Courts uphold residence permit revocations in sham marriage cases

[Photo: Renato Marques]

Fraudulent marriages used to secure residence permits are both a criminal offense and a ground for the automatic nullity of the administrative act, courts have ruled.

Notably, the Court of Final Appeal (TUI) and the Court of Second Instance (TSI) have heard multiple cases in recent years involving the granting of residence permits obtained through fraudulent marriages, with the courts consistently ruling that such permits are null and void. In one case, a mainland Chinese woman applied for and obtained residence permits for herself and her daughter in 2009 on the grounds of her marriage to a Macau man.

She was later convicted of document forgery, leading the Secretary for Security to revoke the daughter’s residence permit. The daughter’s appeal was ultimately ruled in favor of the Secretary by the Court of Final Appeal, affirming the revocation.

According to a TSI statement on the case, the mother was convicted in 2021 by the Court of First Instance (TJB) on four counts of document forgery and sentenced to two years and 10 months in prison, suspended for three years.

The daughter challenged the revocation of her residence permit and successfully appealed to the Court of Second Instance, prompting the Secretary for Security and the Public Prosecutions Office (MP) to take the case to TUI

Similar rulings were made in 2022 and 2024, when TUI held that, under the Administrative Procedure Code, administrative acts that involve criminal offenses in their preparation or execution are void – even if the act itself does not constitute a crime, as long as the motive or purpose behind it is criminal and material to the act.

The court further held that the administration’s power to declare nullity is a mandatory power, not a discretionary one, and that where the court can determine that the administration’s decision was the only possible solution, the right to a hearing is reduced to a non-essential procedural formality and does not affect the substantive legality of the administrative act.

Parties may not challenge the validity of such decisions on procedural grounds alone.