Nationality through Civil Partnership: between the protection of the family and the new integration criteria

Author: Lidiane de Carvalho

This is the third text in a series of informational notes on the decree amending the Nationality Act, already approved but not yet in force. In the previous texts, we addressed Portuguese Nationality Act: amendments approved — what changes? and End of the nationality pathway for parents and ascendants of Portuguese citizens.

Throughout the history of the Portuguese Nationality Act, acquisition through marriage was, from an early stage, the typical form of acquisition by declaration of will.

In later revisions, the legislature progressively brought the treatment of the civil partnership (common-law marriage) closer to that of marriage, up to the model currently in force: a foreign national who has lived for more than three years in a civil partnership with a Portuguese citizen, and obtains judicial recognition of that union, may declare his or her wish to acquire Portuguese nationality based on that relationship.

In parallel, a specific grammar of “effective links to the national community” was developed: on the one hand, as a ground for opposition; on the other, with strong protection zones, in particular where the relationship has lasted for at least six years or where there are common children with Portuguese nationality.

The rationale behind this route has always been relatively intuitive: if the State recognises the family as a central pillar of the community, it makes sense to open a special route for those who share a stable and lasting family life with a Portuguese citizen, assuming, to some extent, that this relationship is a strong sign of connection to Portugal.

Starting point: what was already in place

Up to now, the logic was relatively clear.

Anyone who had been living in a civil partnership union with a Portuguese citizen for more than three years and had obtained judicial recognition of that union could apply for Portuguese nationality on the basis of that relationship.

At the same time, there was already a control mechanism regarding the effective link to the national community. The Public Prosecutor’s Office could oppose the acquisition of nationality if it considered that such a link did not exist. But the law provided for important presumptions and safeguards:

• strong presumptions of effective links (for example, based on residence, integration in Portugal, etc.);

• and a genuine “safety zone” where the marriage/civil partnership had lasted for at least six years or where there were common children who were Portuguese nationals.

  
  

In practice, judicial recognition of the civil partnership, combined with the duration of the relationship, operated as robust evidence of the authenticity of the bond and, in many cases, as a sufficiently strong indicator of integration to dispel the risk of opposition based on the lack of connection to the community.

What the new decree (not yet in force) brings

The amendment now approved does not create the requirement of an effective link from scratch. What it does is reconfigure the way in which that link is assessed.

On the one hand, the law will now refer to a broader set of material assessment criteria.

On the other hand, the very notion of “absence of an effective link” is further elaborated, including, among other aspects, the possibility of taking into account behaviours regarded as rejecting the national community, its representative institutions and its national symbols.

The end result is a regime that is:

• more demanding in its analysis of integration;

• more dependent on additional evidence of links to Portugal;

• and more exposed to value judgments about the applicant’s life choices and personal trajectory.

  
  

It is important to stress that the protection associated with a six-year relationship and with common children who are Portuguese nationals does not disappear from the letter of the law. But below that threshold, the scope for disputing whether effective links do or do not exist becomes broader and more intrusive.

The role of judicial recognition of the civil partnership

In this new framework, judicial recognition of the civil partnership does not cease to be relevant. It remains a legal requirement and a strong evidential element of the authenticity of the relationship.

However, it is no longer sufficient, on its own, to ensure a relatively predictable pathway.

It becomes just one of the elements to be weighed within a denser set of material criteria. In practice, even where there is:

• the civil partnership recognised by a court;

• and a relationship lasting more than three years;

  
  

the applicant may still have to demonstrate, independently, his or her integration in Portugal, through elements such as:

• effective and stable residence;

• economic or professional integration;

• knowledge and use of the Portuguese language;

• family and social networks in Portugal;

• and other factors that the Administration may deem relevant in light of the new legal parameters.

  
  

What changes, in substance?

The centre of gravity of the regime shifts.

What was previously based on a relatively stable combination of:

• duration of the relationship;

• judicial recognition of the union;

• and strong presumptions of effective links;

  
  

will now depend, to a greater extent, on a more open-ended, case-by-case and less objective material assessment of the applicant’s concrete life situation.

This has clear consequences, particularly in situations where the relationship has not yet reached six years:

• the burden of proof on the nationality applicant increases;

• the scope of administrative discretion in assessing the facts widens;

• the predictability of the outcome decreases;

• and the potential for divergent decisions in similar cases increases.

  
  

It is worth emphasising that these changes in the way effective links to the national community are assessed apply both to nationality through marriage and to nationality through civil partnership.

The underlying legal question remains

The decree is not yet in force, and only its concrete application will show how these new parameters are interpreted in practice. But, even at this stage, the architecture of the regime raises legitimate questions.

When the law moves away from more objective formulas towards broad material criteria, grounded in assessments of integration and behaviour, it inevitably creates more room for different readings by decision-makers.

This raises clear challenges:

• How can we ensure that judicial recognition of a civil partnership continues to carry consistent weight in administrative assessment?

• How can we safeguard legal certainty and equal treatment when the concepts used are more open and depend on different perceptions and sensibilities as to what does, or does not, constitute an “effective link” to Portugal?

  
  

The risk lies not only in the wording of the law, but in how these open-textured concepts are filled out in day-to-day practice. And because we are dealing with family lives and with projects of belonging to a national community, the impact of these choices is not purely legal. It is also profoundly human.

By Lidiane de Carvalho