Introduction
On June 3rd 2024, the Portuguese Government announced an immediate cease of the "expression of interest" regime, which had been a pathway for many immigrants to obtain regularisation through employment in Portugal. This announcement, implemented through Decree-Law No. 37-A/2024, amended Law No. 23/2007 (the Portuguese Immigration Act), revoking the procedures associated with residence permits based on “expressions of interest”.
This revocation raised concerns, including from the present author, regarding the implications for individuals who had started contributing to social security with the objective of achieving regularisation through employment. Recognising these concerns, a more extensive transitional regime was published on 7 November 2024, under Law No. 40/2024. This transitional framework aims to protect those who had reasonable expectations for regularisation through their contributions to social security and seeks to clarify the new conditions under this altered legislative landscape.
This article provides a brief overview of the expression of interest procedure, its role in Portugal’s immigration framework, and the scope and interpretation of the new transitional regime introduced by Law No. 40/2024.
What is an Expression of Interest?
To understand the role of expressions of interest, it is important first to understand Portugal's residence permit framework within immigration law.
When third-country nationals intend to reside in Portugal for more than one year, regardless of purpose (e.g., study, work, research, family reunification, or entrepreneurship), they must typically apply for a residence visa through a Portuguese Consulate in their country of origin or habitual residence.
Under Article 58 of the Immigration Act, a residence visa allows its holder to enter Portuguese territory and subsequently request a residence permit. This visa is valid for four months, during which time the applicant must arrive in Portugal, gather the necessary documents, and submit their application for a residence permit.
In 2017, the Immigration Act was amended to introduce the expression of interest regime, allowing individuals with a work contract or promise of employment to apply for a residence permit without first obtaining a residence visa. Articles 88 and 89 permitted those with a work contract or established self-employment in Portugal to submit an expression of interest, even if they entered Portugal on a short-stay visa or other legally permitted grounds.
To further accommodate foreign workers, a presumption of legal entry was established in 2018 for workers contributing to social security for at least 12 months. This presumption, added to Articles 88 and 89 in 2019, facilitated regularisation for those engaged in formal (self)employment but who could not demonstrate their initial legal entry into Portugal.
Implications of the Immediate End to Expressions of Interest
The termination of the expression of interest regime has led to two primary consequences:
Labour Shortages in Essential Sectors: Ending the regime may reduce the availability of workers holding residence permits for lower-skilled, seasonal jobs, which are in demand during spring and summer. This could lead to better selection opportunities for workers, encouraging improved work conditions and remuneration.
Increased Vulnerability Among Undocumented Workers: Some individuals in irregular administrative situations may continue working without protection, increasing their susceptibility to exploitation in less regulated sectors.
It is important to emphasise, however, that the expression of interest mechanism was not limited to lower-skilled employment.
Article 89 extended to independent professionals and entrepreneurial immigrants, facilitating regularisation for business owners, professionals, and skilled workers. Studies from the Migration Observatory and the Bank of Portugal show that foreign workers in Portugal are often underemployed relative to their qualifications, highlighting an underutilisation of foreign professionals’ skills.
The issue of "Legitimate Expectation"
The need for prompt legislative response to ongoing challenges faced by immigrants awaiting regularisation is balanced by the principle of legitimate expectation.
Many individuals entered social security with the belief that their contributions over a 12-month period would entitle them to regularisation under the expression of interest framework. Protecting these reasonable expectations aligns with principles of legal certainty and proportionality, fundamental to a state governed by the rule of law
Amendments to the Transitional Regime: Revival of Expressions of Interest
On 24 July 2024, a proposed bill, No. 220/XVI/1, was presented to Parliament, calling for modifications to the transitional provisions of Decree-Law No. 37-A/2024. This proposal criticised the limited scope of the initial June 2024 legislation, arguing that it failed to adequately cover individuals who had contributed to social security in the expectation of regularisation under the 12-month requirement of Article 88(6) of the Immigration Act.
With the enactment of Law No. 40/2024 on 7 November, a more inclusive transitional framework has been established, ensuring that not only pending expressions of interest but also social security contributions made towards fulfilling the 12-month requirement are considered.
Notably, the amendment would benefit from greater clarity in its drafting.
The current text may lead to ambiguity in identifying its intended beneficiaries. A careful reading reveals that its scope extends to individuals who have submitted an expression of interest, but who have not yet completed the 12-month social security contribution requirement, as well as those who have not submitted an expression of interest at all.
Additionally, while the text expressly includes both subordinate and self-employed professional activities, it only references Article 88 (subordinate work) and does not mention Article 89 (self-employment). This omission may leave it open to interpretation by authorities as to whether self-employed workers without a formal contract for services are covered.
Final remarks
The expression of interest framework became well-known within immigrant communities, often perceived as a primary route for regularising administrative status in Portugal. However, alongside Articles 88(2) and 89(2), other provisions within the Immigration Act - such as Articles 122 and 123 -offer additional pathways for obtaining residence permits without prior visa requirements.
Under Article 123, an exceptional residence permit may be granted for extraordinary circumstances based on humanitarian, public interest, or activities of scientific, cultural, or economic significance. Furthermore, Article 62(4) of Regulatory Decree No. 84/2007 considers long-term labour market integration as a humanitarian basis for residence.
Thus, with evidence of more than 12 months’ employment, Article 123 offers an alternative route for administrative regularisation. However, unlike the automatic presumption under expressions of interest, Article 123 requires discretionary evaluation by the Minister responsible for migration affairs in Portugal.
In summary, the amendment of the transitional regime under Law No. 40/2024 on 7 November aims to address economic demands while protecting immigrant workers.
The new transitional regime will come into effect on 8 November 2024, and the FiO Legal team will soon publish a detailed analysis on the practical implications of this regime. Follow us to stay informed of our latest insights.
