Often in nationality for the children or grandchildren of Portuguese citizens, applicants are surprised with requests for supplementary evidence or even refusal of their nationality application, based on the lack of “establishment of filiation”.
It happens that the attribution of nationality depends on other previous issues, among them, the verification of the establishment of filiation, that is, the legal determination of the relationship between parents and child, which usually occurs with the birth registration but can occur later with the recognition of paternity or maternity, the marriage of the parents with recognition, etc.
It is a concept that almost everyone finds strange because they assume that if they are considered children of A or B in their country of origin, this will also be valid in other countries.
Which law prevails?
The majority view has argued that since nationality is the “legal bond that links an individual to a state”, the rules of the state granting nationality should apply, instead of the regulations of the country of residence or origin of the applicant.
Ferrer Correia also pointed out, “If this were not the case, the principle that it is the State that defines the prerequisites for the attribution and loss of its citizenship would cease to be true (or would be postponed).”
The previous legislation, Law No. 2098, in its Base VI, determined that “Only filiation established by Portuguese law has effects regarding the attribution of nationality”, and the current Nationality Law, although not expressly mentioned, continued the same principle. Portuguese law must certainly respect the directives of the European Union and International Law, and it results from these directives that in matters of personal status, the law of nationality to be acquired should be applied and not the law of residence.
When is the registration considered?
Regarding the moment of connection, generally, the date of birth is taken into account to assess the applicable law, so it is important to assess whether maternal or paternal filiation, regarding the Portuguese parent, was established by the law in force in Portugal at the time of birth.
Finally, there was a provision in the Seabra Code, which continued in the current Nationality Law of 1981, which determined that only the filiation established during the minority of the applicant would be accepted – Article 14 of the Nationality Law, which has since been amended.
The problem of filiation during minority
Although nowadays it is not so common, there are still many applicants today who try to obtain nationality but are only registered as adults and therefore are denied.
There are also those who, being registered as minors, were only recognized by the Portuguese parent when they were of legal age.
Some citizens were not registered by the Portuguese parent but were by the other parent or third party, even if notary or doctors, and the parents were not married.
What do these three cases have in common? In all these cases, despite maternity and paternity being unequivocal in the country of origin, for the Portuguese State, filiation is not established for nationality purposes.
But are there so many cases?
A lot! It seems like a distant reality but it is very common. Especially in countries like the United States, where it was usually the doctor or notary who registered, many descendants of Portuguese were prevented from obtaining nationality if their parents were not married.
On the other hand, in countries like Brazil or Canada, with large rural areas and far from major cities, many were not registered as minors and were excluded from this possibility.
In reality, simply because the parents were not married or because they did not know how to write at the time and the child was not registered by the Portuguese parent, it has determined the exclusion of the right to nationality.
We can understand the feeling of revolt and injustice that so many Luso-descendants feel, who see the country where they were born recognize their maternity and paternity but then Portugal tells them that no, that they are not considered children of a Portuguese.
What changed in 2024?
During the discussion of the last amendments to the Nationality Law, even in the previous legislature, the possibility of revocation of Article 14 of the Nationality Law was debated.
The total revocation of the article was not approved, but the regime was expanded so that the filiation established in adulthood can also produce effects regarding original nationality when one of the following situations occurs:
- the establishment of filiation occurs following a judicial process or
- the establishment of filiation is subject to recognition in a judicial action.
When filiation is established through a judicial action, original nationality can be requested within three years following the final decision.
Exceptional and temporary more beneficial regime
The greatest openness that this new regime has is the temporary exceptional regime of three years that will allow the regularization, in theory, of almost all situations.
In fact, for all cases in which filiation was established before the entry into force of the new law, there are three years to regularize the establishment of filiation, for example by obtaining judicial recognition.
In practice, all those who obtain judicial recognition in the country of origin of the established filiation, even if in adulthood, can then review the sentence to be valid in Portugal and request the attribution of Portuguese nationality within the next three years.
The amendment still requires regulation, and we await some clarifications of a practical and procedural nature, but it is advisable to start preparing the processes now since the three-year deadline is not so long, and coordinating bureaucratic and administrative processes and judicial processes in two countries can take time.
If you are in one of these situations, do not hesitate to report your situation so that we can advise you. Contact us here.
