New Jurisprudence on the Lack of a Decision on a Residence Permit Application

Supreme Administrative Court Decision No. 11/2024, of July 11

The decision of the Supreme Administrative Court of June 6, 2024 (Process no. 0741/23.4BELSB) was published on July 11, 2024 in the Official Gazette and constitutes a landmark decision with a substantial impact on all foreign citizens who, in some way, are awaiting a decision from the Portuguese Agency for Integration, Migration and Asylum, I.P. (AIMA) regarding their residence permit applications

In short, the Court considers that the lack of a decision on the application for a residence permit by AIMA that affects the exercise of rights, freedoms and guarantees legitimizes the foreign citizen to resort to a summons for the protection of rights, freedoms and guarantees, the main purpose of which is to force AIMA to fulfill its duty to decide (namely, by issuing the citizen’s residence permit). This is an urgent procedure, and it is exempt from court fees.

Who can use this mechanism?

All foreign citizens who, having passed the legal deadline, are still waiting for AIMA to issue a decision on their residence permit applications can use this mechanism, provided that this delay or lack of decision affects their rights, freedoms and guarantees. This is the case, for example, of citizens who have applied for residence permits (initial or renewal applications) more than 90 working days ago and are still waiting for their residence permits to be issued.

Jurisprudence Uniformization Decision

Object:
Summons for Protection of Rights, Freedoms and Guarantees is or is not the appropriate procedural means to react against the situation in which the Applicant is residing and working in Portugal, albeit illegally, awaiting a residence permit, or whether, on the contrary, this means cannot be mobilised in these situations, as there is another means of ensuring the protection sought through the initiation of an administrative action and a precautionary measure for the provisional granting of a residence permit?

Appealed Decision:
The Central Administrative Court of the South took the view that the foreign national was not entitled to use the procedural means of "summons for the protection of rights, freedoms and guarantees" since this means is subsidiary and can only be used if it is not feasible to satisfy the right sought through other procedural means.

Ground Decision:
The Supreme Administrative Court has ruled that the "summons for the protection of rights, freedoms and guarantees" is the appropriate procedural means to remove anyone who is residing in national territory undocumented, for lack of a timely decision by AIMA, from a situation of indignity. It was also stated that delays in processing undocumented foreign citizens' residence applications violate their rights under the Portuguese Constitution and international treaties and their fundamental personal and social rights linked to human dignity.

Jurisprudence Uniformization Decision:

“Since the exercise of fundamental rights, freedoms and guarantees, formally recognised by the Constitution of the Portuguese Republic and by instruments of international law, is at stake for the foreign citizen, but whose effectiveness is materially compromised by the failure of the Administration to decide on the application for a residence permit, the guarantee of the enjoyment of such rights by the citizen is not compatible with a precarious protection, translated into the granting of a provisional permit, but requires a definitive protection, so that the appropriate procedural means, which the citizen must use, is the main summons procedure provided for in articles 109 to 111 of the CPTA. Articles 109 to 111 of the CPTA.”

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