Nationality Law – taking nationality by an act of free will
Competence of the administrative jurisdiction;
Statement of free will;
Constancy of a cohabitation relationship.
RULING No. 605/13
24 of September of 2013
The Court found that a norm which says that the competence to recognise that a couple have been cohabiting for more than three years, as a requisite for a foreigner who has been living in that situation with a Portuguese national to acquire Portuguese nationality, is not unconstitutional. The norm says that in such cases, in order for a person to make the formal declaration that they want to take Portuguese nationality, they must first bring an action asking a civil court to recognise their de facto relationship. The power to recognise the latter falls within the competences which the Constitution of the Republic attributes to the courts. Following its own abundant jurisprudence on the substantial definition of the jurisdictional function and the fact that the latter is reserved to the courts of law, the Court emphasised that in constitutional terms, the courts’ responsibility to administer justice includes ensuring the defence of citizens’ interests and rights to which the law affords its protection. Those interests naturally include the ability to bring legal actions to defend rights.
This concrete review was requested by the Public Prosecutors’ Office, which was legally bound to do so because the court a quo refused to apply the norm in question on the grounds that it considered it to be materially unconstitutional.
The norm is contained in a 2006 Organic Law that amended the Nationality Law such that foreigners who have been cohabiting with a Portuguese citizen for more than three years are entitled to acquire Portuguese nationality.
The court a quo took the view that this norm sees the court’s decision (which takes the form of a sentence) as a mere document which serves as proof of the veracity of the declaration that is the first step in the registration process (declaration by a foreign citizen that he/she wishes to take Portuguese nationality) – a process that later ends in a typically administrative act. In the opinion of the court a quo, the judicial process is thus reduced to completing the formal elements of an administrative procedure, with the court relegated to the position of a Public Administration organ – a status that would be illegitimate in the light of the competences which the Constitution attributes to the courts. The court a quo also felt that the administration of justice always presupposes a conflict, but that in this situation and at the stage of the proceedings in which a court is called on to intervene, no such conflict exists.
The Constitutional Court noted that the Organic Law containing the norm before it made a large number of changes to the Nationality Law (which dates from 1981), but that those changes did not bring about a new form of law based on principles which differ from those that have structured the regime since 1981. In other words, one cannot say that a new law governing nationality was passed in 2006.
Where the acquisition of nationality by choice is concerned, the most significant change is the one that came before the Court in this case – i.e. the fact that a foreign citizen who has been cohabiting with a Portuguese national for more than three years on the date on which he/she declares his/her desire to take Portuguese nationality is now entitled to do so, on condition that the declaration has been preceded by a successful action asking a civil court to recognise the cohabitation situation.
Since 2006, cohabitation of a foreigner and a Portuguese national has been deemed equivalent to marriage for the purposes of the regime governing the acquisition of Portuguese nationality by an act of free will. Once a court has verified that the couple have constantly cohabited for more than three years, the declaration by the interested party is sufficient to initiate the process of taking nationality. The same three-year period also applies in the case of marriage. In both situations (marriage and cohabitation), the fact that the applicant is sharing bed and board with a Portuguese national is a precondition for nationality to be acquired simply because the applicant asks for it.
The declarations on which the award of nationality is dependent must be recorded on the Central Nationality Register, which is kept by the Conservatory of Central Registers (CRC). Nationality-related disputes are resolved in accordance with the general regime applicable under the Statute governing the Administrative and Fiscal Courts (ETAF), the Code of Procedure of the Administrative and Fiscal Courts and other, complementary legislation. This regime was imposed by the 2006 Law (before that, the Lisbon Court of Appeal had the competence to hear appeals against any acts regarding the award, acquisition or loss of Portuguese nationality).
The Court said that this important change was justified for reasons that were originally not directly linked to the nature of the right to nationality. With the introduction of a new profile for the administrative jurisdiction (from the 1982 constitutional revision onwards), it became clear that the competence to hear disputes with material implications for the protection of fundamental rights should preferentially pertain to the latter. Until then, the competence of the common jurisdiction to hear nationality-related disputes (among other things) had been recognised in a kind of homage to the idea that one should take the protection of the fundamental rights to the utmost; however, the new profile given to the administrative jurisdiction warranted the legislator’s decision to entrust these matters to it.
This choice is underlain by the idea that, if the right to nationality does possess a particular “nature” (or if it is, in substance, of a public rather than a private kind), that nature is linked to the definition of the legal criteria that govern the formation of the bond between individuals and the Portuguese political community, and entails the way in which a certain right (a right that itself possesses an intrinsic constitutional value which the Portuguese Constitution recognises) is exercised.
Nationality law is understandably especially sensitive to constitutional values (which are essentially public in nature). This is why this area of the law had to be redefined by the ordinary legislator soon after the current Constitution came into force. The amendments that were made to the Nationality Law after 1981 were intended to reflect the effects of those constitutional values.
The Court pointed out that it was at that time that Portuguese law adapted itself to the different demands made by the values derived from the new constitutional order. The Court gave the example of the then new regime governing the acquisition of nationality through marriage, under which foreigners married to Portuguese nationals could (and still can) take Portuguese nationality by means of a declaration that can be made once they have demonstrated the constant and lasting nature of their marriage. The previous regime (instituted in 1959) said that a foreign woman who married a Portuguese man automatically took Portuguese nationality (except if, by the time the marriage took place, she declared that she did not want to do so and proved that she was not going to lose her previous nationality), but the same was not true of a foreign man who married a Portuguese woman. This regime was contrary to the principle of equality between spouses and failed to consider the decisive importance of the person’s will in the acquisition of nationality on the basis of marriage.
1994 saw the addition of the requirement that the marriage between the foreigner and the Portuguese national must have lasted for at least three years. From that point on, the reality of the marriage, which has to have existed for a significant period of time, became a factual precondition for the acquisition of Portuguese nationality by mere act of free will. This requirement was introduced in the light of the then recent increase in the pressure of migratory flows, and was designed to avoid fraudulent manipulation of this precondition for access to Portuguese citizenship.
In 2006, the legislator made cohabitation equivalent to marriage in this domain, in a move that paid tribute to constitutional principles such as those of equality and non-discrimination. However, as was already the case with marriage, it was simultaneously necessary to prevent this means of access to the status of Portuguese national, which is open to foreigners who possess life-bonds to the Portuguese community (and is the same as solutions that have been adopted by the law of other countries and by international conventions), from being fraudulently manipulated by people who allege cohabitation situations that do not really exist.
Ruling no. 583/98 (20-10-1998).