30 Apr, 2018
Brexit is coming – what you should be doing right now (updated)
You are a UK citizen residing in Portugal, or you wish to be sooner or later. What you should be doing right now in order to prevent losing rights. Updated accordingly to the new Citizenship Law.
Brexit is not breaking news, but, as it came to my attention by a lovely new client, many are not yet fully aware of what it might mean for UK citizens residing here in Portugal.
First of all, we all know circulation within EU territory is completely free of bureaucracy, visa requirements, stamps, etc, as is for staying here up to 3 months.
But once your intention is to reside in Portugal for more than 90 days, you DO need to take some action.
You need to go to the City Hall (Câmara Municipal or Junta de Freguesia) of your residence, and to obtain a CERTIFICADO DE REGISTO PARA CIDADÃO DA UE/EEE/SUÍÇA.
Basically, a residence permit, legally granting you authorization to reside in Portugal for more than 3 months. This certificate is valid for 5 years and is what allows you to work here in Portugal. Free travel around the EU territory does not necessarily permit you to engage in a professional activity.
This might not seem important now, but it will be when you are planning to apply for permanent residence or Portuguese Citizenship after 5 years (the law recently changed, and now every citizen residing here legally for more than 5 years can apply directly to Portuguese citizenship), and you have to prove you have been residing legally for the demanded amount of time. This rule applies to all EU citizens that come to Portugal.
After 5 years, you can apply for permanent residence in SEF, obtaining your CERTIFICADO DE RESIDÊNCIA PERMANENTE PARA CIDADÃO DA UE/EEE/SUÍÇA.
And now, also after 5 years, you can apply for Portuguese Citizenship in Conservatória dos Registos Centrais.
Please, also be aware, that your spouse and children are also entitled to obtain residence permit via your residence certificate, even if they are NOT EU citizens! The same after you are a Portuguese Citizen. They can either apply for Portuguese Citizenship if you are married or live together (in this case it requires a legal action first) for more then 3 years or, at least, to apply for residence permit via Cartão de Familiar de Cidadão da União Europeia. This right is not lost in case of divorce or death, so your family will be safe in such events. Be aware that if you did not obtain this initial Certificado and did not request the residence permit for your non-EU Citizen spouse, they are here illegally, and at risk of being asked to leave. This, with or without Brexit.
Why is this important?
After Brexit, UK Citizens will be legally considered as any Citizen of a Third Country, that is, from a non-EU country. This means that, if nothing different is negotiated either between UK and Portugal and/or UK and EU, you will need to apply for a Schengen Visa every time you wish to come here.
This also means that if you are residing here with no Resident Permit, you will be considered to be residing here illegally, and you are at risk of deportation by Portuguese Law Enforcement Agencies.
It is also my belief, that all those with regular residence situation at the moment, will be in a privileged situation after Brexit is enforced. It´s much more likely that the negotiations will only take into consideration, those who are legally residing in Portugal, by being in possession of their Certificados. It´s very unlikely that those who have their residence permits under EU law, even for the first 5 years, will lose them or at the very least, not be granted the right to transfer them into the Portuguese law that applies to Third Countries Citizens.
So, for now, our system is a declaratory system.
Since the initial certificate is based on a simple declaration of intention of residing here and attesting you fulfill one of the requirements, with no further proof.
And because you can apply for the permanent residence just with that initial certificate, with no further proof or demands, so is the permanent residence based on a mere declaratory system as well.
Even now is not possible for the permanent residence to be issued only with simple proof of residence for 5 years without the initial temporary certificate. If you check SEF website, they say specifically that the moment to apply for permanent residence is before the existent initial certificate expires.
The law states that the permanent residence is issued for those who have been legally residing here, and they consider an EU citizen to be residing here legally after 3 months when they requested the initial certificate.
That´s why is so important to get the initial certificate. Even if residing here for longer. I´ve questioned several City Halls if they issue this certificate with retroactive effects but got no answer to my emails, and none of them knew how to respond to me. So, according to the law, I assume you can only obtain the initial temporary certificate from the moment of the request. They just issue it no matter how long you´ve been here for, but with effects from the moment of request.
However, article 21 of Law 31/2006 states that you can always prove residency in any legal way.
Now, we don´t know how Portugal will treat UK citizens after Brexit.
Personally, and considering the amount of UK citizens that are residing here, and the long history we have with the UK as allies, they will maintain the status.
But I believe they will do this only for those who have the initial temporary certificate when applying for the permanent residence – that is, they will maintain as valid the 5 years initial certificate, and then grant a residence permit without further demands when the time comes to apply for permanent residence. I also believe they will automatically convert the already existent permanent residence in a new one, whatever that might be, without further demands.
A second scenario is for them to convert the already issued permanent residences in new ones without further demands, but to demand the requirements for permanent residence as applicable for third-country citizens, including the level A2.
The worst case scenario (that I really don´t believe will happen) is for them to demand the same requirements for third countries citizens no matter the point of start (either only with initial Certificate or with Permanent Residence), and ask UK citizens to present this elements at SEF to a regular temporary or permanent residence permit to be issued (what itself is an exception to the applicable regime, since permanent residence implies a temporary one, but the temporary one demands an entrance with residence visa that is requested at the Portuguese Consulate of the country of residence).
For those who do not have any certificate at all at the time Brexit is enforced, I assume the law applicable will be the one for third countries citizens. The difficulty is that, apart from golden Visa, all residence visa´s must be initiated in the Portuguese Consulate of the country of residence (since it´s drawn to those residing abroad and intending to come to reside here, either through student visa, retirement visa, investor visa, worker visa, etc etc). However, I think that even in such situations, Portugal will draw an, at least, temporary regime, where one can prove residence for more than 5 years and apply for a temporary residence directly from here. But I highly doubt they will do it directly for permanent since even now they demand legal residence.
So, what can you do?
You are residing here for more than 5 years, and have the Certificado de Registo para Cidadão da UE/EEE/Suiça. If you do not wish to obtain Portuguese Citizenship, you should obtain a permanent residence permit at SEF. This will grant you the right to remain to reside here no matter what the negotiations are since it will be a permanent right as opposed to the initial Certificado that loses validity after 5 years!
You are residing here for more than 5 years, and you have either an initial certificate or permanent residence. You should apply for Portuguese Citizenship. This will grant you the statute of UE Citizen even after Brexit, and you will be entitled to all the rights of being a Portuguese Citizen. Please check this article written by Sue Fletcher, a UK Citizen that is residing in Portugal for several years and recently obtained Portuguese Citizenship, and is an active contributor to the newspaper Algarve Daily News.
Particular note to those wishing to obtain Portuguese Citizenship and are residing here for more than 5 years (continuous or interrupted), you can prove residence without the certificates as you can read here. We do strongly advise you to contact a lawyer if this happens to be your situation.
You are residing here for less than 5 years, but do not yet have the initial Certificado de Registo. Get one, now. Even if you are residing here for more then 3, 4, 5 months, go to your City Hall and ask for the certificate. You might have to pay a fine for the delay, but better safe than sorry.
You are residing here for at least 5 years but never got the initial Certificado de Registo. Get one now. Of every possibility of reaction of Portugal to Brexit, not having any legal right to reside here, is the most fragile situation as stated above.
You are not residing in Portugal, but you plan to do so in the future, or you consider it important to obtain a UE Citizenship. If this is the case, you should consider obtaining the initial Certificado. If you have a property here, if you wish to get one, this might be a valid option for you too. Since there is no mandatory permanency time for the UE citizen with a residence permit, you can travel back and forth, you can maintain your professional businesses in the UK while investing here as well or not. You will have to present proof you are able to support you and your family here, if not engaging here in professional activity, for example. The non-EU Citizen family member will be able to obtain a residence permit as well, not being able to be out of Portugal for more than 6 or 12 months straight depending on the reason for the absence.
Of course, we don´t know what will happen after the negotiations are closed, but as I said before, those with any form of legal residence permit will be, most likely, in a more protected situation.
Also, for those of you who are entitled to obtain Portuguese Citizenship, and are married to a non-UE Citizen, be aware that obtaining your spouse Portuguese Citizenship might be a plus when it comes to UK Citizenship since requirements to UE citizens are more likely be less demanding.
Warm regards to you all