6 de September, 2016
In some cases, the Portuguese Nationality Law provides for the possibility of the Public Prosecutor’s Office opposing the granting of the request for Portuguese nationality, through a specific legal action, because it believes that the legal requirements for such are not met. This is the so-called “Action for Opposition to Nationality”, which may be filed within one year from the date of the fact on which the acquisition of nationality depends.
Specifically, the “Action for Opposition to Nationality” may be filed by the Public Prosecutor’s Office in cases where nationality is requested as a result of the will or adoption, which includes the case of an application for marriage or stable union with a Portuguese national. In general, the Public Prosecutor’s Office usually presents as a ground of opposition to nationality the absence of an effective link between the applicant and the Portuguese national community.
Therefore, if the Public Prosecutor’s Office proposes the Action for Opposition to Nationality, based on the absence of an effective link to the Portuguese community, the applicant is cited to contest it. The challenge must be made through a lawyer (registered with the Portuguese Bar Association), who may choose to present more evidence and documents that point to the existence of an effective link between the defendant and the Portuguese national community or, alternatively, who may choose to request the reversal of the burden of proof, seeking to make it incumbent on the Public Prosecution Service to demonstrate facts that prove that the defendant does not have the referred link. Each case should be considered individually, since both grounds for judicial challenge are valid.
For many years, the issue of who is responsible for the burden of proof of effective connection to the Portuguese community, in an Action for Opposition to Nationality, was quite controversial in the jurisprudential scope, since there were judges who understood that this burden would fall to the applicant of nationality, while others understood that it would fall to the Public Prosecution Service. However, recently the Superior Administrative Court handed down a judgment standardizing jurisprudence on this issue, finally deciding that it is up to the Public Prosecutor’s Office to prove the defendant’s lack of effective connection with the Portuguese national community (STA Judgment of 16-06-2016, Case No. 201/16).
Thus, the applicant for Portuguese nationality, by the effect of the will or adoption, continues to have to decide on the existence of an effective link with the national community within the framework of its respective administrative process. However, due to the said standardizing appellate decision, if the Public Prosecutor understands that there is no effective connection with the community, in an Action for Opposition the Public Prosecutor must not only allege this fact but also prove it, which significantly facilitates the applicant’s situation/defense.
Author: Roberta Fraser
Citizenship & Immigration
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