The requirement that foreigners seeking Portuguese citizenship must possess the capacity to ensure their own livelihood
Condition for acquisition of citizenship
Bond of integration
Real and effective link
RULING Nº 599/05
2 of November of 2005
The rule laid down in the Nationality Act whereby the government grants naturalisation to foreign citizens who satisfy the condition of being effectively and fully integrated into the national community - which presupposes an ability to be self-sufficient and to support oneself - does not infringe any principle or rule of constitutional value.
Like the previous two Constitutions, the current one does not define Portuguese citizenship. It merely states that "all persons are Portuguese citizens who are considered as such by law or under an international convention" (Article 4 of the Constitution) and makes reference to international conventions and ordinary law on this matter. However, the principles of universality and equality of the right to acquire Portuguese citizenship require that, if the other conditions are satisfied, ordinary legislation should not accord different treatment to foreign citizens who have applied for Portuguese nationality by naturalisation, who have the same ability to be self-sufficient and are in a position to support themselves. National legislation may, however, separate those who are in a position not to be a financial burden on the national community from those who are not in order to justify a difference of treatment.
The court decision holding that a citizen wishing to be naturalised as a Portuguese national did not satisfy the condition of being able to support himself, given that he "was unemployed and his means of subsistence were unknown", applied legislation which is not in breach of the Constitution.
An Angolan citizen filed an application with the Constitutional Court following the rejection of his application for Portuguese nationality by naturalisation. In these proceedings, it had been held on the one hand that the applicant did not satisfy the condition laid down in the Nationality Act, not because he did not have a stable income exceeding the national minimum wage, but, specifically, because he had been unemployed for several months and his means of subsistence were unknown. Secondly, it was held that the naturalisation of the individual concerned was not a right and that the state's power to grant it was discretionary.
Because the drafters of the Constitution referred the definition of the rules governing the right to Portuguese citizenship to international law and ordinary legislation, it is in this area that the subordination of the right of Portuguese citizenship to the principles and safeguards which, constitutionally, constitute fundamental rights, must be assessed. In the same way, due account must be taken of the principle derived from international law of a real and effective link between the person concerned, the Portuguese state and the national community.
The act constituting the acquisition of Portuguese nationality by naturalisation is a decision by the public authorities (in this case, the government). When an application is made for naturalisation, the government may or may not grant Portuguese nationality. Although the government has a discretionary power in this matter, under ordinary law that power is subject to a series of conditions being met, these being regarded as real legal prerequisites for the exercise of the (discretionary) governmental power to decide on the granting of nationality. In view of the nature of the nationality bond, these prerequisites are necessarily indicative of the type, nature and intensity of the actual relationship existing between the individual, the Portuguese state and the national community with which he or she wishes to become integrated. Since the right in question is recognised as a fundamental right, the conditions laid down in ordinary legislation must comply with the principles of appropriateness and proportionality in order to preserve the essence of that right. By its very nature, this right expresses a specific bond of integration into the Portuguese community. The other aim is not to integrate persons who are merely a financial burden on the other members of the community.
In conclusion, the Constitutional Court did not deem the rule laid down in the Nationality Act to be unconstitutional to the extent that it is understood as requiring foreigners wishing to acquire Portuguese citizenship to be capable of supporting themselves. For this purpose, in the first instance, the setting of this condition for acquiring Portuguese nationality is neither inappropriate nor disproportionate if one considers that it should not be a social or political obstacle to the integration of a foreign citizen into the Portuguese community and his or her acceptance by that community. Given that nationality is the bond by which sociological, cultural, economic, legal, political and other values constituting the heritage of the national community are expressed, it is understandable that this national community should be unwilling to make economic, financial and social sacrifices to support those who are unable not to be a burden to that community.