Portuguese Nationality Act: amendments approved (not yet in force) - key changes and open questions

Author: Lidiane de Carvalho

Parliament approved a new amendment to the Portuguese Nationality Act on 1 April, and the consolidated text became available yesterday (Decree of the Assembly of the Republic n.º 48/XVII).

It is not yet in force, but the direction of change is already clear.

We are not facing a mere technical adjustment. We are facing a structural change in the way the State defines who fully belongs to the national political community.

Nationality is not just a “document”. It is the legal status that marks full inclusion in the community, with effects on life stability, mobility, civic participation and access to a set of rights.

That is why any significant change must be read in light of the principles of the democratic rule of law, equality, and the understanding of nationality as a factor of integration.

In broad terms, these are some of the main changes announced:

Longer residence period required for naturalization

The general requirement of lawful residence, which was 5 years, will, as a rule, become:

• 7 years for EU and CPLP citizens

• 10 years for all others

  
  

In other words, the temporal threshold for access to nationality by naturalisation is raised and a structural distinction is created between different categories of foreign nationals. The model moves closer to the logic of prolonged selection rather than progressive integration.

Regime for children of foreign nationals born in Portugal

The residence requirement for the parents will no longer be 1 year and will become several years, under stricter terms.

In practice, the scope of the mitigated ius soli is narrowed, excluding automatic attribution of nationality to many children who, in fact, are born, grow up and socialise in Portugal.

Stricter requirement of an effective link with the national community

The “effective link with the national community” will no longer be, in many cases, a largely presumed element and will instead take on a central and autonomous role.

In practice, this means:

• more room for subjective assessments by the Administration;

• greater weight of indeterminate legal concepts;

• more uncertainty for those who seek to plan their lives on the basis of predictable criteria.

  
  

Changes to the regime for de facto unions and marriage

More demanding evidentiary requirements are introduced, together with less objective criteria for recognising the family relationship as a basis for access to nationality.

The likely result:

• decisions that depend more heavily on case-by-case assessment;

• less predictability for couples in a de facto union or marriage with Portuguese citizens.

  
  

Revision of how residence time is counted

The logic of counting time from the issuance of the residence permit is reinforced, devaluing earlier periods of presence and integration that were not accompanied by a formal residence title.

This has a direct impact on those who have spent long periods waiting for an administrative decision or in situations where delays in granting residence permits were not attributable to the applicant. It brings back to the table the tension between procedural formalism and the principle of the protection of legitimate expectations.

Introduction of new grounds for loss of nationality

New avenues are opened for loss of the status of national, which represents a qualitatively significant change in a system that, until now, tended to prioritise the stability of the bond of nationality.

What is truly at stake

From a legislative design perspective, these changes point clearly in one direction:

From a model based on predominantly objective criteria and reasonable time limits, which promote integration, to a more demanding, selective model that is more reliant on case-by-case administrative assessment.

In a democratic rule of law, the predictability of legal consequences is an essential element of legal certainty. When rules become more complex and more open-ended, the risk of divergent decisions and uncertainty for those subject to them increases.

The central issue is not only the content of the law

It is also how the law is applied over time and how ongoing legal situations are treated.

What happens to those who already:

• are counting residence periods under the current regime;

• have had applications pending for years;

• organised their family, professional and financial lives in reliance on certain rules?

  
  

Here, fundamental principles come into play:

• legal certainty;

• protection of legitimate expectations;

• good faith in administrative action;

• proportionality in the way transitions between regimes are managed.

  
  

This is not about “freezing” the Nationality Act forever. It is about ensuring that structural changes do not produce retroactive or unexpected effects that disproportionately disregard life trajectories that are already consolidated.

On this topic: https://www.linkedin.com/pulse/changes-nationality-law-what-may-mean-those-who-have-already-6ewie

A final note

These changes arise in a context in which the nationality and migration system itself is facing significant operational difficulties: systematic delays, lack of predictability, difficulties in contacting the authorities.

To demand more from the individual, extend time limits and introduce greater margins of administrative discretion, without ensuring adequate capacity, transparency and proper reasoning, is an equation that warrants serious reflection in terms of the rule of law, legislative policy and substantive justice.

On this topic: https://www.linkedin.com/pulse/rights-hold-when-law-exists-cannot-effectively-lidiane-de-carvalho-zqiff

We will continue to follow upcoming developments and analyse each of these changes in greater detail, seeking to clarify their practical impacts and highlight the issues which, from both a legal and human perspective, cannot be ignored.

By Lidiane de Carvalho