We bring to the fore the content of the STA ruling, issued in PROC. No. 0741/23.4BELSB, dated 06-06-2024, 1 SECTION, which deals with the legal regime of the procedural means contained in the CPTA that is embodied in the “Intimation for the protection of rights and freedoms and guarantees”, and its application to residence permit requests without response from the Public Administration, jurisprudence with which we agree, in its grounds and device, namely:

Legal framework for migration – summary.

Within the European Union (EU), any citizen of a member country enjoys the right to free movement, being able to enter Portugal with only an “identity card” or equivalent document, and any Portuguese citizen can also enter any EU member state under the same conditions. And they also enjoy the right of residence.

Regarding foreign citizens from third countries in relation to the EU, the requirements are different depending on whether it is a mere entry into the country, for which it is enough to hold a travel document and a visa, or their stay in national territory, which requires, under the law, a residence permit.

Among us, the diploma that «defines the conditions and procedures for the entry, stay, exit and removal of foreign citizens from Portuguese territory, as well as the status of long-term resident» is Law No. 23/2007, of July 4th – see article 1st -, with the successive amendments that the legislator has been introducing.

According to the provisions of article 74 of Law No. 23/2007, of July 4th, the residence permit can be temporary or permanent, depending on its duration.

The temporary permit is valid for a period of two (2) years from the date of issue of the title and is renewable for successive periods of three years – see paragraph 1 of article 75 of this Law, in the version provided by Law No. 18/2022, of 25/08.

As for the permanent permit, it has no validity limit, that is, it is granted for an indefinite period, but its title must be renewed every five (5) years – paragraphs 1 and 2 of article 76 of the aforementioned Law.

Under the provisions of paragraph 1 of article 80 of Law 23/07 “Without prejudice to the provisions of this law relating to the status of nationals of third countries who are long-term residents, foreign citizens who cumulatively benefit from a permanent residence permit:

1. a) Have held a temporary residence permit for at least five years;
2. b) During the last five years of residence in Portuguese territory, have not been convicted of a sentence or sentences that, individually or cumulatively, exceed one year in prison, even if, in the case of conviction for an intentional crime provided for in this law or related to it or for a crime of terrorism, for violent crime or for particularly violent or highly organized crime, the respective execution has been suspended;
3. c) Have means of subsistence, as defined by the ordinance referred to in subparagraph d) of paragraph 1 of article 52;
4. d) Have accommodation;
5. e) Prove to have knowledge of basic Portuguese.

2 – The period of residence prior to the entry into force of this law is relevant for the purposes of the previous paragraph.»

The residence permit determines the issuance of a residence title, which replaces the identification document (article 84).

Due to the European Union’s legislative option to grant residence permits according to their purposes, Law No. 23/2007 provides for several types of residence permits. Each type of permit requires the fulfillment of specific conditions, and before these, the foreign citizen must meet a set of general conditions for granting a temporary residence permit (article 77) and a permanent residence permit (article 80).

It is important to note that the entry of foreign citizens, as well as their stay and transit, in violation of Law No. 23/07, of 04/07, are expressly considered illegal (see article 181), with the most serious situations being typified as crimes in the Penal Code and the less serious ones as administrative offenses.

The following crimes are foreseen: (i) Article 183 of the CP (assistance to illegal immigration); Article 184 of the CP (association for assistance to illegal immigration); (iii) Article 185 (Recruitment of illegal labor); Article 185-A (Use of the activity of a foreign citizen in an illegal situation); Article 186 (Marriage or union of convenience) and Article 187 (Violation of entry ban). For what matters most, it should be noted that under Article 185-A of the CP «Anyone who habitually uses the work of foreign citizens who do not hold a residence permit or visa that allows them to legally remain in Portugal, is punished with a prison sentence of up to one year or a fine of up to 240 days».

The expression «habitually» does not include the occasional hiring of a foreign worker, which constitutes a mere administrative offense (article 198-A of law no. 23/2007), with the application of fines being the responsibility of the AIMA board of directors, which can delegate it.

 

Intimation for the protection of rights, freedoms and guarantees and precautionary protection

 

The intimation for the protection of rights, freedoms and guarantees is provided for and regulated in articles 109, 110, 110-A and 111 of the CPTA, having been one of the great innovations that the administrative litigation reform carried out between 2002-2004, introduced into the national legal system.

In the Explanatory Memorandum of Bill No. 92/VIII, which gave rise to Law No. 15/2002, of February 22, which approved the CPTA, the process of intimation for the protection of rights, freedoms and guarantees was qualified as an instrument for obtaining «constitutional protection». In fact, with the provision of this procedural means, the legislator created in the national legal system a mechanism of “ordinary protection” of fundamental rights, in implementation of the fundamental right to protection arising from paragraph 5 of article 20 of the Constitution of the Portuguese Republic (CRP) which establishes that «for the defense of personal rights, freedoms and guarantees, the law ensures citizens judicial procedures characterized by speed and priority, in order to obtain effective and timely protection against threats or violations of these rights», although the scope of protection includes a wider range of fundamental rights than just personal ones.

Linking the legal provision of this means to paragraph 5 of article 20 of the CRP, it cannot be said that the admission of the Intimation is justified to safeguard, among personal rights, the right to citizenship, provided for in paragraph 1 of article 26, understood in the broad sense that results from the provision of article 15, relating to the equal treatment between foreigners and national citizens.

The Intimation mechanism provided for in articles 109 and following of the CPTA ensures protection on a principal, urgent and summary basis, of rights, freedoms and guarantees, which are being violated in those situations where the rapid issuance of a decision binding the Administration (or individuals) to adopt a positive (facere) or negative (non facere) conduct is indispensable to safeguard the timely exercise of a right, freedom and guarantee.

The provision of this procedural mechanism, which incorporates in its legal design the concern to ensure effective judicial protection in urgent situations involving the protection of rights, freedoms and guarantees, reinforces the absolutely crucial role of administrative and tax courts in the contentious guarantee of rights, freedoms and guarantees (see, in particular, subparagraph a), paragraph 1 of article 4 of the ETAF).

The specific positive assumption of the Intimation is provided for in the first part of paragraph 1 of article 109 of the CPTA: it is the indispensability of resorting to this means as a way to ensure the timely exercise of a right, freedom or guarantee, addressing present and future injuries. In other words, it is required that the need for urgent issuance of a merit decision is indispensable for the protection of a right, freedom or guarantee. It is up to the applicant for the intimation to allege and demonstrate the urgency in obtaining a definitive decision for the protection of the rights, freedoms and guarantees that they claim are being violated.

As already stated, the range of fundamental rights, freedoms and guarantees that can be protected by the Intimation is very broad, and the fundamental rights resulting from law or international norm binding the Portuguese State must also be taken into account, as indeed results from the provisions of article 16, paragraph 1 of the CRP. It must also be recognized that these processes involve the safeguarding of the principle of human dignity.

Our jurisprudence has made a generous reading of the concept of right, freedom and guarantee for the purposes of article 109 and the claims that can be protected as the exercise of such rights, even extending protection to legislative concretizations of fundamental social rights, such as higher education, health or social security.

The principle of human dignity has also been invoked in some rulings where the impact on core dimensions of fundamental rights, namely social rights, is highlighted – see TCAS ruling of 15.02.2018, proc.2482/17.2BELSB.

On the other hand, it is a prerequisite for the use of the Intimation that the provisional decree of a precautionary measure or recourse to any precautionary means is not sufficient in the circumstances of the case.

Called to rule on the constitutionality of Article 109, paragraph 1 of the CPTA, when it conditions the use of the injunction process for the protection of rights, freedoms, and guarantees to the impossibility or insufficiency, in the circumstances of the case, to ensure the exercise, in a timely manner, of a right, freedom, or guarantee, of the provisional decree of a precautionary measure, the Constitutional Court (TC), in its judgment no. 5/2006, issued in concrete review, available at www.tribunalconstitucional.pt, ruled that the relationship of subsidiarity and the way it was configured did not constitute an excessive restrictive intervention in the scope of the rights of access to the court and effective judicial protection. It reads in the summary of this TC Judgment:

“III. Assuming a provisional nature of the claim made by the applicant in the injunction process (…), for the protection of his subjective position, the procedural means of special administrative action coupled with a precautionary measure, within the scope of which the provisional decree of the measure could be requested, under the terms of Article 131/1 of the CPTA, were sufficient and adequate. IV. In this context, the normative interpretation adopted in the appealed decision, moreover in perfect consonance with the literalness of the legal provision, in the sense of the inadmissibility of the use of the injunction process for the protection of rights, freedoms, and guarantees, does not violate the constitutional rights of access to the courts and effective judicial protection, rights that are satisfied by the legal provision of procedural mechanisms that adequately and sufficiently enable interested parties to defend their rights before the courts, but obviously do not ensure success in their claims for all of them.”

 

The TC also emphasized that the distinction criterion of Article 109 essentially lies in the adequacy, in the specific situation, of a provisional sentence or a definitive merit sentence.

 

In the understanding of the STA, in the already expounded judgment, it is believed necessary to distinguish between precautionary urgency and main urgency, as well as to bear in mind the characteristics of precautionary protection, namely, its instrumentality and provisionality. If it is a matter of safeguarding damages resulting from the passage of time of the main process, we are fully within the scope of precautionary protection; if it is a matter of urgency in the merit decision, then the precautionary measure is not sufficient.

 

The urgency hypotheses are perhaps easier to configure in preventive protection, as is the case of a demonstration (Article 45 of the CRP) or strike (Article 53 of the CRP) that is intended to still take place on the scheduled date. It is certainly more complex and difficult to grasp in situations like the one at issue in this appeal, where the violation of the fundamental rights in question extends over time without a time horizon that unequivocally dictates the useful effect of the decision.

 

According to the jurisprudence set forth in the STA Judgment of 16.05.2019, process 0267/17.7BELSB, the passage of time for the purposes of determining urgency cannot be assessed in the abstract, that is, neither in purely chronological terms nor exempting the Injunction Judge from considering the circumstances of the case.

 

Everything depends on assessing whether what is intended is a definitive regulation or a provisional regulation. If what is intended is a definitive regulation, then the appropriate procedural means will be a main means, and in this case, either it is a situation of special urgency as typified by the legislator, or the urgent process is not necessary, the most appropriate form of protection being a combinatory solution of main action and precautionary measure, which results from the specificity or exceptionality, rather than the subsidiarity, of urgent processes.

 

Residence Permit – Issuance of Decision on the Application for Residence Permit.

 

It was stated in the STA Judgment under consideration: The stay in national territory in an undocumented situation, that is, without a valid residence permit, due to the incapacity or inertia of the Administration in following up on the application for residence permit submitted by a foreign citizen, considering the consequences arising therefrom for the same in terms of rights, freedoms, and guarantees formally recognized by the CRP and by various instruments of international public law, requires protection that is not satisfied with the precautionary measure translated into the granting of a provisional residence permit, which only provides precarious protection, not guaranteeing the right to reside in national territory for at least a period of 2 years, as would be the case if a temporary residence permit were granted. The provisional residence permit only guarantees the foreign citizen that while the merit decision in the main process is not issued, he cannot be considered as being in an irregular situation in national territory. Protection recognized only in these terms hinders, or at least complicates, the full effectiveness of the rights, freedoms, and guarantees, assured to foreign citizens, primarily by Article 15 of the CRP.

 

And that: The urgency of the Appellant in obtaining a decision is not a precautionary or instrumental urgency, but rather the urgency in obtaining a main merit decision. This is because the exercise of fundamental rights, freedoms, and guarantees, formally recognized by the CRP and by international law instruments to the foreign citizen but whose effectiveness is materially compromised by the lack of decision on the application for residence permit submitted, the guarantee of the enjoyment of such rights by the foreign citizen is not compatible with precarious protection, in a scenario that is already contingent for him (note that the temporary residence permit only allows the foreign citizen to reside in Portugal for an initial period of two years, which can be renewed for a period of 3 years).

 

In this sense, the jurisprudence stated by the STA, in its Judgment of 11/09/2019, delivered in process 1899/18.0BELSB, in which, within the scope of an injunction process for the protection of rights, freedoms, and guarantees, initiated to obtain a residence permit, in which it was discussed which wording of paragraph 2 of Article 88 of Law no. 23/07 (whether the result of Law no. 29/2012, of 09.08, or of Law no. 59/17, of 31.07) was applicable, this high instance, ended up expressing a favorable judgment on the adequacy of this procedural means for the purpose of obliging the Administration to issue the residence permit, by writing: «In view of all the above, and considering the provisions of Articles 679 and 665 of the CPC, applicable ex vi of Articles 1 and 140 of the CPTA, the case files should be sent back to the TCAS for the assessment and decision of the present injunction for the protection of rights, freedoms, and guarantees. It should be emphasized that workers from third countries in a regular situation and, to a lesser extent, those in an irregular situation, benefit from multi-level protection concerning fundamental rights. Thus, in addition to national legislation, they are applied, namely and under the terms provided therein, the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. (…)” (our emphasis)».

 

And it was decided: As mentioned above, the injunction for the protection of rights, freedoms, and guarantees is the procedural means that can be mobilized when the prompt issuance of a merit decision that imposes on the Administration the adoption of a positive or negative conduct is indispensable to ensure the exercise, in a timely manner, of a right, freedom, or guarantee, as it is not possible or sufficient, in the circumstances of the case, to decree a precautionary measure – Article 109, paragraph 1, of the CPTA.

 

It should be noted that the foreign citizen in an undocumented situation cannot benefit from the application of the principle of equal treatment, or national treatment, provided for in Article 15, paragraph 1, of the CRP, concerning his right to work, freedom, security, personal identity, health, as well as his right to family.

 

And so it is, indeed. These are, moreover, consequences for which no probative activity is necessary to accept them as verifiable occurrences in the legal sphere of an undocumented foreign citizen. In this sense, as well stated in the TCAS Judgment of 15/02/2018, delivered in process no. 2482/17.2BELSB, “the rules of experience, which here serve as judicial presumption, under the terms of Article 607, paragraph 4, of the CPC, ex vi Article 1 of the CPTA, indicate to us that the lack of a title that allows the stay, in terms of legality, of the Applicant and Appellant in national territory, can jeopardize the basic core, which is linked to the principle of human dignity (cf. Article 1 of the CRP) of the indicated rights to freedom, free movement in national territory, security (cf. Articles 27 and 44 of the CRP), personal identity (Article 26, paragraph 1, of the CRP), to seek work, to work and job stability (cf. Articles 53, 58, and 59 of the CRP) or health (cf. Article 64 of the CRP). Faced with the situation in question, the Applicant may find himself constrained, in daily life, with fear of possible expulsion, of invoking police support if needed, of moving freely, or of presenting and concluding basic civil transactions, or of going to a hospital, or of trying to find work, or even of claiming the due conditions for the work he manages to secure in that situation. In short, the lack of such a title contends with both a broad range of personal rights, which can be traced back to the typology of rights, freedoms, and guarantees, and with economic, social, and cultural rights, such as the right to work or health, which are fundamental rights not integrated by the Constitution in that first category, but which, when curtailed in their most essential dimension, linked to the principle of human dignity and individual freedom – as occurs in the case at hand – must be covered by the regime applicable to those rights, freedoms, and guarantees and logically by the scope of this injunction.”

 

In the STA Judgment, delivered in Proc. No. 0741/23.4BELSB, of 06-06-2024, 1st SECTION, it was further stated: The appellant benefits from multi-level protection concerning fundamental rights, being applicable to him the Charter of Fundamental Rights of the European Union (Articles 7, 15, and 41) and the European Convention on Human Rights (Articles 6 and 14). In this sense, it was written in the STA Judgment of 11.09.2019 that «workers from third countries in a regular situation and, to a lesser extent, those in an irregular situation, benefit from multi-level protection concerning fundamental rights. Thus, in addition to national legislation, they are applied, namely and under the terms provided therein, the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights».

 

The fact that a very long period has elapsed since the application for a residence permit was submitted by the Appellant, considering that it was presented on 05.05.2020, does not degrade the urgency to make the need for a merit decision on this application less pressing. (…) The clandestine life of these people is well known, who, fearing to report their illegal situation, end up not enjoying the most essential human rights, avoiding resorting to the health system, enrolling children in schools, and becoming easy prey for labor exploitation or even sexual violence, hostages of the fear of reporting such situations to the authorities. Faced with this reality, some argue that in this domain there is a disjunction between the universality of rights formally recognized to all people and the effective enjoyment of these rights by them. Some authors refer that the traditional link, invoked by HANNAH ARENDT, between citizenship and the «right to have rights», has today been replaced by the link between the legality of the person’s status and that right to have rights. Currently, many authors argue that the division between national and foreigner has been replaced by the division between foreigners in a legal situation and foreigners in an irregular situation. Looking at the global panorama, what we perceive is that the quality of “being human” still does not seem sufficient to fully enjoy the human rights of foreigners.

Note that, despite everything, human rights control bodies have contributed to eradicating the exclusion of irregular immigrants from the effective enjoyment of human rights. In this regard, see the jurisprudence of the ECHR, which, in the case of Silidian v. France, even referred to a duty of States to protect irregular immigrants from situations of exploitation (Decision of 26/07/2005, complaint no. 26/07/2005, in which the ECHR condemned France for violating Article 4 of the ECHR, for not taking the necessary measures to prevent an irregular immigrant from being kept in a situation of slavery).

 

In the case under analysis in the aforementioned STA judgment: The foreign citizen submitted his application for a residence permit in national territory on 05.05.2020, that is, almost 3 years before the date on which he filed the present action, and the Administration had a period of 90 days to respond under Article 88, paragraph 2 of Law no. 23/2007, of 4/07. To date, more than 4 years later, the Administration has not decided whether to grant the requested residence permit to the Appellant, prolonging his undocumented situation over time.

 

And the STA understood that: “in this context, the urgency in obtaining a merit decision is evident, as it is a current urgency, since the Appellant is in a situation of prolonged clandestinity. Only the temporary residence permit will allow him to reside in Portuguese territory with a minimum of stability, without an uncertain term of stay. In fact, with a provisional residence permit, the Appellant will not even have the possibility of counting, once this permit is obtained, on a right to remain in national territory for a minimum period, seeing compromised the right to enjoy a residence permit for at least 2 years, unlike what would happen if he were granted a temporary residence permit.

 

This circumstance is not a mere detail without relevance. It is that, with a transitional residence permit, the Appellant cannot, from the outset, present himself to an employer with the guarantee that he will be able to assume a labor commitment for the secure period of at least 2 years, as would be the case if he obtained a temporary residence permit, in order to obtain a less precarious labor situation, which, from this perspective alone, demonstrates the inadequacy of provisional protection, which does not confer the same breadth of rights as urgent merit protection.

 

In these situations, it is required that a decision be made that ensures the effectiveness of judicial protection of the fundamental rights of the foreign citizen, which is not compatible with the issuance of provisional and instrumental decisions.

 

It is not difficult to foresee, according to the normal rules of life experience, which here serve as judicial presumption, under the terms of Article 607, paragraph 4, of the CPC, ex vi Article 1 of the CPTA, that the lack of a temporary residence permit that allows the stay, in terms of legality, of the Respondent in national territory, for a certain period, affects the basic core, which is linked to the principle of human dignity (cf. Article 1 of the CRP) of the indicated rights to freedom, free movement in national territory, security (cf. Articles 27 and 44 of the CRP), personal identity (Article 26, paragraph 1, of the CRP), to work and job stability (cf. Articles 53, 58, and 59 of the CRP) or health (cf. Article 64 of the CRP).

(…)

In short, the lack of such a title contends with both a broad range of personal rights, which can be traced back to the typology of rights, freedoms, and guarantees, and with economic, social, and cultural rights, such as the right to work or health, which are fundamental rights not integrated by the Constitution in that first category, but which, when curtailed in their most essential dimension, linked to the principle of human dignity and individual freedom, must be covered by the regime applicable to those rights, freedoms, and guarantees and logically by the scope of this injunction.

 

In short, the urgency verified in the situation of the case is not a precautionary urgency, but rather an urgency in obtaining a merit decision. As such, the mere obtaining of precautionary protection, which is necessarily instrumental, translated into the granting of a provisional residence permit, which can cease at any time, not conferring a minimum temporal horizon of stability and predictability regarding the duration of his regular stay in Portuguese territory, should not be considered adequate or sufficient for the defense of the fundamental rights of the Appellant. Thus, it is repeated, only the temporary residence permit contributes to the consolidation of his right to reside without an uncertain term in national territory (cf. Article 80, paragraph 1, subparagraph a) of Law 23/2007). Having a minimum period of regular residence in national territory is a necessary condition for a foreign citizen to be able to outline his life project with some security and stability, to which procedural facilities are added, which is not of minor importance (see Articles 76, paragraph 3, and 82, paragraph 7 of Law no. 23/2007).

 

As the judicial injunction of the Respondent to issue a decision on the application for a residence permit that was submitted to him more than four years ago is at stake, when the legal deadline to make a decision on such a claim is 90 days (cf. Article 82, paragraph 1 of Law no. 23/2007, of July 4), only judicial merit protection is adequate, and the urgency of the situation is not compatible with resorting to administrative action. Only the success of the injunction request can provide him with the full exercise of the rights he claims are being affected.

And so the STA decided, and rightly so: “In short, it follows from the preceding excursus that it is necessary to conclude for the success of the present appeal, revoking the appealed judgment, as the decision incorporated therein suffers from an error of judgment concerning the assessment of the violation of the provisions of Article 109 of the CPTA, and the process should proceed as an injunction action for the protection of rights, freedoms, and guarantees, in accordance with the provisions of Article 110 and following of the CPTA, ordering the case to be sent back to the 1st Instance for the appropriate purposes.”