By Ana Rita Gil (Universidade Nova de Lisboa), GLOBALCIT expert
On the 6th July 2018, new amendments of the Portuguese Nationality Law entered in force (Organic Law 2/2018). The amendment involves at least four important topics, in addition to some minor changes. First, the most important change undoubtedly concerns the ex lege acquisition at birth in the form a moderate version of ius soli. Second, naturalization has been facilitated by a lowering of the residence requirement to five years and by additional changes. Third, provisions were introduced aimed at protecting unaccompanied minors entering the territory were also introduced. Finally, new provisions aimed at protecting the principle of legal certainty were introduced following some cases that entailed annulation of several nationality acquisitions.
- A moderate ius soli solution for ex lege nationality acquisition at birth
Undoubtedly the most significant element of the amendment concerns the introduction of a moderate ius soli acquisition at birth (Article 1, n.1, f)). This amendment responds to immigrants’ groups and associations’ claims, who have been advocating for the consecration of a pure ius soli solution in the Portuguese legal order. Previously, the Nationality Law already foresaw a mode of ex lege acquisition of citizenship at birth giving relevance to the ius soli principle, for children of the third migrant generation (i.e. children born in Portugal born to a person born in Portugal). Yet, concerning second generation migrant children, the law only allowed voluntary acquisition at birth through ius soli, provided that one of the parents has lived legally in Portugal for at least five years. While the amendment does not establish the claimed ius soli solution, it does achieve a very inclusive regime.
According to the new regime, all persons born in Portuguese territory acquire ex lege Portuguese nationality provided that at the time of birth one of the parents has been legally resident for at least two years. The new solution not only decreased the necessary parent’s residence period but also changed the very nature of the nationality acquisition: from now on, these second-generation immigrants are of Portuguese origin, under the simple terms of the law and independently of an express declaration of intent. This regime is not applicable to children of foreigners who are at the service of their State. Foreign parents may also preclude the birth acquisition by expressly stating so.
Proposals for a consecration of a pure ius soli principle continue to be dismissed due to concerns with EU citizenship, with respect of the principle of effective nationality and also due to the prevention of illegal immigration.
- A more favorable right to naturalization
The year 2006 was the year of the naturalization revolution in Portugal, where naturalization ceased to be a discretionary clause and became a subjective right to those residing in Portugal for six years with clear criminal record and sufficient knowledge of Portuguese language. Article 6 of the Nationality Act has been amended almost every two years in order to encompass more groups of persons with connection to the Portuguese community, as it was most recently the case for those of Portuguese Sephardi origin.
The 2018 amendments concern the general naturalization clause of Article 6, n.1: the residence period decreased to five years, on the basis of any type of residence permit. Additionally, the “prevention of criminality clause” was amended: in contrast with the previous regime, only effective convictions to imprisonment for more than three years, with res judicata, may preclude nationality acquisition through naturalization. A similar solution was already advocated in the previous amendments, but was always averted due to the opposition of the right wing party, on the grounds of public order defense. However, this amendment provides for a balanced and fair solution, giving due consideration to concerns related to the prevention of criminality and, at the same time, respecting the constitutional principle of in dubio pro reo, only excluding those who were effectively condemned by final decision. Finally, specifically for citizens of Portuguese-speaking countries, the Portuguese language test requirement has been removed.
- Protection of unaccompanied migrant children
As in other EU members states, Portugal has faced an increasing number of unaccompanied children arriving at the borders, especially since 2016. According to the Portuguese law, these children shall be protected under the National System for Protection of Children and Youngsters in Danger and be accommodated in legally recognized institutions. According to the amended law (Article 6, paragraph 3), these children have the right to acquire Portuguese nationality through naturalization. The Public Prosecutor’s Office is responsible for initiating the procedure, and for guaranteeing that the child’s rights are protected throughout all procedures. This was a clear recognition of the Sate duty to protect children, enshrined not only in the Convention on the Rights of the Child but also on the Portuguese Constitution.
- Protection of legitimate expectations in case of annulment of the citizenship acquisition
Other solutions were enacted in order to prevent some inconveniences that happened under the auspices of the annulment regime foreseen in the Nationality Law. In a well-known case, the Portuguese Administration wrongly issued citizenship cards to dozens of youngsters living in Portugal, who then assumed they had acquired Portuguese nationality. These mistake was detected years later, when these ID cards had to be renewed, having the Administration decided to annul those citizenships. The interested persons had believed that they were Portuguese nationals during several years, and this annulment led to highly dramatic consequences in their private lives.
While the Law maintain an annulment regime for cases of fraud, false documents or false declarations, “bona fide” holders of Portuguese nationality, originated or acquired for at least 10 years, shall have their Portuguese citizenship consolidated (Article 12-B). Moreover, annulment shall not apply if the interested person becomes stateless (Article 12-A, n.1). Protection of the legitimate expectations, which is a principle derived from the constitutional principle of the rule of law, and prevention of statelessness were, thus, assumed as paramount, prevailing over strict legality.
In addition to these changes, a few other changes were enacted. The Public Prosecutor’s opposition to voluntary nationality acquisition by marriage or civil partnership is no longer possible in cases where a couple has a common child, the same being said to acquisition through adoption. Moreover, new forms of reacquisition were enacted. According to Article 6, n. 4 those who had renounced to the Portuguese citizenship and have never acquired other citizenship, may be naturalized. Residence and Portuguese language requirements are not necessary.
To sum up, these amendments lead to an even more inclusive Portuguese Nationality Law. Besides reflecting important human rights’ principles, such as the right to private life and to family unity, of statelessness prevention and of protection of legitimate expectations, above all the new Law reflect a strong commitment to fully welcome all those who choose Portugal as their place of residence.