What the Constitutional Court deemed unconstitutional in the proposal

The Constitutional Court's decision did not analyze the proposed amendment to the Nationality Law as a whole, but rather specific points that raised relevant constitutional concerns. The focus of the analysis was on the protection of fundamental rights, the predictability of the law, and the legitimate expectations of applicants. Read the full article. on here.

Four regulations were deemed incompatible with the Portuguese Constitution.

1. Automatic denial of nationality due to criminal conviction.

The proposal stipulated that anyone sentenced to a prison term of two years or more would be automatically barred from obtaining Portuguese citizenship.

The Court considered this rule excessive, as it does not allow for an analysis of whether the conviction truly severs the person's ties with Portuguese society.

In simple terms, the judges stated that:

• A conviction cannot, in itself, eliminate the right to citizenship.
• The law needs to allow for a case-by-case analysis.
• No punishment can automatically result in the loss of civil or political rights.

2. Withdrawal of nationality in cases of "manifest fraud"

Another rule authorized the withdrawal of nationality when fraud was alleged, even if the person had acted in good faith.

The problem identified was the lack of a clear definition of what would be considered "manifest fraud".

In practice, the Court pointed out that:

• The law did not explain where ordinary fraud ends and so-called overt fraud begins.
• Without objective criteria, citizens cannot foresee the consequences of their actions.
• This creates legal uncertainty and violates the legislator's duty to be clear and precise.

3. Applying new rules to requests already in progress.

The proposal stipulated that pending nationality applications would be evaluated based on new rules, not the rules in effect when the application was submitted.

The Court considered that this change:

• It undermines the legitimate trust of those who filed the request in accordance with current law.
• It frustrates expectations created legally.
• It affects thousands of ongoing cases.

In practical terms, whoever initiated the process has the right to be evaluated according to the rules that existed at that time.

4. Cancellation of nationality due to "behavior" against the national community.

The rule provided for the possibility of revoking the nationality of anyone who demonstrated behavior deemed contrary to the Portuguese community, institutions, or national symbols.

The Court rejected this prediction because:

• The law does not explain which behaviors fall under this provision.
• Citizens cannot know in advance what could lead to the loss of their nationality.
• The lack of a definition opens the door to arbitrary interpretations.

Therefore, the rule was deemed incompatible with the legal requirement for clarity and predictability.

Accessory penalty of loss of nationality in the Penal Code

In addition to the Nationality Law, the Court also analyzed the proposal that created the loss of nationality as an accessory penalty in the Penal Code.

The judges understood that this provision is unconstitutional because:

• It only affects naturalized Portuguese citizens, creating inequality among citizens.
• It applies automatically, without allowing adaptation to the severity of the specific case.
• It violates the principle of equality and proportionality of penalties.

What does this mean in practice?

Rules deemed unconstitutional cannot produce effects. They need to be reviewed, reformulated, or eliminated before any new attempt at approval.

Once again, it is crucial to emphasize that none of these rules are currently in effect.

The Constitutional Court's decision reinforces basic principles of the rule of law, such as clarity of law, proportionality, and protection of legitimate expectations.

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