Portugal’s Constitutional Court has decided on the request – put in by PS Socialists – to give the latest version of the Nationality Law a ‘preventive review’.
Yet again, the judges have found four provisions to be unconstitutional.
In a public reading of the decision this afternoon, it was announced that there was unanimity regarding three of the four provisions of the decree revising the Nationality Law, as well as regarding the provisions of the decree that create loss of nationality as an additional penalty.
The four provisions ‘rejected’, include:
- The rule that automatically prevents anyone convicted of a crime punishable by two years or more from obtaining Portuguese citizenship
Judges justified their decision on the grounds that it is impossible to assess the extent to which such a conviction jeopardises integration into Portuguese society. They claim that this is a “disproportionate restriction” of the fundamental right of access to citizenship and also a violation of the constitutional rule that no sentence shall necessarily entail the loss of any civil, professional or political rights.
- The rule establishing that the ‘consolidation of nationality does not apply to bona fide holders in cases of manifest fraud’. That is, the rule that withdraws nationality in situations where it has been obtained using false documents has been considered unconstitutional. This could send a curved ball into attempts by PSP police to cancel roughly 1000 residencies so far this year.
Judges justify this decision on the grounds that the rule does not offer any criteria for distinguishing between situations of fraudulent acquisition, in which the consolidation of nationality already applies, and situations of manifest fraud, in which consolidation no longer applies. They explain that, in this case, we are faced with a ‘violation of the principle of determinability and the absolute reserve of parliamentary law’.
- The rule according to which the granting of applications for the attribution or acquisition of nationality pending on the date of entry into force of the amendments to the nationality law depends on the fulfilment of requirements laid down on the date of submission of the application and not – as is the case under the current regime – on the date of the decision on the application.
The court cites a violation of the principle of protection of trust and states that this rule ‘affects the legitimate expectations of those with pending procedures under the regime in force on the date of submission of the application’.
- The only rule rejected by a majority, rather than unanimously – with one dissenting vote – concerns the possibility of cancelling nationality registration due to behaviour that conclusively and ostensibly rejects adherence to the national community, its representative institutions and national symbols.
Judges ruled that the lack of any indication of the type or pattern of behaviour likely to fulfil the concept makes it impossible for citizens to anticipate, with a minimum of certainty, ‘what types of actions may be sufficient grounds for bringing an action against them to oppose the acquisition of nationality’. This therefore violates the principle of determinability and the absolute reserve of parliamentary law, say the judges.
Court also rejects loss of nationality for serious crimes
The judges also ruled on the parliamentary decision to amend the penal code to include loss of nationality for citizens who have committed a serious criminal offence (rape/ murder/ child sexual abuse) in the 10 years following acquisition of Portuguese nationality.
Judges consider this violates the principle of equality by applying the loss of nationality only to non-native citizens.They add that the parliamentary intention is for a fixed additional penalty, without the possibility of adaptation to each case.
SIC Notícias journalists end their report on the decision stressing that “even in the face of the inconstitutionalities declared by the Constitutional Court, the law as approved on October 28 by 157 votes in favour (from PSD, CHEGA, IL, CDS-PP and JPP) in the face of 64 votes against (from PS, Livre, PCP, BE and PAN) can still be confirmed as more than ⅔ of parliament are pushing for its adoption.
News bulletins tonight however all suggest the law will be returning to parliament for some form of ‘tweaking’.
Source: SIC Notícias
