Here is the original brief as submitted to the court.
Below is a translation of the brief to English.
His Excellency
Professor Doctor José João Abrantes
President of the Constitutional Court
Rua de “O Século” No. 111
1249-117 Lisbon
03/12/2025
URGENT
Case No. 1383/2025
Preventive review of constitutionality
Your Excellency,
We, citizens legally residing in Portugal, or in the process of being granted residence in Portugal, having become aware of the request for preventive review of the constitutionality of the provisions contained in Draft Law No. 17/XVII of the Assembly of the Republic – Amendment to Law No. 37/81 of 3 October (Nationality Law) – which was sent to the Presidency of the Republic on 11 November 2025 to be enacted as an organic law, submitted by one-fifth of the Members of Parliament under paragraphs 4 and 6 of Article 278 of the Portuguese Constitution, hereby submit our contributions to the legal discussion to be held before the Constitutional Court, in the capacity of amicus curiae, as follows:
AMICUS CURIAE BRIEF
I. General Considerations
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All citizens identified below have legitimate and legally grounded expectations of becoming Portuguese citizens, and therefore present a set of arguments they consider essential for the Constitutional Court to take into account in the preventive review proceedings concerning the constitutionality of certain provisions of Draft Law No. 17/XVII – Amendment to Law No. 37/81 of 3 October, the Nationality Law.
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It is true that there is no express statutory provision allowing such submissions. Article 54 of Law No. 28/82 (LOFPTC – the Organic Law of the Constitutional Court) only provides for the hearing of the body from which the challenged norm originated. Article 64-A of the LOFPTC allows the Court to request information from any bodies or entities it deems necessary, but only in successive review. However, there is established practice of the Constitutional Court accepting submissions from interested entities, as can be inferred from references in Judgments Nos. 247/2021, 413/2014, 187/2013, 711/2006, 620/2007 (Plenary). These include submissions by parliamentary groups and the National Association of Portuguese Municipalities—entities that are not authors of the contested norms. It is on the basis of this custom that we respectfully submit the present considerations.
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In this context, we endorse the legal reasoning presented in the request for review submitted by Members of the Parliamentary Group of the Socialist Party and reject entirely the arguments in the letter sent by the Parliamentary Groups of the PSD and CDS-PP. That letter contains political, not legal, reasoning. For constitutional review, it is irrelevant who proposed a norm, who amended it, or what motivations Members may have had. Ironically, after accusing the request of being political, the letter then relies on political arguments. Criticism of the Court in this and other cases clearly aims to exert political pressure.
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We consider that the Portuguese Constitutional Court has fulfilled its role as guardian of the Constitution impartially and with respect for separation of powers, becoming an international example—which we hope will continue despite current political pressures.
II. Our Situation
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We are a group of foreign citizens who hold or wish to obtain a Residence Permit for Investment Activity (ARI), whose requirements are set out in Article 90-A of Law No. 23/2007 and Article 3(1)(d) of the same law—a public program to attract foreign direct investment.
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We invested in Portugal because we believe in its economy and political, social, and regulatory stability, and in its status as a consolidated democracy respecting fundamental rights and the rule of law. Part of Portugal’s appeal is the existence of clear rules allowing acquisition of citizenship after 5 years of legal residence, subject to demanding requirements: language proficiency and proof of legal residence. After the 2008-11 crisis, the Portuguese Government—Ministers, AICEP, and the former SEF/AIMA—aggressively promoted this program, which generated over €9 billion, revitalized industries, created jobs, and strengthened public finances. This figure only covers officially reported investments and is likely much higher.
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Many investors committed life savings, many intending to move to Portugal. They learned the language, integrated culturally, and planned long-term futures in the country. Yet serious and well-known administrative failures in immigration services have created massive delays in processing residence and nationality applications—without any fault of the applicants. Applications legally required to be decided within 90 days take up to four years. There are cases pending since 2021 with no prospect of resolution for years. Many thousands lack valid documents and cannot work, travel, or access public services. Over 20,000 investors will only receive AIMA appointments in the first half of 2026.
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This situation worsens in light of the recent admission by the Minister of the Presidency, before Parliament, that processing of “gold visa” files was deliberately left “for last” for alleged “social equity” reasons. His testimony clearly indicates that the administration was instructed to prioritize other cases to our detriment. How can we trust fair and timely treatment?
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The amendment to Law No. 37/81 in Draft Law No. 17/XVII shows no concern whatsoever for our situation or for that of other legally resident foreigners with expectations of acquiring Portuguese citizenship. Without grandfathering, transitional rules, or protection against administrative delay, the change could transform a 5-year period into a de facto 15-year wait.
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Many families planned their lives around the 5-year rule in place since 2018 (and 6 years before that). Doubling it to 10 years jeopardizes investments structured with an 8-year maturity (e.g., investment funds) and adversely affects families whose children—integrated in Portuguese schools—would lose eligibility for citizenship derived from their parents.
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The amendments radically change the rules midway, imposing new burdens and betraying our trust in the Portuguese State.
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We feel demonized and penalized for administrative failures beyond our control. Many investors may conclude that Portugal no longer offers a stable and predictable investment environment if these changes come into force.
III. Unconstitutionality of the Provisions in Draft Law No. 17/XVII
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We do not dispute Portugal’s sovereign power to define nationality rules. But that power is limited by the Constitution.
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The amendments raise various constitutional issues.
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They significantly restrict fundamental rights—namely, the fundamental right to Portuguese citizenship in Article 26 of the Constitution. Under the Universal Declaration of Human Rights (UDHR), this right has (i) a negative dimension (no arbitrary deprivation of nationality) and (ii) a positive dimension (the right to a nationality). While not everyone has a right to become Portuguese, those with a legally grounded expectation—within constitutional parameters—do. Foreign residents may hold this right.
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As restrictions on a fundamental right, the amendments must comply with Article 18 (proportionality, justification). The legislator cannot merely invoke discretion; there must be rational, empirical justification. None exists. There is no explanation why “effective ties” require 10 years instead of 5.
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Even if Article 26 is not interpreted as granting foreigners a positive right to nationality, other constitutional limits apply: protection of family (Arts. 36, 67, 68), equality, legal certainty, and protection of legitimate expectations. These apply to foreign residents as well. The amendments violate the principles of legal certainty and legitimate expectation inherent in the rule of law (Art. 2 CRP).
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We expand here on two unconstitutional aspects:
a) The absence of transitional rules (Arts. 7(1)–(2));
b) The revocation of Article 15(4) of the Nationality Law.
a) Absence of Transitional Regime
19. Article 7(1) of the Draft Law establishes that the rules resulting from the amendment to the Nationality Law take effect from the date of its entry into force, that is, on the day following its publication. It further provides that all administrative procedures initiated after its entry into force are already subject to the new rules (Article 7(2) of the Draft Law).
20. This regime of effects differs from what normally appears in amendments to the Nationality Law, which usually condition the entry into force of changes on amendments being made to the Regulation of Portuguese Nationality, approved by Decree-Law No. 237-A/2006 of 14 December. One exception was the recent amendment introduced by Organic Law No. 1/2024 of 5 March, which included a transitional regime in Article 6 — as was acknowledged by the Constitutional Court in Judgment No. 128/2024 (Plenary), in preventive review.
21. It is true that we are dealing with the application of new norms to legal situations which, although already existing in the legal order, are still in the process of consolidation — because the conditions for naturalization have not yet been fulfilled. The fact that a foreign citizen obtained a residence permit at a certain moment — when a particular naturalization regime was in force — does not prevent that regime from being amended during their period of legal residence, potentially in a way that is unfavorable to their aim of acquiring Portuguese nationality. In this sense, we are not dealing with retroactive impairment of fundamental rights, which would be unconstitutional under Article 18(3). Instead, the situation falls within the phenomenon of “mere retrospectivity” or “inauthentic retroactivity.” Still, this does not mean the legislator lacks constitutional limits or enjoys full regulatory freedom. Procedural guarantees must be respected, the new regime must be applied non-discriminatorily, and internal (Constitution) and external (International Law and EU Law) constraints must be respected. There is no reason to claim that foreign residents do not merit protection of legal certainty — because this is an objective dimension — or protection of legitimate expectations. There is no “cut-off” moment before which confidence is not protected: once the required conditions are met, it deserves protection.
22. From the principle of legal certainty, inherent in the rule of law, arises the guarantee of predictability and determinability of the legal consequences of state action. From this principle follows a prohibition on arbitrary or sudden legislative changes, especially when they affect legal situations already consolidated or close to consolidation. In this context, the Constitutional Court has instructed the legislator in several decisions that the solution must include a transitional regime ensuring that unfavorable legislative changes are implemented gradually, avoiding abrupt changes and minimizing harm to those who acted in reliance on the previous law — especially in long-term legal relationships in the professional domain, pension rights, or the exercise of certain fundamental rights. The introduction of a transitional regime must comply with the principle of proportionality, offering a fair, adequate, and balanced solution to the problems arising from applying the new regime to legal positions formed or in formation under the previous law and still subsisting when the new law enters into force.
23. There is also a dimension of protection of legitimate expectations — the subjective side of legal certainty — which also stems from the rule of law (Art. 2 CRP). It protects citizens’ trust in the stability, continuity, and regularity of existing legal situations. The Constitutional Court, in repeated jurisprudence, has established that the principle applies when three cumulative requirements are met:
(1) the legislator has engaged in conduct capable of generating expectations of continuity;
(2) these expectations are legitimate, justified, and well-founded; and
(3) individuals have made life plans based on the expectation of continuity.
When these requirements are satisfied, the final step is a proportionality assessment balancing the legitimate expectations of individuals against the public interest justifying the change. In the present case, all these requirements are fulfilled.
24. Indeed, over the years, the State’s conduct has clearly been capable of generating expectations of continuity. In general terms, it can be said that the path taken by the legislator in amendments to the Nationality Law over the past 20 years has been toward reducing the requirements for access to Portuguese nationality through naturalization. This trend continued decisively with the amendments introduced since 2018 — over a period of seven years, as the explanatory memorandum itself recognizes — transmitting a consistent legislative direction capable of creating expectations that it would remain stable. This is particularly relevant for foreign citizens who were attracted by the aggressive promotion of ARI (Golden Visa) by various state bodies, promising regulatory stability and a clear path to citizenship. The emergence of anti-immigration rhetoric in political discourse is insufficient, in itself, to undermine trust in the laws and actions of the Portuguese State over two decades. In principle, one could accept that political announcements weaken consistency, but in this case the political discussion remained too vague for a long time to allow foreign residents to anticipate the measures ultimately approved.
25. The expectations of continuity of the current regime, or of a favorable evolution of the nationality regime, clearly arise from the conduct of the Portuguese State and must therefore be considered legitimate and well-founded. These expectations stem from the law still in force, grounded in the good-faith intention of foreign citizens to integrate into and belong to the national community, enjoying the rights and fulfilling the duties corresponding to that status. Foreign citizens reasonably understood that acceptance of the ARI rules implied — after the five-year period and fulfillment of the legal requirements — a real prospect of acquiring nationality. Based on those expectations, they made life plans aimed at becoming Portuguese citizens.
26. Based on those expectations and plans, foreign citizens made investments, moved to Portugal, enrolled their children in Portuguese schools, learned the Portuguese language — that is, they concretely carried out the “life plans” they had formulated in reliance on the word of the Portuguese State. This requirement is proven by the seriousness of the act itself — no one moves their life across the Atlantic, to another country, without associated life plans. It is not a trivial or secondary decision.
27. Having confirmed that these requirements are met, it remains to determine whether public-interest reasons justify, in a proportionality assessment, the legislative departure from prior conduct. Even when amendments reflect legitimate public interests, it must still be assessed whether the impact on legitimate expectations is not excessive or unreasonable. In this case, we find no public-interest reasons that justify the complete absence of a transitional regime protecting legitimate expectations of foreign citizens residing in Portugal. The mere desire for rapid implementation or political criticism of the previous regime is insufficient. Even more so given the total absence of empirical data to justify urgency in bringing the new regime into force immediately upon publication.
28. The Draft Law contains no transitional provisions — not even partial safeguards — for citizens already residing in Portugal who structured their life plans based on the current Nationality Law. Note that the change significantly restricts access to citizenship by naturalization: the period of legal residence required doubles from 5 to 10 years for non-Lusophone citizens, and increases to 7 years for CPLP citizens; additional requirements are introduced, such as knowledge of Portuguese culture, fundamental rights and duties associated with nationality, and political organization of the Republic. The legislator failed to comply with the constitutional duty to provide a transitional regime preventing abrupt change and safeguarding legitimate interests — e.g., through a phased transition or a reasonable grace period. The absolute absence of any transitional regime deserves the strongest constitutional censure for violating the rule of law (Art. 2 CRP).
29. It is true that the Constitutional Court has stated that “not all expectations are equal: expectations of those who entered the country illegally cannot be compared with those who entered legally, nor can expectations of those who have long lived in the country, speak the language, and established family ties be compared with those who have just arrived.” Even if one accepts this distinction, the fact remains that the complete absence of a transitional regime affects all these situations indiscriminately, including those who entered and reside legally in Portugal. At the very least, with respect to those citizens, there existed a protectable expectation that is now being manifestly violated.
b) Revocation of Article 15(4) – Start of Residence-Time Counting
30. The current wording of Article 15(4) of the Nationality Law establishes that “For the purposes of counting periods of legal residence provided for in this law, the time elapsed since the moment the application for a temporary residence permit was submitted shall also be counted, provided that it is ultimately granted.” This provision, introduced in 2024 by Organic Law No. 1/2024 of 5 March and in force for a little over 20 months, had the purpose of ensuring that, given the systemic and institutionalized delays in the processing of temporary residence permit applications, foreign citizens would not be penalized due to the Public Administration’s failure. In other words, it protected citizens from the consequences of administrative inertia in breach of the legal duty to decide within the established time limit — a common concern in Portuguese law, which justifies, for example, the existence of the mechanism of tacit approval or refusal.
31. It is therefore false that this regime applied to foreign citizens who were residing “irregularly” in Portugal. The legal regime in force allowed the applicant for a residence permit to remain in Portugal while the application was being processed, as a holder of a residence visa. Moreover, the period only counted for the purposes of Article 15(4) of the Nationality Law if the residence permit was ultimately granted — that is, if the applicant met all legal requirements. There is therefore no basis for treating the counting of that period as recognition of an “irregular situation,” since such a situation simply does not exist. The citizen is in a regular situation, awaiting an administrative decision.
32. The norm resulting from the revocation in question determines that the start of the counting of legal residence for the purposes of Article 15 of the Nationality Law only occurs once the Administration approves the temporary residence permit application. The time between submission of the application and the administrative decision is not counted.
33. This norm has a restrictive character regarding the fundamental right to citizenship, as it makes it more difficult for foreign citizens to accumulate sufficient legal residence time in Portugal for naturalization. A rule that disqualifies part — and sometimes a very significant part — of the period necessary to meet one of the legal requirements for naturalization is clearly restrictive of that right. This restriction is clearly disproportionate, as it fails to achieve a constitutionally valuable objective.
34. Even if one rejects, in this context, the applicability of the fundamental right to citizenship, the norm would still be unconstitutional for violating the principle of legal certainty in its objective dimension, derived from the rule of law (Article 2 of the Constitution). Under this principle, the State is required to establish legal regimes that enable citizens to plan their lives and make decisions with a reasonable level of predictability and determinability regarding the consequences of their actions and those of public entities.
35. It is evident that this normative solution is constitutionally inadmissible in light of legal certainty. The norm places foreign citizens in a situation of total uncertainty regarding the actual period of legal residence required to obtain Portuguese citizenship. Given the systemic administrative backlog, it becomes impossible to anticipate how long the Administration will take to decide a residence permit application — and only from that moment will the period of legal residence begin to count for nationality purposes. The citizen thus sees the moment they can control (the date of application submission) disregarded, and becomes dependent on the discretion and unpredictability of the Administration. It becomes impossible to know or anticipate when the residence period begins — and therefore when it ends. This occurs at a moment when even the Minister responsible admitted giving instructions to delay the processing of ARI applications. This admission suggests that foreign citizens are left entirely at the mercy of administrative arbitrariness, in violation of the most basic guarantees of legal certainty and, indeed, the principle of human dignity on which the Portuguese Republic is founded (Article 1). The foreign citizen is placed in a condition of absolute subjugation to administrative arbitrariness, with total disregard for individual autonomy and for the legally established deadlines.
36. There is also a dimension of infringement of legitimate expectations. Today, it is possible to request a residence-time certificate from AIMA, which indicates an expected timeline that would be entirely altered if the new regime enters into force. Citizens who relied on such a certificate — an official document of the Portuguese State — would face a profound alteration of the data on which they based their life plans.
37. Naturally, this regime also raises complex issues concerning the principle of equality — in this case, only the dimension of prohibition of arbitrariness under Article 13(1), since no category listed in Article 13(2) is involved. Two foreign citizens who meet the legal requirements and submit applications on the same day at the same hour may nevertheless have completely different start dates for the counting of legal residence simply because the Administration was quicker in one case than in the other. At present, there are real situations in which differences of 2 or 3 years exist between decisions on applications submitted on the same day. Under this regime, such discrepancies will persist, resulting in unequal treatment as to the start of legal residence counting. There is no justification for this difference, meaning we are faced with an arbitrary distinction — therefore unconstitutional.
38. Nor can it be argued that there is no violation of the principle of equality merely because the rule applies to all foreign citizens. The issue is the discriminatory effect of the rule’s application, not discriminatory application of the rule. Nor does it make sense to claim that equality is only applicable from the moment of the administrative decision, because before that foreign citizens have no juridical expectation of acquiring nationality. As noted above, the protection of legitimate expectations does not depend on a predetermined starting point; it only requires fulfillment of the criteria established by the Constitutional Court. Moreover, the timing of the decision is precisely the source of differentiation. If this reasoning were accepted, the prohibition of arbitrariness would lose all practical effect as a control standard, since any distinction would always have a reason — the one created by the legislator — even without any rational justification.
39. The Portuguese Constitutional Court has already examined this issue in an analogous context: whether it was constitutional for the regime governing voluntary retirement to depend on the law in force at the time of the administrative decision recognizing the right to retire. This rule, which also placed citizens at the mercy of administrative timing, was held unconstitutional in Judgment No. 195/2017 (3rd Chamber, concrete review), a conclusion reaffirmed in Judgment No. 130/2018 (1st Chamber) and in Summary Decisions Nos. 235/2017, 101/2018 and 148/2018. It was later declared unconstitutional in abstract review at the request of the Public Prosecutor through Judgment No. 134/2019 (Plenary). Earlier, in Judgment No. 615/2007 (3rd Chamber), the Court likewise censured a regime that made the application of one legal regime or another depend on “the administrative risk that the services might send the retirement process to the Pension Fund earlier or later, thus making it depend on chance rather than on any objective criterion, which violates the rule of law (Article 2 CRP)” (para. 8 of the Judgment).
IV. Conclusion
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In light of the above, it is clear that:
a) As the right to citizenship is a fundamental right, the amendments constitute a disproportionate restriction and are unconstitutional.
b) Even if that is not accepted, the following provisions are unconstitutional:
i. The absence of transitional rules (Arts. 7(1)–(2)), violating legal certainty and legitimate expectations (Art. 2 CRP);
ii. The revocation of Art. 15(4), violating legal certainty (Art. 2 CRP) and the prohibition of arbitrariness (Art. 13(1) CRP).