20 de October, 2017
One of the most sensitive and controversial issues in the Portuguese Nationality Law concerns the so-called “effective ties to the national community“. This is a requirement present in some cases of application for Portuguese Nationality, especially in the current application for granting of Nationality by a grandson of Portuguese and in the application for acquisition of Nationality by a spouse or partner of Portuguese, whose failure (usually) results in the rejection of the application. If you have many questions, click here to talk to an expert now.
The controversy derives from the wide margin of discretion that this requirement, as it is drafted (undetermined legal concept), confers to the judge of the case. In addition, in the case of requests for the acquisition of nationality subject to that requirement, there was also the controversial issue of the attribution of the burden of proof of the (in)existence of the effective connection to the national community (whether of the applicant or of the Public Prosecution Service), if the Public Prosecution Service filed an Action for Opposition to Portuguese Nationality.
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This issue of the burden of proof, however, was the subject of a standardizing jurisprudence decision in 2016, which finally decided that it is up to the Public Prosecutor’s Office to prove the defendant’s inexistence of effective connection with the Portuguese national community (STA Judgment of 16-06-2016, Case No. 201/16).
In this context, in order to increase the predictability of the decision, alleviate the pressure on the Public Prosecutor’s Office and increase the speed of proceedings, the recent amendment to the Regulation on Nationality (Decree-Law 71/2017) has defined objective hypotheses of presumption of links with the national community, as well as listing some (non-taxable) situations that may serve to demonstrate the applicant’s ties with the Portuguese national community.
Until the recent legal change in the Portuguese Nationality Regulation, the requirement of ties to the Portuguese national community not only did not apply to the grandchildren of Portuguese, but was also totally subjective, and may thus be demonstrated by a set of circumstances of the applicant, involving their domicile, family, economic or professional activity, customs, their coexistence and integration into Portuguese communities, and their geographical and cultural integration.
According to the words of the Supreme Court of Justice (Judgement of 06 July 2005, Case No. 05B2300), the effective connection to the national community should reveal “a feeling of belonging to the Portuguese community, in Portugal or abroad”.
Thus, according to the practical experience of our Lawyers, the indications of the Civil Registry Offices of Portugal, as well as the analysis of the jurisprudence on the issue, we highlight below some of the elements and documents that could (and still can!) serve to demonstrate such links:
From the subjective analysis of the documents presented, if the Conservative understood that the applicant did not have effective ties with the Portuguese community, he communicated the fact to the Public Prosecution Service, which should file a lawsuit opposing the Portuguese Nationality, in order that his request was rejected.
In order to ensure greater predictability and legal certainty in these processes, by virtue of the enactment of Decree-Law 71/2017, the legislator made the analysis of this requirement less discretionary, by establishing some hypotheses of presumption of effective ties with the national community.
Thus, if the applicant falls within some of the hypotheses of legal presumption of bond, this requirement should be considered as duly complied with by the Conservatory, without the need to communicate the process to the Public Prosecutor’s Office (in the case of requests by spouses and partners, for example) or to send the process for consideration by the Minister of Justice (in the case of requests by grandchildren of Portuguese).
In addition, for nationality applications by grandchildren of Portuguese, Decree-Law 71/2017 set out some situations that may contribute to proving the applicant’s effective connection with the Portuguese national community. Such situations, however, in addition to not being exhaustive (which means that the documents referred to in the previous list continue to be useful), always imply a discretionary analysis by the judge of the case as to the existence of the applicant’s links with the national community.
In these cases, it must be assumed that there is an effective link with the Portuguese national community when the applicant, at the time of application, fulfils one of the following conditions:
Ps: Original nationality is that provided for by law as assigned (attribution) and not acquired (acquisition). Thus, the Portuguese who acquired nationality are not nationals: (i) by marriage or stable union; (ii) by being underage or incapable children of a father or mother who acquired Portuguese nationality; (iii) by being fully adopted by Portuguese people; (iv) through naturalization; (v) by being grandchildren of Portuguese people, whose nationality was acquired before the Decree-Law no. 71/2017 came into force (as it was previously one of the hypotheses of naturalization).
In these cases, it must be assumed that there is an effective connection to the Portuguese national community when the applicant, at the time of application:
For grandchildren of Portuguese, it must be assumed that there is an effective connection to the Portuguese national community when the applicant, at the time of application, fulfils one of the following conditions:
In addition, it also provides for the Nationality Regulation, the following (exemplifying) list of situations that may contribute to demonstrating the effective connection of grandchildren to the national community:
In these terms, we highlight that some of these situations still bring with them a large margin of subjectivity or uncertainty, such as what is understood by a “Portuguese historical community abroad” or if the Portuguese cultural and recreational associations abroad need to be registered at the Portuguese Consulates, for purposes of demonstrating the links.
The recent legal change has reduced the margin of discretion of judges of nationality cases that require proof and/or pronunciation of the applicant’s links with the Portuguese national community, by establishing objective hypotheses of presumption of these links.
In the case of Brazilian spouses and partners, the chances of presumption are very favorable to the applicant, as long as he/she is married or living in a stable union with an original Portuguese. In turn, it is more difficult for the Brazilian grandchildren of Portuguese to fit into the legal presumption, in view of the need for residence in Portugal in the three years immediately preceding the application.
Still with regard to grandchildren, despite the fact that the law currently has a list of situations that may contribute to prove the link with the Portuguese national community, the scope/significance of some of these situations is still not very clear, and will probably only be clarified when the first cases begin to be decided (which will still take some time, given that the legal change is quite recent).
Finally, it should be noted that if applicants do not fulfil the presumption of links, they may always try to gather as many elements as possible to prove their connection to the national community, knowing however that their analysis will always be at the discretion of the judging authority. If you want to talk to an expert now click here.
Article published on the Euro Tips website: https://www.eurodicas.com.br/lacos-de-efetiva-ligacao-comunidade-portuguesa/
Author: Roberta Fraser
Citizenship & Immigration
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