Portuguese nationality for descendants of Sephardic Jews

Administrative and Fiscal Court of Porto declares for the first time the unconstitutionality of changes introduced to the Portuguese nationality regime for descendants of Sephardic Jews through Decree-Law No. 26/2022, March 18th

For the first time, a Portuguese court has deemed certain provisions of the Nationality Law unconstitutional regarding Portuguese nationality by naturalization for descendants of Sephardic Jews, thereby establishing a significant precedent on this matter.

Portuguese nationality for descendants of Sephardic Jews

The Nationality Law allows descendants of Sephardic Jews to apply for Portuguese nationality by demonstrating a tradition of belonging to a Sephardic community of Portuguese origin. However, since September 2022, it has become necessary to also prove effective connections to the Portuguese community.

According to Article 24-A, paragraph 3, letter d) of Decree-Law No. 26/2022, it is only possible to apply for nationality if the applicant meets one of the two criteria below:

1. Ownership, transmitted mortis causa, of real rights over properties located in Portugal, other personal rights of enjoyment, or equity interests in commercial or cooperative societies based in Portugal
2. Regular visits throughout the life of the applicant to Portugal, demonstrating an effective and lasting connection to Portugal.

First decision on the unconstitutionality of requirements established by the Nationality Law Regulation

After several criticisms directed at the manner in which these new requirements were implemented, on December 12th, 2023, the Administrative and Fiscal Court of Porto decided for the first time that the Government exceeded its powers and lacked the authority to do so in drafting the Decree-Law that regulates the Nationality Law.

As decided by the court, “the matter of nationality is reserved for the law and, therefore, the choices of the Assembly of the Republic, not allowing the introduction of sources other than the law”.

In light of this, Article 24-A, paragraph 3, letter d) of Decree-Law No. 26/2022 was considered unconstitutional by the court since the regulation of nationality and its substantive rules are exclusively within the competence of the Assembly of the Republic. Therefore, substantive nationality rules can only be amended through a law, not through a Decree-Law.

What this decision is important?

This decision, concerning a specific case of a Portuguese Sephardic Jew descendant held hostage by Hamas, could have implications for various other cases.

It constitutes the first precedent in this matter alleging the unconstitutionality of the provisions of Decree-Law No. 26/2022. With the unconstitutionality of the provision declared, those interested in applying for Portuguese nationality through the descent of Portuguese Sephardic Jews will be exempt from proving the requirements of Article 24-A, paragraph 3, letter d).

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