Article 123: Portugal’s Exceptional Mechanism for Residence

Portugal continues to attract global attention, both from tourists and from those seeking to establish long-term residence. To respond to this demand and the diversity of situations in which people may wish to settle, Portuguese immigration law has progressively expanded its range of residence permits and visas. A good example is Article 122 of Law no. 23/2007, of 4 July, which, when first introduced, covered only two situations and today includes seventeen. Yet the law recognises that not all circumstances can be foreseen, and that in some cases moving to Portugal may be a matter of real necessity. For these situations, the legislator created a safeguard mechanism – a true “escape valve” – ensuring that individuals in exceptional cases are not left without a solution. This is the role of Article 123.

This provision establishes an exceptional and subsidiary regime for granting residence permits in extraordinary cases not covered by Article 122 and where the asylum or subsidiary protection system does not apply. It ensures that individuals who fall outside ordinary categories are not left without legal protection in Portugal. A temporary residence permit under Article 123 may only be granted for reasons of national interest, for humanitarian grounds, or for public interest connected to activities of recognised relevance in the scientific, cultural, sporting, economic or social fields. Within the humanitarian category, the law expressly includes the situation of foreign children and young people placed in care institutions following child protection proceedings.

Experience showed that when first introduced, Article 123 was widely invoked, often with little foundation, simply as a way to prolong residence in Portugal. To limit misuse, the legislator clarified that this mechanism cannot be initiated by the individual but must instead be triggered by the Administration itself, either through a proposal by the board of AIMA or on the initiative of the Government member responsible for migration. Courts have consistently underlined this point. In a 2015 decision, the Central Administrative Court of North held that Article 123 is of an official nature, initiated exclusively by the Administration, and cannot be set in motion by private request. Allowing individuals to do so would, in the words of the court, “empty the exceptional regime of its meaning by treating extraordinary situations as if they were ordinary.”

The application of Article 123 depends largely on administrative discretion and on broad legal concepts such as “national interest” or “humanitarian grounds”. In 2016, the same court stressed that the definition and application of these concepts belong primarily to the Administration, with judicial review limited to correcting manifest or gross errors, in line with the principle of separation of powers. Portuguese jurisprudence has also clarified the limits of the regime. In 2013, the Central Administrative Court of North dismissed the argument that visa delays affecting professional football players amounted to extraordinary circumstances. While professional sports may be relevant in the public interest, short registration deadlines and administrative delays were not considered exceptional. By contrast, in 2012, the Court of Appeal of Guimarães confirmed that residence could be granted on humanitarian grounds where systematic violations of human rights existed in the applicant’s country of origin. The court clarified, however, that purely economic motives – such as the search for better work opportunities – while legitimate, do not amount to humanitarian reasons under this provision.

In practice, Article 123 is a narrow and highly discretionary instrument. Over time, administrative practice has recognised that integration into the Portuguese labour market for over a year may constitute a humanitarian ground for granting residence, even for individuals who initially entered without the correct visa. At the same time, the courts have consistently emphasised that the article cannot serve as a substitute for ordinary immigration channels. Its role is to ensure that vulnerable individuals, or those whose presence is justified by compelling national or public interest, are not excluded from legal residence simply because their situation does not fit neatly into existing categories. It is rarely used, but when it applies, it can be decisive.

At LVP Advogados, we regularly advise foreign citizens whose circumstances may justify residence under Article 123. Suppose you believe your case involves exceptional humanitarian considerations, national interest, or activities of recognised public relevance. In that case, our team can assess your situation and guide you through the options available under Portuguese immigration law.