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Residency in Portugal

Residency in Portugal

Old Nov 21st 2020, 10:13 pm
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Default Residency in Portugal

Your input will very much be appreciated.

We applied and received the "Certificado de registo de Cidadao da Uniao Europeia)" for Portugal in Dec-2019, but due to personal and covid circumstances, we have not yet moved permanently to Portugal.

Question - are there any restrictions that we need to be aware of? For example, can we moved there anytime we want, or will be restricted by how long we can stay (i.e. the 90 in 180 day rule)?
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Old Nov 22nd 2020, 7:58 am
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Default Re: Residency in Portugal

If you want to be considered resident in Portugal with a view to both benefitting from the provisions in the Brexit Withdrawal Agreement and obtaining permanent residence status, you'll need to abide by the applicable allowable absences criteria.

Those are :
Act 37/2006 - the right of Union citizens and respective family members to move and reside freely within national territory
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Old Nov 22nd 2020, 3:03 pm
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Default Re: Residency in Portugal

Thanks Eric
can you confirm my thoughts, that under article 10 v 4....A resident need only live in Portugal one day /night every six months to retain residency?
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Old Nov 22nd 2020, 3:22 pm
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Default Re: Residency in Portugal

Originally Posted by atlasthemonk View Post
Thanks Eric
can you confirm my thoughts, that under article 10 v 4....A resident need only live in Portugal one day /night every six months to retain residency?
10.4 only applies to EU citizens, UK citizens with protected rights under the withdrawal agreement have to spend at least 6 months of every year in Portugal to keep those protected rights during the first 5 years of residency. Those on permanent residency only lose residency if they leave Portugal for more than 5 years.

Last edited by Bomber Harris; Nov 22nd 2020 at 3:24 pm.
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Old Nov 22nd 2020, 4:18 pm
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Default Re: Residency in Portugal

Originally Posted by Bomber Harris View Post
10.4 only applies to EU citizens, UK citizens with protected rights under the withdrawal agreement have to spend at least 6 months of every year in Portugal to keep those protected rights during the first 5 years of residency. Those on permanent residency only lose residency if they leave Portugal for more than 5 years.
I wasn't aware there was a difference between the provisions in Portugal's Act quoted above and the Brexit Withdrawal Agreement on this point for holders of the initial registration certificate, since both specifically reference the fact that they are in accordance with Directive 2004/38/EC.

Here it is from the WA :
Article 15

Right of permanent residence

1. Union citizens and United Kingdom nationals, and their respective family members, who have resided legally in the host State in accordance with Union law for a continuous period of 5 years or for the period specified in Article 17 of Directive 2004/38/EC, shall have the right to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

2. Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance with Article 16(3) and Article 21 of Directive 2004/38/EC.
And Article 16(3) of that Directive reads :
3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
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Old Nov 22nd 2020, 5:11 pm
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Default Re: Residency in Portugal

The PT law says no consecutive absence of more than 6 months. So you would comply with the wording of the PT law by just spending one day in Portugal every 6 months as atlasthemonk suggested. Whereas the EU law omits the word consecutive and therefore equates to you must spend at least 6 months of every year in Portugal.
The loss of the word consecutive between the two requirements is what creates a subtle difference.
They are both 2004/38 compliant because 2004/38 does allow member states to have more generous requirements than those specified in it, and I think we can agree that Portugal's inclusion of the word consecutive in their law that adopted 2004/38 into national law makes their requirement more generous than the 2004/38 requirement.
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Old Nov 22nd 2020, 5:35 pm
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Default Re: Residency in Portugal

Originally Posted by Bomber Harris View Post
The PT law says no consecutive absence of more than 6 months. So you would comply with the wording of the PT law by just spending one day in Portugal every 6 months as atlasthemonk suggested. Whereas the EU law omits the word consecutive and therefore equates to you must spend at least 6 months of every year in Portugal.
The loss of the word consecutive between the two requirements is what creates a subtle difference.
They are both 2004/38 compliant because 2004/38 does allow member states to have more generous requirements than those specified in it, and I think we can agree that Portugal's inclusion of the word consecutive in their law that adopted 2004/38 into national law makes their requirement more generous than the 2004/38 requirement.
Or it could just be a drafting error in whoever drew up the document, and that's the point on which a lawyer would argue.

Been there got the t shirt in employment law where the drafted document was incorrectly put into law.
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Old Nov 22nd 2020, 5:56 pm
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Default Re: Residency in Portugal

Possibly, but until it's actually tested in a court of law we can only follow what is written.

Either way it's a moot point as from 01/01/21 our future absences are governed by what is written in the Withdrawal Agreement.

Last edited by Bomber Harris; Nov 22nd 2020 at 6:00 pm.
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Old Nov 22nd 2020, 7:32 pm
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Default Re: Residency in Portugal

Originally Posted by Bomber Harris View Post
Possibly, but until it's actually tested in a court of law we can only follow what is written.

Either way it's a moot point as from 01/01/21 our future absences are governed by what is written in the Withdrawal Agreement.
Maybe so but there is provision in there for member states to be more generous than what's set out.

And on SEF's website the following appear :
The Withdrawal Agreement does not require physical attendance of the host Member State at the end of the transitional period. The temporary absences (less than six consecutive months) do not compromise the right of permanent residence.
and
EU citizens and UK nationals arriving in the host state during the transition period will enjoy the same rights and obligations under the Withdrawal Agreement as those who arrived in the host state before 31 January 2020. Their rights will be subject to the same restrictions and limitations, too.
RESIDENCE RIGHTS IN PORTUGAL FOR UNITED KINGDOM NATIONALS AFTER THE UNITED KINGDOM’S WITHDRAWAL FROM THE EUROPEAN UNION (BREXIT)

I am, however, highly sceptical that the phrasing actually allowed or allows one a claim to continuous residence on just 2 days' presence a year.

That said, I know there are posters here in possession of these 5 year certificates who believe that after January, as long as their absences are under 6 months' duration, they can comply despite not spending as much as 6 months annually in total here. And remain tax resident elsewhere.
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Old Nov 22nd 2020, 8:46 pm
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Default Re: Residency in Portugal

Very true, but I chose to not mention that proviso in the Withdrawal Agreement as every joint press release, along with individual press releases and videos, by SEF and the British Embassy in Portugal are all stating you need to spend at least 6 months each year in Portugal after 31/12/20 to maintain residency rights.
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Old Nov 23rd 2020, 7:19 am
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Default Re: Residency in Portugal

OK, I'll go with that, especially as it's what I'd always (apparently incorrectly) assumed ought to be the case anyway.

So back to the OP's question. He could (possibly) have an acceptable "exceptional circumstance" to cover a year's absence () but if he's not back within a year of the day he was last present, he'd have to start again. Or would he have to be back before the end of the transition period no matter when he was last present (which isn't clear from his post - he says he registered in Dec 2019 but not how long he stayed after that)?
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Old Nov 23rd 2020, 8:43 am
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Default Re: Residency in Portugal

We can't answer the OP's question as we don't know what periods they spent in and out of Portugal since 2019, or what the reason for their absence was and if it is one of the permitted reasons.
The safest option for the OP would be to get back here permanently before 31/12/20. If they can achieve that the worst case scenario is their 5 year initial period would start from 2020 rather than 2019.
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