For experts, immigrants who have five years of residence in Portugal but have not yet applied for Portuguese nationality, they can do so until the Assembly of the Republic approves the Government project.
Immigrants who are already on the application for Portuguese nationality in progress have nothing to worry about, say experts. Although the Government of Portugal has announced changes in the rules, extending the deadlines for obtaining citizenship by residence time — from five to seven years, in the case of citizens of the Community of Portuguese Speaking Countries (CPLP), and from five to 10 years, for other foreigners — rights are guaranteed in the ongoing processes.
“The Constitution of the Portuguese Republic protects and secures the acquired right. In its Article 2, it establishes that Portugal is organized as a Democratic State of Law, which has as one of its characteristics the protection of the acquired right, a presupposition of legal certainty, which precisely prevents laws acting retroactively to harm legal situations already consolidated, says Fábio Pimentel, lawyer specialized in immigration. “Therefore, in practice, all those who applied for nationality under the aegis of a certain legal regime must have the acquired rights observed,” he said.
During the announcement of the changes of the rules for the conferral of Portuguese nationality by time of residence, the Minister of the Presidency of the Council of Ministers, António Leitão Amaro, stated that there will be no retroactivity in the law, when approved by the Assembly of the Republic, but defined a cut-off line. He said: “Regarding the processes of nationality, the proposal that we make is that (the law) does not apply to processes that have entered before June 19, that is, until the day after the Government has been fully functioned. The logic is application for the future, for new processes.”
Government sets limits
But that line of cutting — that citizenship claims made by June 19 is protected by the rules in force — is questioned by experts. In their opinion, as the changes in the Nationality Law have not yet been approved by Parliament, immigrants who have completed the five years of residence and meet all the conditions to apply for Portuguese citizenship, but have not been submitted to the processes before the Institute of Records and Notary (IRN), can do so at this time.
“Without the approval of the Parliament for the changes proposed by the Government, the current rules continue to apply,” says Bruno Gutman, director of the Bar Association in Braga. “The Government’s proposal says that when the changes were approved by the Assembly of the Republic, they will go back on June 20. However, this retroactivity is unconstitutional. The law must be valid from the moment it is published. If it insists on this point, the Government will stimulate a flood of lawsuits,” he said.
The Government even works with the possibility of a race for Portuguese nationality while Parliament does not approve future rules. On the same day that he announced the new deadlines for the acquisition of Portuguese citizenship by time of residence, Leitão Amaro pointed out: “What is the rational? It is that, from that day (June 20), following the Prime Minister (Luís Montenegro) and I myself have detailed these measures restricting the rules of nationality in Parliament, and Parliament has invested the Government in office, presentations (of requests for nationality) to the rush, without fulfilling the requirements, of the kind I go there by a process to make way of making way, they do not count.
Transition rules
With so many doubts regarding the future rules, the lawyer Rodrigo Vicente affirms that the Government of Portugal should respect the legislation, so as not to create more legal uncertainty. “There are people who meet all the conditions to apply for citizenship, and we have some reports that the conservatories are no longer accepting processes with the full five-year residency time,” he says. “Therefore, the clearer the government is in relation to the new rules, the less confusion will be created,” he adds.
At this point, Fábio Pimentel emphasizes the importance of a transition period. “There are immigrants, who have planned, have moved to Portugal with their families, have been in the country for three, four years, based on legislation that was approved by Parliament. We are talking about the expectation of law, which should also be considered by managers and legislators, "he points out. For him, this will be one of the most controversial topics hereafter.
CEO of the Global Group Alliance, Fábio Knauer stresses that in a democracy, legal certainty is fundamental. In Portugal, however, since 2020, four changes have been made to the Nationality Law and the Foreigners Law. “This is a premise of Parliament, but all that people who emigrate need is predictability, because it is a laborious and expensive process that requires security. When the rules change a lot, all the time, it is not known, after all, what has to be followed. This shuttle in the legislation ends up having a high cost also for the economy, "he stresses.
Knauer also points out that, in addition to frequent changes in the laws, Portugal promised a series of improvements in the progress of processes related to immigrants, such as technology to streamline responses regarding citizenship applications. “But nothing has advanced. Everything keeps walking very slowly, with no deadlines for solution. And this happens due to the inefficiency of the State itself, which demonstrates its inability to do documentary management and people management,” he says. “What we see now is that instead of resolving the inefficiency, the state doesn’t want there to be people to attend to.”