Update on article 15º - counting of legal residence periods for citizenship purposes
On January 5th, 2024, Parliament approved an amendment to the Citizenship Law, which among other changes, introduced a new wording on article 15º, no. 4, changing the way legal residence period is counted for purpose of applying for Portuguese citizenship.
As it is known, article 15º no 1 prescribes that individuals who reside in Portuguese territory, with their situation regularized before the Portuguese authorities, under any of the permits, visas or authorizations provided for in the regime for the entry, stay, exit and removal of foreigners and in the regime for the right to asylum, are deemed to be considered legal residents in Portuguese territory.
Under this new amendment, number 4 will now state the following wording (free translation below):
“For the purposes of counting the legal residence periods provided for in this law, the time elapsed since the temporary residence permit was applied for is also taken into account, provided that it is granted.”
In our opinion, the wording of this new number 4 is extremely unfortunate since it allows for multiple interpretations as to what constitutes the “application” moment. Also, depending on the immigration program, different moments may have to be considered.
Regarding the Golden Visa program and bearing in mind the legal regime existing today and the principles that shape the rules of the entry, stay, exit and removal of foreigners, a more literal interpretation of this new rule may consider the biometrics appointment as the as the application date.
However, it is also possible that the legislator intention – in its effort to compensate the massive backlog AIMA is still dealing with since COVID times – was to go beyond that date and also include the time elapsed since the online application date, where the analysis fee is paid.
The law stipulates that the Nationality Regulation will be amended within 90 days after the amendment is published, which will, hopefully, bring some clarity on this subject.
Nevertheless, we emphasize that this amendment, although approved, is not yet enforceable, since it must be sent to the President of the Republic for publication, which hasn’t happened yet. This means that applicants can’t yet benefit from this new rule, whatever the interpretation.
Considering the legislative procedure timings, the President will have 20 days to:
- Ratify the Law and order its publication in the Official Journal or,
- Request the intervention of the Constitutional Court if he finds that there are constitutional rights and/or principles being violated or,
- Exercise veto and send the proposal back to Parliament to be amended.
It’s important to note that if this last scenario occurs, there will be a considerable delay on the procedure, since Parliament will be dissolved on January 15th.
This means that, if the President choses to exercise veto and return the amendment to Parliament, the re-discussion and final approval of this new amendment will occur in a new legislative cycle and the changes may even be rejected if majority is not gathered.
We will continue to monitor the legislative procedure closely and will provide more information as concrete updates arise.
Nistal & Associados – Sociedade de Advogados, SP.RL
