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The consequences of employing a foreign illegal worker

A work contract with a foreign or stateless individual, who is not a national of a EU member state or of another state which allows equality of treatment to the Portuguese nationals on the free exercise of professional activity, is subject to the written form and must contain:

■ identification;
■ signatures and domicile or office addresses of the parts;
■ the reference to the work visa or the residence or stay permit of the worker in Portuguese territory;
■ the main activity of the employer;
■ the contracted activity and remuneration of the worker;
■ the location and normal working period;
■ the value, frequency and method of payment;
■ the beginning and duration dates of the contract and the beginning of activity.

As for the work visa or residence permit, applying the regime of entry, stay, departure and removal of foreigners from the national territory (Law 23/2007 of 4 July), a residence permit is granted to exercise a professional activity, to nationals of non-member states who have a contract of employment under the law and are enrolled in social security.

This does not apply to nationals of a member state of the European Union, as stated in the regime governing the exercise of the right of free movement and residence of EU citizens and their family members in the national territory (Act 37/2006, of 9 August).

Those who employ a foreign citizen without visa or residence permit authoring the exercise of a professional activity in Portugal, shall be subject to the following fines:
a) From €2,000 to € 10,000, if employing 1 to 4 citizens;
b) From €4,000 to €15,000, if employing 5 to 10 citizens;
c) From €6,000 to €30,000, if employing 11 to 50 citizens;
d) From €10,000 to €90,000, if employing over 50 citizens.

The employer, service contractor, occasional or temporary work and general contractors are jointly and severally responsible:
a) For the payment of the referred fines and of wage claims arising from an employment contract, its breach or termination;
b) The sanctions arising from the non-compliance of labour legislation;
c) The sanctions arising from the failure to declare statements of income subject to discounts for tax and social security, with respect to the work provided by the foreign worker whose activity was used illegally;
d) For the payment of necessary expenses to the stay and departure of the foreign citizens involved;
e) For the payment of any expenses arising from sending funds from labour credits to the country to which the foreign citizen has returned voluntarily or compulsorily.

So, those who employ an illegal immigrant, without visa or residence permit authorising the exercise of a professional activity in Portugal, whether through direct contract with the worker or through contract with a service provider company (which then hires workers not entitled to work in Portugal), or even through a temporary-work agency, is subject to severe fines and other consequences. Therefore, it is absolutely essential to ensure that foreign workers:
■ have a residence permit or visa to authorise the exercise of a professional activity in Portugal;
■ have a contract of employment drawn under the law;
■ are enrolled in social security.

By Dr Eduardo Serra Jorge
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Dr Eduardo Serra Jorge is founding member, senior partner and CEO of lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., created in 1987.
In his column, he addresses legal issues affecting foreign residents in Portugal.
Faro office at Gaveto das Ruas Pedro Nunes e José de Matos, 5 R/C
289 829 326