Approves The Legal Regime Of Entry, Stay, Departure And Removal Of Aliens From National Territory

Original Language Title: Aprova o regime jurídico de entrada, permanência, saída e afastamento de estrangeiros do território nacional

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1 draft law No. 248/X changes the entry, stay, departure and removal of aliens from the national territory (fourth amendment of Decree-Law No. 244/98 of 8 August, as amended by law No. 97/99, of July 26, by Decree-Law No. 4/2001, of 10 January, and by Decree-Law No. 34/2003, of 25 February) Preamble Giving comply with a commitment made in your Election Program , the PCP presents a draft law amending the legal framework of the entry, stay, departure and removal of aliens from the national territory, commonly known as "Aliens Act". The CFP has always advocated that the double condition of Portugal as a country of emigration and immigration, which is also a sign of your specificity in the European Union, should justify so reinforced a host policy orientation and integration of immigrants into Portuguese society marked by respect for their civil, social and cultural rights, to support your harmonious integration and appreciation of your contribution to the development of the country. It has not been that, however, the main feature of the policies adopted in Portugal in recent years. Despite the good words addressed to immigrant communities, immigration policies have been marked by your restrictive nature and by the maintenance of administrative practices that hurt the everyday life of immigrants negatively. Are penalized those who demand Portugal in search of a better life, but are left almost unharmed, in practice, the economic and business interests that feed networks of illegal immigration and undeclared work. The legislation governing the entry, stay, departure and removal of aliens from the national territory is an example of this negative policy in relation to the immigrant and abroad. It is not true that exists in Portugal a policy of "open doors" to immigration, as is sometimes said without any accuracy and without minimum 1 2 accuracy. On the contrary, Portugal has followed a policy of doors almost closed to legal immigration which is objectively a growth factor of illegal immigration with all the negative if you associates. Immigration is not something negative with which the country is confronted. Immigration is necessary and desirable. All the studies indicate, not only for Portugal, but in Europe in General, the demographic balance, the sustainability of social security schemes and economic activity, lack of a strong contribution from the immigrant population. What is in fact a problem, at all levels, is the illegal immigration and practices. For illegal immigration to be combated effectively it is necessary first of all to facilitate legal immigration, ending with the absurd and failed system of "quotas" in the "foreign" law and adopt more flexible entry criteria in Portugal with proposals for contract work. It is also necessary to monitor and sanction adequately the unscrupulous employers who take advantage of illegal immigration to sobre-explorar foreign workers taking advantage of your situation of fragility and making them work without any rights and violating often execrable form the most basic human rights. Matter of course fight through trafficking networks police labor illegal and criminal associations that feed. But it is essential to allow foreign workers in Portugal have the opportunity to legalize your situation and could live among us with their families without their curtailed rights and without being hostages of those who benefit from illegal immigration. Very recently, the public was alerted to injustices that are being committed by the authorities of a country where there is a large Portuguese community – Canada – to expel administratively Portuguese citizens who work and live there, because they are in an illegal situation in face of the immigration legislation. The sense of injustice that this situation understandably generated in Portugal, compels us to reflect on the "foreign law" in force in our country, which is likely to lead to similar injustices for citizens of other countries residing and working in Portugal. According to data recently published in 2004, 2909 immigrants were reported to leave Portugal due to the illegality of your situation, and in 2005, the Portuguese authorities have carried out the expulsion of 784 citizens (over 53% in 2004). It is clear that on the basis of these expulsions have been diverse causes that do not allow doing 3 generalizations, but surely that in some cases have been committed injustices, due to the extremely restrictive nature of "foreign law". It becomes clear that Portuguese legislation has to be rethought. Portugal will only have full moral authority to complain against injustices committed in other countries that affect our countrymen, if you give the example, and if you eliminate the Portuguese legislation provisions that lead to injustices in all similar affecting citizens of other countries that we are looking for a better life. Is false the idea sometimes spread that Portugal, not being a country, Rico is not in a position to welcome immigrants. False idea, because the immigrants are not parasites, do not come to live at the expense of anyone. Come to work and produce more than what they earn. Are workers who contribute to the creation of wealth and to the development of our country. Among other negative aspects that characterize the current legislation are highlighted:  the assignment of discretionary decision-making powers and excessive administrative authorities, especially in the service of Foreigners and borders;  the denial of suspensive effect to any resource that is submitted in respect of the expulsion decisions; the almost impossibility of obtaining a residence permit on the part of immigrants working in Portugal;  the indiscriminate application of the accessory penalty of expulsion to foreigners, after completion of prison sentences;  the ban on entry into Portugal of citizens that have your name inscribed in the national list of persons inadmissible or in the list of the Schengen System without regulating the right of appeal of that inclusion, nor the conditions and time limits of your withdrawal of lists;  the ban on entry into Portugal and the expulsion of foreigners from the national territory on the basis of reasons too vague and generic. However, the failure of the successive constants solutions recognized versions of "foreign law" represents the confession of the failure of immigration policies characterized by repression, by closing and discrimination, and that didn't solve the problems confronting the Country on immigration. The PCP reaffirms that this immigration policy that Portugal needs and that the migrant workers themselves rightly claim. Combat illegal immigration and undeclared work, inhuman exploitation of so many Portuguese and foreign 4, requires, among other measures, an immigration policy and a Foreign law differently and more democratic, to ensure respect for the rights of all workers, without discrimination as to your national origin and treat all immigrants as citizens of whole body , who aspire to a better life and they want to be respected in your dignity; that do not create new categories of immigrants with more rights conditional, but they accepted boldly to establish a permanent legal framework to enable the settlement of that living and working here, suffer all the dramas of illegality, leaving that to feed the international supply networks of illegal immigration and undeclared work that everyone, Portuguese workers or immigrants, harm. In this sense, the Parliamentary Group of the PCP, following by the way of initiatives already defended in previous legislatures, proposes a comprehensive review of the "foreign law" based on some fundamental aspects, among which stand out:-the conversion of the residence visa and residence permit under rule for admission and for the regularization of the residence in Portugal for the exercise of a professional activity by an employed or self-employed person as well as to the pursuit of activities of study, training or scientific research.
-The consequent elimination of figure of work visas and study, replaced with residence visas, to be granted in accordance with the required purposes.
-Clarification of the concept of resident, according to a less restrictive than the current concept.
-The Elimination of "residence permits", ensuring the citizens covered by it the right to obtain residence permits to be granted automatically.
-The abandonment of the policy of quotas for immigrants failed in access to the labour market.
-The limitation of the discretionary powers of the service of foreigners and borders, in particular with regard to the expulsion of foreign citizens, strengthening these guarantees as to the possibility of legal action, with effectiveness, administrative decisions affecting their rights.

-The possibility of granting residence permits to foreign nationals who have employment contracts in Portugal.

5-the Elimination of selectivity criteria on economic renewal of residence permits-the Elimination of obstacles and restrictions on the right to family reunification, notably with the recognition of de facto Union.
-The recognition of a legal status that no accent discrimination between people from the same household.
-A particular concern with the situation of children and minors in General, giving them special protection when unaccompanied by extending the right to family reunification and preventing the application of ancillary penalties of expulsion the accused who have minor children in Portugal.
-The reduction of the period of residence required for obtaining permanent residence permit.
-Significant reduction of the possibility of applying penalties of expulsion, excluding any of that application in cases where foreign nationals have permanent residence permit in Portugal, were born in Portugal and here resides, are usually in Portugal since the age of 10 years old or have minor children residing in Portugal. Even in other cases, accessory penalty of expulsion may not be imposed without a concrete assessment of your justification, taking into account the family situation of the accused.
-The increase of participation of the Consultative Council for Immigration Affairs, causing it to intervene directly in the monitoring of the application of foreign legislation. In these terms, under g) of paragraph 2 of article 180 of the Constitution and article g) of paragraph 1 of article 11 of the rules of procedure of the Assembly of the Republic, the Parliamentary Group of the PCP presents the following draft law: article 1 Provisions amended articles 3, 13, 16, 22, 23, 27, 28, 29, 34, 35, 36, 37, 38 , 39th, 40th, 41st, 43rd, 51st B, 53, 56, 57, 58, 84, 85, 87, 88, 89, 91, 92, 93, 94, 97, 98, 99, 101, 105, 114, 116, 121, 131, 139, 144, 149 and 160 of the Decree-Law No. 244/98 of 8 August, as amended by law No. 97/99, July 26, at 6 Decree-Law No. 4/2001 , 10 January and by Decree-Law No. 34/2003, of 25 February, are replaced by the following: "article 3 concept of resident is considered legally resident in Portuguese territory the foreigners are here, with your paid before the Portuguese authorities under any one of the titles, visas or authorizations provided for in this law.

Article 13 1 entry visa. (…). 2. (…). 3. May, however, enter the country without a visa: the) foreigners with residence permit or other document which, pursuant to this law, to be held in Portugal. b) foreigners benefiting from exemption of entry visa in terms of international instruments of which Portugal is a party. 4. (…). 5. (…). 6. The decision of cancellation is given to the High Commissioner for immigration and ethnic minorities, hereinafter referred to as the ACIME and Advisory Council for Immigration Affairs, hereinafter COCAI, indicating the reasons.

Article 16 smaller inlet and outlet 1. (…). 2. (…). 3.(…). 4 (…).

7 5. The unaccompanied minors await a decision on your admission to national territory or on your return should be granted all the material support and assistance to meet their basic needs of food, hygiene, housing and medical care. 6. The unaccompanied minors can only be repatriated to your country of origin or third country willing to welcome them if there are guarantees that upon arrival they are assured the host and the appropriate assistance. 7. While there are no guarantees referred to in the preceding paragraph must be made possible the permanence of children in national territory.

Article 22 decision and notification 1. (…). 2. (…). 3. (…). 4. The foreigner who express intention to appeal against the decision to refuse entry may apply for the suspension of the transfer to the competent court, which shall decide within 48 hours. 5. Former paragraph 4.

Article 23 judicial review the decision to refuse entry may be contested before the administrative courts judicially, in accordance with the law.

Article 27 types of visas abroad may be granted the following types of visas: the visa); b) transit visa;

8 c) short-stay visa; d) green card; and temporary stay visa).

Article 28 territorial Validity 1. (…). 2. The visas referred to in points (a) to (d)) and e) of the preceding article are valid only for the Portuguese territory.

Article 29 individual and 1 collective Visa. (…). 2. (…). 3. (…). 4. (…). 5. The visas referred to in points (a) to (d)) and e) of article 27 may be granted individually.

Article 34-1 the residence visa green card is intended to allow the entry into Portuguese territory to your holder in order to: a) Exercise a professional activity temporarily, subordinated or not; b) follow a program of study at an educational or training establishment officially recognized; c) Perform scientific research work to obtain an academic degree or scientific interest proved by officially recognized education institution; d) Attend a supplementary stage of studies completed in the country or abroad;

9 e) Attend training courses for companies, public services or training centres which are not considered official teaching establishments; f) family reunification. 2-the green card is valid for multiple entries in Portuguese territory and cannot be granted for stays of up to one year.

Article 35 Repealed.

Article 36 Repealed.

Article 37 Repealed.

Article 38 1 temporary stay visa. The temporary stay visa is intended to allow the entry into Portuguese territory to your holder to:) (...); b) monitoring of family members under the conditions laid down in the preceding paragraph, subparagraphs (a) (b)), c), (d)) and e) of article 34; c) regroup relatives of citizens who hold document that, in accordance with the law, to be held in Portugal; d) (…). 2. in the cases of paragraph 1 (b)) and c) of the preceding paragraph, the temporary stay visa allows the holder to exercise a professional activity your identical to green card. 3. The temporary stay visa valid for multiple entries into the national territory. 4. The validity of the visa granted in accordance with paragraph 1) coincides with a predictable duration of medical treatment and may be extended.

10 5. The validity of the visa granted under subparagraphs (a) (b)) and c) of paragraph 1 must coincide with the validity of the visa issued to the family member that accompanies it. 6. Former paragraph 5.

Article 39 award of green card 1. (…). 2. the granting of residence visa for family reunification or for professional activities in compliance with the provisions of chapter V and in section II of chapter III.

Article 40 Visas subject to prior consultation 1. Requires prior consultation with the service of foreigners and borders to grant residence visas to exercise of a professional activity and temporary stay. 2. In urgent and duly justified cases, may be waived prior consultation in the case of visa application for exercise of a professional activity in the framework of the provision of services. 3. (…). 4. (…). 5. Eliminated.

Article 41 employment Offer the Institute of employment and vocational training, in conjunction with the Directorate-General for Consular Affairs and Portuguese Communities, the Ministry of Foreign Affairs, and with the service of foreigners and borders, will develop, in the context of protocols and bilateral agreements, the necessary mechanisms to fill unmet job offers at national and community level, since the employer express an interest in the recruitment of workers from third countries.

11 article 43 1 assent. The residence visa for exercise of subordinate work lacks favourable opinion of the General Labour Inspectorate (IGT) or its Regional Secretariat, in the case of the activity to be carried out in the autonomous regions, upon request of the Foreign and Frontiers Service pursuant to paragraph 3 of article 40, or at the request of the employer. 2. (…). 3. The opinion focuses on the licensing of the employer for the activity and on the degree of your compliance with the legality of employment relationships and the obligations for Social Security.

Article 51 (B) Cancellation of visas 1. (…). 2. residence visas and temporary stay may also be cancelled when the proprietor has been the subject of a removal order of national territory, as well as when the same, without cogent reasons, if absent from the Country for a period of two months, during the validity of the visa. 3. (…). 4. (…). 5. (…). 6. (…).

Article 53 1 residency limits. The extension of stay can be granted:) (...); b) (…); c) (…);

12 d) up to one year, renewable for equal periods, if the person concerned is in possession of a temporary stay visa; e) up to two years if the person concerned is in possession of a green card. 2. the granting of an extension of stay can be granted to relatives of holders which are the conditions for family reunification. 3. (…). 4. (…). 5. The limit mentioned in subparagraph (d)) shall not apply to holders of visas issued in accordance with paragraph 1 (b)) and d) of paragraph 1 of article 34. 6. (…). 7. (…). 8. (…). 9. (…).

Article 56 right to family reunification 1. Is the right to family reunification in Portuguese territory to foreigners family members of a citizen resident who with he lived in another country, which rely on, or living with him in the national territory. 2. The resident citizen wishing to benefit from the right to family reunification must submit their request to the Service of foreigners and borders and prove that offers accommodation and sufficient means of subsistence to meet the needs of your family, if requested. 3. (…). 4. Deleted. 5. (…)

Article 57 1 Recipients. For the purposes of the preceding article, the following shall be considered as members of the resident's family: 13 a) the spouse or with whom he lives in conditions similar to those of spouses for more than two years; b) (…); c) (…); d) (…); and Brothers under your post). 2. (…). 3. The Member of the family will be issued a residence permit of the applicant is identical to the validity.

Article 58 entry and residence of family members 1. (…). 2. The Member of the family of a holder of a residence permit shall be issued a residence permit, temporary or permanent, renewable and identical to the resident. 3. Eliminated. 4. After two years on the issue of the first authorization referred to in paragraph 2 and to the extent that you have family ties, or regardless of this period and condition, where the beneficiaries have minor children residing in Portugal, family members will be entitled to an autonomous residence permit. 5. (…). 6. Deleted.

Article 84 1 permanent residence permit. (…). 2. (…). 3. In the application for renewal of the residence permit holder is relieved of new delivery of documentation, when no changes have occurred that this should prove.

14 Article 85 the granting of permanent residence permit 1. Eligible for a permanent residence permit foreigners who are legally resident: a) in Portuguese territory for at least five years consecutively; b) over the past five years of residence in Portuguese territory have not been sentenced to punishment or punishments which, individually or cumulatively, in excess of one year in jail. 2. (…).

Article 87 1 residence visa waiver. Do not require a visa for obtaining residence permit foreigners: a) (...); b) (…); c) (…); d) (…); e) (…); f) (…); g) (…); h) (…); HH) who have resided legally in Portugal during a continuous period of two years, the last four; i) (…); j) (…); l) (…); m) that have been holders of residence for a continuous period of two years; n) (…); 2. Don't need also for obtaining residence permit foreigners who, cumulatively: 15 a) Are holders of proposal of contract of employment with IGT's opinion in accordance with article 43; b) have not been convicted by final judgment with a custodial sentence of more than six months; (c)) have not been subject to a removal order in the country and in the subsequent period of prohibition of entry into national territory; d) are not indicated for the purposes of refusing entry in the Schengen information system by any of the Contracting Parties; and) are not indicated for the purposes of refusing entry in the Integrated System of the foreigners and Frontiers Service. 3. Do not require visa still to obtain residence permit foreigners who demonstrate reside permanently in Portugal for more than two years and cumulatively the requirements set out in paragraph 1 (b))) of the preceding paragraph. 4. For the purposes of this article shall be deemed to be members of family family members referred to in paragraph 1 of article 57. 5. The refusal of a residence permit to a citizen in any of the situations referred to in this article, appeal in general terms.

Article 88 exceptional Regime 1. The Ministry of Internal Affairs may, in exceptional cases, be granted a residence permit on humanitarian grounds or of relevant national interest, to citizens who do not fulfil the conditions laid down in this law. 2. (…). 3. The decisions of the Ministry of Internal Affairs on applications for authorisation of residence that are formulated under the exceptional scheme provided for in this article shall be duly substantiated and preceded by the opinion of the Consultative Council for Immigration Affairs.

Article 89 Foreign Minors born in the country 16 1. (…). 2. for the purpose of issuing the residence permit, should any of the parents submit an application. 3. If the parents do not present the request referred to in the preceding paragraph, any citizen can apply to the curator of minors to replace the parents and require the granting of status to the minors.

Article 91 1 residence permit renewal. The renewal of the temporary residence permit must be requested by interested parties before the expiry of the validity of your. 2. Eliminated. 3. (…) 4. (…). 5. (…).

Article 92 the deadline for decision 1. (…). 2. (…). 3. refusal of renewal of the residence permit must be communicated in writing to the person concerned, with the reasons therefor. 4. In case of refusal to renew the residence permit must be submitted copy of the decision with the reasons for the Advisory Board for Immigration Affairs. 5. The refusal to renew the residence permit appeal in general terms.

Article 93 Cancellation of the residence permit 1. (…). 2. (…).

17 3. The residence permit may also be canceled when the person concerned, without cogent reasons, if absent from the country: the) Being the holder of a temporary residence permit, six months or twelve months interpolated in the period total of validity of the authorisation; b) (…). 4. (…). 5. Eliminated. 6 (…). 7 (…).

Article 94 Repealed.

Article 97 1 Housing Bulletin. (…). 2. For every foreign national, including nationals of other Member States of the European Union, is completed and signed personally a model housing bulletin approved by Ordinance No. 27/2002 of 4 January. 3. (…). 4. (…). Article 98 the accommodation 1. The operators of hotel establishments, additional means of lodging or tourist villages, as well as those that provide, for remuneration, accommodation to foreign citizens, are required to save their bulletins of accommodation, in accordance with the previous article. 2. Revoked. 3. The accommodation may be replaced by lists or magnetic media, where establishments have computerized services, however, observe the provisions of the preceding paragraph.

18 4. (…).

Article 99 Foundation of expulsion 1. Without prejudice to the provisions of a treaty or International Convention to which Portugal is a party, will be expelled from Portuguese territory foreign nationals: a) (...). b) That violate national security or public order. c) deleted. d) deleted. e) (…). 2. (…). 3. (…).

Article 101 accessory Penalty of expulsion 1. (…). 2. (…). 3. The accessory penalty of expulsion may not be applied to foreigners: a) Have permanent residence permit in Portugal; (b)) were born in Portugal and here resides; c) in Portugal since the age of 10 years and here habitually resident; d) Have minor children in Portugal. 4. The accessory penalty of expulsion may be applied only where essential for the prevention of show criminal offences and should always be evaluated in concrete to your need and justification, taking into account the family situation of the accused and in particular your spouse, descendants and ascendants. 5. (…).

Article 105 entry ban 19 Period abroad is forbidden entry into expelled from national territory for a period to be determined in the condemnatory sentence, not less than three years.

Article 114 contents of the decision 1. (…). 2. (…). 3. (…). 4. Registration in the Schengen information system and in the national list of persons inadmissible will be automatically removed after the termination of the period of ban on entry into Portugal and in case of provision of action brought against the decision of expulsion.

Rule 116 1 Feature. (…). 2. The appeal has suspensive effect. 3. (…).

Article 121 action brought against the decision of expulsion issued by the director of the service and Borders direct appeal administrative Court of Lisbon Circle.

Rule 131 appeal to determine the reference of foreign citizen to the requested State appeal in general terms.

Article 20 Exemption or reduction of 139th rates

1. (…). 2. Shall be exempt from fees: a) (...); b) study visas and extensions of stay granted to foreigners benefiting from scholarships granted by the Portuguese State; c) (…). 3. (…).

Article 149 non-fulfillment of 1. For each newsletter for accommodation to be submitted in accordance with paragraph 1 of article 98 or by each foreign citizen not registered in the list or on magnetic media in accordance with the provisions laid down in paragraphs 3 and 4 of the same article is applied a fine of € 100 to € 500. 2. (…).

Article 144 Exercise of professional activity not permitted 1. (…). 2. (…). 3. (…). 4. (…). 5. (…). 6. (…). 7. Constitutes infringement a very serious breach of the obligations provided for in paragraphs 4 and 5, which is sanctioned with the application of the sanctions provided for in labour legislation, in accordance with the provisions of law No. 99/2003 of 27 August, regulated by Act No. 35/2004, of 29 July. 8. (…).

21 Article 160 Duty of cooperation 1. All services and agencies of the public administration, central, regional and local public authorities, companies wholly or mainly public capital or utilities have a duty to ensure that the entities with which to celebrate, directly or indirectly, administrative contracts don't get work done by foreign citizens illegally. 2. All entities referred to in the preceding paragraph may terminate, with just cause, contracts concluded if, at a later date to your award, the entities with whom they have hired receive work provided by foreigners in illegal situation. "

Article 2 Provisions included article 25A is added to Decree-Law No. 244/98 of 8 August, as amended by law No. 97/99, of July 26, by Decree-Law No. 4/2001, of 10 January and by Decree-Law No. 34/2003, of 25 February, to read as follows: "article 25 the prohibition of entry feature refuse entry on the grounds of any of the grounds for prohibition referred to in previous article appeal under the conditions laid down in articles 22 and 23 of this law. "

2-Chapter XII is added it, with articles 154-154-B, and 154-C to Decree-Law No. 244/98 of 8 August, as amended by law No. 97/99, of July 26, by Decree-Law No. 4/2001, of 10 January and by Decree-Law No. 34/2003, of 25 February, as follows : "Chapter XII-the Regularization scheme Article 154-22 Communication 1-the SEF, always ending a process of regularization of foreign citizens living in Portugal shall forward to the appropriate effects, including automatic enrollment, the tax office and the Social Security Centre of the area of the residence and the General Labour Inspection data considered necessary for its application. 2-the Government shall take such measures as are considered necessary, regulatory and administrative in nature, with a view to the implementation of the communication referred to in the preceding paragraph.

Article 154-B Decision of expulsion under the regularization process, are not expelled from Portuguese territory foreign nationals who voluntarily report the SEF except in the following situations: a) That violate public order and safety; b) whose presence or activities in the country constitute a threat to the interests or the dignity of the Portuguese State or its nationals; c) intervening improperly in the exercise of political participation rights reserved to nationals; d) having practiced acts which, if they were known by the Portuguese authorities, would have prevented the your entry into the country.

Article 154-C fine waiver foreign nationals that trigger your voluntary adjustment process are not subject to payment of a fine for overstaying in the country. "

Article 3 transitional arrangements 23 1. Citizens in Portugal under the residence permit obtained pursuant to article 55 of the Decree-Law No. 244/98 of 8 August, as amended by law No. 97/99, of July 26, by Decree-Law No. 4/2001, of 10 January and by Decree-Law No. 34/2003, of 25 February , acquire, with the entry into force of this law, the right to a residence permit to be issued by the service of foreigners and borders. 2. pending the issuance of the residence permit referred to in paragraph 1 of this article the title of residence functions as provisional authorisation of residence. 3. The length of stay in Portugal authorised under article 55 of the Decree-Law No. 244/98 of 8 August, as amended by law No. 97/99, of July 26, by Decree-Law No. 4/2001, of 10 January and by Decree-Law No. 34/2003, of 25 February, account for the grant of permanent residence permit pursuant to article 85 of this diploma.

Assembly of the Republic, April 11 2006 Members