A Dilemma of Two Communities: How the Portuguese-speaking Countries Mobility Agreement Might be Conflicting with EU Law

 

 

Ana Rita Gil*, Aylin Yildiz Noorda** & Lucas Ricardo***

 

* Professor, Law Faculty of the University of Lisbon, Portugal. Researcher at the Lisbon Public Law. Email: anaritagil@fd.ulisboa.pt.

** Postdoctoral Researcher at the Lisbon Public Law Research Centre, University of Lisbon, Portugal / Non-resident Research Fellow at the World Trade Institute (WTI) and the Oeschger Centre for Climate Change Research (OCCR), University of Bern, Switzerland. Email: aylin.yildiz@wti.org. This research has been funded by the Swiss National Science Foundation (SNSF) under grant no P500PS_210910.

*** Investment Policy Consultant at UNCTAD. Email: narciso_lucas@hotmail.com

 

Photo credit: Donatas Dabravolskas, via Wikimedia Commons

 

The recent decision of the European Commission to launch infringement procedures against Portugal concerning the provisions of the Community of Portuguese-speaking Countries (CPLP) Mobility Agreement has placed this new framework in the spotlight. Concluded by Portugal, Angola, Brazil, Cape Verde, Guinea-Bissau, Mozambique, São Tomé and Príncipe, Timor-Leste and Equatorial Guinea in 2021, the CPLP Mobility Agreement facilitates the movement of the citizens of the CPLP member states within the boundaries of ‘the same language space’. As the CPLP Executive Secretary Zacarias da Costa put it, the agreement goes ‘way beyond a set of piecemeal measures’, establishing a legal framework with a flexible and variable system suited to each state’s specificities. Notably, the Mobility Agreement aims to streamline the process for acquiring temporary residence visas and permits, with around 150,000 applications reportedly undergoing processing by the Portuguese Foreigners and Border Service (SEF). In this post, we examine the adoption, content, and implementation of the Mobility Agreement, commencing with a brief introduction to the CPLP.

 

Founding the CPLP

 

The inception of the CPLP traces back to early 1980s when the Portuguese Minister of Foreign Affairs at the time, during an official visit to Cabo Verde, endorsed decentralised tricontinental dialogues as a means to formalise the connections between Portugal and its former colonies. This initiative gained momentum in the 1990s, primarily due to the dedicated effort of the Brazilian ambassador to Portugal at the time, and resulted in the creation of the organisation in 1996. Although the CPLP was ostensibly established with benign objectives, centred on fostering cooperation across various areas rooted in a professed shared language and culture, it appeared to be the ‘political face’ of the Lusophone world. In this regard, it bears a resemblance to its French- and English-speaking counterparts, albeit neither the Organisation internationale de la Francophonie nor the Commonwealth of Nations have adopted a mobility agreement of the kind seen within the CPLP.

 

Initially comprising seven member states, the CPLP expanded with the admission of the newly independent state of Timor-Leste in 2002 and Equatorial Guinea in 2014. Brazil stands as the largest member state in terms of territory, population and economy, boasting the highest number of Portuguese speakers. However, projections indicate that by the close of the 21st century, the majority of Portuguese speakers will likely reside in Africa, attributed to demographic growth in Angola and Mozambique. While the list of potential future CPLP members may seem to have been exhausted, the CPLP has proactively introduced the category of an ‘observer’, enabling international organisations and interested countries to participate in CPLP summits and Council of Foreign Affairs Ministers meetings, albeit without voting rights.

 

Adopting the Mobility Agreement

 

The CPLP’s founding texts had already established the objective of ‘contributing to the strengthening of human ties, solidarity and fraternity among Peoples who have the Portuguese Language as one of the foundations of their specific identity and, in this sense, promoting measures that facilitate the movement of citizens of Member Countries within the CPLP space’. Acting on this, the CPLP member states agreed to explore possible avenues for policy development in mobility issues in the Praia Declaration in 1998. Two years later, a working group was established to facilitate intra-CPLP mobility and to ensure the equality of social and political rights among CPLP member state citizens. Several agreements followed soon after, including on common maximum requirements for short-term visa applications in 2002 and student visas in 2007. During this period, the goal to institute a Lusophone or CPLP citizenship status garnered much attention but has not reached a consensus. In the meantime, the path was laid for a mobility agreement, which was eventually signed in Luanda, Angola, on 17 July 2021, following seven sessions of text-based deliberations.

 

Facilitating Three Types of Movement

 

The Mobility Agreement does not create a free movement regime. Instead, the CPLP member states have established minimum standards to facilitate three types of movement: short stay, temporary stay, and residency. Although short stays do not necessitate prior administrative authorisation, temporary stays (with a duration not exceeding 12 months) are conditional upon such authorisation. Conversely, the streamlining of residency contemplates a novel documentation category called the ‘CPLP residence permit’, which may be granted subsequent to the authorisation of a ‘CPLP residence visa’.

 

Sitting at the heart of this framework are the applicable terms and conditions. Essentially, each state is free to choose mobility modalities and categories. This allows the states to undertake obligations gradually and with varying degrees of integration across one or more mobility modalities and/or categories of people, tailoring them to internal circumstances. Each state retains the authority to define, based on its internal legislation, the necessary documentation required to apply for the CPLP residence visa. Furthermore, none of the states are obligated to undertake commitments that are incompatible with their international commitments or regional integration agreements.

 

Implementation by Portugal

 

Portugal approved the CPLP Mobility Agreement by Resolution of the Assembly of the Republic No. 313/2021 of 9 December, implementing it by enacting Acts No. 4/2022 of 30 September, and No. 18/2022 of 25 August.

 

Accordingly, CPLP member state citizens may apply for a temporary-stay visa, work-seeker visa or a CPLP residence visa. Such requests shall be granted outright, unless the applicant is identified in the Schengen Information System as the subject of an alert for return or an alert for refusal of entry and stay. In other words, the applicants no longer need to apply for a visa in person, and are exempted from the prior decision of SEF (which has recently been replaced by AIMA).

 

Furthermore, as of March 2023, certain CPLP member state nationals have been able to apply for a temporary residence permit online. This is not an automatically granted visa, but rather a temporary residence permit granted to CPLP member state nationals who already had migration processes pending at SEF/AIMA or had visas issued by Portuguese consulates. Similarly, those with a CPLP residence visa are entitled to apply for a CPLP residence permit.

 

The decision to grant a CPLP temporary residence permit to citizens who were already staying in the territory, and who were waiting for a residence permit, was also taken with the aim to respond to the high number of pending applications made under the permanent regularisation scheme existing in Portugal. Indeed, Articles 88 and 89 of the Immigration Law establish a ‘right to regularisation’ to citizens who are illegally staying in the territory and who have a labour contract or a promissory agreement to formalize a labour contract. These legal norms attracted a high number of migrants, mainly from Brazil, that entered Portugal with the purpose of seeking job opportunities, and stayed illegally there, waiting for their regularisation. The number of pending procedures amounted to more than 120,000 and the waiting time was exceeding two years. The dissatisfaction among the immigrants’ community was growing, and the Ombudsman reported an extreme rise of complaints against SEF. With the CPLP scheme, the Government was expecting to solve this backlog, that was seriously jeopardizing the good functioning of the services and raising social discontent.

 

European Commission’s Infringement Procedure against Portugal

 

In September 2023, the Commission started an infringement procedure against Portugal. The Commission considers that the Mobility Agreement provides for a residence permit which is not compliant with the uniform format for residence permits for third-country nationals under Council Regulation 1030/2002. Furthermore, the Commission contends that both the residence permits as well as the long-stay visas issued for job-seeking purposes to nationals of the CPLP States do not allow their holders to travel within the Schengen area, in contradiction with EU law.

 

The CPLP ‘residence permit’ consists of a document which simply states that its holder has authorisation to reside in Portugal under the CPLP mobility agreement. The fact that it does not follow the EU’s residence permit format has also contributed to raise several uncertainties in the daily lives of its holders. In fact, it was common for private or even public entities not recognising the document and denying access to some rights, such as opening bank accounts or renting houses. Also, it was very frequent that holders of CPLP residence permits were denied embarkment in international flights or even returning to Portugal by foreigner airports’ officials, who were not familiarised with the document.

 

Portugal has two months to respond to the letter and address the shortcomings identified by the Commission. Portuguese Secretary of State for European Affairs, Tiago Antunes, has already denied incompatibility between the Mobility Agreement and the Schengen regime, and announced that the implementation of the agreement would continue. In the absence of ‘a satisfactory response’ by Portugal, the Commission may decide to issue a reasoned opinion, which is a formal request to comply with EU law. In case the country in question does not comply with the reasoned opinion, the Commission may decide to refer the matter to the Court of Justice of the EU.

 

Conclusion: Is CPLP Mobility Agreement one of a kind or part of a larger trend?

 

The CPLP Mobility Agreement may be seen as a distinctive framework, emanating from a political and cultural cooperation organisation rather than an integrated trade bloc. Integrated trade blocs, such as the EU, African Union (AU), Southern Common Market (MERCOSUR), and the Economic Community of West African States (ECOWAS), have established their own systems of free movement, albeit at various stages of implementation. While trade agreements designed between developed and developing nations have been observed to facilitate human mobility to a certain extent, the extent of such facilitation is typically more limited. The CPLP Mobility Agreement echoes the conventional observation that states operating at differing levels of development tend to facilitate human mobility to a more restricted degree.

 

Nonetheless, the CPLP Mobility Agreement has been observed as being unique for putting an end to an unjustifiable limit to the right to work for certain non-EU citizens in an EU country. In this sense, it can be viewed as part of a larger trend in favour of international cooperation on migration issues. This issue topped the UN agenda particularly post-2015, leading to the adoption of the legally non-binding Global Compact for Safe, Orderly and Regular Migration (GCM) in 2018. All CPLP member states have voted in favour of adopting the GCM during the historic UN General Assembly vote, with the exception of São Tomé and Príncipe and Timor-Leste which did not vote. Furthermore, three CPLP member states (Portugal, Cabo Verde and Guinea-Bissau) have submitted voluntary national reports on the implementation of the GCM. In their reports, Portugal and Guinea-Bissau make references to the CPLP Mobility Agreement as instances of successful implementation of the objective on enhancing the availability and flexibility of pathways for regular migration. Also, both states mention in their reports that they have accepted to become a ‘GCM Champion country’ and to contribute to achieving the objectives of the GCM.