The transitional regime of the New Nationality Law for 2026 was held unconstitutional. After the parliamentary debate of 1 April, it is important to understand what has changed and what remains at risk.
Does the transitional regime of the new Nationality Law for 2026 give us an adequate solution?
When we first looked at this issue, we were concerned that the new law might enter into force without even a minimally adequate transitional regime capable of protecting pending applications.
That concern was not merely theoretical. Technically, without an adequate regime, the increase in the residence period from 5 to 10 years could directly affect applications already pending, even if they had been submitted under the regime still in force at the time. In other words, tempus regit actum.
In the meantime, the parliamentary debate of 1 April 2026 brought this particular issue to an end.
Parliament approved the removal of paragraphs 3 and 4 of Article 7 of Decree no. 17/XVII, while keeping paragraphs 1 and 2.
Put simply, the transitional regime has now been reduced to its essential core: the new law takes immediate effect upon its entry into force, but pending administrative procedures remain governed by the previous version of the Nationality Law.
This is a relevant change. But it does not solve everything.
It resolves, first and foremost, the part of Article 7 that the Constitutional Court considered unconstitutional. However, it does not create any additional window for new applications, as proposed by Livre, nor does it establish a phased transitional regime, as proposed by the Socialist Party. For that reason, the text that emerged from the parliamentary debate may ultimately prove constitutional without, for that reason alone, being materially adequate.
It is in this legal context that a highly relevant practical question arises: is it legally defensible to submit applications for acquisition of nationality by residence as soon as possible, even in situations where the 5-year period has not yet been fully completed on the date of submission?
Our answer is cautious, but clear: in certain cases, yes. We also believe that this was precisely the possibility the legislature sought to prevent when it attempted to pass the original wording of Article 7(3) and (4), which has now been set aside by the Constitutional Court.
What was at stake in Article 7
Article 7, in its original wording, contained four paragraphs serving different functions.
Paragraph 1 provided that the new law would take effect from its entry into force.
Paragraph 2 safeguarded pending proceedings by referring them back to the previous law. Doubts were raised as to the constitutionality of these provisions, on the basis that they might not be sufficient to protect the legitimate expectations of applicants, given the breadth and restrictive nature of the approved amendments. The Constitutional Court, however, did not follow that view.
The main constitutional concerns therefore centred on paragraphs 3 and 4.
Paragraph 3 stated that, even in those pending proceedings, approval would depend on fulfilment, on the date the application was submitted, of the requirements laid down in the old law. Paragraph 4 added that this rule was interpretative in nature.
It was precisely this dual option that the Constitutional Court blocked. The judgment held that the solution was innovative because, contrary to what the current regime allows, it shifted the relevant moment for assessing the legal requirements to the date of the application, rather than the date of the decision. In addition, it sought to project that solution retrospectively onto pending cases.
It is very important to understand what this means.
The Constitutional Court held that paragraphs 3 and 4 of Article 7 established, under the guise of an interpretative rule, an innovative solution designed to make the date of submission of the application the decisive moment for assessing the requirements in pending cases, thereby excluding assessment at the date of the decision, as the law currently allows. It was precisely this retrospective projection onto pending situations, frustrating expectations protected under the previous regime, that the Court found incompatible with the principle of protection of legitimate expectations.
That is why, in our view, the judgment also reveals, with particular clarity, the intention underlying the legislature’s original solution: to prevent pending proceedings from benefiting from a favourable interpretation according to which the substantive requirements may still be completed during the course of the procedure. In practical terms, and in our understanding, the aim appeared to be to prevent the mass filing of nationality applications intended to avoid the future application of a more burdensome regime.
What resulted from the parliamentary debate of April 1st
Following the judgment, the parliamentary majority opted for a simpler solution: it removed paragraphs 3 and 4 of Article 7.
If this solution is maintained, the transitional regime will consist solely of paragraphs 1 and 2. In other words, the new law will take effect upon its entry into force, but pending administrative procedures will continue to be governed by the previous law. Full stop.
This is relevant for two reasons.
The first is obvious: the attempt to freeze the legal requirements of pending proceedings by reference to the date of submission has disappeared from the text. The same will not happen with new applications for acquisition of nationality by residence. We will examine that issue more closely in the next GSN article.
The second is more important: with only paragraph 2 remaining, the old law continues to govern pending proceedings without the additional restriction the legislature tried to introduce and which the Constitutional Court censured.
The solution now approved may prove constitutional. That does not mean, however, that it is the most adequate solution.
A comparison with the rejected alternatives is enough.
Livre proposed that the new law should only take effect six months after publication, while preserving the application of the previous law to pending proceedings. That would have created an additional window for the submission of new applications.
The Socialist Party went further. In addition to protecting pending cases, it proposed extending the previous wording to persons who met the requirements on the date the new law entered into force and who initiated the procedure by the end of June 2026.
It also proposed a phased regime for residence: 6 years for those completing 5 years in 2026, 7 years in 2027, and 8 years in 2028, while keeping in force for longer the previous wording of Article 15(4).
None of those solutions was approved. The window will be extremely short. The sense of unfairness is palpable.
The new Nationality Law for 2026 and the relevant moment for assessing the legal requirements
Adequate or not, this appears to be the regime we will have to work with.
And it is precisely here that the decisive issue arises: can applications for acquisition of nationality by residence be submitted without all the legal requirements being met at the date of application?
We believe they can. But with certain reservations. Let us look more closely.
Unlike what will happen under the new law, the current wording of Article 6(1) of the Nationality Law does not say that the requirements must be fulfilled at the time the application is submitted.
That wording was introduced in the approved text, before it was struck down, specifically in relation to naturalisation. That deliberate amendment strongly suggests that the legislature intended to change the regime, rather than simply restate it. It also means that we may reasonably argue that, under the current regime, the relevant moment for assessing the requirements laid down in Article 6 is not the date of the application.
The same conclusion follows from the way the procedure is structured in the Nationality Regulation.
There is provision for summary rejection, but the Constitutional Court itself, when reading the naturalisation regime, emphasises that this operates only in relation to formal aspects.
By contrast, verification of the substantive requirements arises at a later stage, during the investigation and decision-making phase.
This is where, for example, Article 42(8) of the Regulation becomes particularly relevant, since it provides that verification of the requirements may be the subject of further steps for confirmation up to the final decision.
That is also why the Constitutional Court’s judgment was so clear in distinguishing between the moment when the application is lodged and the moment when the fulfilment of the requirements is assessed and decided.
For the Court, those moments do not coincide and must not be confused. And it was precisely because it considered that the current law allows verification at the date of the decision that it classified paragraphs 3 and 4 of Article 7 as innovative and, therefore, unconstitutional.
In our view, this is a decisive point in our interpretation.
If paragraphs 3 and 4 were innovative because they sought to make the date of application the relevant moment in older proceedings, then their removal takes us back to the starting point: the old law applies to pending proceedings and, under the old law, the relevant moment for assessing the requirements remains, as a matter of interpretation, the date of the administrative decision.
We are not saying that this argument is risk-free. We are saying something more cautious: it is legally sustainable and supported by sufficient legal arguments to be defended. Or was this not precisely the interpretation that the parliamentary majority sought to exclude?
The role of Article 15(4)
There is one further point that is highly relevant to the structure of our reading.
Article 15(4) of the Nationality Law, in its current wording, provides that, for the purposes of calculating lawful residence periods, account must also be taken of the time elapsed since the application for the temporary residence permit was submitted, provided that it is eventually granted.
The Constitutional Court’s judgment itself, when explaining the function of this provision, reads it as a mechanism for protecting the applicant against administrative inertia. It does so in a context in which it acknowledges very significant delays in the granting of residence permits.
That reading may not exactly reflect the way in which the legislature originally conceived the provision. But it is now a useful and relevant reading.
One only has to think of the unfortunately common case of someone who submitted a residence permit application years ago, waited a long time, was called for biometrics only much later and is, in the meantime, already very close to, or even beyond, the 5-year threshold that would allow them to apply for nationality if that period is taken into account.
If the original wording of Article 7(3) and (4) had been approved, any attempt to file a nationality application at that stage would have been seriously compromised, because all the requirements would have had to be met at the time of submission. Now that those provisions have been removed, that obstacle disappears.
That is why, in our view, this strategy makes sense in certain cases: filing the application as early as possible in order to secure, from the outset, two things. First, that the case is already pending on the date the new law enters into force. Second, that the current regime, including the current wording of Article 15(4), remains the legal framework applicable to that case.
What we are doing in practice and why
We are not suggesting that nationality applications should be filed indiscriminately without all legal requirements being met. That may be technically possible, but theoretically irresponsible and potentially contrary to the principles of good faith and prohibition of abuse of rights.
What we are saying is that, in the very specific context of IRN delays and the current wording of the Nationality Law, there are situations in which that risk may be rationally assumed.
In our view, the current framework is sufficiently risky to justify consideration of that strategy, especially in the following scenarios:
First, in cases where the latest renewal of the residence permit under Law no. 23/2007 has already been approved, even if the card has not yet been issued.
Second, in cases where three years have already elapsed since the residence permit application was submitted and the process is still pending. This approach will be more robust the closer the applicant is to the 5-year threshold, or where there is already an appointment or some other sign that the situation is becoming consolidated.
Third, in certain CRUE cases, which require a more case-by-case analysis, but where the stability of the right of residence and the strong probability that the legal requirements will continue to be met until the 5-year mark justify an individual assessment.
The logic is simple: if IRN currently takes, in many cases, two years or more to deal substantively with an application, then the likelihood that the 5-year period will have been completed by the time the decision is issued is significant.
That is precisely the window that, in our view, is worth trying to use.
And that is so because one thing is certain: the current regime will apply only to pending cases.
As soon as the new law is published, all new applications will be assessed in light of the new requirements.
And, unequivocally, in naturalisation cases, all legal requirements will indeed have to be met on the date of the application.
Risk, caution and minimum criteria
All of this requires caution.
There is always a risk that IRN may begin deciding cases more quickly and catch a particular application at a moment when the legal requirements are still not all in place. If that happens, the argument fails in that specific case.
That is why this strategy is stronger the closer the applicant is to the 5-year threshold at the time of submission.
That is also why compliance with the remaining requirements matters greatly.
Having already obtained the A2 Portuguese language certificate significantly strengthens the applicant’s position. At the very least, being enrolled in language classes is, in our view, the minimum acceptable threshold in many situations.
If the application is assessed before that requirement is met, the ground for refusal will be straightforward, even if the 5-year residence period has by then already been completed.
In other words, this strategy only makes sense where the risk is kept to a minimally controlled level.
That requires a serious and specialised individual assessment.
Even so, even taking into account the possibility of losing fees, or even legal fees, it may still be worth taking that risk.
That is because, in truth, even if it becomes necessary to challenge a refusal before the courts, the clock continues to run until the judicial decision is made.
The alternative is to remain entirely subject to the new regime, with more burdensome requirements and with a regulatory framework that, in several respects, does not yet even exist in operational terms.
The clearest example is the future knowledge test that is intended to be required. It is known that it will come, but it is still unclear in what exact form, and when it will actually be regulated. It is only one of several areas of uncertainty and potential bureaucratic difficulty.
Conclusion
Article 7 came out of the parliamentary debate of 1 April in a simpler form than the one with which it went in.
That is, to some extent, good news.
The provision that the Constitutional Court held unconstitutional has been removed. And, for now, everything indicates that cases pending on the date the new law enters into force will continue to be governed by the old law.
But we should not overstate the comfort of this solution.
It does not create any additional window for new applications.
It does not establish any phased transitional regime.
And it does not, by itself, solve the underlying problem created by the future entry into force of much more burdensome rules.
That is why, in our reading, it still makes sense to submit applications as soon as possible, whenever the applicant’s individual circumstances allow it with a minimum degree of safety.
The objective is clear: to ensure that the case is already pending before the new law enters into force, to benefit from the application of the old law and to maximise the likelihood that, by the time IRN decides, the 5-year period will already have been completed.
This is not a solution for everyone.
It is not blanket advice.
And it does not dispense with an individual assessment.
But, in many cases, it may be the last reasonable opportunity to litigate and try to preserve a route that the new law will make far more difficult.
If this issue affects you directly, book a meeting with us so that we can assess your specific situation.
In the coming weeks, we will return to the new Nationality Law for 2026 to analyse, in greater detail, the substantive changes that have been announced.
You may also wish to read our previous article on the changes introduced by the new Portuguese Nationality Law for 2026 regarding the criminal record requirement, updated in light of the new decree already approved.
