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By Ana Rita Gil, Professor at the Faculty of Law, University of Lisbon.

“Legal Rights to regularisation” in the Portuguese Immigration Law in “normal times”

Since the 2008 European Pact on Immigration and Asylum, the European Union has urged Member States to refrain from adopting the so-called “mass regularisations of migrants”. At the same time, the European Court of Human Rights case-law recognised that, in some cases, the right to respect one’s private life could require, exceptionally, a positive duty to regularise a migrant’s legal status. Nonetheless, a “right to regularisation” has been always seen as somehow paradoxical.

Since its enactment in 2007, the Portuguese Immigration Law foresees several “regularisation” possibilities, which have been gradually expanded. Article 122, for example, contains a long list of cases whereby a migrant may regularise his or her status for the purpose of protecting their human rights to family, to private life or even to health. Articles 88 and 89, on their side, refer to regularisation for the purposes of dependent and independent professional activity and, therefore, represent mere immigration policy options. Until 2017, these “economic” regularisation opportunities only corresponded to pure discretionary administrative powers.

Subsequent changes expanded these options. Law no. 59/2017, of 31st July introduced a profound change in the very nature of Articles 88 and 89, which no longer foresaw administrative discretionary powers, but rather subjective rights to regularisation. The new wording no longer provided any margin of opportunity, by objectively decreeing that everyone who fulfilled specific conditions would be entitled to a residence permit with a visa exemption. On the other hand, this amendment overcame some contradictions of the previous regime that led to its own practical inapplicability. For example, according to the previous wording of Article 88, in order to apply for a residence permit, one needed to present a work contract – which was hardly compatible with the ban on the employment of undocumented foreign citizens. With the 2017 amendment, it became possible to present an application by submitting a mere offer of employment letter. Even though some political voices claimed against this change, namely by pointing that it could open the door to new illegal activities – such as the “sale” of false employment offers -, no restrictive adjustments were subsequently made.

Thus, after the 2017 amendments, the law foresees a legal right to regularisation, for the purposes of dependent professional activity, to those who: a) had an employment contract, a proven employment relationship or an offer of employment letter; b) had entered legally in the country; and c) were registered in the social security (exception made in the cases where regularisation was grounded on an employment offer). Similar conditions, with the necessary adjustments, would apply to independent workers.

This first significant amendment to the regularisation scheme still demanded that the entry in the territory had been legally made. The objective was to avoid the “call effect” and the potential increase of criminal phenomena such as smuggling of migrants and human trafficking. However, in 2019, another amendment to these Articles was approved: the entry in the territory became presumed legal whenever the applicant worked in national territory and had his/her situation regularised before the social security for at least 12 months.

The Snowball Effect and the practical difficulties to implement the “legal rights to regularisation”

Although these successive amendments to the Immigration Law undoubtedly responded to serious deprivations of rights of more and more strata of the population, they nevertheless raised some questions – the first of which would be the “call effect”. This problem is not only related to the danger of increasing the activity of migrants’ smugglers, but also to the limited welcoming capacities of the Portuguese State. On the other hand, the successive widening of possibilities for regularisation have paved the way for thousands of migrants to be immediately regularised. However, the Aliens and Borders Administration was not prepared to respond to a mass increase of applications for residence permits. The result was dramatic. After making an application (through an “expression of interest” in the immigration’s website), the migrant had to wait months – sometimes more than a year – to have a first appointment with the Immigration Services scheduled. In 2020 alone, there were more than 30.000 regularisation requests. This massive number of submissions led to delays on all other immigration applications, such as renewals of residence permits, family reunifications, asylum requests, awards of students’ residence permits, just to name a few. As a result, vast numbers of residents had their legal title expired and became “illegally-staying”. Students that were already enrolled in university degrees could not travel to Portugal to attend their classes, families could not be reunited, etc. “Enormous Delays” became a chronic problem of an immigration system that promised too much and provided too little. Mirroring these problematic chain-effects, the number of complaints to the Ombudsman due to delays on immigration procedures rose dramatically in 2019 and 2020.

The COVID-19 crisis and regularisation-based temporary solutions

On the 18th March 2020, the date of the first declaration of the state of emergency in Portugal due to the Covid-19 pandemic crisis, the immigration services had a vast number of pending applications for regularisations, renewals, family reunifications, and other types of residence permits, and the Ombudsman had hundreds of complaints regarding severe delays on these procedures.

The pandemic crisis had worsened this scenario, leaving more people in a precarious state. Thus, in an Order issued on the 27 March, the Government established that, at the date of the first declaration of state of emergency, all migrants and asylum seekers with pending applications would be treated as legal residents until 30 June 2020. This measure was aimed at suspending the immigration public customer service, and at reducing the risks to public health of both the officers and the users. But its major practical effect was to allow thousands of migrants with pending applications to have their legal status regularised – or renewed – until the date of 30th of June. This measure affected the lives of approximately 260.000 immigrants, who saw their legal position temporarily regularised. The regularisation enabled all these migrants to access the National Health Service, to other healthcare rights and to social support benefits. It also allowed them to sign lease contracts, draft employment contracts, open bank accounts and subscribe essential public services. The proof of an appointment at the immigration services, or the application receipt for an application submitted, were enough evidence of the applicant’s regular status. These documents should be accepted and deemed valid by all public services, as broadly broadcasted. Due to this measure, all those who were waiting for a legal status could enjoy all legal rights and privileges guaranteed to legal residents and national citizens – even though only temporarily (until 30th of June). As a result, this measure was widely referred to as a good example at the international level, especially when compared to other countries that have opted to stop registering asylum requests as a way to respond to the public health crisis.

However, this first governmental decision established a specific duration for its effects. After reaching the Orders’ time, all their subjects would return to their original status. That is to say that after 30th of June 2020, they would become, again, illegally staying migrants.

Nevertheless, new governmental Orders followed the first one, and the temporary regularisation solution continued to be maintained and renewed sine die. The last Order was adopted on the 21th April 2021. It extended the other orders’ effects to all new requests made until 30th April 2021. But it provided for a different and more beneficial solution. According to it, all migrants who had pending applications until that date would continue to be presumed as legally staying in the territory until they had received a final decision on their application. Contrarily to the first measure, this last one did not settle a specific date for ceasing the temporary regularisation’s effects. It was clear that the State was aware that the immigration services could not issue a final decision, in three months or so, on the thousands of applications that had benefited from the Covid-19 measures. After the ending of the state of emergency period, the immigration services would return to their earlier own “state of emergency”: all the delayed procedures, that had meanwhile been suspended, would come back to haunt the few existing immigration employees. A no-deadline measure was, then, the best solution.

Going back to normal

Currently, all migrants who made their applications for regularisation or legal titles’ renewals until 30th April 2021, will continue to have their status regularised until receiving a final decision on their requests. One must highlight that these regularisations are still temporary. They are equivalent to a “precautionary regularisation”, dependent on a final decision on the merits. Only if the applicant fulfils the legal conditions established under Articles 88, 89, 122 and 123 of the Immigration Law, may he or she acquire a final legal status.

On the 19th of April 2021, the Immigration Services resumed their normal functioning. Those who have made their regularisation requests after that date are no longer covered by the exceptional Covid-19 measures. Contrarily to the others, they will remain in an illegal situation during their application’s analysis procedure. Although this may create some inequality between migrants who have made their application before or after 30th April 2021, we must bear in mind that the Covid-19 measures were simply public health measures, not immigration measures per se. Thus, as many other decisions made during the worst peaks of the pandemic, they ceased their effects once the public health needs decreased.

The regularisation measures were obviously to be applauded. They represent a new way to envisage the liaison between public health and immigration, where normally the former is seen as a limit to the latter. Some States have opted for that traditional approach, namely by stop registering new applications for asylum. In Portugal, not only did new applications continue to be registered – both for asylum and immigration, including regularisation requests – but it also was understood that public health would be more effectively protected if more rights would be conferred to migrants. The basic idea is very simple: if illegally staying migrants could benefit from the same healthcare as residents, then the disease could be more easily controlled.

Nevertheless, one should highlight again that these regularisations were mere urgent responses to the public health crisis. They were not even extraordinary regularisations, as they had only given a temporary or precautionary status. They allowed many thousands of migrants, which were living in a precarious situation in Portugal, to temporarily access public healthcare and to lead a normal private life in the territory. However, they neither represented a final decision on the legal stay of their beneficiaries, nor have they contributed to solve all the systemic problems that were affecting the Portuguese Immigration services. They just temporarily tackled the effects of a broader problem.

Although it is true that the Portuguese Immigration Law foresees several ordinary regularisation measures, its system may not be sustainable, as the country’s real reception capacities and the functional conditions of the services do not seem to accompany the high numbers of applications that will continue to happen in the future. The country could seize the opportunity opened by the Covid-19 temporary measures to reflect on future reforms. It has showed the high numbers of persons living in the limbo, and it has even led to discover hundreds of persons living in very extreme and even inhuman conditions[1]. Two options may be opened for discussion: either to restrict the regularisation possibilities, or to reinforce the Immigration Services and the tools for fighting against smuggling of migrants. It is clear, as the Covid-19 crisis has showed, that the current solution attracts thousands of migrants that will live in very precarious conditions. An urgent reform is needed. Otherwise, more situations of especial vulnerability may happen, and a “quick-fix solution” may not be as popular as the Covid-19 one.

[1] In May 2021, hundreds of migrants, mainly from South-Asian countries were found living in overpopulated houses in the Alentejo. More than ten families would live in the same roof, and were explored by unscrupulous landlords, who would reclaim hundreds of Euros per bed. This case became a national scandal and was broadcasted throughout the European States media channels.