Portugal's High Court Rules As Unconstitutional Four Nationality Bill Provisions

Judges at the 19th century Ratton Palace, in Lisbon, which housed the Constitutional Court after the State acquired it in 1982 (Photo by Gerardo Santos)

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The Constitutional Court affirmed the unconstitutionality of four provisions, three unanimously, of the Nationality Bill, which cites stricter rules and longer deadlines for applying for Portuguese citizenship. One of the rejected provisions of the bill resets all pending nationality applications at the time of the law's publication, which the judges considered a violation of the principle of trust and expectations, reported Expresso (December 15).

The 11-judge court also struck down an ancillary provision in the Penal Code, which imposed the loss of nationality from "an agent who has been sentenced to an effective prison sentence of four years or more" within 10 years of acquiring Portuguese nationality.

At issue in this 25-day period of assessment by the judges were two requests for verification of constitutionality of the Nationality Bill submitted by the Socialist Party (PS) after the failure to reach agreement in Parliament with the Social Democratic Party (PSD), reported RTP Notícias (December 15). The Socialist Party used a constitutional prerogative which allows one-fifth of Parliament (46 out of 230 deputies) to request reviews of changes to laws, reported Expresso.

Now, the Nationality Bill returns to President Marcelo Rebelo de Sousa, who had said, according to Expresso (November 13):

"If the Constitutional Court finds it unconstitutional, the President of the Republic is obliged to veto it. If it does not fine it unconstitutional, the President of the Republic than has a period to, if necessary, politically reconsider the law."

In August, President Marcelo Rebelo de Sousa sent an amended Lei de Estrangeiros (Foreigners' Law), an immigration-tightening bill, to the Constitutional Court, which found five unconstitutional provisions. In September, the president vetoed the bill and returned it to Parliament, which reworked it. He signed the bill, which became law, on October 16.

Lack of Transitional Regime

In a Nationality Bill provision, the judges were unanimous in declaring unconstitutional the lack of a transitional regime as the Nationality Bill considers that the counting of legal residence time for the purposes of obtaining nationality begins when the application is approved by the Public Administration, not when the application is submitted by the applicant, according to Expresso.

"The Constitutional Court concluded that there was a violation of the principle of the protection of legitimate expectations, inherent in the principle of the rule of law, enshrined in Article 2 of the Constitution, by affronting the legitimate expectations of recipients with pending procedures regarding the applicability of the regime existing on the date of submission of the application," stated the Constitutional Court's press release, according to Expresso.

Two-Year Prison Sentence

A second provision rejected unanimously refers to the impediment to obtaining citizenship for those convicted of a crime with a two-year sentence,

"At issue is a disproportionate restriction of the fundamental right of access to citizenship and also a violation of the constitutional norm which establishes that no penalty necessarily entails the loss of any civil, professional or political rights. This rule prevents the possibility of assessing to what extent such a conviction jeopardizes the specific link of integration into the Portuguese community," read José João Abrantes, president of the Constitutional Court, who noted the violation of at least three articles of the Constitution, reported Expresso.

Fraud in Obtaining Nationality

A third provision rejected unanimously establishes that "the consolidation of nationality does not apply to bona fide holders in situations of manifest fraud", reported RTP Notícias (December 15).

"The Constitutional Court decided that, by not offering any criterion for distinguishing between situations of obtaining nationality through fraud, in which the consolidation of nationality already operates and manifest fraud, in which the consolidation ceases to operate, there is a violation of the principle of determinability and the absolute reservation of parliamentary reserve," stated the president of the sovereign body, according to RTP Notícias.

Behavior Rejecting Adherence to Nation

A fourth provision declared unconstitutional by all but one judge, the vice president of the court, João Carlos Loureiro, considers that nationality may be refused to those who demonstrate "behaviors that, in a conclusive and overt manner, reject adherence to the national community, its representative institutions and national symbols", reported Expresso.

The judges largely agreed with the concerns raised by the Socialist Party during specialized parliamentary discussions, deciding that there is a violation of the principle of determinability and the absolute reservation of parliamentary law. "The lack of any indication of the typology or pattern of behaviors which may be likely to fulfill that concept makes it impossible for citizens to anticipate with any certainty what types of actions could be sufficient grounds for an action opposing the acquisition of Portuguese nationality."

Penal Code Amendment

Regarding the amendment to the Penal Code which would create the penalty of loss of nationality, the judges were unanimous in declaring it unconstitutional for violating the principles of guilt, equality and proportionality.

In the ruling by Judge Carlos Loureiro, the problems begin in the very first paragraph of the bill, which applies an accessory penalty "only respectively to non-native citizens who have committed a criminal offense in the 10 years following the acquisition of Portuguese nationality", reported Expresso.

This singling out, on the judges' view, violates "the principle of equality enshrined in Article 13 of the Constitution as there is no sufficient material basis for the differentiation in treatment based on the manner of obtaining citizenship -- acquisition of nationality versus the granting of nationality -- as well as on the time elapsed since the acquisition of nationality took place, whether less or more than 10 years ago.

The Constitutional Court understood that crimes against life, and arms and drug trafficking, among others, do not allow "the conclusion of, or even indication of, a strong destabilization or breakdown of the relationship of belonging which gives materiality to the legal bond that unites an individual to the State.

Therefore, applying the accessory penalty in these cases "constitutes respectively an unsuitable or inappropriate measure, and arbitrary because it is excessive, in violation of the principles of proportionality and penal necessity."

Other Provisions

Among other provisions, the Nationality Bill would revoke the special regime for descendants of Sephardic Jews; increase the residency period for Portuguese citizenship application for citizens of the European Union, the Community of Portuguese-speaking Countries and all other countries; tighten restrictions on children born in Portugal gaining citizenship; require proof of financial subsistence, and demand knowledge of Portuguese language and culture.

Sephardic Jews

The Nationality Bill would revoke the 2015 amendment, which has had subsequent restrictive changes, for descendants of Portuguese Sephardic Jews, who could become citizens without a residence requirement as a way of making reparations for the Portuguese Inquisition's estimated 40,000 victims in the Portuguese Empire between 1536 and 1794, according to The Marrano Factory: The Portuguese Inquisition and Its New Christians 1536-1765.

Descendants of Sephardic Jews would have the same access to citizenship as other applicants.

Lengthened Residency Requirements

For immigrants seeking naturalization, the legal residency requirement for application would be extended from five to seven years for citizens of the European Union and the Community of Portuguese-speaking Countries (CPLP), and it would be 10 years for citizens of the United States and other countries.

The founding members of the Community of Portuguese-speaking Countries (CPLP) were Angola, Brazil, Cape Verde, Guinea-Bissau, Mozambique, Portugal, and São Tomé and Príncipe in 1996. East Timor joined in 2002, after achieving independence, and Equatorial Guinea joined in 2014.

Financial Independence

For Portuguese citizenship, foreign citizens would have to meet a series of requirements, including guarantees of "the ability to provide for their own subsistence", a point which Chega managed to secure the Social Democratic Party's (PSD's) approval, reported Expresso (October 28).

Children Born in Portugal

Other main changes would affect children born in Portugal.

Children born in Portugal would have Portuguese nationality only if "one of the parents has resided legally in national territory for at least five years", another measure supported by Chega, reported CNN Portugal (October 28). The current law requires one year, according to O Jornal Económico.

Also, the bill would end the naturalization of children born in Portugal to foreigners who are in the country illegally. The current law opens the possibility of naturalization to those who are "children of foreigners, regardless of their legal title".

Furthermore, citizenship only would be obtained by those who "have sufficient knowledge of the Portuguese language and culture, history and national symbols through a test or certificate".