Decree-Law n.º 252/2000 de 16 October CHAPTER I
Nature, attributions and underlying principles for action
Nature and attributions
Principles underlying action
Bodies, services and their competencies
Personnel regime (135,191,218)
Management staff and supervisors
Final and transitional provisions
Decree-Law n.º 440/86, of 31 December, that restructures the Foreign Nationals Service and changes its name to "Serviço de Estrangeiros e Fronteiras" - SEF (Foreign Nationals and Borders Service), continues to attribute to SEF control of documents on the entry and exit of Portuguese nationals and foreigners at land, sea and air border control posts. It also adds the responsibility of providing a correct immigration policy and guaranteeing that it is put into practice effectively.
To this end, the same law adopted and developed the principle of centralising, within SEF, all information on foreign nationals so that the Minister of Home Affairs (Ministro da Administration Interna) could be provided with the information essential for allowing the Government to establish the major guidelines for immigration policy.
However, the improvement aimed at with Decree-Law n.º 440/86, of 31 December, was not achieved due to the absence of the qualified research and control staff who were to be given the skills to investigate and control foreign nationals in Portugal and, in particular, control borders.
In addition to this shortage of staff, throughout the nineties SEF also had to cope with other difficulties:
- The onset of a third cycle of migratory flows to Portugal that added to existing communities and brought others that until then had been of little importance;
- The abnormal growth of illegal immigration that was particularly trans-national;
- An upswing in the national labour market, particularly civil construction and public works, that had more capacity to absorb unskilled labour, mainly among foreign nationals;
- The application in domestic law of Community Directives addressing immigration, borders and asylum, as well as provisions in the Schengen Agreement and the respective Application Convention, signed by Portugal on 25 June 1991;
- The need to implement international police co-operation to meet the different responsibilities that the Portuguese State had been assuming in bilateral and multilateral international agreements, in particular the Readmission Agreements with Spain, France, Poland and Bulgaria;
- The implementation of two procedures for the extraordinary regulation of illegal immigrants, in 1992 and 1996, with the aim of documenting foreign nationals staying irregularly in Portugal.
Added to the difficulties and restrictions described were the new attributions being assumed as result of national legislative measures – Decree-Laws ness 59/93 and 60/93, both of 3 March, 120/93, of 14 April, 244/98, of 8 August, 250/98, of 11 August, and Laws ness 70/93, of 29 September and 15/98, of 26 March, and international commitments, such as the Schengen Agreement and the respective Application Convention, the Dublin Agreement and Police Co-operation Agreements and, recently, the Treaty of Amsterdam that lays down the Community approach to policies on the free movement of persons.
With all of these developments, SEF, right now, has the competencies that are listed below, and which go far beyond those enshrined in Decree-Law n.º 440/86, of 31 December, its current organic law:
- Issuing reports on consular requests for visas;
- Controlling border post movements of persons, preventing those persons who do not meet the necessary legal requirements for the purpose from entering or leaving Portugal;
- Controlling and inspecting the leave to stay and activities of foreigners throughout Portugal;
- Granting visas in Portugal, extensions of leave to stay, authorisation for residence, as well as travel documents;
- Recognising the right to family regrouping;
- Investigating the crime of aiding illegal immigration and other associated crimes;
- Collaborating with those agents responsible for controlling compliance with the law governing foreign labour;
- Ensuring that mixed border posts function, in order to combat trans-border crime and illegal immigration, and strengthening police co-operation with Spain;
- Ensuring that mobile controls are implemented along all internal borders, with a view to combating illegal immigration in the Schengen area;
- Putting agreements for readmission signed with Spain, France, Bulgaria and Poland into practice, so that persons who are illegal in Portugal may be removed, and implementation of the same;
- Conducting joint operations with the equivalent services in Spain to combat flows of illegal immigration in both directions across the Portuguese-Spanish border;
- Opening enquiries, determining and executing the expulsion of foreign nationals living illegally in Portugal and executing court decisions on expulsion;
Escorting foreign nationals subject to removal measures from Portugal;
- Deciding on approval of the analysis of applications for asylum;
- Examining procedures granting asylum, determined by the State responsible for analysing applications for asylum and the transfer of applicants for asylum between the member States of the European Union;
- Analysing and reporting on applications for granting Portuguese nationality by naturalisation;
- Analysing and reporting on applications for granting equality status and on the recognition of international associations;
- Guaranteeing the link between the National System for Schengen Information (NSSI) and the Central System for Schengen Information(CSSI-Strasbourg), ensuring that not only is SEF linked to the NSIS, but also the Republican National Guard, the Police Force, the Judicial Police, the Directorate General for Consular Affairs and Portuguese Communities and the Directorate General for Customs and Special Consumer Taxation;
- Ensuring the management and communication of data for the National System for Schengen Information (NSSI) and other information systems used in controlling the movement of persons, common to the member States of the European Union and the Schengen contracting States, as well as those linked to the database for the issue of passports (BADEP);
- Co-ordinating co-operation between national security forces and services and those of other countries in dealing with the movement of persons and control of foreigners;
- Co-operating with the diplomatic and consular representations of foreign States, duly accredited in Portugal, in the repatriation of their Nationals;
Maintaining relations of co-operation with all State agencies and services, in particular with all other security services and forces,;
- Collaborating with similar foreign services, and establishing specific forms of co-operation;
In addition, when dealing with international commitments:
- At the Government’s decision, SEF may represent the Portuguese State in the European Union, namely with in the Strategic Committee for Immigration, Borders and Asylum, for which the Director of SEF is responsible and that includes the Groups for Migrant Labour, Removal, Asylum, Visas, Borders, CIREA and CIREFI;
- At the Government’s decision, ensure that the Portuguese State is represented by the Director of SEF in the High Level Group for Asylum and Migration;
- At the Government’s decision, represent the Portuguese State, participating directly in work groups and sub-groups dealing with the development of the Schengen Agreement of the European Union, namely Task Forces, Information System SIS, Technology for the Information System (SIS), Sirene. Schoenberg Evaluation Committee, Mixed Committee, Collective Evaluation Group and in the Groups for police co-operation that deal with matters within the scope of SEF attributions, Foreign Borders, Readmissions, Sirene, SIS Guidance Committee and PWP;
- Represent the Portuguese State in the Budapest Group;
- Observe the work of the Conference Ministers of Home Affairs of the Western Mediterranean Countries (Portugal, Spain, France, Italy, Morocco, Tunisia and Algeria);
- Ensure that commitments assumed within international co-operation are respected through liaison officers.
From the range of attributions currently pursued by SEF listed above, and in view of the stipulations of Decree-Law n° 440/86, of 31 December, it is easy to conclude that the organic structure envisaged in this law is totally inadequate to implement these attributions.
It is a fact that from the initial enquiry to obtaining an entry visa to Portugal, including questions related to legislation on entry and leave to stay of foreign nationals, on their removal from Portugal and on asylum, up to obtaining Portuguese nationality by naturalisation, all of these migration issues are dealt with by a single service – the Serviço de Estrangeiros e Fronteiras - SEF.
Add to this the growing complexity arising from the simple fact that Portugal today is, quite frankly, a true “country of immigration”, that has absolutely nothing to do, in this particular case, with the country that existed in 1986. The foreign population legally resident in Portugal exceeds the 200,000 mark, the majority continuing to be nationals from third countries, mainly from the Portuguese speaking countries.
In short, implementing all the tasks that, as explained above, have over the years been added to the service, means that the national and international sectors need a legislative framework to “create” an immigration and borders service able to respond quickly and effectively to implementing the immigration policy defined by the Government, as well as the structural and changing demands of the migratory phenomenon.
Such a legislative framework means modernising SEF, planned in the Government's Programme as one of the instruments required to meet the demands of co-operation among the member States of the European Union in terms of security, while making this compatible with free movement, strengthening co-operation among the Portuguese speaking countries and controlling all external borders, namely sea borders.
Therefore this law “creates” a service for foreign nationals and borders prepared to meet these objectives and to accompany the development of mechanisms for international co-operation, the gradual adjustment of immigration policies between host countries and countries of origin, as well preventing and combating trafficking in immigrants, by implementing the following:
- Creating an organic structure adequate for the tasks that have to be done by the service and suitable for its size;
- The plan to have a general directorate composed of a director-general and four deputy directors general;
- A precise definition of the competencies of the director-general;
- A plan to have central and decentralised services, giving the latter the necessary autonomy and flexibility to manage the community of foreign nationals and migratory flows;
- Creating central directorates that will rationalise and consolidate the different areas in which the service works;
- Defining external border posts as organic units, and their respective competencies;
- Setting up mixed border posts.
The procedures arising from Law n° 23/98, of 26 May, were observed.
The National Commission for Data Protection was heard.
In using the legislative authorisation granted in article 1 of Law n° 24/2000, of 23 August, and in the terms of sub-paragraph b) of n° 1 of article 198 of the Constitution, the Government decrees the following: