Portuguese Constitutional Court blocks changes to Nationality Law
Portugal’s Constitutional Court ruled, on 15 December, that four provisions in the government’s proposed reform of the Nationality Law were unconstitutional. The legislation, which to seeks to introduce stricter requirements for Portuguese nationality, was therefore returned to the Portuguese parliament.
The Assembly had voted on 24 October to approve the amendments, which increase the minimum legal residency period for naturalisation from five to seven years for citizens from EU Member States and Community of Portuguese Language Countries (CPLP), and ten years for all other nationalities.
Significantly, the proposed law also provided that a residency period would begin from the date a residence permit is issued, rather than from the date of application, potentially extending the waiting period for residency and naturalisation even further.
A key element of the draft was the government’s intention to apply the new stricter requirements retroactively, not just to new applications but to those already pending when the law was brought into force. Currently, applications are evaluated under the laws in place at the time of submission.
Portugal’s Constitution permits one-fifth of sitting Assembly deputies the power to request preventive constitutional review of any decree sent to the President for promulgation. This prerogative was invoked by the Socialist Party, which sent the approved amendments to the Constitutional Court for preventative review.
The Court ruling that four provisions within the proposed legislation were unconstitutional. The most significant decision in respect of residency applicants was its rejection of the provision for retroactive changes based on the need to protect fundamental rights, uphold the principle of equality and ensure legal certainty.
The Constitutional Court ruled that retroactivity violated the ‘principle of protection of trust’. Applicants, it stated, had a legitimate expectation that their submissions would be judged under existing laws. The court stated that applying new rules mid-process would undermine this trust.
Having found the four provisions to be unconstitutional, the proposed legislation cannot now be passed to the President of Portugal to promulgate the law. It must return to the Assembly and the government will have to consider the court’s findings and decide whether to amend or withdraw its proposals.
The current Nationality Law remains in effect and applicants can proceed reassured by the court’s protection of fundamental rights and the principle of fair, proportional and transparent rules. Sovereign will continue to monitor the process closely to assist all applicants to move forward with clarity and confidence.
