PORTUGUESE NATIONALITY FOR ALL! - Comments on the ninth amendment to the Portuguese Nationality Law

Edited on November 10, 2020.

Following the return of the diploma by the President of the Republic and the subsequent re-examination of the diploma by the Assembly of the Republic, the additions to paragraphs 4 and 5 of article 3 of the Nationality Law, commented on in items IV and V of this article, were eliminated from the bill, and the amendment provided for in paragraph 2 of the previous wording, commented on in item VI, which will retain its current wording, was transposed to paragraph 3 of article 9 of the Nationality Law.

Organic Law No. 2/2020, which provides for the amendment of the diploma, was published on November 10, 2020 (today) and will enter into force the following day, on November 11, 2020 (tomorrow).

A metaphor that sums up considerably the latest (ninth) amendment to the Portuguese Nationality Law, Law no. 37/81, of October 3, approved by the Portuguese Parliament last Thursday, July 23, 2020.

The amending law is still awaiting sanction and promulgation by the President of the Republic, before it enters into force. However, the national expectation is that it will be fully sanctioned.

The change in the law significantly expands the number of possible cases for granting and acquiring Portuguese nationality.

I will now briefly comment on the main changes brought about by this amendment.

I. Granting Portuguese Nationality to Grandchildren of Portuguese: Extension of the right to Portuguese nationality to grandchildren of Portuguese born in Portugal's former overseas colonies before their respective independence. Article 1(1)(d).

Full text of the legal provision before the amendment:

Article 1

Original nationality

1 - They are Portuguese by origin:

(...)

d) Individuals born abroad with at least one ascendant of Portuguese nationality of the 2nd degree in the straight line who has not lost that nationality, if they declare that they want to be Portuguese, have ties of effective connection to the national community and, having verified these requirements, register the birth in the Portuguese civil registry.

Full text of the legal provision after the amendment:

Article 1

Original nationality

1 - They are Portuguese by origin:

(...)

d) Individuals with at least one ascendant of Portuguese nationality of the 2nd degree in the direct line who has not lost that nationality, if they declare that they want to be Portuguese, have effective ties to the national community and, if these requirements are met, register the birth in the Portuguese civil registry.

This change, by simply removing the term "born abroad", unnoticed by many or even mistakenly considered to be indistinct, is of the utmost importance to the nationals of the former Portuguese overseas colonies, namely Angola, Mozambique, Cape Verde, Guinea-Bissau, São Tomé and Príncipe and East Timor, before their respective independence, because it will allow everyone who was born before the independence of their territory to be granted Portuguese nationality if they have a grandfather or grandmother who has retained Portuguese nationality and, consequently, subsequent descendants may be entitled, as children or grandchildren of Portuguese and so on.

In the previous (current) wording, because the provision was restricted to those born abroad, it was inapplicable to those born in the former Portuguese overseas colonies before the independence of the respective territories, due to the fact that, at the time, they constituted Portuguese territory.

Above all, if we consider the fact that all those born in Portugal's former overseas colonies who died before independence retained Portuguese nationality, and if we consider the possibility of filing successive applications for Portuguese nationality along the hereditary line, we can see that it will be possible to grant or acquire Portuguese nationality to perhaps more than half the population of these nations.

The extension of the scope of the right in itself might not have such an impact, were it not for the following amendment.

II. Granting Portuguese Nationality to Portuguese Grandchildren: Simplifying the verification of effective ties to the Portuguese community. Art. 1, no. 3.

To date, the main reason for the rejection of an estimated 90% of direct cases for granting Portuguese nationality to grandchildren of Portuguese citizens is the lack of evidence of effective ties to the Portuguese community.

Proof of ties under the pre-amendment rule imposes the need for the government to recognize their sufficiency through means that characterize regular contacts with Portuguese territory, such as residence in Portugal, socio-affective participation in the Portuguese community at home or abroad, existence of close family ties with a Portuguese national, professional participation in Portugal, among others, as well as verification of sufficient knowledge of the Portuguese language and non-conviction, with a final and unappealable sentence, for the commission of a crime punishable by a maximum prison sentence of three years or more, according to Portuguese law.

With the amendment, the requirement for the government to recognize the relevance of the ties and the existence of regular contacts with Portuguese territory will be removed, it will be enough for the interested party to prove that they know the Portuguese language sufficiently, that they have not been convicted of a crime punishable by a maximum prison sentence of three years or more, according to Portuguese law, and, finally, that they have not been involved in activities related to the practice of terrorism, under the terms of the law.

In a significant number of cases, the family may be granted Portuguese nationality by a Portuguese great-great-grandparent (5th degree ascendant) and, in some rarer cases, even by a Portuguese great-great-grandparent (6th degree ascendant).

Example of chronological order of proceedings in cases of kinship in a straight line:

A. Portuguese pentavô

• Portuguese great-grandfather deceased → Deceased foreign great-great-grandmother → Living foreign great-great-grandfather → Deceased foreign great-grandmother → Foreign grandfather alive → A living foreign mother → Foreign interest

1. A living great-great-grandfather applies for Portuguese nationality, as the grandson of a Portuguese citizen, under Article 1(1)(d) of the LN;
2. A living grandfather applies for Portuguese nationality, as the grandson of a Portuguese citizen, under Article 1(1)(d) of the LN;
3. The living mother applies for Portuguese nationality, as the daughter of a Portuguese citizen, under Article 1(1)(c) of the LN;
4. Interested party applies for Portuguese nationality, as the son of a Portuguese citizen, under Article 1(1)(c) of the LN.

B. Portuguese great-great-grandmother

• Portuguese great-great-grandmother deceased → Deceased foreign great-great-grandmother → Living foreign great-grandfather → Foreign grandfather alive → Deceased foreign father → Foreign interest

1. Living great-grandfather applies for Portuguese nationality, as the grandson of a Portuguese citizen, under Article 1(1)(d) of the LN;
2. Living grandfather applies for Portuguese nationality, as the son of a Portuguese citizen, under Article 1(1)(c) of the LN;
3. The interested party applies for Portuguese nationality, as the granddaughter of a Portuguese citizen, under Article 1(1)(d) of the LN.

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III. Granting of Portuguese Nationality to children born in Portuguese territory to foreigners, provided that, at the time of birth, one of the parents has been residing illegally for 1 (one) year or has been residing legally in Portuguese territory for any length of time. Article 1(1)(f).

The 2 (two) year residence requirement has been removed if one of the parents is legally resident in Portugal at the time of the birth.

It was made possible to grant nationality to children born in Portugal to illegal residents, as long as they have been resident in Portugal for at least one (1) year.

The resident parent(s) may not be in residence due to service to the respective State at the time of the birth.

IV. Acquisition of Portuguese Nationality by Marriage or Union de Facto: The temporal requirement of duration of the conjugal relationship is not necessary in the case of common children of the couple with Portuguese nationality. Article 3(4). (ELIMINATED)

The requirement for the foreign spouse or partner to have been married or in a de facto union for 3 years with the Portuguese spouse or partner, when there are common children of the relationship with Portuguese nationality, is abolished.

V. Acquisition of Portuguese Nationality through a De Facto Union: Judicial action for recognition of the de facto union is not necessary in the case of joint children of the couple with Portuguese nationality. Art. 3, no. 5. (ELIMINATED)

In the case of common children of the relationship with Portuguese nationality, the requirement for judicial recognition of the relationship prior to the application for Portuguese nationality will be waived.

VI. Acquisition of Portuguese Nationality through Marriage or De Facto Union: Presumption of Effective Links to the Portuguese Community. Art. 9, no. 2 3. (TRANSPOSED FROM PARAGRAPH 2 TO PARAGRAPH 3))

Foreign spouses who have been married for six (6) years or more to a Portuguese national are presumed to be effectively connected to the Portuguese community, for the purposes of opposing the acquisition of nationality.

VII. Acquisition of Portuguese Nationality, by Naturalization, for minors born in Portuguese territory: Simplification of the requirements. Art. 6, no. 2.

The requirement of knowledge of the Portuguese language for the acquisition of Portuguese nationality by naturalization was waived for minors born in Portuguese territory and the alternative requirements for granting nationality were simplified in relation to:

1. School attendance. Currently, completion of at least one cycle of basic education or secondary education is required. With the entry into force of the Law, it will be enough for the minor to have attended at least one year of pre-school education or basic, secondary or vocational education;

2. Legal residence of one of the parents. Currently, it is necessary for one of the parents, at the time of the application, to have been legally or illegally resident in Portugal for at least 5 (five) years immediately prior to the application. With the change, no period of residence will be required of the parent if they are legally resident.

The requirement for the parent to have been resident for five (5) years prior to the application has been maintained, if they are residing illegally in Portugal.

Final considerations

This amendment relaxes various requirements for the attribution and acquisition of Portuguese nationality. From these changes, we can see a notable concern on the part of the legislator to apply constitutional and international principles relating to the attribution and acquisition of nationality, in particular the principle of the unity of nationality in the family, as well as reinforcing the principle of Ius Solis for those born in Portugal.

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Dr. Aldo Andrade

Dr. Aldo Andrade, Lawyer and Genealogical Researcher
Portuguese-Brazilian lawyer, registered with the Portuguese Bar Association, under No. 57.455P, and with the Brazilian Bar Association, Federal District Section, under No. 54.095, graduated from UniCEUB in 2014, with a postgraduate degree in Registries and Notaries from ISCET, with expertise in Portuguese Nationality Law. Genealogical researcher, specializing in locating records of Portuguese ancestors. Works in the areas of Portuguese Nationality Law, Foreigners' Law and Family Law. Fluent in English.