Ana Rita Gil and Nuno Piçarra
(b) through a subjective right to naturalisation, e.g., if they are minors who have completed
the first cycle of compulsory education in Portugal;
(c) for individuals who were born in the Portuguese territory, from foreign parents and who
have resided there, for at the least five years prior to the application.
These new arrangements respect the principle of effective citizenship, as they aim at favouring
those who are deeply integrated into the Portuguese community and have a genuine and
effective link to the country (Gil (2010): 730).
The new legislation shows us that the Portuguese law is committed to the democratic
inclusion of those who have chosen Portugal as a place to live. That is why it was stated that
‘Portugal jumped up from the “medium” to the “liberal” category’ and such regime was
qualified as ‘one of the most liberal citizenship policies of the EU-15’ (Howard 2009: 87). Also,
the Migrant Integration Policy Index of 2011 and 2014 considered the Portuguese citizenship
law as the most inclusive citizenship policy amongst 31 European and North America
citizenship laws. This index qualified the Portuguese legal regime on nationality acquisition
with 86 points out of 100117.
The Nationality Act no longer distinguishes between the citizens of the Portuguese
speaking countries and other categories of aliens. The objective was to fully respect the
European Convention on Nationality. However, this arrangement was a step back on reinforcing
the ties between the Portuguese speaking countries, which have been institutionalized through
the creation of a Community of Portuguese-Speaking Countries and of a constitutional basis for
the respective quasi-citizenship. ‘Granting quasi-citizens almost full citizenship rights while
making it difficult for them to naturalise would contribute to sustaining exclusionary ethnocultural concepts of national community’ (Bauböck, Ersboll, Groenendijk & Waldrauch 2006:
36). We believe that at least the naturalisation of the quasi-citizens should be favoured, for
example by requiring shorter periods of residence. This arrangement could also be justified with
the overall demographic pattern of immigration, as the immigration from the PortugueseSpeaking countries corresponds to the large majority of the total immigration.118 The
immigration from these countries commonly turns into permanent immigration in Portugal
(Silva, 2004: 111). This scenario does not seem to violate the European Convention on
Nationality.119 Thus, a non-arbitrary distinction is allowed, and there are sufficient grounds to
permit more favourable conditions for the citizens of the Portuguese speaking countries.
However, in other aspects the new legislation did not go as far as it could.
First, Portuguese law still does not have a special clause for the easier naturalisation of
recognised refugees, as acknowledged by the Geneva Convention and by the European
Convention on Nationality. The same can be said regarding the stateless persons.120 As these
individuals cannot claim the protection of a state of origin, they have stronger claims to the
nationality of their host state than other migrants.121 However, the Central Registry Office has
been using a flexible interpretation of who can be considered as a “stateless person”, for the
117
http://www.mipex.eu/portugal
The communities of immigrants from Brazil, Cape Verde, Angola and Guinea-Bissau corresponded to 43 per
cent of the total immigrants legally residing in Portugal in 2007 (Serviço de Estrangeiros e Fronteiras 2007: 21).
119
Art. 5(1) stipulates: ‘The rules of a State Party on nationality shall not contain distinctions or include any
practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin’.
120
Except those who were born in Portuguese territory (who acquire Portuguese citizenship at birth - art. 1(1)(f)
of the Nationality Act) and those who have held Portuguese citizenship and have never acquired any other
citizenship (who are exempted from fulfilling some requirements for naturalisation - art. 6(3) of the Nationality
Act).
121
Access to citizenship in practice is not facilitated, as statelessness has to be proved. However, in difficult cases,
the documentary evidence is exempted (art.26 of the Nationality Regulation).
118
38
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