Portugal’s recent overhaul of its Nationality Law is more than a legal tweak—it’s a political statement. But as much as it expands state control over who belongs, it arguably ventures into territory where constitutional rights, equality, and legal certainty may be at risk. In fact, several legal experts and media reports suggest the reform could be sent to the Constitutional Court for review.
Here are the key provisions likely to raise constitutional alarm bells — and which you should watch as the law moves toward promulgation.
1. Residence Requirement Extended from 5-to-7/10 Years
One of the most visible changes is the extension of the legal-residence requirement for citizenship: seven years for nationals of the CPLP or EU countries; ten years for others.
Why this matters constitutionally:
- It may clash with the constitutional principle of equality (Article 13 of the Portuguese Constitution) by imposing significantly heavier burdens on non-CPLP nationals.
- It could violate the principle of legal certainty (Article 2) if the “clock” starts not from permit issuance but another ambiguous date.
- If the law appears to treat similarly-situated individuals differently (e.g., different nationalities), the Court might consider it discriminatory.
2. Loss of Nationality for Acquired Citizens as a Criminal Accessory Penalty
The amendment to the Penal Code introduced the possibility that someone who acquired Portuguese nationality may lose it if convicted of serious crimes. It specifically targets those naturalised, within ten years of acquisition, and only if they hold another nationality.
Why this matters:
- Nationality is a fundamental right under Portuguese constitutional law; revoking it via criminal penalty blurs lines between civil and criminal law.
- It raises issues of proportionality and fair trial rights (Articles 20 & 31) — is loss of nationality a justified penalty, or a civic death sentence?
- The Constitution reserves certain citizenship protections for birth-rights and descent; this creates a new category of “second-class” citizens.
3. Children Born in Portugal: Changing the Birthright Path
Under the new law, children born in Portugal to foreign parents will only qualify for nationality if one parent already has legal residence of five years at the time of the child’s birth or declaration.
Why this may be challenged:
- It tightens the jus soli principle to resemble more jus sanguinis. The Court may question whether this undermines children’s rights and equality before the law (Articles 13 & 26).
- For children born in the country, stability, belonging and identity are at stake; changing their rights ex post may raise legal-certainty concerns.
4. Means of Subsistence Test & Biometric Data Requirements
Requiring proof of “adequate and stable means of subsistence” and imposing stricter biometric data collection—while less dramatic in the headlines—ties citizenship to economic and administrative criteria more than ever.
Potential constitutional issues:
- The economic test may raise the question of whether citizenship becomes a privilege for the financially capable, rather than a right.
- Biometric data collection and retention touch on right to privacy and data protection (Articles 26 & 35). If the law leaves details to regulation (i.e., secondary law), the Court may probe the delegation of competence and legislative clarity.
5. Transitional and Retroactive Effects
If the law enters into force without a clear, protective transitional regime, it could unfairly trap residents who applied under the old rules but find themselves subject to the new ones.
Constitutional concern:
- Retroactive change to rights or legal expectations may violate legal certainty and trust in public administration (Article 267 of the Constitution).
- The law’s retroactivity (or lack thereof) will be a major point in the Court’s review.
What Happens Next
Though the law is voted, it must be promulgated by the President and published in the Diário da República to take effect. Political commentators expect the President to exercise his right to refer parts of this law to the Constitutional Court for prior review.
If the Court finds parts unconstitutional:
- The offending provisions might be struck down or sent back to Parliament.
- Applicants and long-term residents will face legal uncertainty until the final ruling.
- The administration must pause certain pathways (e.g., residence-based naturalisation) until clarity is achieved.
This reform may mark a turning point in Portuguese nationality policy. But for many residents, the focus will not be on political symbolism — it will be on how long they must wait, what rights their children have, and if their citizenship might one day be taken away.
When the state changes the rules of belonging this sharply, the Court often becomes the final battleground for rights, equality and trust.
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