The Migration Services guidelines have been updated for Portuguese residence applications. Since August, they have only been accepted either for reasons of “family grouping”, or “previous connection to the Macao SAR”, now excluding the “exercise of specialized technical functions”. The news was released by Lusa last week and is confirmed by a document of guidelines regarding new residence applications for Portuguese nationals, which appears on the Macao SAR Government portal.
In the guidelines released on November 15, 2021, residence applications were still accepted based on the “exercise of specialized technical functions”. On the same day, law 16/2021 (Legal regime for migration control and stay and residence permits in the Macao SAR) also came into force. The new guidelines, in force since August 2, 2023, and which appear one month after the entry into force of the new qualified staff law (7/2023, Legal regime for attracting qualified staff), already exclude the application for residence with based on the “exercise of specialized technical functions”.
Two parallel regimes continue to exist. And one says that the Portuguese have favorable treatment. You can’t change this in a ‘footnote’ and without anyone noticing
José Abecasis, jurist
Does it have legal support?
Not easy to determine. According to local jurists interviewed by the Macau Tribune, no. The new guidelines do not have legal support with the force to derogate from what was enshrined in Administrative Regulation no. 5/2003, more precisely in article 20 – Residence permit for Portuguese citizens. “There was no revocation of this regulation 5/2003, quite the contrary, in article 104 [of Law 16/2021] it even expressly states that regulation 5/2003 remains in force until its revocation or suspension”, explained Icília Berenguel. Article 20 of regulation 5/2003 to which the lawyer refers, establishes that “Portuguese citizens who wish to reside in the Macao SAR must appear at the Migration Services, for the purposes of obtaining a residence permit, by submitting an application for Model n .º 4”.
However, the Migration Services informed PLATAFORMA that they no longer process requests for “specialized technical functions” since the entry of the “Legal regime for attracting qualified personnel”. Now, this competence belongs to the Qualified Staff Development Commission (CDQQ) which, to our newspaper, added that if candidates do not meet the requirements for “high quality qualified staff”, “highly qualified staff” and “professionals of advanced level”, identified in Law no. 7/2023, “there is a very high probability of not being approved”. Even so, they said that the request will always be considered.
António Katchi, also a lawyer with many years of experience in Macau, explains to PLATAFORMA that the current law “no longer establishes any different treatment compared to other foreign citizens. Furthermore, paragraph 3) of article 1 of Administrative Regulation no. 3/2005, which mentioned the granting of the right of residence concerning specialized technicians, was revoked by Law no. 7/2023, which subdivided this category into three (“high quality qualified staff”, “highly qualified staff” and “advanced level professionals”) and subject their recruitment to more demanding requirements and a more complex procedure.”
Looking then at the legality or not of the new guidelines, Katchi responds that “this decision was imposed by the principle of administrative legality itself, given that the aforementioned paragraph 3) of article 1 of Administrative Regulation no. 3/2005 is no longer in force and only enjoys ultra-activity for the assessment of requests submitted before the entry into force of Law no. 7/2023 (this, as determined by article 32/1 of this same law).”
José Abecasis, a local lawyer, says that if the special regime that Portuguese nationals enjoyed when applying for residence was not revoked, then it should be maintained. “There continue to be two parallel regimes. And one says that the Portuguese have favorable treatment. You can’t change that in a ‘footnote’ and without anyone noticing.” What the jurist finds strange is the lack of notice: “There was no public consultation… nothing. They simply interpreted the laws this way.”
[The current law] no longer establishes any different treatment for foreign citizens. Furthermore, paragraph 3) of article 1 of Administrative Regulation no. 3/2005, which mentioned the granting of the right of residence concerning specialized technicians, was revoked [by the current law]
António Katchi, jurist
Silence from the authorities
There has still been no progress since the problem became public on September 14th. PLATAFORMA requested clarifications by email from the Office of the Chief Executive, the Secretary for Security, the Secretary for Administration and Justice and the Macau Public Security Police Corps. However, he did not receive any responses by the end of this edition.
The Consulate General of Portugal in Macau and Hong Kong responded, however, the newspaper obtained the same response given to other media outlets about a week ago: “There is a set of issues related to the topic of the question that are being subject to talks with the Macao SAR authorities but does not consider it appropriate to make any further statements on the matter at this time.”
Hiring depends on ‘blue cards’
The interpretation of the law in new Portuguese residence applications had at least one victim. Patrícia Ribeiro, director of the Instituto Português no Oriente (IPOR), spoke to Lusa and revealed that the new regime “is a problem”. He had to request the issuance of ‘blue cards’ when hiring the last two teachers – a precarious work visa that does not include the same benefits in terms of health or education, nor does it initiate a process that guarantees permanent resident status, as happened until now. Constraints that harm the ability to hire teachers from Portugal, but not only that, said Patrícia Ribeiro: “if this situation continues”, and there is no diplomatic solution, “there will be a time when we will no longer obtain quotas” for ‘ blue card’, since it is necessary to balance the possible number of non-residents employed with the mandatory local hiring. “And that is a problem, because we have already made some local hires, but in the second competition we no longer found [candidates] with the qualifications we wanted”, she explained. On the other hand, the alternative presented by the Migration Services, the recent program to recruit qualified staff, “does not adapt to many entities and IPOR itself”, she added.
PLATAFORMA spoke to another Portuguese academic institution, which did not seem concerned about the situation. Manuel Machado, president of the Portuguese School of Macau (EPM), says that the hiring of teachers this school year took place in the “usual way”. This is because EPM teachers have long arrived in Macau via ‘blue card’. “When people arrive, and are already authorized to come to work in Macau, they go to immigration to be given the ‘blue card’ and only later, depending on the length of time they stay here, do they have access to the BIR. But I can’t tell you how long this process takes.” The person in charge adds that this year alone they hired 10 teachers from Portugal, through a ‘blue card’.
José Alves, director of the Faculty of Management at City University of Macau, also says that he has not had any problems hiring professionals, as “the blue card requests were approved”. “People no longer think about BIRs,” he comments.
António Trindade, president and executive director of CESL-Asia, also says that despite hiring qualified staff outside Portugal, he has chosen to apply for a ‘blue card’. The person in charge even says that the process of issuing these work visas “is easier, much more transparent, much simpler and much faster”. In the past “it took months” and now it is resolved “in a matter of weeks”, he highlights.
The Government cannot be saying that the Macau platform will attract qualified staff to help companies from the Greater Bay Area to go to Portugal (…) and then there will be restrictions on entry
António Trindade, president of CESL-Asia
Blue card problem
Despite the hiring of most companies and academic institutions having turned to ‘blue cards’, the truth is that this temporary residence system has had problems for a long time. “This is a statute that reduces a group of workers to the exclusive status of sellers of their workforce, disregarding the other components of their being and their lives. It therefore violates the basic value that is the dignity of the human person, which requires respect and appreciation of the person in all their dimensions, and opens the way to widespread discrimination, translated into the unfair denial of various economic, social and cultural rights and also , since 2021, of two civil rights (freedoms of assembly and demonstration)”, understands Katchi.
Without reflecting on the legality or otherwise of the current process, it is a reality that the Macau Government has publicly stated its intention to get closer to Portuguese-speaking Countries in all areas. To PLATFORMA, those interviewed say that these new guidelines do not help in this mission.
“Several principles and norms of the Portuguese-Chinese Joint Declaration and the Basic Law presuppose, for their effective compliance, the presence of Portuguese-speaking people in Macau: the maintenance of Portuguese as the official language, the continuity of the legal system, the continuity in education system, non-discrimination based on language, respect for the customs and cultural traditions of residents of Portuguese descent, etc. This is not about privileging Portuguese citizens to the detriment of people of other nationalities. In fact, the directly relevant factor here is not Portuguese nationality, but the Portuguese language (…). If the new law, even if interpreted and applied in the broadest, most flexible and sensible way possible, does not allow reasonable observance of those constitutional parameters, it must, obviously, be reviewed in order to guarantee the best possible respect for them”, argues Katchi.
António Trindade sees a contradiction to the current political discourse: “The Government cannot be saying that the Macau platform will attract qualified staff to help companies from the Greater Bay Area to go to Portugal (…) and then there will be restrictions on entry”.
José Alves asks us to look at other regions. “There are other regions/countries that use a points system that may be useful to study. Regarding the interest of attracting Portuguese people, it would be enough to create indicators related to language or culture which, combined with other criteria, would be sufficient to meet the expectations of those who legislated this matter”.