Salary of €5,600, a job in Portugal, and a residence permit denial. Why did the court support the migration service?

Having a high-paying job, an employment contract, and lawful entry into the Schengen Area does not yet guarantee the issuance of a Portuguese residence permit. An interesting example is the ruling of the Central Administrative Court of the South (Tribunal Central Administrativo Sul) dated September 20, 2024, case no. 2696/23.6BELSB.

Circumstances of the Case

A Belarusian citizen held a Polish national visa issued under the Poland Business Harbour program. She worked in Poland and received a job offer from the company's Portuguese branch.

On November 27, 2022, she entered Portugal, and as early as December 12, she applied for a residence permit for highly qualified activity under Article 90.º of Law No. 23/2007.

She had an employment contract with a gross salary of €5,600 per month.

Moreover, prior to entry, the applicant received confirmation from the Portuguese Embassy in Warsaw that her Polish visa allowed her to visit Portugal for up to 90 days. Nevertheless, SEF (the migration service) denied her residence permit application.

Why Was It Denied?

The migration service concluded that a Polish visa granting short-term stay in Portugal is not a sufficient basis for residing and working in the country.

Furthermore, SEF questioned the proof of regular means of subsistence for 12 months. Despite the contract with a high salary, at the time of review, the applicant only had records of contributions to Segurança Social for a few months.

What Did the Court Decide?

The Tribunal Central Administrativo Sul upheld the denial.

The court supported the position that authorization for a short-term stay in Portugal based on a Polish visa is not equivalent to having a proper legal basis for residing and working in the country.

At the same time, the court chose not to definitively resolve the dispute regarding the sufficiency of income: the absence of just one of the mandatory conditions was already sufficient to bar the approval of the application.

What Conclusions Can Be Drawn?

1. Lawful entry and the right to apply for a residence permit are distinct legal issues.
2. Exemption from the requirement to obtain a prior residency visa does not mean exemption from the remaining conditions of immigration law.
3. A high salary and a signed contract do not, by themselves, guarantee a positive decision.
4. Consular confirmation must be evaluated within the scope of the question asked. In this case, the consulate confirmed the possibility of a short-term trip, not the right to subsequent residence and employment.
5. When preparing an application, it is necessary to analyze not only the grounds for professional activity, but also the applicant's stay status, the nature of their income, and supporting documents.

Conclusion: This decision highlights the problem of restrictive interpretation of immigration law: when the law provides for an exemption from a residency visa in the event of lawful entry and stay, the question arises as to how far the administration is entitled to extend additional requirements regarding the purpose of the initial entry.

At the same time, the decision itself does not establish a universal ban on obtaining a residence permit after entering using documents from another Schengen Area state.

Each situation must be evaluated taking into account the specific grounds for stay and the applicable version of the legislation.

Tribunal Central Administrativo Sul, Acórdão de 20.09.2024, Processo № 2696/23.6BELSB