Portuguese Nationality Law: Court Challenges & Changes

PS takes it to court

The Socialist Party (PS), the main opposition force, has launched a legal challenge against the new law, requesting a "fiscalização preventiva" (preventative review) by the Constitutional Court (Tribunal Constitucional - TC). This means they are seeking to determine the law's constitutionality before it comes into effect.

The PS argues that the law violates core constitutional principles:

• Equality: The PS alleges unequal treatment of immigrants.
• Proportionality: Certain measures are seen as excessively harsh.
• Legitimate Expectations (Confiança): Retroactive changes undermine the legitimate expectations of those who planned their lives under the old rules. There’s potential for legal challenges from individuals whose residency clocks have been reset.
• Organic Law Requirement: The loss of nationality amendment should have been an organic law, requiring a higher level of parliamentary support.

What can the Tribunal Constitucional do?

The Constitutional Court wields significant power in this situation. It can:

• Declare the Law Constitutional: Upholding the law in its entirety, allowing it to proceed to presidential approval and subsequent implementation.
• Declare the Law Unconstitutional: Striking down the law completely, preventing it from taking effect. This would force the government to either abandon the reforms or draft a new, constitutionally sound version.
• Declare Parts of the Law Unconstitutional: Invalidating specific provisions while upholding others, leading to a partial implementation of the reforms.
• Delay Implementation: By taking time to review the law, the Court can effectively postpone its implementation, creating a period of uncertainty.

A rare moment in political history

Significantly, this is only the second time since the end of the Estado Novo dictatorship that a preventative review of a law has been requested before presidential approval.

The previous instance was in relation to abortion legislation, highlighting the gravity of the current situation. This historical context underscores the PS's belief that the new Nationality Law poses a serious threat to fundamental rights and freedoms.