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.
