The Constitutional Court blocked key parts of the proposed reform of the Nationality Law. In this article, we look at what may result from the new nationality law in 2026.

The Constitutional Court blocked key aspects of the proposed amendment to the Nationality Law.

In this article, we will look at what may result from the new nationality law in 2026.

Work on the new nationality law for 2026 is expected to resume in April 2026, following the Constitutional Court’s preventive review of its constitutionality on 15 December 2025.

GSN will examine this topic in three sequential articles.

• In this first article, we analyse the first major issue examined by the Constitutional Court: the relevance of a criminal conviction as grounds for refusing the acquisition of nationality by residence.
• In the second article, we will analyse the other central issue examined by the Constitutional Court: the temporal application of the law. More specifically, it is important to understand which rules apply to pending cases: those of the current law or those of the new law.
• In a third section, we will look at the most relevant aspects of the new nationality law for 2026 that were not at issue in the constitutional review and which may therefore end up being consolidated when the legislative work resumes.

And that is not good news.

Among other things, everything suggests that the period required to acquire nationality by residence really will increase from 5 to 10 years.

With that framework in mind, we should now look at Article 6(1)(d) of the current law (paragraph (f) in the proposed wording), in order to understand exactly how the existence of a prior custodial sentence serves as grounds for refusing naturalisation by residence.

 

What does the current law provide in Article 6 on this point?

Under Article 6(1)(d), the Nationality Law requires that the applicant must not have been convicted, by a final judgment, and sentenced to imprisonment of three years or more, for an offence punishable under Portuguese law.

So this is not a new issue introduced by the new nationality law for 2026.

 

That requirement already exists under the current law.

To show that this requirement is met, the applicant must submit criminal record certificate(s).

Those certificate(s) must not disclose a conviction, by final judgment, resulting in a prison sentence of three years or more, for an offence punishable under Portuguese law.

Where such a conviction exists, the law treats it as a negative requirement for naturalisation and the application is refused.

It is precisely in this automatic effect that the constitutional problem lies.

One thing is to accept that the applicant’s criminal history may be legally relevant.

Quite another is to turn that fact into a legal ground for refusal that operates automatically, with no real room to weigh the specific circumstances of the case.

 

What the New Nationality Law 2026 sought to change

The proposal approved under the new Nationality Law for 2026 did not remove this requirement. On the contrary, it made it stricter.

In the new wording of Article 6(1)(f), the legislature required that the applicant must not have been convicted, by a final judicial decision, and sentenced to imprisonment of two years or more, for an offence punishable under Portuguese law.

The amendment is simple to state.

Current law: Article 6(1)(d) → threshold of 3 years;
Proposed wording: Article 6(1)(f) → threshold of 2 years.

But the legal and practical effect would have been much broader.

By lowering the threshold from three years to two, the new nationality law for 2026 would very significantly expand the range of situations in which naturalisation could be refused.

In fact, it would begin to cover cases that, in themselves, hardly reveal any real break with the national community, such as a conviction for negligent grievous bodily harm in a clinical context or for breach of planning rules.

Moreover, it preserved the same structural problem: the conviction would still be used automatically as a legal ground for refusal.

That is precisely why this amendment was brought before the Constitutional Court.

 

Preventive review and subsequent review

Before turning to the substance of the decision, it is worth drawing a simple distinction.

In preventive review, the Constitutional Court examines the rule before it enters into force.

That is what happened here. After parliamentary approval, which was possible in the current context of a right-wing majority, a group of 50 Members of Parliament sent the bill to the Constitutional Court for review.

In this setting, the Court rules on all or some parts of the bill before it enters into force and is applied.

In subsequent review, the issue arises after the rule is already in force and has been applied in a specific case. That happens, for example, when an applicant sees their nationality application refused, challenges that decision, and the constitutional issue reaches the courts.

This distinction is decisive.

The problem of criminal convictions in the acquisition of nationality did not begin with the new nationality law for 2026.

Long before this proposal, the Constitutional Court had already been examining, through subsequent review, the application of Article 6(1)(d) — the existence of convictions resulting in custodial sentences — as grounds for refusing the acquisition of nationality or for opposing its acquisition.

In other words, by the time the new nationality law for 2026 reached the Constitutional Court by way of preventive review, this was not new ground. Constitutional case law had already been developing a clear line on this issue since at least 2019, particularly in Judgment No. 497/2019 of 26 September.

 

New Nationality Law 2026 and the Court’s earlier case law

The essential point in the constitutional case law is this: a criminal conviction may be a relevant factor, but it cannot automatically produce a negative civil effect without an assessment of the specific case.

That is precisely what the Constitutional Court had already been saying in earlier decisions on this issue.

Indeed, when reviewing the bill, the Constitutional Court is quite emphatic in stressing that, although part of the earlier case law concerned the wording of the law before the 2015 amendment, that is, when the law moved from the abstract statutory penalty to the applicant’s actual conviction, the constitutional issue remains the same.

The logic is simple.

Nationality is not an ordinary administrative benefit.

It is linked to the fundamental right to citizenship.

Therefore, any restriction must comply with the Constitution, namely the principle of proportionality and the prohibition on automatic effects of criminal penalties.

This is where Article 30(4) of the Constitution comes in.

That provision states that no penalty shall automatically entail the loss of any civil, professional or political rights.

Now, when the law makes refusal of nationality depend automatically on a criminal conviction, there is a risk that the criminal penalty is turned into an indirect mechanism for depriving someone of a civil right.

That is what the Constitutional Court had already been criticising in subsequent review. And that is what was again at stake in the preventive review of this amendment.

 

What the Constitutional Court has now decided

In its preventive review of the new nationality law for 2026, the Constitutional Court held unconstitutional the new rule that made naturalisation depend on the absence of a conviction for an offence punishable by a prison sentence of two years or more.

In essence, the Court considered the solution unconstitutional for two main reasons.

First, because it linked the criminal conviction to refusal in an automatic way.

Second, because such a conviction, in itself, does not allow one to conclude, in every case, that the applicant lacks an effective connection with the national community.

This second point is very important.

The Constitutional Court did not say that the applicant’s criminal history is irrelevant. What it said was different: a criminal conviction, taken in isolation, is not enough to demonstrate a lack of integration into the Portuguese community.

And that conclusion becomes particularly clear when the threshold is lowered to two years, thereby covering a much broader range of situations, many of which are poorly suited to revealing any genuine break with the national community.

In simple terms, the new nationality law for 2026 sought to turn a criminal conviction into a shortcut for refusing nationality. The Constitutional Court said that this shortcut is not constitutionally admissible.

 

What follows from this decision

The immediate consequence is clear: the amendment lowering the threshold from three years to two cannot move forward in the form in which it was approved.

But the underlying issue does not disappear.

Formally, the current three-year rule remains in force.

This now creates a difficult situation for the legislature.

The first option is straightforward: the Government drops the amendment and keeps the current regime.

But if that happens, an obvious problem remains. The constitutional logic used by the Court to block the new solution also reinforces the fragility of the automatic mechanism that still exists in the current law.

The second option is to create a new regime without automatic effect.

In theory, that solution could be more constitutionally compliant. In practice, however, it carries serious risks.

 

The risk of case-by-case assessment without clear legal boundaries

If the criminal conviction ceases to operate automatically and instead has to be assessed case by case, the legislature will have to define criteria.

And that is where another problem begins.

Without clear statutory boundaries, the new nationality law for 2026 may open the door to an excessively subjective admiistrative assessment.

That means, first of all, that two very similar cases may receive different outcomes — much like the chaos once experienced in nationality by marriage cases before the 2017 amendments, as you can read here and here.

It also means that the Administration would have to carry out complex assessments regarding the weight of each conviction, the type of offence, the statutory framework, the effective execution of the sentence, the time elapsed, the applicant’s reintegration, and their current connection with the national community.

In an administrative system already under pressure from delays and a high volume of cases, this kind of case-by-case assessment is a nightmare.

And there is more.

An overly open-ended solution may create room for arbitrariness. It may open the door to bias. It may encourage readings shaped by prejudice, xenophobia, or unarticulated criteria that are not properly controlled.

Finally, although all this may in theory be corrected by the courts, the truth is that subsequent judicial review is far from fast or effective enough to function as a mass corrective mechanism.

In nationality and immigration matters, that is especially clear.

 

Conclusion

The first major lesson from the Constitutional Court’s review of the new nationality law for 2026 is this: a criminal conviction cannot, without more, operate as an automatic mechanism for excluding naturalisation.

At the same time, the decision leaves the legislature facing a real problem.

If it keeps the current regime, it will continue to live with a rule whose constitutionality may still be challenged before the courts. If that path continues, it may lead to a declaration of unconstitutionality with general binding force, which would invalidate the rule retroactively.

However, if the legislature creates an alternative regime without automatic effect, it risks opening the door to a subjective, uneven, burdensome and highly contentious model.

That is the tension that will shape the legislative work when the new nationality law for 2026 returns to the table in April 2026.

 

In our view,

The Government will likely try to put forward a model based on subjective assessment.

The political intention of this Government and its allies is to generate confusion and make the exercise of civil rights more difficult.

An abstract, case-by-case — and constitutionally compliant — model (the core issue, it should be recalled, is the application of an automatic rule combined with the specific context of criminal conviction) would fully serve that purpose.

That is not good news.

For anyone.

Nor would it be surprising in the present context.

 

We will continue to follow it closely.

 

In the next article, we will analyse the second key issue examined by the Constitutional Court: the temporal application of the law and the regime applicable to pending cases.