Introduction
On March 2nd, 2022, the European Commission proposed activating the Temporary Protection Directive to safeguard individuals displaced from Ukraine due to the Russian invasion. Subsequently, on March 4th, 2022, the Council of the European Union adopted an implementing decision to grant temporary protection in response to the mass influx of people fleeing Ukraine.
In alignment with this decision, Portugal, like other EU Member States, incorporated this framework through the Resolution of the Council of Ministers No. 29-A/2022, of March 1st, 2022. This resolution extended temporary protection to those displaced from Ukraine. More recently, on February 29th, 2024, the validity of temporary protection permits in Portugal was extended until the 31st of December 2024.
However, a pressing concern arises: if temporary protection is not extended beyond 2024, what legal pathways are available for Ukrainian citizens and other beneficiaries to maintain their lawful residency in Portugal?
This article outlines several legal options for current beneficiaries of temporary protection who wish to remain in Portugal, ensuring the continuity of their personal and professional lives in compliance with Portuguese law.
Temporary Protection in Portugal for Persons Displaced from the Ukraine
On March 1st, 2022, Portugal acted swiftly in response to the humanitarian crisis triggered by the Russian invasion of Ukraine by implementing the temporary protection mechanism. This mechanism, established under Law No. 67/2003 of 23rd August, was activated through the Resolution of the Council of Ministers No. 29-A/2022.
Subsequently, the scope of temporary protection was expanded through the Resolution of the Council of Ministers No. 29-D/2022 of 11th March, reflecting the EU Council's implementing decision.
Who Qualifies for Temporary Protection in Portugal?
According to the NOVA Asylum Policy Lab, the following individuals are eligible for temporary protection in Portugal:
Ukrainian nationals.
Foreign nationals or stateless persons who were beneficiaries of international protection in Ukraine.
Family members of Ukrainian nationals or those holding international protection status in Ukraine, including spouses, dependents, and common law partners/couples in civil partnerships.
Foreign nationals or stateless persons with permanent residence in Ukraine.
Foreign nationals or stateless persons with temporary residence in Ukraine.
Individuals holding long-term visas in Ukraine for the purpose of obtaining residence permits at the time of the Russian invasion.
Temporary protection has been extended until the 31st of December 2024 through the Resolution of the Council of Ministers No. 29/2024.
Legal Pathways to Maintain Residence in Portugal
For beneficiaries of temporary protection, the central question is how to lawfully remain in Portugal if the temporary protection regime is not renewed in 2025 — or if they seek a more permanent residence status.
Below are potential legal pathways for consideration.
Applying for Asylum
Under Article 19 of Law No. 67/2003 of the 23rd of August, beneficiaries of temporary protection may submit an asylum application during the period of protection.
As per Law No. 27/2008 of June 30th (the Asylum Act), asylum applications may be submitted to AIMA, I.P. (the Portuguese Immigration and Asylum Agency or “Agency for Integration, Migration and Asylum”) or to any other police authority, either orally or in writing.
The asylum application process involves assessing whether or not the applicant qualifies for refugee status. If not, authorities evaluate whether the individual is eligible for subsidiary protection.
Refugee status: Granted to those with a well-founded fear of persecution in their country of origin (or habitual residence) based on race, religion, nationality, political opinion, or association to a particular social group.
Subsidiary protection: Applicable to individuals who face a serious risk of harm or systematic human rights violations in their country of origin (or habitual residence).
Upon filing an asylum application, applicants receive a temporary certificate,[V1] [EO2] [V3] which serves as proof of the application and is valid for 30 days.
Once the first stage of admissibility of the application has been overcome, a provisional residence permit is issued and the instruction stage begins, which, according to the Asylum Act, can take between 6 and 9 months.
If the application for international protection is granted, a residence permit will be issued, valid for 5 years (refugee status) or 3 years (subsidiary protection), renewable for the same periods of time.
Residence Permit Without a Visa
Another option may involve applying for a residence permit under Article 122(1)(d) of Law no. 23/2007 of 4th of June (the Immigration Act). This provision allows individuals who have ceased to benefit from international protection in Portugal to apply for a residence permit without the need for a pre-approved visa.
This option, however, does not come without its drawbacks. Legal interpretations vary regarding whether "international protection" includes temporary protection. This is because, according to the Asylum Act, international protection classifies as subsidiary protection status and refugee status. [V4] [EO5]
Some have argued that the interpretation of the term ‘international protection’ should be broader, including temporary protection, for the purposes of granting a temporary residence permit under the Immigration Act.
Currently, administrative discretion plays a crucial role in approving such applications.
Standard Visa and Residence Permit Application
In most cases, foreign nationals wishing to reside in Portugal must apply for a residence visa in their home country or usual place of residence. For instance, those intending to work for a Portuguese employer must obtain a residence visa for employment purposes.
Once approved, the visa is valid for 120 days, during which the individual must enter Portugal and apply for a residence permit through AIMA, I.P. Residence permits are typically issued for an initial period of two years, renewable for three-year periods.
However, in an attempt to adapt to new market priorities, several situations provided for in the Immigration Act make it possible to apply for a residence permit without a pre-approved visa. This means that the visa stage is skipped, and it is enough for the foreigner who has entered [and remained, in some cases] in the territory legally to apply directly for a residence permit according to their purpose.
Several residence permits can be granted without a pre-approved visa, depending on specific circumstances, including:
Investment activities.
Highly qualified professional activities.
Cultural activities.
Teaching activities
Academic research activities.
Studies in higher education.
Studies in secondary school.
Studies in a course at qualification level 4 or 5 of the NQF, or training courses provided by educational or vocational training establishments.
Traineeship activities.
Family reunification (family members in national territory).
Residence as a Family Member of an EU Citizen
Beneficiaries of temporary protection who are family members of EU citizens may apply for a residence permit under the EU freedom of movement laws. This includes family members of citizens from EU Member States, Iceland, Liechtenstein, Norway, Andorra, and Switzerland.
According to AIMA, eligible family members include:
Spouses or registered partners.
Descendants under 21 years of age or dependents.
Ascendants who are dependents.
Final Remarks
While there are limitations under EU law regarding the indefinite extension of temporary protection, it is hoped that the mechanism will continue in 2025. Nonetheless, should temporary protection come to an end, this article has outlined several legal pathways for beneficiaries to lawfully remain in Portugal.
This article serves as a general guide and does not exhaust the possibilities available.
For tailored advice and legal assistance, the FiO Legal Team in Human Rights and Immigration is here to provide comprehensive support to ensure the regularisation of your residence in Portugal.
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