What is Family Reunification:
Family reunification grants the holder of a residence permit the right to extend this authorization to their dependents. This essentially means that, upon fulfilling specific requirements, their family has the right to accompany them.
Until 2022, the process unfolded as follows: once the interested party successfully completed their residency application and obtained their residence permit, one of two scenarios played out:
- Family Abroad:
- If the resident’s family remained in their home country, the resident in Portugal needed to secure an appointment with SEF to initiate the family reunification process.
- Following a positive assessment, SEF would liaise with the relevant consulate to affix a visa stamp to the passports of the family members.
- Armed with this visa, the family would enter Portuguese territory and, in tandem with SEF, undergo a second in-person appointment. This step culminated in the issuance of the residence permit after biometric data collection.
- Family Already in Portugal:
- In cases where the family member was already in the national territory, either the resident or the family member had to schedule an appointment with SEF to kickstart the family reunification process.
- This appointment would not only initiate the process but also facilitate the collection of biometric data and the issuance of the family member’s residence permit.
What’s the Issue, Then?
The pandemic has severely constrained the possibility of family reunification.
This means that hundreds of residents in Portugal, hailing from around the globe (including the EU), found themselves unable to reunite with their families.
However, even to this day, the concept of family reunification rarely materializes. We are still light-years away from the pre-pandemic situation, which was already not very efficient.
This directly stems from the inefficiency of services, both from consulates and SEF.
The primary obstacle to achieving family reunification is quite straightforward—the lack of appointment availability!
In other words,
What has been happening is that SEF doesn’t have available slots for appointments, neither for initiating the request nor for biometric data collection.
As long as there are no available appointments, the process cannot be initiated or concluded. This means that family members of foreign residents can only enter Portugal with a tourist visa. However, obtaining a Schengen visa for Portugal is no easy task, especially given the inefficiency of most of our consulates.
Even for those who manage to obtain a tourist visa, finding an available slot for appointment and data collection within the 90-day timeframe is nearly impossible. As a result, they inevitably end up staying in Portugal illegally for who knows how long, essentially becoming “trapped” in the country.
Since 2020, when the services deign to “open their calendars,” they do so with a laughably small number of available slots.
To make matters worse, dubious networks that engaged in true “smuggling” of appointment slots, flooded the phone lines to the point of rendering them useless, swallowing up the few available slots.
This situation puts the recipients in positions of vulnerability and unacceptable inequality within our legal framework. Why? Because these individuals are forced to choose between staying in Portugal separated from their families or returning to their countries of origin.
The most affected, of course, are those without economic power, hailing from countries where the inefficiency (or nonexistence) of consulates is more pronounced.
Tens of thousands of requests have been left pending, in violation of national law and international agreements.
In 2022, the legislator introduced a change that somewhat alleviated this situation.
Since then, an applicant for a residence visa for Portugal can simultaneously request family reunification.
This is a significant advantage because it ensures that family members can enter Portuguese territory.
Furthermore, it ideally secures a pre-booking for the family to complete the process and obtain their residence permit.
What changes then?
Decree-Law no. 1/2024 comes to amend the regulation of Law 23/2007 (which approves the legal regime for the entry, stay, exit, and removal of foreigners from national territory).
According to a communication sent by AIMA to Lusa, and reproduced in various media outlets, the legislator promises to streamline and simplify the entire process from the residence visa application to family reunification.
They promise greater speed in processing, with increased security requirements. They intend to do this mainly through digital services available on the AIMA Portal, dispensing phone appointments and physical visits to services.
In other words, requests will now be preferably made on the digital platform.
Who can access the platform?
The family reunification request can be made on the platform by the residence permit holders themselves. It can also be submitted by the family member if they are in the country at the time of the request.
As we mentioned here, we see a positive sign in the fight against illicit representation, the fact that lawyers and solicitors are the ones who can submit requests on the platform through their corresponding digital certificates. This is a very important step in filtering out unqualified professionals who were practicing legal acts in this area.
It also makes it harder for the human trafficking networks to operate. With this methodology, each resident can request their family residence permit on the platform using a digital certificate. However, only professionals accredited by the State will be able to submit family reunification requests on behalf of third parties. Once requests on behalf of others are required to be made by professionals, we narrow down the universe of people operating in the system, thus reducing the risk of human trafficking activities.
In short, considerations aside, the fact that the process can be initiated without the cursed in-person appointment, represents a significant acceleration factor in the family reunification process.
Right from the start, because this ensures that procedural deadlines commence, which is extremely relevant for the concept of tacit approval.
Tacit approval? What’s that?
With the publication of the decree creating AIMA in June 2023, the legislator introduced a significant change to the Foreigners Law.
Upon submitting a family reunification request to AIMA, it has three months to decide. If the situation is particularly complex, it can extend the review period to six months (with justification).
If there’s no formal decision after these three months (without notified extension) or six months (maximum period), the request is tacitly approved. In other words, the request is granted if AIMA says nothing within six months at most.
In the case of family members outside the national territory, AIMA will notify the Direção-Geral dos Assuntos Consulares e Comunidades Portuguesas within 48 hours for the issuance of the residence visa. This allows them to enter the national territory.
The concept of tacit approval is highly exceptional in Administrative Law. In recent decades, the legislator has gradually eliminated it. Therefore, its introduction in this context is significant and revealing of the chaotic state of affairs.
However, this measure remains utterly useless.
Tacit approval is only relevant if the process has started. To start, the request must have been submitted. To submit the request, scheduling is required. This means that the concept is entirely useless when there are no appointments available! Which is the case.
Let’s imagine we simultaneously submit a residence visa request for an applicant and two family members.
The SEF’s judgment is returned with a favorable assessment but without a pre-scheduled appointment. This family has a residence visa and can enter the national territory. However, they have to wait for slots to be made available to schedule the collection of biometric data to complete the process. Tacit approval is not applicable because the residence permit request was not formalized due to a lack of scheduling.
The problem is similar for relatives of residents already in the national territory. Without an appointment for the family reunification request, the countdown of the three months isn’t even initiated.
The applicability seems to be clear only in the following circumstances:
Suppose a resident in Portugal miraculously secures an appointment. They formalize the family reunification request for their wife and two children in Uruguay. The 3-month countdown begins. Three months later, SEF remains silent. The request is considered approved (deferred tacitly). SEF would have to certify tacit approval and in 48 hours notify the Direção-Geral dos Assuntos Consulares to issue residence visas to their family, allowing them to enter the national territory.
However, once in Portugal, they can’t schedule an appointment for biometric data collection. Without this data collection, there’s no-issuance of a Residence Permit.
Even if the process is tacitly approved, without scheduling, there’s no-issuance of the residence permit! The only way to force AIMA to schedule it (because it’s already tacitly approved) is to resort to Administrative Courts, where the average processing time for such a case is around 2 to 3 years!!
In summary,
The concept of tacit approval will only have a more extensive reach if combined with the possibility of requesting the digital platform.
If a foreign resident can make the family reunification request on the digital platform, then the 3-month period will start counting from that request, and they won’t have to wait for scheduling.
If residence visa holders or relatives who entered with a tourist visa can request a residence permit, the 3-month period will start counting. They can thus complete the process and have their residence permits issued without waiting for scheduling availability.
According to the same statement from AIMA to Lusa,
And as the Regulatory Decree indicates, another measure with a significant impact on speeding up the procedure was introduced.
AIMA can now directly consult other entities to confirm some of the process requirements, directly accessing the databases of Public Administration, such as the Tax Authority or Social Security.
Furthermore, the applicant is exempted from submitting supporting documents for requirements that can be confirmed through the consultation of these databases. We are talking about information such as Social Security contributions, withholding taxes, issued receipts, etc.
In theory, this measure could represent an effective acceleration in the request processing.
On one hand,
The factor of distrust is eliminated, and the verification of information is instantaneous. The need to officially request each external entity to verify information is also eliminated. Moreover, it eliminates, above all, the endless waiting times to wait for the entity to respond.
On the other hand, the officer now must access a system that is unstable and does not always work.
Moreover, this also means that data cross-referencing becomes an effective reality, and it remains to be seen to what extent AIMA can access information.
In conclusion
As can be seen, all these measures seem promising.
We will analyze them in detail when we delve into the specific requirements for each type of visa.
The website has been up and running since yesterday, but it’s only for family reunification of households with at least one child aged between 5 and 15, already residing (irregularly) in Portugal.
As per the reports circulating, like the one here, the application isn’t contingent on the availability of slots. According to the AIMA President, the portal will always be open for submitting requests, and it’s expected that applicants will be contacted within 15 days for scheduling at the nearest location to their residence.
However, as the President himself acknowledges in the interview with the DN newspaper, AIMA has no idea how many families are yet to regularize. We still don’t know who will be included in the upcoming schedules.
In other words, the waters remain choppy, with fog just around the corner. The legislation is a maze, and the coordination between the law and the entities is complex.
Let’s wait for the next chapters to unfold.
Thank you for reading,
Eva
Article updated by 22/02/2024
