Ana Rita Gil (University of Lisbon)
After the last amendment, that took place in 2018, the Portuguese Nationality Act was revised once again on the 10th November 2020. The revision resulted from the initiatives of different political parties: the left wing parties were concerned, as traditionally is their case, to give voice to the migrants’ associations and movements, and also to anti-discrimination movements (namely from persons with African descent origins). Right wing parties, on their side, continued to be interested in reinforcing ties with the Portuguese communities living abroad. Naturalisation of descendants of Portuguese Sephardic Jews – a particular trait of the Portuguese Nationality Act – was also a sensitive topic that heated the debates.
Continuing the tendency that has been characterizing their political view, left wing parties continued to fight for a major revolution in the Nationality Law basic principles – claiming that the ius sanguinis should cease to be the paramount central principle for the nationality acquisition, yielding its place to the ius soli principle. The major argument for that shift was that ius sanguinis was a discriminatory criterion for the acquisition of nationality, as it would perpetuate privileges acquired by descent. Ius soli was envisaged as the most neutral and most fair principle on acquisition of nationality by birth. This discourse was recurrent in the past years. In the 2018 amendments, the Law had been changed in order to foresee that all those who would be born in the Portuguese territory would acquire ex lege the Portuguese nationality by birth, as long as one of their parents resided there legally for two years. However, for several civil society movements, this solution was not yet satisfactory, claiming that the Portuguese Law continued to be unfair and discriminatory.
The Left Block[1] and the Communist Party[2] have both presented legislative proposals aimed at enlarging the ius soli principle. According to these bills, all citizens who are born in Portuguese territory would be considered as Portuguese citizens of origin, provided that one of their parents was resident in Portugal, irrespective of the duration of residence in the territory. The same rule would apply to naturalisation of minors, irrespective of the parent’s duration of residence in the territory. The proposal foresaw as exceptions the cases were the birth was merely occasional during a visit to Portugal from non-residents, or from persons who had come to Portugal with the only purpose of obtaining the Portuguese nationality for mere convenience and having no intention to establish a relationship with the national community. The Left Block has also presented a proposal to abolish, for the purposes of naturalisation, the “clean criminal record” requirement.
Changes to the right to naturalisation of descendants of Portuguese Sephardic Jews were also debated. Following the Nationality Act’s Amendments dated of 2012, Portugal became the only country with a naturalisation regime for descendants of Sephardic Jews who were expelled many centuries ago from the Iberian Peninsula. The Socialist Party (PS) claimed that, since 2017, there was an exponential increase in naturalization requests by Sephardic Jews (from around 4,000 in 2017 to over 21,000 in 2019). There was concern that the legal solution had boosted the creation of companies that “sold” the Portuguese nationality, with aggressive advertising in Israel or Turkey, as a way of acquiring advantages inherent to the possession of an EU passport. Thus, the PS insisted that the interested persons should demonstrate not only the tradition of belonging to a Sephardic community of Portuguese origin, but also a relevant and effective connection with the country and the national community.
Finally, some political parties took the opportunity to suggest a facilitation of the nationality acquisition by marriage. That was the case of the Social Democratic Party, which submitted that no opposition on the grounds of lack of national effectiveness should be accepted to the acquisition of nationality by marriage which lasts for at least 6 years.
As a result of these proposals and the discussions that followed, a new Organic Law was approved – the 11th amendment to the Portuguese Nationality Act -, just two years after the last amendment[3]. The Parliament also took the opportunity to amend other provisions. As a result, the Nationality Law was revised in several aspects, which must be analysed separately.
- Developments as regards Acquisition by Birth
1.1. Development on the Ius Solis Acquisition by Birth
The reinforcement of the ius soli acquisition by birth was, undoubtfully, the most important development brought by the 2020 amendment. In the previous version, introduced in 2018, all persons born in the Portuguese territory acquire, ex lege, Portuguese nationality, provided that at the time of birth one of the parents is legally resident for at least two years (Article 1(1)(f)). The new version introduces two additional ways to Portuguese nationality through birth in Portugal. If the parents hold a residence permit, then no minimum residence period is required. Children born in Portuguese territory of a legally-resident parent are, ipso iure, Portuguese citizens. This new solution is, indeed, an almost pure ius soli principle, as it is only dependent on the legal residence of one of the parents. It does represent, however, the biggest move taken so far, in contemporary times, as regards the consecration of the ius soli principle by the Portuguese law. In other words, the left-wing proposals were, as a result, fully accepted.
However, this Article goes even further. In fact, a child born in the Portuguese territory to foreign parents can still acquire Portuguese nationality, provided that their parents (or just one of them) has de facto resided in the Portuguese territory for at least one year, irrespective of legal status. This is an even more important recognition of the ius soli principle. Due to these new steps, the Portuguese law is now a truly mixed system of ius soli and ius sanguinis, without clear prevalence of one of these criteria.
These solutions are accompanied with measures aimed at recognising stability to the family life as, according to the Portuguese Constitution and the Immigration Law, foreigners who are parents of Portuguese citizen children cannot be expelled from the Portuguese territory, and have the right to have their legal status regularized.
1.2. Development on the Ius Sanguinis Acquisition by Birth for Grandchildren of Portuguese citizens
The Portuguese Nationality Law and its several amendments have also been focused on the interest to develop ties with the descendants of Portuguese citizens. Thus, the possibilities for acquisition of citizenship by Portuguese descendants on the 2nd degree have been facilitated throughout the years and, in 2020, another step was made in order to include grandchildren of Portuguese citizens in the Portuguese community. According to the new reading of Article 1(1)(d), individuals with at least one ascendant with Portuguese nationality or origin, acquire Portuguese nationality by birth, provided that they declare they want to be Portuguese and that they have ties to the national community. With this provision, thus, grandchildren of Portuguese citizens may now acquire Portuguese citizenship by birth, irrespective of having Portuguese parents. However, this mode of acquisition does not operate ex lege. Grandchildren of Portuguese need to declare that they want to acquire Portuguese citizenship. Moreover, in order to respect the principle of effective nationality, they must prove that they have effective ties to the Portuguese community.
Paragraph 3 of Article 1 establishes that these ties can be proven by sufficient knowledge of the Portuguese language. Moreover, they depend on not being sentenced to imprisonment of 3 years or more for a crime punishable under Portuguese law, and the interested person cannot represent a danger or threat to the national security or be involved in activities related to terrorism.
As regards this last requirements, two comments must be made. On one side, one shall interpret that the proof of effective ties with the Portuguese community can be done by other elements rather than the sufficient knowledge of the Portuguese Language (as the wording uses the expression “can be proven”). On the other side, it is somehow puzzling that the “public order clause” is presented as an exclusion of sufficient ties, where it normally works as a limit to the right to acquisition of nationality itself.
2. Developments on Acquisition by Marriage
As mentioned in the GLOBALCIT report on citizenship law in Portugal, Portuguese nationality acquisition by marriage, de facto union or other family link, can be opposed through a specific procedure enacted by the Public Prosecutor, on the grounds of lack to an effective link of the interested foreigner to the Portuguese society (Article 9). Throughout the years, this possibility has also been modified, in order to alleviate the burden of the families to prove that the foreign family member would have an effective link to the Portuguese society. In 2018, the Public Prosecutor could no longer oppose to the acquisition of the Portuguese nationality by marriage when the couple had common children with Portuguese nationality. In 2020, a new prohibition of opposition was introduced: it also cannot be used towards situations of acquisition of nationality when the marriage or de facto union has lasted for at least six years. The stability of the relationship thus justifies the presumption that the interested foreigner has sufficient and effective ties to the Portuguese community.
3. Developments on Acquisition by Naturalisation
3.1 General Conditions for Adults’ Naturalisation
Since 2016, the acquisition of the Portuguese nationality through naturalisation is a subjective right of those persons who fulfil the requirements of a period of legal residence of 5 years, sufficient knowledge of the Portuguese language, lack of danger to the public order or national security and absence of criminal convictions (Article 6). The last requirement was amended in 2020. Previously, naturalisation would be denied to those who have been convicted with three years (or more) of a prison sentence. The seriousness of the crime has, thus, been traditionally measured according to the prison years to which the applicant had been sentenced. It was understood that attention should be paid to convictions effectively made in the respective country. However, since the latest amendment, what is relevant is that the foreigner has not been convicted with a prison sentence of three years or more, for a crime that is punishable under the Portuguese Law.
This change leads to a fairer solution, as it excludes crimes that are not seen as particularly serious by the Portuguese legal order. Thus, as such, persons who have committed such crimes – which are not recognised as crimes by the Portuguese legal order, or which are not recognised as particularly serious – may be authorised to acquire the Portuguese nationality (provided that the other conditions are met), since they did not disrespect a fundamental interest of the Portuguese community.
3.2 Naturalisation of Minors
Besides the general requirements for naturalisation, which must be met by adults, Article 6 of the Portuguese Nationality Law also foresees, in its paragraph 2, the naturalisation of minors who were born in the national territory. First, the requirements of lack of convictions or menace to public order and national security are now only applicable when the minor reaches the age of criminal responsibility (which, according to the Portuguese criminal Code is of 16 years).
The specific requirements for this type of naturalisation were also deeply facilitated. According to the previous version, the child could only be naturalised if one of the parents was resident in the territory, regardless of title, for at least the five years immediately preceding the application. The new version has simply eliminated the requirement of a minimum duration of the parents’ residence: it is sufficient, from now on, that one of the child’s parents is legally resident in the national territory, irrespective of the title or of the residence period duration. This amendment makes sense, as it makes the global regime more balanced, especially when compared to the changes regarding the acquisition by birth through ius soli.
But the facilitation of naturalisation of minors was ensued in another point. So far, this mode of acquisition was thought as a final step for the inclusion of children who have completed a cycle of studies (basic education or secondary education). After the latest amendment, facilitated naturalisation is possible for those children who started their education in Portugal. Thus, in order to acquire citizenship, a minor only needs to have attended at least one year of pre-school education or basic, secondary or vocational education. The principle that justifies this amendment is the protection of the best interest of the child, to whom a one-year of schooling might be sufficient to develop important ties with other members of the community.
3.3. Naturalisation of former Portuguese Citizens who had lost citizenship after decolonisation
The Parliament also took the opportunity to establish a mechanism aimed at facilitating the reacquisition of nationality by naturalisation by individuals who did not maintain the Portuguese nationality after the decolonisation process. This was a problem still considered as not completely solved, and which affected several citizens. Although some legal schemes were adopted immediately in 1975, in order to protect these persons, they did not provide solutions for all those that wanted to maintain their Portuguese nationality. According to the new Reading of Article 6 (9), all individuals who did not maintain the Portuguese nationality under the terms of the 1975 legislation, and had remained in Portugal since then, regardless of title, as well as their children, born in national territory, and who have not been granted their original nationality, have a subjective right to naturalisation. As a matter of fact, Article 6(9) mentions expressly that the “Government awards nationality by naturalisation”, to those individuals. Thus, once the requirements are fulfilled, there is no discretionary power for evaluating the reacquisition of nationality through this means.
3.4. Guaranteeing the respect of the principle of the effective nationality to descendants of Portuguese Sephardic Jews
As we have seen, one of the most heated topics debated around the changes of the Nationality Act concerned the claim that conditions aimed at proving an effective link to the Portuguese community should be demanded for the naturalisation of descendants of Portuguese Sephardic Jews. This possibility of naturalisation was introduced in 2012, in order to compensate for the historical decision of 1496 by King Manuel I, on the collective expulsion of Jews. According to this new provision, all persons who could prove their belonging to a Sephardic community of Portuguese origin, could apply for Portuguese nationality. While the Socialist Party claimed that this legal solution attracted several schemes aimed at “negotiating” the Portuguese nationality among the Jewish communities, after considerable debate, both the Socialist Party’s and the Social Democrat’s proposals, which intended to guarantee the respect for the principle of the effective nationality, were dropped. In turn, the final reading of the Organic Law refers to a further regulation, to be approved in the following 90 days, which shall establish how to ensure that, at the time of submission, the applicant presents objective evidence of having an effective connection to Portugal.
4. Conclusion
The 2020 amendments to the Portuguese Nationality Act involve a major revision of the basic principles of the Portuguese Nationality Law. Whereas traditionally Portuguese national law has been considered as a mixed system of ius sanguins and ius soli, with a clear prevalence of the first, continued pressure from civil society has resulted in a “step-by-step” walk towards the recognition of more modes of acquisition where the ius soli is deeply embedded. Organic Law no. 20/2020 has resulted in a paradigmatic change into a system in which the ius soli principle is practically equivalent to the ius sanguinis principle, as regards acquisition of citizenship by birth. The remaining condition for acquisition of Portuguese nationality by birth in Portugal, i.e. that the parent of a newborn either resides legally in the territory or, being illegal, resides in Portugal for at least one year, can be considered very moderate, in comparative perspective.
Acquisition by marriage and by naturalisation have also been facilitated, mostly due to concerns as regards protection of family life or the best interest of the child. As for the “clean criminal record”, the amendment makes perfect sense, as it now only excludes from the Portuguese community those who have committed crimes that are seen as particularly serious by this community itself.
Finally, the sensitive question regarding the need to safeguard the respect of the principle of effective nationality in the acquisition by naturalisation of the Portuguese nationality to descendants of Portuguese Sephardic Jews, was not addressed but delayed furthering regulations. This means, however, that the Parliament considered that the legal solution needs to be rethought, so that only those who come from such communities and maintain ties with the Portuguese community may acquire the citizenship.
[1] Law Project 3/XIV
[2] Law Project 118/XIV
[3] Organic Law no 2/2020 of 10 november. The last amendment had been made by Organic Law no. 2/2018 of 5 july.