The Constitutional Court (“CC”) declared this week the unconstitutionality of certain provisions of Decree No. 17/XVII, which amended the Nationality Law.
Judgment No. 1133/2025 of the CC concerns the preventive review of amendments to the Nationality Law contained in Decree No. 17/XVII. This decision is particularly relevant for the constitutional validity of the new requirements for acquisition, loss and consolidation of Portuguese nationality.
But what does this decision mean?
In this Legal Update, we highlight the main points of the Constitutional Court’s ruling and explain how it may affect current and future applicants for Portuguese nationality.
Stricter Criminal Record Requirement in Naturalization
The Portuguese government proposed that one of the requirements for nationality be that applicants must not have been sentenced to imprisonment exceeding 2 years for a crime punishable under Portuguese law. Previously, the legal threshold was a sentence exceeding 3 years.
The Constitutional Court declared this amendment unconstitutional, noting that it is unclear how this reduction allows for assessing whether the sentence affects the applicant’s integration into the Portuguese community.
Reformulation of Grounds for Refusal Due to Lack of Connection to the Portuguese Community
The proposed amendment allowed for refusal of nationality based on “behaviours rejecting adherence to the national community, its institutions, and symbols”, without specifying which behaviours were covered.
The Court declared this provision unconstitutional for violating the principles of legal determinacy and parliamentary law reserve, given the high political, social, and legal sensitivity surrounding nationality acquisition and loss. The provision delegated to decision-makers, namely Conservators, the authority to define what constitutes behaviour rejecting adherence to the Portuguese community.
Limitation of Nationality Consolidation in Cases of “Fraudulent Acquisition”
This proposal aimed to prevent applicants who had resorted to fraudulent means, such as artificially meeting residency requirements, from acquiring Portuguese nationality.
The Constitutional Court declared the provision unconstitutional, for violating the principle of legal determinacy and parliamentary law reserve, by failing to clearly define good-faith cases. The Court considered that the legislature wrongly assumed applicants act in bad faith, without specifying which behaviours constituted fraud.
Consequently, the Court ruled the provision unconstitutional for failing to ensure legal certainty and because the authority to legislate on nationality acquisition lies exclusively with the Portuguese Parliament.
Repeal of the Rule Counting Residency Time from Temporary Residence Permit Application
This is perhaps the most significant point in the Court’s decision.
The government proposed that residency time for nationality purposes should start from the issuance of the first residence card, which the Constitutional Court did not consider unconstitutional.
The Court ruled there is no violation of the principle of equality, as the original law counted residency time from the issuance of the first residence permit. Therefore, the repeal restores the original system.
Regarding retroactivity, the Court concluded there is no unconstitutional retroactive application or breach of the principle of trust. The new law applies only from its entry into force, while the previous regime remains for pending cases.
Thus, applicants who submitted their nationality request before the new law’s entry into force can count residency time from the date of their first residence permit application. Those applying after the law comes into effect must count from the issuance date of the first residence card.
Application of the New Law Over Time
The Court was unanimous regarding temporal application. It determined that foreigners with pending nationality applications before the new law’s entry into force should not be prejudiced by the change.
The Court concluded that imposing such a requirement violates the “principle of trust,” i.e., the right of individuals to rely on the State not changing rules mid-process.
In summary, the Court deemed that changing the rules after a process has started is unconstitutional, as it undermines citizens’ legitimate trust in institutions. Applicants who submitted nationality requests before the new law will be subject to the provisions in force at the time of submission.
Key Aspects
- Criminal records: Reduction of sentence threshold from 3 to 2 years for nationality applicants – unconstitutional. It is unclear how this measures integration into the Portuguese community.
- Lack of connection: Refusal of nationality for “behaviours rejecting the national community” – unconstitutional. The provision did not clearly define the behaviours.
- Fraudulent acquisition: Denying nationality in cases of fraud – unconstitutional. Lacked clear definition and violated parliamentary law reserve.
- Residency time: Counting from residence card issuance – constitutional. Previous applications count from initial permit request; future applications, from card issuance.
- Temporal application: Pending applications before the new law are unaffected. Later changes would violate the principle of trust.
Here’s what comes next:
- The Government will revise the bill and resubmit it to the Assembly of the Republic for a vote. The vote is expected to take place between January and February 2026.
- The Government may introduce amendments beyond those declared unconstitutional by the Court. Therefore, in these uncertain times, it is advisable to seek guidance from a qualified professional who can provide the best legal advice.
