The right of residence after Brexit

On January 31, 2020, the United Kingdom ceased to be a Member State of the European Union.

With the exit of the United Kingdom from the European Union on January 31, 2020, a Withdrawal Agreement was signed between the British government and the European Commission, which provided for a transition period between February 1, 2020 and December 31, 2020.

By this agreement, it was established that, despite the fact that the United Kingdom has ceased to be part of the institutions and organisations of the European Union, European Union law in this transitional period will continue to apply in the United Kingdom.

Therefore, the rights of free movement and residence will still apply until the end of the transitional period, as if the United Kingdom was still a member of the European Union.

The Withdrawal Agreement states that both European Union citizens and UK nationals, as well as members of their family, may continue to exercise their rights under European Union law for the rest of their lives, whenever those rights have been acquired before the end of the transition period.

Regarding the right of residence, during the transition period, the requirements for legal residence remain identical to those currently established in European Union legislation on free movement.

The Withdrawal Agreement provides that temporary absences that do not compromise the right of residence and longer absences that do not compromise the right of permanent residence are accepted, even after the end of the transition period.

During the transition period, UK citizens who are already residing in Portugal but are not yet registered as residents, or who intend to live in Portugal, must apply to the City Council services in the area of ​​residence for a certificate of residence, which will be valid for five years.

In the event that the citizen of the United Kingdom is already registered as a resident in Portugal, but has not yet accumulated the five years of residence – a necessary requirement for applying for permanent residence, – he/she will maintain the same rights and duties, even after the transition period, and when the five years are completed, the UK citizen can apply for a permanent residence card.

In turn, if the UK citizen already has a permanent residence, he/she will maintain the same rights and obligations, even after the transition period.

And what will happen after the transition period?

The Withdrawal Agreement made it possible to extend the transition period by a maximum of two years. However, in June 2020, the UK minister Michael Gove confirmed that the UK would not ask for an extension of the transition period.

Therefore, if no agreement is reached between Portugal and the United Kingdom regarding the right of residence, citizens of the United Kingdom who wish to reside in Portugal will be subject to the residence legislation applicable to third countries’ citizens.

One of the possibilities to consider will be the Residence Permit for Investment Activity, more commonly known as ‘Golden Visa’, which consists of a modality of residence visa in Portugal and on the right of movement in the Schengen area.

This programme depends on an investment, such as: (a) The transfer of capital for an amount equal to or greater than €1,000,000; (b) The creation of at least 10 jobs; (c) The acquisition of real estate of a value equal to or greater than €500,000; (d) The acquisition of real estate whose construction has been completed for at least 30 years or found to be within the parameters of urban rehabilitation and works of rehabilitation, for an overall amount equal to or greater than €350,000; (e) The transfer of capital for an amount equal to or greater than €350,000, to be applied in research activities carried out by public or private scientific research institutions, integrated in the national scientific and technological system; (f) The transfer of capital for an amount equal to or greater than €250,000, to be applied in investment or support to artistic production, recovery or maintenance of the national cultural heritage, through services of the central and peripheral direct administration, institutes, public entities, public foundations, private foundations with public utility status, inter-municipal entities, entities that make up the local business sector, municipal associative entities and public cultural associations; (g) Capital transfer for an amount equal to or greater than € 350,000 for the purchase of units of investment funds or venture capital funds directed to capitalization companies, which are incorporated under Portuguese law, whose maturity, in the time of the investment, is at least five years and at least 60% of the value of the investments is made in commercial companies established in the national territory; (h) The transfer of capital for an amount equal to or greater than €350,000 for the establishment of a company based in the national territory, together with the creation of five permanent jobs, or for the reinforcement of the share capital of a commercial company with headquarters in national territory, already established, with the creation or maintenance of jobs, with a minimum of five permanent jobs, and for a minimum period of three years.

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
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