Latest / IMI Podcasts / Jorge Miranda: Portugal’s Citizenship Overhaul “Unconstitutional”, Creates Diachronic Inequality

Transcript

Jorge Miranda: Portugal’s Citizenship Overhaul “Unconstitutional”, Creates Diachronic Inequality · IMI Podcasts

• 0:00
  SPEAKER_00: Portugal's proposed citizenship reforms violate fundamental constitutional principles.
• 0:05
  SPEAKER_00: According to Jorge Miranda, the law professor who helped write the country's 1976 democratic constitution, and remains its most authoritative interpreter nearly five decades later.
• 0:16
  SPEAKER_00: Miranda, alongside constitutional scholar Rui Tavares Lancero, produced an 82-page legal opinion that dismantles key provisions of the government's immigration overhaul.
• 0:27
  SPEAKER_00: The analysis carries extraordinary weight because Miranda literally wrote the constitutional provisions he now invokes against the proposed changes.
• 0:35
  SPEAKER_00: As both architect and guardian of Portugal's post-dictatorship legal framework, his constitutional interpretations have shaped Portuguese jurisprudence through hundreds of published works and decades of Supreme Court citations.
• 0:48
  SPEAKER_00: Liberty legal founder Madalena Montero commissioned the opinion after Golden Visa investors raised alarms about retroactive rule changes.
• 0:56
  SPEAKER_00: She sought Miranda's analysis, recognizing that, quote, when a foreign citizen applies for naturalization, they should be able to clearly know the rules that will apply to their request.
• 1:07
  SPEAKER_00: End quote.
• 1:08
  SPEAKER_00: Miranda's involvement transforms what might have been a routine legal challenge into a constitutional crisis for the government.
• 1:15
  SPEAKER_00: His status as professor emeritus at both the University of Lisbon and Portuguese Catholic University, combined with his role in drafting the very articles he now cites, makes his opposition particularly damaging to the government's position.
• 1:29
  SPEAKER_00: The proposed changes would extend residency requirements from five to ten years for most applicants, including Golden Visa investors who previously qualified for citizenship after five years.
• 1:41
  SPEAKER_00: Portugal issued a record 4,987 visas in 2024, marking a 72% increase from the previous year, and these investors had structured their plans around the existing five-year pathway.
• 1:55
  SPEAKER_00: Miranda and Lenciero find that applying new rules to pending applications creates what they term serious problems of compatibility with constitutional principles.
• 2:05
  SPEAKER_00: They determined that legal conditions for acquiring nationality by naturalization were already met when the foreign citizen actually submitted the respective application, establishing a consolidated legal position that subsequent legislation cannot retroactively alter.
• 2:20
  SPEAKER_00: The authors emphasize that while Portugal retains sovereignty over citizenship rules, quote, the state's freedom in this domain can never be considered absolute, for it is necessarily limited by constitutional law and by international law, end quote.
• 2:35
  SPEAKER_00: This limitation becomes critical for golden visa investors who made substantial financial commitments based on existing naturalization timelines.
• 2:44
  SPEAKER_00: Montero highlights the practical impact on investment residents, noting that, quote, this is a drastic change, especially for those already in the process or those who made plans based on the current rules, end quote.
• 2:57
  SPEAKER_00: She argues the changes need transitional provisions to protect the expectations of citizens who relied on the previous law.
• 3:04
  SPEAKER_00: The proposal's most problematic provision for golden visa holders excludes the period between applying for residence and receiving approval from counting toward naturalization requirements.
• 3:15
  SPEAKER_00: Miranda and Lancero find this creates a diachronic inequality of treatment that is untenable and violates constitutional principles.
• 3:23
  SPEAKER_00: Miranda and Lancero expose how the government attempts to hide the retroactive nature of this change by labeling it as interpretive.
• 3:31
  SPEAKER_00: They note that the provision directly contradicts the current regime established just nine months ago under Article 15, Chapter 4 of the Nationality Law, which explicitly included application to approval periods in residence calculations.
• 3:45
  SPEAKER_00: Investment residents often experience longer processing times due to enhanced due diligence requirements.
• 3:51
  SPEAKER_00: The legal opinion warns that making residence counting depend on administrative efficiency places applicants in absolute dependence on the administration's decision, creating intolerable uncertainty for those planning business ventures or family relocations around citizenship timelines.
• 4:08
  SPEAKER_00: Quote, by deciding that the residence period only starts when the administration approves the application, Montero explains, the state takes control of this situation away from the citizen, end quote.
• 4:20
  SPEAKER_00: This particularly affects golden visa applicants who structure investments and family plans around predictable timelines.
• 4:27
  SPEAKER_00: Miranda and Lancero find this provision problematic even at the level of protection of human dignity, as it places citizens in a situation of absolute subjection to the administration.
• 4:38
  SPEAKER_00: For investors accustomed to legal certainty and business planning, such arbitrary treatment undermines Portugal's attractiveness as an investment destination.
• 4:47
  SPEAKER_00: Miranda and Lancero identify additional constitutional problems and proposed restrictions on judicial access for family reunification cases.
• 4:56
  SPEAKER_00: The changes would force applicants into slower common procedures while removing urgent judicial protections that the Constitution guarantees under Article 268, Chapter 4.
• 5:07
  SPEAKER_00: Miranda and Lanciero determine that removing urgent relief options actually worsens court backlogs rather than solving them.
• 5:14
  SPEAKER_00: They conclude that, quote, not only is the backlog not reduced, but slower legal proceedings are created, which increases the backlog, end quote.
• 5:22
  SPEAKER_00: This restriction violates the fundamental right to effective judicial protection without serving any legitimate purpose.
• 5:29
  SPEAKER_00: Miranda and Lancero find that the judicial restrictions fail constitutional proportionality tests because alternative solutions exist that could address court capacity without eliminating urgent protections entirely.
• 5:41
  SPEAKER_00: For golden visa families pursuing reunification, these restrictions compound the uncertainty created by extended naturalization timelines.
• 5:50
  SPEAKER_00: The president of the republic already submitted this amendment of the law for foreign citizens to an a priori constitutional review by the Portuguese Constitutional Court.
• 5:59
  SPEAKER_00: The court concluded that the amendment was unconstitutional, which further supports the legal opinion of Miranda and Lanciero.
• 6:06
  SPEAKER_00: Miranda's analysis reveals that the proposed changes violate the European Convention on Nationality, which Portugal has ratified.
• 6:14
  SPEAKER_00: Article 5, Chapter 2 of the Convention prohibits discrimination between nationals based on whether they acquired citizenship by birth or naturalization.
• 6:23
  SPEAKER_00: Miranda and Lanciero emphasize that creating different classes of Portuguese citizens after naturalization contradicts both constitutional principles and international obligations.
• 6:33
  SPEAKER_00: They note that the Constitution does not authorize differentiating rights between origin and non-origin Portuguese, except for presidential eligibility.
• 6:42
  SPEAKER_00: The provision allowing nationality revocation only for naturalized citizens who commit crimes within 10 years of acquiring citizenship particularly violates these equality principles.
• 6:53
  SPEAKER_00: The legal opinion argues that creating experimental periods or consolidation phases for nationality would establish prohibited citizen hierarchies.
• 7:03
  SPEAKER_00: While Miranda and Lancero find that, quote, the state retains a real margin of legislative configuration and sometimes administrative discretion for naturalization, not mandated to create special regimes, but not forbidden either as long as constitutional and international limits are observed, and quote, they establish strict boundaries for such differentiation.
• 7:25
  SPEAKER_00: Golden Visa investors had anticipated potential advantages given recent government promises to make the program more attractive.
• 7:32
  SPEAKER_00: Cabinet Minister Antonio Leitão Amaro had pledged to enhance the Golden Visa with possible tax benefits, making the proposed 10-year timeline particularly jarring for investors who expected improved conditions.
• 7:45
  SPEAKER_00: The legal opinion warns against creating second-class Portuguese after naturalization, emphasizing that Portugal cannot establish probationary periods that would create classes of citizens subject to additional duties.
• 7:57
  SPEAKER_00: This principle protects golden visa citizens from discrimination after naturalization, though it doesn't prevent different pre-naturalization requirements if properly justified.
• 8:07
  SPEAKER_00: Felipe Eusebio, partner at Ana Bruno e Asociados, recalls previous constitutional interventions, noting that the Portuguese government once again unexplainably defies the principles of the Constitution, referencing how Miranda's 2023 opinion helped defeat similar retroactive provisions.
• 8:27
  SPEAKER_00: Miranda's intervention has already influenced the legislative timeline, contributing to Parliament's decision to postpone voting until October.
• 8:35
  SPEAKER_00: His unique position as both constitutional author and interpreter gives his opinion quasi-judicial authority that legislators cannot easily dismiss.
• 8:44
  SPEAKER_00: The professor's involvement elevates what might have been a technical legal dispute into a fundamental question about Portugal's commitment to constitutional governance.
• 8:52
  SPEAKER_00: Having spent five decades interpreting and defending the constitution he helped create, Miranda's opposition signals that the government may cross constitutional red lines.
• 9:02
  SPEAKER_00: Montero, who shared the opinion with parliament members, anticipates major changes to what is currently proposed as lawmakers confront the constitutional constraints Miranda identifies.
• 9:13
  SPEAKER_00: She emphasizes that successful reform must include a transitional regime that would allow for a gradual adjustment, protecting the expectations of citizens who relied on the previous law.
• 9:24
  SPEAKER_00: Miranda and Lancero's analysis argues that Portugal may adjust naturalization requirements, but cannot violate fundamental principles of legal certainty, human dignity, and judicial protection.
• 9:38
  SPEAKER_00: This episode first appeared as an article by Ahmad Abbas on IMIDaily.com.
• 9:43
  SPEAKER_00: Subscribe for free to the IMI newsletter for breaking news and updates from the investment migration industry.
• 9:50
  SPEAKER_00: And upgrade your membership to IMI Pro to get access to our exclusive professional community, citizenship catalog, investment migration company Rolodex, private briefings, and more members only content.