The Nationality Law is being revised. This is nothing new. Since 2006, barely a year has passed without requirements being added, changed or deleted in this Law. It is a real ping-pong, which goes against what should be a Nationality Law – a stable regime that defines who constitutes the national community –, to become a kind of Immigration Law II. Bad immigration policies are corrected by opening or closing access to nationality. If on the one hand this is natural, on the other hand immigration and nationality are different things, and the latter requires deep reflections on what it means to be Portuguese – which doesn’t exactly change every six months.
The ongoing review is one that aims to respond to the effects of bad immigration laws in the past. The Government’s initial proposal raised at least two questions of constitutionality. Firstly, it intended to apply the new rules to requests that had already been made on June 19th. In my opinion – as well as that of several constitutionalists consulted by Parliament – such a solution posed problems regarding the protection of the legitimate expectations of interested citizens. Let’s think about those who already met the conditions to be naturalized and suddenly, on June 19th, they would be deprived of access to this right, without prior notice. Now, it’s one thing to change the law, it’s another to apply the new options to the past, leaving those who trusted the current law unprotected. Therefore, at the right time the Government decided to drop this solution.
Secondly, the loss of nationality is expected for anyone who has acquired it through naturalization if, within ten years following such acquisition, they commit a crime (one of those set out in a fixed list) punishable by five years in prison or more. Although such loss consists of a penalty applied by a judge, it still raises doubts about constitutionality – firstly, regarding the proportionality of the penalties. The European Nationality Convention, of which Portugal is a party, only allows such losses when “vital interests of the State” are jeopardized, which only refers to crimes that result in the breaking of ties of loyalty with Portugal, such as treason, espionage, etc. On the other hand, two different categories of citizens are created (contrary to 45 years of tradition of full equality): those who are originally nationals and those who are naturalized, who appear to be “less national”, and who will only be definitively so “under the condition of behaving well for ten years”.
In view of the doubts raised by more than half of the opinions submitted to Parliament on this matter, the Government chose, in a way that seems right to us, to promote the changes to the Law in two separate diplomas: the first on acquisition of nationality, and the second, on loss. When it comes to the first, the Government has more room for maneuver. We may not agree with the extensions of naturalization deadlines, but they do not raise questions of constitutionality. Another solution advanced there, and which does not seem unconstitutional to me, is to provide more favorable regimes for Portuguese-speaking citizens and European citizens, as the CRP itself allows this positive discrimination.
As regards the loss of nationality, it will be advanced in a separate diploma – which may be subject to a request for inspection to the Constitutional Court. In case of doubt, this should always be the path to follow.
Finally, for the future, we cannot forget that the Nationality Law is not a Law like the others. It needs stability, and demands the broadest possible understanding of what the Portuguese people should be.
Professor at the Faculty of Law of the University of Lisbon. Researcher at Lisbon Public Law