Author
Refugees and beneficiaries of subsidiary protection have the same right to family reunification under the law.[1] While the right to family reunification encompasses the family members listed in the Asylum Act, its exercise is mostly governed by the provisions of the Immigration Act.[2]
Eligible family members
A person granted international protection in Portugal can reunite with the following family members:[3]
- A spouse or unmarried partner,[4] including same-sex partners, if the relationship is regarded as a sustainable relationship i.e., at least 2 years of living together in conditions analogous to marriage;[5]
- Children under 18 years old if they are dependent on the sponsor and/or on their spouse or unmarried partner and regardless of their marital status. The right to family reunification also includes adopted children under 18 years old of the sponsor or of their spouse or unmarried partner. Adult children who lack legal capacity (e.g., for reasons of mental health) and are dependent on the sponsor and/or on their spouse or unmarried partner are also included; and
- Parents, if the sponsor is under 18 years old.
Unaccompanied children can apply for family reunification with their parent(s). In the absence of biological parents, the child can apply for family reunification with an adult responsible for them (e.g., grandparents, legal guardians, or other family members).
It is not required that family formation pre-dates entry into Portugal.
The list of eligible family members in the case of beneficiaries of international protection is more restrictive than that enshrined in the Immigration Act for migrants. The latter also includes: (i) dependent children over 18 years old who are unmarried and studying in Portugal; (ii) dependent first-degree ascendants in the direct line; (iii) siblings under 18 years old, as long as the resident is their guardian, according to a decision issued by the competent authority of the country of origin, duly recognised in Portugal.[6]
While in the past it was common for SEF to extend the more favourable regime to beneficiaries of international protection, information gathered by CPR indicates that this is no longer the case as the authorities now tend to restrict family reunification to the list of relatives included in the Asylum Act.
Family reunification procedure
The request for family reunification can be made immediately following the granting of international protection and there is no time limit for applying for family reunification upon arrival in Portugal.
The sponsor in Portugal must apply for family reunification at SEF’s regional office in their residence area if the family member is living abroad at the time of application. If the family member is in Portugal at the time of application, the sponsor must apply for family reunification at SEF-GAR, in Lisbon. Applications are not accepted at Portuguese embassies.
The following official documents need to be presented with the application:[7]
- Copy of the travel document of the family member;
- Criminal record of the family member, including country of nationality and any country of residence where the family member has lived for over 1 year;
- Where applicable, statement of parental authorisation from the other parent (if not travelling with the child);
- Death certificate of the child’s other parent or evidence of sole legal guardianship if original death certificate is not obtainable, where applicable.
The following official documents are required to prove family relations:
- Spouses: marriage certificate;
- Children: birth certificate, decision of adoption duly recognised by a national authority (if applicable); proof of legal incapacity of adult child (if applicable);
- Other adults in charge of an unaccompanied minor: decision of guardianship duly recognised by a national authority.
In accordance with the law, all official documents need to be translated and duly legalised by the Portuguese embassy with territorial competence prior to their submission to SEF.[8]
Regarding refugees, the law explicitly lays down that in the absence of official documents to demonstrate family relations, other types of proof should be taken into consideration. The application for family reunification cannot be refused on the sole basis of lack of documentary evidence.[9] Other types of proof can consist of interviews of the sponsor and family members; copies of original documents; witness testimonies; or common children in the case of unmarried partnerships. Portuguese authorities do not conduct DNA tests in the framework of family reunification applications. Even though not formally required, the law does not exclude DNA testing as means of proof of family relations.
In practice, this more favourable regime is generally extended to beneficiaries of subsidiary protection.
Furthermore, refugees are exempted from the general obligation to present proof of accommodation and income in family reunification procedures.[10] This legal provision has also been applied to beneficiaries of subsidiary protection.
The application may be refused on the following grounds:
- Misrepresentation or omission of facts;
- Non-fulfilment of legal requirements;
- Where the potential beneficiary family member would be excluded from refugee status or subsidiary protection;[11]
- Where the potential beneficiary is barred from entering Portugal; and/or
- Where the potential beneficiary poses a risk to public order, public security or public health.
Non-fulfilment of legal requirements may involve: (a) lack of adequate travel documents; (b) lack of criminal records of the potential beneficiary family member; (c) situations where a parent other than the sponsor has not authorised the family reunification of their child with the sponsor; or (d) non-eligibility of the family member.[12]
The application should be decided within 3 months, with a possible extension for an additional 3 months if the delay is duly justified by the complexity of the case. In case of extension, the applicant should be informed of the reasons thereof.[13]
In the absence of a decision within 6 months from the date of the application and unless the applicant bears responsibility for the delay (e.g., unanswered request for additional information and/or documents), the application is deemed automatically accepted.
A decision refusing an application for family reunification may be appealed in the administrative courts. In the absence of specific deadlines and procedures, the general rules on administrative appeals apply.[14] CPR does not have experience with appeals in this domain.
In recent years, significant waiting times for appointments at SEF for the purposes of family reunification has been registered by CPR. Difficulties in this regard continued to be observed in 2022.
Within the context of resettlement, CPR has observed that ACM has been making efforts to identify family members of resettled refugees present in Turkey and Egypt in order to assess the possibility of including such persons in resettlement quotas. For information on other forms of admission to the territory, see Access to the Territory and Push-backs.
According to the analysis conducted by the Observatory for Migration, the number of holders of residence permits within the context of family reunification of beneficiaries of international protection has been increasing. According to the same source, 167 persons held such a permit by end of 2021.[15]
In 2022, SEF received 29 applications for family reunification from beneficiaries of international protection and issued 28 decisions (13 concerning refugee status holders, 15 concerning beneficiaries of subsidiary protection). A breakdown by outcome was not available.
[1] Article 68(1) Asylum Act.
[2] Ibid. Articles 98 et seq Immigration Act.
[3] Articles 68 and 2(1)(k) Asylum Act.
[4] Both the sponsor and the spouse/unmarried partner must be at least 18 years old.
[5] Unmarried partner unions may be attested by any means of proof provided in the law (testimony, documentary proof, affidavit, common children, etc.) In accordance with the law, when a refugee is unable to present official documents to prove his or her family relations, other means of proof will be taken into consideration.
[6] Article 99 Immigration Act.
[7] Article 103 Immigration Act; Article 67 Governmental Decree n. 84/2007 of 5 November 2007.
[8] According to CPR’s experience, documents in English, French and Spanish are usually accepted without translation.
[9] Article 106(4) Immigration Act.
[10] Article 101(2) Immigration Act.
[11] Article 68(3) Asylum Act.
[12] Article 106 Immigration Act.
[13] Article 105 Immigration Act.
[14] General rules provided in the Administrative Procedure Code – CPA – (available at: https://bit.ly/3mV8Ymn), and in the Code of Procedure in Administrative Courts – CPTA – (available at: https://bit.ly/3ToXKmo ). Notably, article 58(1)(b) CPTA provides for a general deadline for appeal of 3 months.
[15] Observatório das Migrações (OM), Requerentes e Beneficiários de Proteção Internacional – Relatório Estatístico do Asilo 2022, June 2022, p.215, available in Portuguese at: https://bit.ly/3XySygz.