KEEP UP TO DATE

January 13, 2020 - No Comments!

REPORTED CHANGES TO THE NHR PROGRAMME GOOD NEWS FOR ITS SUSTAINABILITY

The Portuguese NHR programme has now been running successfully for over 10 years and by the end of 2018 nearly 30,000 candidates had acquired the status, including a significant number of Portuguese nationals. The programme is generally considered as an unqualified success in terms of attracting the investment of these multi-national individuals.

Whilst many NHRs initially rent, it is our experience that the majority end up buying a property. NHRs also spend, investing in the local economies and they are not just individuals looking for a leisurely retirement. They in fact bring knowhow and business success stories, investing in local businesses and businesses organizations.

Given the success of the programme particularly over the last few years it was almost inevitable that it would come under some scrutiny from other EU countries, despite the fact that a significant number of these EU countries have their own programmes designed to attract foreign investment. Both Finland and Sweden successfully negotiated a change to the Double Taxation Treaty by which pension income, previously benefitting from an exemption in both the country of source and Portugal, would be taxed in the source country under certain conditions. As a result, there have been rumours of change for some years now, with most of these rumours focusing on pension income.

Despite that fact that there was no reference at all to the NHR programme in the original draft Budget, there have now been reports filtering through from at least two respected Portuguese newspapers that the government is preparing to move forward with a change to the Draft Budget.

This change would contemplate the imposition of a minimal flat rate of tax on pension income and the objective is also to ring fence existing NHRs, who would continue to benefit from a full exemption. The initial news report was published in a daily newspaper on Friday with a more detailed report being published in the weekend press.
From these reports it would appear that a change to the programme will be tabled during the discussion on the Budget details and this change would result in the following:
• A rate of tax of 10% on foreign pension applying to new NHRs with a minimum tax of €7,500;
• NHRs acquiring the status before the law comes into force would benefit under the existing rules;
• As a result, existing NHRs would be “grandfathered” under the existing legislation; and
• Existing NHRs could choose to have the new rules applied to them.
Therefore these changes are not particularly radical and rate of tax of 10% is in our view still very competitive. The grandfathering of existing NHRs has been a consistent position since changes were initially discussed (and then shelved) to taxation of NHR pension in 2017.

In fact, the respected commentators are largely unanimous in their view that existing NHRs will be grandfathered as tax legislation is constitutionally barred from having retrospective application. In addition, if there is a change now, we feel that the NHR programme could well be protected from more comprehensive future changes and pressure from other EU governments.
It is likely to be some weeks before there is a final definition on any change.

Lisbon, 13 th January 2020

January 13, 2020 - No Comments!

AS THE UK EXITS THE EU ON 31st JANUARY 2020, CAN BRITISH CITIZENS STILL ESTABLISH RESIDENCY RIGHTS?

With the UK scheduled to exit the EU on 31st January 2020, and the
transition period due to run from 1st February to 31st December 2020, there is
now a small window of opportunity for British citizens still to establish residency
rights in Portugal.

The Portuguese Brexit legislation states that British citizens who have
established their residency rights prior to the date of exit of the UK from the EU
will continue to enjoy those rights. Residency rights are established by first time
residents by obtaining an EU Residency Certificate from the Town/City Hall
which has jurisdiction over their rental property or property which they have
purchased.

Once this certificate is issued, the information contained in it is transmitted to the Portuguese Immigration and Border Authorities (SEF). However, British citizens who will not have officially established those residency rights before 31st January will have until 31st December 2020 to establish those rights, provided that they can produce evidence of Portuguese residency at the time of Brexit e.g. a tax return, a property deed, a rental agreement or an employment contract (this will be assessed on a case basis).

During the transition period, British citizens can continue to exercise their rights to live and work in Portugal. SEF have advised that between Brexit and the end of the transition period the process of exchange of existing EU residency documentation for a third country national residence visas will occur in special booths set up in Town/City Halls.

SEF have also advised that, whilst these visas will have to be renewed after year one and year three, the documentation which is normally required for third country nationals will be waived. Details of exactly how this will work have yet to be released.

British citizens should note that, upon the application of this law, British citizens who do no establish residency or who are unable to prove that they established residency in Portugal before 31st January 2020 will have to apply for a residency permit in the same way as other third country nationals.
There are a number of alternatives available in this respect including the Golden visa, employment visas and investment/retirement visas.

Lisbon, 13 th January 2020

December 18, 2019 - No Comments!

GOLDEN VISA INVESTOR REACHES PORTUGUESE CITIZENSHIP

We are happy to report that one of our first clients that invested in Portugal and was
granted residency through the Golden Visa programme has now obtained his
Portuguese citizenship. The citizenship application was submitted in October 2018,
subsequently to the reduction of the minimum residency time to apply for
nationality from 6 to 5 years, and has finally been approved by the Civil Registrar.

Our now fellow citizen complied with the minimum stay requirements associated with
the Golden Visa programme, including the minimum stay requirement of 7 and 14 days
and at the end of the 5 years, after obtaining his A2 certificate in Portuguese language,
requested and received his permanentresident status. Subsequently, once all the
necessary documents were obtained, we submitted his citizenship application, which
has now been approved.

The approval is simply a confirmation of EDGE’s position since the beginning of the
programme, which has always been that all residents are entitled to apply for and obtain
Portuguese citizenship after 5 years, whether such residency is obtained through
the Golden Visa programme or through other categories.

EDGE has been involved with the Golden Visa programme since the beginning and
has now assisted over 2,500 investors and their families of more than 30 different
nationalities. Our vast experience has allowed us to provide full and dedicated
support to our clients, from the initial investment all the way to citizenship.
Lisbon, 17 th December 2019

December 18, 2019 - No Comments!

CHANGES TO THE LAW OF PORTUGUESE NATIONALITY

The Portuguese Parliament has approved last week a draft bill that brings changes to the Law of Portuguese Nationality, namely in two main aspects pertaining the granting requirements.

The first aspect involves granting nationality to children born in Portugal whose parents were already living in Portugal at the time of their children’s birth, regardless of the title and duration of such residency. The main drive behind this change is to anchor the principle of granting of Portuguese Citizenship on the place of birth of the child, thus waiving any time factors – currently at least 2 years of residency – which is something not controlled by parents at the time of birth of their children.

The second aspect in which this draft bill brings change to the Nationality regime is by eliminating the sufficient knowledge of the Portuguese language as a requirement for obtaining nationality. This is relevant to those applying via having had residency
in Portugal in the 5 years prior to the nationality application.

This draft bill has obtained approval in general in Parliament and will now be discussed in the special committees and subsequently fully approved.
Lisbon, 17 th December 2019

December 3, 2019 - No Comments!

EDGE BREXIT EVENTS IN LISBON AND THE ALGARVE

11TH & 12TH DECEMBER

Life after Brexit. Living and working in Portugal.

Whilst the Brexit deadline has now been extended by a total of 10 months (minimum) and it  would appear that the threat of a no deal exit has been minimised, much still could happen before the next deadline of 31st January. As a result, it is advisable to be as informed as possible prior to 31st January.

The event will focus on potential impacts of Brexit on, for example:

  • Mobility between the UK and Europe including travel and employment
  • Trade between UK and Europe
  • Impact on specific industries such as banking, financial services and aviation
  • The legal framework

In terms of the practicalities, these will include:

  • The right to reside
  • Options to live/work as a third country national
  • Taking Portuguese nationality
  • Healthcare
  • Banking
  • Driving licences

Join us in Lisbon (11 Dec.) or Almancil (12 Dec.) for presentations by, and an open discussion directly with, the EDGE Brexit team, on the eve of the British election. For more information or to book your place at either event please visit: www.nonhabitualresidents.com/events  or contact us directly via email: international@edge-il.com

October 31, 2019 - No Comments!

NHR application will automatically give acess to HAVA

On 8th October a circular was published by the Portuguese Tax Department changing the approach to and methodology in respect of the High Added Value Activity (“HAVA”) application. The benefits of the HAVA include paying tax on domestic salary at a flat rate of 20% and an exemption on overseas consulting income generated in the exercise of the activity. Conscious of its excessive delays in the granting of approvals, running up to 12 months and more, with the resulting lack of certainty, it was decided that, upon approval, the NHR applicant will automatically acquire the right to be taxed with the special tax rate of 20%. This is on the basis that they already meet the HAVA requirements, without the need for a separate application.

Up to now, the HAVA application was made by way of a subsequent and independent application after NHR approval and, due to the delays, the credibility of the HAVA regime was being undermined. With this in mind, the Tax Authorities have decided to eliminate the need to make an HAVA application, granting this tax benefit automatically.

A new more practical HAVA list comes into force on 1st January 2020 and NHRs who fulfill the criteria will only need to declare it in their annual tax return. However, supervision will continue to be exercised by the Tax Authorities and they may, after the filing of the tax return, notify the HAVA to file proof that they meet the necessary requirements. The type of evidence will be defined in a legislation which is expected to be published shortly by the Portuguese Authorities.

Although there are still some elements that need to be clarified by the Portuguese Tax Authorities, this is will undoubtedly eliminate the delays in the HAVA applications and restore the credibility of the regime, whilst also reinforcing the commitment to the NHR programme.

Lisbon, October 2019
info@edge-il.com

October 31, 2019 - No Comments!

Recent legislative changes to inventory process (Law no. 117/2019 of 13th September)

The inventory process aims to catalogue the assets left by the deceased and split the inherited assets through the heirs or to divide common assets of the spouses due to the end of their marriage.

Currently, and for some years, the inventory process has been a non-judicial process being dealt exclusively by Notaries, with the courts only intervening of very few occasions.

The Law no. 117/2019, which shall enter into force on 1st January 2020, will revoke the current legal regime of the inventory process and creates a new one, where the courts can also deal with these matters, meaning that the inventory process can also become a judicial process and not just a process before the Notary.

In relation to new inventory processes started after 1st January 2020the new regime will give the people directly interested in the division of assets (such as the heirs or the spouses) the possibility of choosing between filing the inventory process in a Notary Office or before the court.

If the interested parties choose the judicial way, the court with jurisdiction to deal with the matter is the one located in the territory of the deceased's habitual residence, or the deceased’s last residence in Portugal, or if the deceased had property in Portugal, on the court where that property is located. If none of these criteria are met, the Lisbon court will have jurisdiction. However, for the cases of divorce/separation, the court with jurisdiction is the one located within the area of residence of the person who filed the inventory process.

For ongoing inventory processes taking place before the Notary, the regime will continue the same regime, with some exceptions. Solely for ongoing cases and starting on 1st January 2020, these exceptions include the possibility of any of the people directly interested in the division of assets requesting that the process be sent to the court with jurisdiction, when:

- The inventory process is stopped for over 6 months, with nothing useful having been done;

- The inventory process has been stayed due to judicial matters for over a year. Irrespective of the reason, any heirs who, solely or together, represent more than 50% of the inheritance may also request that the inventory process be sent to the court with jurisdiction or to any other Portuguese court that most suits the heirs.

For the inventory process to be sent to the court, the heirs/parties have to pay court fees in the amount of € 102,00, but the court can set a higher amount at the end of the inventory process.

There also cases where the only courts can deal with the inventory process, with the main example being:

- When the inventory is part on another judicial case;

- When the inventory is requested by the Public Prosecution Office;

- When one of the heirs cannot be found or cannot participate in an amicable division of assets due to suffering from a de facto permanent incapacity.

Starting from 1st January 2020, when one of the direct interested people in the inventory is a minor, a person of age who needs a legal representative to assist him/her or a person who cannot be found, the Notary will send those processes to the court with jurisdiction, on its own.

As mentioned at the beginning, please be reminded that these legal changes will be only come into force starting 1st January 2020.

In the meantime, the ongoing cases and future inventory cases to be filed before 1st January 2020 will continue to run their course before the Notary.

For further information please contact Rodrigo Noronha Mourão - rmourao@edge-il.com

October 31, 2019 - No Comments!

Changes to the employment proceeding’s code

Further to a few relevant changes to the Employment Code itself, now it’s the time for the employment proceedings to be adjusted in line with the Civil Proceedings Code.

Some of the major changes were relate to timeframes which in general tend to be extended making the rules more similar to the general Civil Proceedings’ Code.

The new regime entered into force on 9th October.

JUST A FEW CHANGES IN TIMEFRAMES

- The time that the petitioner (generaly the employee) has to reply to defense (generaly of the employer), now of 15 days as a general rule, when before there was only the possibility to reply within 10 days after defense.

- Also in the sepcific court procedure to claim against dismissal – which starts by a digital or paper application filled by the employee then followed by the petition written by the employee justifying dismissal; in case the employee replies with a defense, the employer can now reply to the employee’s defense if the employee has made a claim / reconvention – or in other words – if the employee has made a claim in his defense, then the employer is entitled to reply to this pleading. The time frame is of 15 days to do so.

In case of appeal, the timeframe to file the application including allegations, is now of 30 days, when before it was of 20 days only. Currently only for urgent proceedings the timeframe of 20 days is maintained for apeals to be filed of court decisions.

OTHER CHANGES

In relation to witnesses the general rule is still of a 10 total number of witnesses per claim, but now there is a reduction by half of this limit in case of court cases where the value of the claim is lower than € 5,000.

The new rule about court hearings is now that also in line with civil proceedings’ rules the court hearing must be recorded.

Finally regarding the court prelimiary hearing designated as “audiência de partes” in the specific process against dismissal, the news is that the employer is now allowed to justify its absense and this way have another opportunity to be present and this way try to reach a settlement in the process at this stage.

9th October 2019

Cláudia Vaz Póvoa

Employment Department

cpovoa@edge-il.com

October 31, 2019 - No Comments!

Immigration Authorities increase number of residency appointments

Foreigners and Borders Services (SEF) will increase the number of available appointments for the granting of residency, renewals and family reunion. SEF informed that until the end of the current year it will be made available around 11 thousand appointments more to address the increase of requests.

Further to the above, and so that the time of waiting for approvals may also be reduced, SEF will also employ 116 technical assistants for the front office which will allow SEF to double their capacity of reply, according to the press release.

Until the end of the year there are already scheduled more than 135 thousand appointments and SEF has already opened the calendar for the first quarter of 2020. Only in the first semester of this year there were already 155 thousand appointments, an increase of 24% in comparison to the previous year.

In fact, the number of granted residency cards in the first semester of 2019 increased 68% when compared to the same period last year, referring to a total of 76,940 new residency cards.

In 2018, we had already reached a record in grating new residency cards, with more than 93 thousand cards grated, but in the first semester of this year alone there are already almost 77 thousand cards. The residency cards’ renewals have also increased when compared to the same period last year, an increase of 16%, resulting on 53,900 cards renewed.

The above shows the commitment of the authorities in providing a reply to all requests and the effort in reducing the waiting period.

Lisbon, 20th September 2019
By Catarina Ruivo Rosa, Associate at EDGE International Lawyers
For further information please contact: crosa@edge-il.com

September 20, 2019 - No Comments!

EDGE in Hong Kong

We will be travelling to Hong Kong between 20th and 29th September.  Francisco Barata Salgueiro and Ana Rita Reis, partners of the firm, will be in Hong Kong to attend different events and hold meetings with clients and business partners.

We are available to schedule meetings during this visit to discuss investment in Portugal, the Golden Visa programme and other related topics.  Please feel free to contacts us should you wish to schedule a meeting or contact Francisco and Ana Rita during their visit.