TRIBUNAL CONSTITUCIONAL Portugal

Ruling no. 128/2024

Headnotes

The acquisition of nationality (by naturalization) is a legal option and cannot be considered a form of exercise of any right, freedom or guarantee, in particular the right to life.

Summary

I - The Constitutional Court was called upon by the President of the Republic to carry out the anticipatory review of the constitutionality ‘of the norms contained in Article 6 of Decree 134/XV of Parliament, for breach of Articles 1, 2 and 18(3) and 24 of the Constitution of the Portuguese Republic’.

II - Decree 134/XV amended the special regime granting Portuguese nationality to non-resident foreigners who are descendants of Sephardic Jews expelled from Portugal in the late 15th century. This acquisition of nationality by naturalization and by decision of a public authority entails a reasonable margin of legislative conformation and administrative discretion, and it does not result from any constitutional imperative.

III - This special regime was the result of a political decision motivated by a desire for historical reparation.

IV - This regime, which was both exceptional and temporary, was introduced by Organic Law no. 1/2013, of 29 July, which added paragraph 7 to Article 6 of the Nationality Law, approved by Law no. 37/81, of 3 October. The granting of Portuguese nationality is primarily based on a certificate issued by Jewish communities with the status of religious legal persons in Portugal.

V - By means of Decree 134/XV, the legislator amended Article 6(7) of the Nationality Law, expressly requiring an actual and current connection with Portugal. This legislative change was applicable only in the future (prospective effect), given Article 6 of this decree, which applies to pending cases.

VI - The legislator intended to include in the Nationality Law two of the (alternative) requirements that were already included in Article 24-A of the Portuguese Nationality Regulation and to add another objective requirement proving a connection with Portugal, also as an alternative, and applicable to applications filed under the legal regime then in force.

VII - Article 6 of Decree 134/XV does not directly restrict the right to life enshrined in Article 24 of the Constitution, as it is intended to regulate, in general, the situation of those who have applied for naturalisation from 1 September 2022 until the coming into force of the new regime.

VIII - The acquisition of nationality is a legal option and cannot be considered a form of exercise of any right, freedom or guarantee, in particular the right to life. In this case, we cannot even speak of the existence of a legal right.

IX - The question here had to do with the succession of laws in time. It should be borne in mind that the act of granting nationality itself continued, in the case of Article 6(6) and (7) of the Nationality Law, to be within the discretion of the member of Government with the power to do so and to depend on the respective requirements being met, and that the solution proposed by this provision was more favourable in comparison with the legal regime currently in force, because the applicants had one more possibility at their disposal to prove their connection to Portugal.

X - Article 6 was not entirely innovative: where before there was a mere possibility or power for nationality applicants, now there was an obligation. In this sense, the transitional regime was less favourable, which was not in itself sufficient to conclude that it was unconstitutional.

XI - Because it is not a legal right, the protection of the possibility of naturalisation for descendants of Sephardic Jews is less robust when compared to retroactive or retrospective legislative changes, especially as we are dealing with a case of retrospectivity.

XII - As for the expectations of those to whom the transitional regime should apply, should it come into force, their protection would make more sense if this legislative change was not foreseeable, and in this case the legislator's intervention was something that could reasonably be expected.

XIII - With regard to the public interest underlying this legislative change, the exceptionality of the original regime led to an increasing discomfort, which motivated the legislator to introduce legislative changes aimed at requiring an actual and current connection with our country (in line with the principle of effectiveness), without success in 2020, and which led to the establishment of the sui generis provision of Article 3(2) of the Nationality Law.

XIV - This concern on the part of the national legislator is perfectly legitimate, and the legislator may even choose to end this exceptional regime. In establishing the transitional regime contained in Article 6 of Parliament Decree 134/XV, the legislator wanted, on the one hand, for the more onerous regime of Article 6(7) of the Nationality Law to apply only in the future and, on the other hand, a regime to be applied to pending cases that was almost identical to the one currently in force (two of the proven objective requirements of a connection to Portugal were included in the Nationality Law instead of just being included in the Portuguese Nationality Regulation, and the one that was added benefited the applicant). The legislator’s action was appropriate and proportionate, bringing the system closer to other systems for acquiring nationality through naturalization and ensuring compliance with the principle of effectiveness, and was a way of preventing people from obtaining Portuguese nationality in a less than clear way. It should thus not be considered unconstitutional, even though it is to be applied, in part, retrospectively (inauthentic retroactivity), and even if it is deemed to establish a more unfavourable system.

XV - As a result, the Portuguese Constitutional Court decided, with four dissenting opinions, that the norm contained in Article 6 of Parliament Decree 134/XV should not be deemed unconstitutional.