting a residence permit with visa exemption, as foreseen in Articles 88(2) and 89(2) of Act no. 23/2007, of July 4^th, in its current wording, consisting of the following steps:

a) Consultation of the relevant databases, necessary to confirm that the applicant is not in the subsequent period of prohibition of entry into national territory and is neither a person against whom an alert has been issued in the Schengen Information System by any Member State of the European Union for the purposes of refusing entry, nor identified for the purpose of refusing entry by the SEF Integrated Information System, and to confirm the absence of convictions for crimes which, in Portugal, are punishable by deprivation of liberty for more than one year, even if the sentence has not been served or its execution has been suspended;

b) The documents submitted alongside the visa waiver application (expression of interest) prove the facts described in the same certificates, regardless of their period of validity, as long as they were valid on the date on which they were submitted;

c) In addition to the consultations referred to in subparagraph a), the regular enrolment in the tax authority and, if applicable, the regularity of the social security contributions shall be verified through the information obtained under the terms of paragraph 9 of article 212 of Act no. 23/2007, of July 4^th, in its current wording, and the absence of contributions as of March 2020 shall not be relevant to the decision.

2 – Pending applications for residence authorization for purposes other than those referred to in the preceding number, with the exception of those foreseen in article 90-A of Act no. 23/2007 of July 4^th, as currently worded, shall be accompanied by a document that proves the purpose of the residence, without prejudice to the consultations and verifications referred in the preceding number.

3 – The adoption of the following simplified procedures for the decision of pending applications for the renewal of residence permits:

a) Consultation of the relevant databases, necessary to confirm that the applicant has not been convicted of a sentence or sentences that, alone or cumulatively, exceed one year of imprisonment, even if, in the case of conviction for an intentional crime foreseen in the law or related thereto or for a crime of terrorism, for violent crime or for especially violent or highly organized crime, the respective execution has been suspended;

b) Consultation of the databases that are necessary to assess the applicant’s compliance with his/her tax and social security obligations.

4 – Consultations to the databases foreseen in this Order shall be carried out, whenever possible, through automatic solutions aimed at the interoperability between computer systems through the Public Administration Interoperability Platform.

5 – Without prejudice to the immediate application of this Order, the supporting documents which are already in the possession of the Public Administration, destined to instruct procedural acts, shall not be deemed necessary whenever the respective holder requests the use of the mechanism foreseen in paragraph 2 of Article 4-A of Act no. 37/2014, of June 26^th, in its current wording.

6 – Without prejudice to the immediate application of this Order, in order to provide foreign citizens residing in Portugal with means of electronic identification to access digital public services, it shall be made available the possibility of adhesion to the Digital Mobile Key s at SEF’s service stations, through a protocol to be concluded with the Agency for Administrative Modernization, I. P., pursuant to Article 2(2) and Article 2(6)(d) of Act no. 37/2014, of June 26^th, as currently worded.

7 – The titles to be issued following decisions of the applications that fall within the objective scope of this Order and that concern minors are exempt from the payment of fees.

8 – The present Order, and the adoption of the procedures provided herein, do not affect the maintenance of the rights conferred by Order no. 3863-B/2020, of March 27^th, during the entire period of appreciation and processing of the respective processes.

9 – The National Direction of the Foreigners and Borders Service adopts the instructions and internal procedures necessary to comply with this Order.

10 – This order shall enter into force on the day following its publication and shall be in force for a period of one year from that date.

[1] Emellin de Oliveira is a Ph.D. Candidate in EU Migration Law at NOVA University of Lisbon – School of Law, Researcher at CEDIS (Research Centre on Law and Society).

^[2] Original Version, available at: https://dre.pt/web/guest/pesquisa/-/search/134516291/details/normal?sort=whenSearchable&sortOrder=DESC&q=SEF