Waiting time for residence permit must count towards citizenship application deadline
Jurists and lawyers assure that there is no need to regulate the changes made six months ago to the Nationality Law. For them, the legislation is very clear in this regard.
The changes promoted by Portugal in the Nationality Law (Law no. 37/81) have just completed six months amidst a great debate. The question that has worried immigrants who dream of having Portuguese nationality is whether, in effect, the decision of the Assembly of the Republic to include, in counting the five-year period to obtain the benefit, the waiting time for authorization of residence in the country. Some experts claim that it is necessary to regulate the measure, but, in the view of jurists Beatriz Sidrim and Daniel Pinto and lawyer Fábio Pimentel, from the CPPB Law firm, there is nothing to question: the law must be complied with in its entirety.
“Since the changes to the law came into force last April, the waiting time for residence permits must be taken into account. This change resulted from the State’s inability to respond to immigrants’ demands within deadlines considered fair”, says Sidrim. The period between the temporary residence permit and the final document has exceeded two years. This happened with the Foreigners and Borders Service (SEF), which was abolished last year, and is happening again with the Agency for Integration, Migration and Asylum (AIMA). “It is not fair for a person to wait all this time to then start counting the five years that allow them to apply for nationality based on length of residence”, he adds.
Hierarchical nonsense
In Pimentel's assessment, since Organic Law No. 1/2024, of March 5, promoted the tenth amendment to the Nationality Law, the time frames for the purposes of applications for Portuguese citizenship are valid, regardless of regulation. “Article 15 is very clear in item 4, which says, verbatim: for the purposes of counting legal residence periods, in this law, the time elapsed since the moment the temporary residence permit was requested and granted.” Therefore, he adds, immigrants who were harmed by the SEF and AIMA delays can demand that this waiting time be incorporated into the nationality application.
For Daniel Pinto, a Portuguese jurist graduated from the University of Lisbon, the immediate applicability of laws is a fundamental principle of Portugal's legal system, which determines that legislation must be applied since its entry into force, unless expressly stated otherwise.
“In the case of Organic Law No. 1/2024, there is no foreseen condition or reservation that requires prior regulation for its provisions to be applicable. Therefore, the law must be fully implemented in everything possible, including counting residence time”, he highlights.
Daniel Pinto adds: “The publication of a regulation cannot serve as an impediment to the direct application of rules that are clear and self-applicable. In fact, it is the issuing of regulations, as an administrative act subject to legal reservation, that depends on the enabling law and not the other way around. It would be absurd for the applicability of a current law to depend on a hierarchically inferior act, in this case, a regulation”.
Integration of immigrants
Beatriz Sidrim recalls that the project that gave rise to Organic Law No. 1/2024 was accepted and approved in the final report of the Committee on Constitutional Affairs, Rights, Freedoms and Guarantees, which considered the arguments presented — that immigrants could not be penalized for inefficiency of the State — as valid and coherent with the principles of justice and equality.
The project's rapporteur, deputy Alexandra Leitão, confirmed, at the time, that the legislator's intention was to count the time from the date of acceptance of the expression of interest in remaining in Portugal. This would not mean definitive approval of the request, but rather recognition that the applicant presented all the documentation required by law, including registration with Social Security, opening an activity or employment contract and CPF.
Another point that should be highlighted, in Sidrim's view, is that, in addition to the changes in the Nationality Law, Decree-Law No. 41/2023, which created AIMA, brought important changes to several pieces of legislation. “This was the case of Decree-Law no. 237-A/2006 (regulation of Portuguese nationality), more specifically in Article 19, with a new definition for the concept of legal residence, adjusting it to reflect current legislation and objectives of facilitating the integration of immigrants in Portugal”, he explains.
This was the sixth change in the nationality regulation, demonstrating, according to the jurist, the continuous effort of the legislator and the Executive to adapt the legislation to the practical needs and realities of the migration and naturalization system, in order to simplify processes and ensure that citizens' rights are respected.
“Therefore, there is no legal impediment to the immediate application of the new provisions, and administrative authorities must adopt the necessary measures to ensure compliance with current law”, highlights Sidrim.