Action opposing the acquisition of nationality

SUMMARY: 1- Judgment of the Southern Central Administrative Court of October 15, 2020; 2 Acquisition of nationality by declaration of will; 3 Acquisition of nationality through marriage; 4 Effective connection to the national community and amendments to article 9 of the Nationality Law; 5 Action to oppose the acquisition of nationality and production of evidence regarding the inexistence of an effective connection to the national community.

Keywords: acquisition of nationality by declaration of will – opposition to the acquisition of nationality

1. Judgment of the Southern Central Administrative Court of October 15, 2020:

The judgment addresses three issues: the nullity of the sentence, the application of the law in time and proof of inexistence of effective connection to the national community, having drawn the following conclusions:

I – Having been requested, while the case was pending, the dismissal of the instance for supervening uselessness, the Court had the duty to rule on such request. Failing to do so, the sentence is null, under the terms of article 615, no. 1, al. d) of the CPC.
II – In the action opposing the acquisition of nationality based on subparagraph a) of article 9 of Law No. 37/81, of 5 July, the entry of 2/2018, of 5 July, which introduced a paragraph 2 to that article 9, in force, pending the process, under which “the opposition to the acquisition of nationality based on the subparagraph a) of the previous number does not apply to situations of acquisition of nationality in the case of marriage or de facto union when there are common children of the couple with Portuguese nationality” (n.º2).
III – The fact that the citizen of Indian nationality (married for more than 20 years to a Portuguese citizen, the couple having two children of Portuguese nationality), was born in India and lives in the United Arab Emirates, it does not follow that he does not have an effective connection to the Portuguese community.
IV – The provisions of paragraph 2 of article 9 of Law no. 2/2018, of July 5th).

2. Acquisition of nationality by declaration of will:

The Constitution of the Portuguese Republic determines in its article 4 that “Portuguese citizens are all those who are considered as such by law or by international convention. Thus, citizenship is “the quality of membership in the political community. Through it, the people that this community becomes when it becomes a State is defined.” This conception refers to a more restricted concept, referring, in fact, to nationality. The determination of who is a national is the competence of each State, which however will have to take into account the domestic legal system, but also international conventions.

The matter of Portuguese nationality is regulated in Law nº 37/81, of October 03, which provides for the acquisition of nationality in an original and acquired way. Regarding the acquisition of nationality, there are three forms of acquisition derived from nationality, namely, the acquisition of nationality by declaration of will, by adoption and by naturalization.

The acquisition of nationality by declaration of will is the object of this brief study here because it is a form of acquisition of nationality subject to the institute of opposition to the acquisition of nationality, as provided for in article 9 of the LN. They are included in the ways of acquiring nationality by declaration of will, which are subject to opposition, the acquisition by minor or incapable children (article 2 of the LN), the acquisition in case of marriage or de facto union (article 3 of the LN ) and acquisition after acquisition of capacity (Article 4 of the LN).

3. Acquisition of nationality through marriage:

The requirements for acquiring Portuguese nationality in the event of marriage are that the person concerned has been married for more than three years to a Portuguese national, and the declaration must be provided during the marriage. However, the law is not sufficient with the requirements set out, and it is still necessary that circumstances that may constitute a ground for opposition to the acquisition of nationality, under the terms of article 9 of the LN, do not exist. This institute aims to reconcile the principles of nationality unity in the family and the principle of effective nationality.

4. Effective connection to the national community:

Article 9 of the LN determines that “1 – The following constitute grounds for opposing the acquisition of Portuguese nationality as a result of the will:
a) The lack of effective connection to the national community;
b) Conviction, with final judgment, with a prison sentence equal to or greater than 3 years, for a crime punishable under Portuguese law;
c) The exercise of public functions without a predominantly technical nature or the provision of non-compulsory military service to a foreign State;
d) The existence of a danger or threat to national security or defense, due to their involvement in activities related to the practice of terrorism, under the terms of the respective law.
2 – Opposition to the acquisition of nationality based on subparagraph a) of the previous number does not apply to situations of acquisition of nationality in the case of marriage or de facto union when there are common children of the couple with Portuguese nationality.
3 – The opposition to the acquisition of nationality based on subparagraph a) of paragraph 1 also does not apply to situations of acquisition of nationality when the marriage or common-law partnership has taken place for at least six years.”
4 – The provisions of paragraph 11 of article 6 shall apply to proof of the inexistence of a conviction referred to in subparagraph b) of paragraph 1.”
Paragraph a) of article 9 of the LN translates into one of the embodiments of the principle of effective nationality, that is, in the harmonization of the legal bond of nationality with the genuine connection of the individual to the State. This principle underwent significant changes, with LO 2/2020, of 10/11, in a system in which ius sanguinis and ius soli are equal, with no prevailing one of them, both in attribution and acquisition.
On the other hand, article 9, paragraphs 2 and 3 of the LN, provide for cases in which the opposition to the acquisition of nationality does not apply in the event of a request for acquisition of nationality formulated under the terms of article 3 of the LN, resulting from the changes introduced by the Organic Laws nº 2/2018, of July 5th and nº 2/2020, of November 10th. However, the new law takes effect for the future, unless it is given retroactive effect, which did not happen in the case of the aforementioned amendments. Indeed, the constitution of the nationality bond by declaration of will is based on the declaration, which in the case analyzed in the judgment, was made before the aforementioned changes. Article 9, nº 2 of the LN mentions that “Opposition to the acquisition of nationality based on subparagraph a) of the previous number does not apply to situations of acquisition of nationality in the case of marriage or de facto union when there are common children of the same person. couple with Portuguese nationality”. At the time of the request, this rule did not exist, and the applicant claimed that the couple has two children of Portuguese nationality and that this change would constitute grounds for the dismissal of the instance due to the supervening uselessness of the dispute. However, as can be seen on the date on which the declaration was made, this rule did not exist and is not applicable to the specific case.

5. Action to oppose the acquisition of nationality and production of evidence regarding the inexistence of an effective connection:

Under the terms of article 10, no. 2 of the LN, the reporting of facts that may constitute grounds for opposing the acquisition of nationality is mandatory for all entities, in this case, the registrar.

Once this participation has been carried out, it is up to the Public Prosecutor's Office to decide whether or not to file an opposition, in a process to be instituted with the Administrative Courts, under the terms of article 10, no. 1 of the LN. The procedure for opposing the acquisition of nationality is provided for in articles 58 to 60 of the Nationality Regulation, and the terms of administrative action in the CPTA are applicable, in what is not regulated in the aforementioned articles.

In the judgment of STA nº 4/2016, of 30 September, it was understood that in the administrative action opposing the acquisition of Portuguese nationality, to be proposed under the provisions of articles 9, paragraph a), and 10 of the Law 37/81, of 3 October, in the wording introduced by Organic Law no. national law, confirming that the amendment to paragraph a) of article 9 of the LN, carried out by LO no. 2/2006, of 17 April, reversed the burden of proof.

It was precisely in view of this position that the action was dismissed, and the applicant for nationality was acquitted of the request to oppose the acquisition of nationality, as it was understood that the Public Ministry failed to prove the inexistence of an effective connection to the national community. .

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