Constitutional Court vetoes four clauses of the Nationality Law

The Constitutional Court (TC) declared four clauses of the Nationality Law unconstitutional, three of them unanimously, with the fourth receiving only one dissenting vote from one of the judges. In addition, it considered the amendments to the Penal Code unconstitutional.

One of the provisions vetoed by the judges at the Ratton Palace is that relating to the automatic effect of the law on access to Portuguese citizenship for anyone convicted of a crime punishable by more than two years’ imprisonment. The amendment to the Penal Code – now vetoed – provided for the possibility of a judge imposing the loss of nationality as an additional penalty for serious crimes.

The parliamentary decree revising the Nationality Law and another amending the Penal Code to include the loss of nationality as an additional penalty, both originating from a bill proposed by the PSD/CDS-PP Government, were approved on 28 October, with 157 votes in favour (from PSD, Chega, IL, CDS-PP and JPP) and 64 votes against (from PS, Livre, PCP, BE and PAN).

At the public reading of these decisions at the Ratton Palace in Lisbon, it was announced that there was unanimity on three of the four provisions of the decree revising the Nationality Law that were declared unconstitutional, as well as on the provisions of the decree creating loss of nationality as an additional penalty. According to the judges, this is a violation of the principles of equality and proportionality.

Which norms were declared unconstitutional?

• The rule that prevents the automatic effect of the law on access to citizenship for those convicted of a crime punishable by two years’ imprisonment — the court ruled, in line with previous case law, that there is a disproportionate restriction on access to citizenship and an incidental loss of civil or political rights. By preventing the possibility of assessing the extent to which such a conviction jeopardises the specific bond of integration into Portuguese society, the Constitutional Court ruled that Articles 26(1), in conjunction with Articles 18(2) and 30(4), all of the Constitution (disproportionate restriction of the fundamental right of access to citizenship and also violation of the constitutional rule that states that “no penalty shall necessarily entail the loss of any civil, professional or political rights”);
• The rule that the decree aims to introduce in Article 12-B(3) of the Nationality Law, which establishes that the consolidation of nationality does not apply to bona fide holders in cases of manifest fraud. The Constitutional Court ruled that, by failing to offer any criteria for distinguishing between situations of obtaining nationality by fraud (in which the consolidation of nationality already applies) and situations of manifest fraud (in which consolidation no longer applies), there is a violation of the principle of determinability and the absolute reserve of parliamentary law, which is derived from the combination of Article 2 with Article 164(1)(f) of the Constitution;
• The rule establishing that applications depend on the date of the residence permit and not on the date of application violates the “request for protection of trust” by defrauding legitimate expectations. The Constitutional Court concluded that there was a violation of the principle of protection of trust, included in the principle of the rule of law enshrined in Article 2 of the Constitution, as it affronted the legitimate expectations of the recipients with pending proceedings in the applicability of the regime existing on the date of submission of the application;
• The rule that allows for the cancellation of nationality for behaviour that rejects adherence to the national community and its symbols due to the ‘lack of indication’ of the type of behaviour in question. The Constitutional Court ruled that the lack of any indication of the type or pattern of behaviour that could be considered to fall under this concept makes it impossible for citizens to anticipate, with any degree of certainty, what types of actions could be grounds for bringing an action against them to oppose the acquisition of Portuguese nationality. This violates the principle of determinability and the absolute reserve of parliamentary law, which is derived from the combination of Article 2 with Article 164(1)(f) of the Constitution.

Approval in Parliament

The amendments to the Nationality Law, which originated from a government proposal, were approved in November in a final overall vote by the PSD/CDS, Chega and IL, exceeding the required absolute majority threshold (116 out of 230 MPs).

As announced on Friday, during the detailed review of the nationality law in the Constitutional Affairs Committee, the PS, Livre, Bloco de Esquerda, PAN and PCP voted against. JPP MP Filipe Sousa voted in favour.

The law established a period of seven to ten years of documented residence in Portugal before obtaining nationality and provides for a period of ten years during which each naturalised citizen risks losing their citizenship if they commit crimes punishable by more than four years in prison.

The new law also required applicants for naturalisation to prove their means of subsistence, even for those applying for original nationality (i.e. great-grandchildren of Portuguese emigrants) who do not wish to come to Portugal.

The PSD, CDS, Chega and IL also approved, in a final overall vote, an amendment to the Penal Code providing for the possibility of a judge applying the loss of nationality as an additional penalty for serious crimes.

Initially, the penalty of loss of nationality for serious crimes was part of the Government’s proposal to revise the Nationality Law, but the PSD and CDS later decided to make it autonomous to avoid the risks of unconstitutionality inherent in these amendments affecting the entire legislative initiative of the Executive.

The left-wing parliamentary benches voted against it and the PS signalled that the penalty of loss of nationality could represent a violation of constitutional principles. As with the revision of the nationality law, this proposal also received 157 votes in favour and 64 against, achieving two-thirds approval, when it only needed an absolute majority of 116 of the 230 MPs.

According to the final version of the proposal now approved, a judge may apply the penalty of loss of Portuguese nationality “to an agent who has been sentenced to an effective prison term of four years or more”. This penalty may be applied if the acts were “committed within ten years of acquiring nationality and if the agent is a national of another State”, which immediately rules out the possibility of a citizen becoming stateless as a result of this penalty.

The latest version to come out of the specialised process, in the Constitutional Affairs Committee, also provides that “anyone convicted of loss of nationality as an additional penalty for committing the aforementioned crimes (…) may only apply for its reacquisition, under the general terms defined in the Nationality Law, ten years after the expiry of the period of definitive cancellation of the entry in the criminal record of the respective penalties”. A change that the PS considered a concession by the PSD to Chega.