What is the Tacit Deferral applied by the Foreigners and Borders Service (SEF)
The experimental project of SEF, of service without prior appointment, in 2 service centers in Coimbra, even though it was a short-lived experiment, since the services without appointment were opened and closed in January/2022, due to high demand, The figure of tacit deferral again brought to the round of debate.
Much has been said about the fact that the scheduling offices in Coimbra are always the longest in issuing the Residence Permit, which can take up to 6 months and for this delay, tacit approval would be applied to the request.
In view of this repercussion, we bring a clarification on the deadlines for decision of the granting and renewal requests of Residence Certificates, as based on article 82 of Law 23/2007, amended by Law No. 63/2015.
In the article mentioned above there are 2 deadlines, in paragraph 1 we have a deadline of 90 days for the decision to grant a Residence Permit and paragraph 2, 60 days, for a decision on the application for renewal of the Residence Permit.
Next, it should be noted that tacit approval does not generally apply to all rules that establish a deadline for a decision by the competent body, as provided for in article 130 of the CPA, tacit approval is characterized in the Portuguese legal system only when it is expressed and exhaustively provided for in specific law or regulation.
Thus, we find that the Tacit approval only concerns the request for renewal of a residence permit, based on paragraph 3 of article 82 of Law 23/2007.
As requests for the granting of a residence permit are only subject to the decision of the competent administrative body, giving the interested party the possibility of using the appropriate administrative and judicial means of protection, as founded in article 129 CPA.
It is important to note that the tacit approval is not supreme, since it has the nature of an administrative act and thus can be object of revocation or annulment, depending on the specific case, based on article 165 and ss of the CPA.
I take the opportunity of the matter to bring another point of debate, quite relevant, taking into account the long waiting period of foreign citizens who make the Expression of Interest, thus, the question remains, the registration of the Expression of Interest gives reason to the tacit approval ?
The Judgment of the Southern Central Administrative Court of 03-02-2017, in Case 1523/16.5 BELSB, ratified the understanding and further explains that the simple act of registering the Expression of Interest, based on paragraph 2 of article 88 or in paragraph 2 of article 89 of Law 23/2007, does not constitute a basis for giving rise to tacit approval.
The judgment highlights that the Expression of Interest consists of an unofficial act, as stipulated in paragraphs 2, 3 and 4 of art. 54, of Regulatory Decree 84/2007. In this sense, SEF only has the duty to respond, being an analysis of the request made by the individual to the administration, in which the latter must decide whether or not to open an administrative procedure.
There is no duty of decision on the request for granting a residence permit, since this duty of decision only exists after the Administration decides to open the administrative procedure, and it is incorrect to conclude in the sense of forming a tacit act of granting a residence permit .
I would like to remind you that even if it were considered that the expression of interest immediately constitutes the SEF's duty to decide on the request for granting a residence permit, it would always have to conclude in the sense of the inexistence of a tacit act of approval, since, according to with the aforementioned article 130, no. 1, of the CPA of 2015, the formation of tacit approval must be expressly provided for in law or special regulation, in which there is no provision for the tacit act in the articles that underlie and regulate the Expression of Interest.
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