The new Nationality Law, recently approved by Parliament, was submitted to preventive constitutional review at the initiative of 50 Members of Parliament, who raised concerns regarding the constitutionality of several provisions of the statute.
The Constitutional Court examined the request and declared four provisions unconstitutional, finding that they violated fundamental principles such as proportionality, legal clarity, and the protection of legitimate expectations. Three other provisions were considered compatible with the Constitution, although not without legal complexity.
One of the invalidated provisions barred access to naturalisation whenever an applicant had been convicted of a prison sentence of two years or more, even where the sentence was suspended. The Court held that this solution violated the Constitution, as it imposed an automatic and undifferentiated consequence without regard to the nature of the offence or the specific circumstances of the case. The principle of proportionality requires a case-by-case assessment, particularly where restrictions are imposed on a right as fundamental as access to nationality.
Another provision declared unconstitutional allowed the State to oppose the granting of nationality on the basis of “conduct that rejects the national community.” The Court concluded that the wording of this provision was excessively vague and indeterminate, thereby undermining legal certainty and opening the door to arbitrariness. The lack of normative precision in this area poses a risk to fundamental rights such as freedom of expression and political belief.
The Court also struck down the provision that allowed for the loss of nationality where it had been obtained in a “manifestly fraudulent” manner. Although the legislative objective was legitimate, the Court found the expression unconstitutional due to the absence of objective criteria capable of distinguishing ordinary fraud from “manifest” fraud, thus granting excessive discretion to the administrative authorities.
Finally, the Court invalidated a provision that, under the guise of being interpretative, sought to retroactively apply a new rule to nationality proceedings that were already pending. The requirement that all eligibility criteria be met at the time of application, rather than at the time of the final decision, constituted a substantive innovation rather than a mere interpretation. Its retroactive application was considered a violation of the principle of legitimate expectations, as it altered the rules mid-process to the detriment of applicants who had filed their applications under the legal framework then in force.
Conversely, the Court did not declare three other provisions unconstitutional.
It considered the requirement of legal residence for stateless persons to be admissible, while acknowledging that the absence of a legal mechanism in Portugal for recognising stateless status constitutes a relevant legislative omission.
The Court also deemed lawful the repeal of the provision that allowed time spent waiting for a residence permit decision to count towards nationality requirements, reasoning that, as a recent and exceptional legislative measure, it did not give rise to consolidated expectations.
Lastly, the Court concluded that the law contains a sufficient transitional clause by providing that pending proceedings will continue to be assessed under the previous legislation, and that a broader transitional regime is therefore not constitutionally required.
Under the Constitution, a declaration of unconstitutionality in the context of preventive review prevents the President of the Republic from promulgating the statute. The legislative text will now return to Parliament, which must revise the provisions declared unconstitutional before a new version of the law can be approved.
This decision reaffirms the central role of constitutional principles in legislative activity and highlights the importance of preventive constitutional review as a safeguard of proportionality, legal certainty, and the protection of fundamental rights in the legislative process.
Team Nistal & Associados
