In the words of Jules Lepoutre (2020) from the Université Côte d’Azur, LADIE, France, in his research paper entitled: When Losing Citizenship Is Fine. Denationalisation and Permanent Expatriation, the following observations arise:
“Over the last few decades, only a few studies have assessed denationalisation as a way of terminating ‘obsolescent’ citizenship resulting from the long-term emigration of an individual. This mode of loss of citizenship seems prima facie more legitimate than citizenship revocation as a means of punishment, as it only represents the legal recognition of the disappearance of a genuine link between an individual and a state.” (Lepoutre, 2020).
Moreover, Lepoutre (2020) has concluded that: “The loss of citizenship of permanent expatriates thereby becomes part of a democratic theory linking habitual residence with possession and conservation of citizenship, with due respect for human rights principles.”
According to the Portuguese Nationality Act, Law 37/81, of 3 October, Consolidated version, as amended by Organic Law 2/2006, of 17 April:
Article 1 provides for:
Nationality by origin -
“1 “ Portuguese by origin are:
a) The children of a Portuguese mother or father born in Portuguese territory;
b) The children of a Portuguese mother or father born abroad if the Portuguese parent is there serving the Portuguese State;
c) The children of a Portuguese mother or father born abroad if they have their birth registered at the Portuguese civil registry or if they declare that they want to be Portuguese;
d) The persons born in Portuguese territory to foreign parents if at least one of the parents was also born in Portugal and resides here, irrespective of title, at the time of birth;
e) The persons born in Portuguese territory to foreign parents who are not serving their respective State, if they declare that they want to be Portuguese and provided that one of the parents has legally resided in Portugal for at least five years at the time of birth;
f) The persons born in Portuguese territory who do not possess another nationality.
2 “ Save proof to the contrary, the newly-born infants found abandoned in Portugal are presumed to have been born in Portuguese territory.”
Chapter III of the Portuguese Nationality Act provides for the: ‘Loss of nationality’:
Article 8 envisages:
Declaration pertaining to the loss of nationality -
“Portuguese nationality is lost by any person who, being a national of another State, declares that he or she does not wish to be Portuguese.”
The most relevant Article in the Portuguese Nationality Act would be Article 9 which prescribes that:
Article 9: Grounds for opposing the acquisition of Portuguese nationality are:
“a) The lack of effective ties with the national community;
b) The conviction of a crime punishable under Portuguese Law with imprisonment up to a maximum equal to three years or more;
c) The exercise of public functions without a predominantly technical nature or the rendering of non compulsory military service in a foreign State.”
Therefore, according to the study conducted by Bauböck and Paskalev (2015) entitled: Cutting Genuine Links: A Normative Analysis Of Citizenship Deprivation, in their words:
“The power of States to deprive citizens of their status was historically strong and nearly universally acknowledged. Since the Second World War, this power has been constrained in liberal democracies by the international duty to prevent statelessness and by domestic standards of rule of law. Nevertheless, these constraints have not amounted to a wholesale abolition of the power” (Bauböck & Paskalev, 2015).
Lepoutre (2020) has concluded that: “the 1961 Convention on the Reduction of Statelessness formally authorises states to revoke nationality in specific situations of residence abroad, even if it results in statelessness. This demonstrates the consensus within the international society in favour of this mechanism. Only the 1997 European Convention on Nationality prohibits this mode of loss of nationality in case of statelessness but expressly specifies that loss of nationality in case of residence abroad is a legitimate option for European states.” (Lepoutre, 2020, p. 13).
But the silver-lining needs to also be cited, and in the same work Bauböck and Paskalev (2015) examined whether European Union (EU) citizenship provides additional reasons for protection against Member States’ powers of citizenship deprivation.
Bauböck and Paskalev (2015) suggested that, in addition to fundamental rights protection through EU law and protection of free movement rights, three further arguments could be invoked: toleration of dual citizenship in a political union, prevention of unequal conditions for loss among EU citizens, and the salience of genuine links to the EU itself rather than merely to one of its Member States.
Accordingly, Bauböck and Paskalev (2015) concluded that:
“Dual citizenship between Member States of a political union should be tolerated even by those States that prohibit it when involving third countries; grossly unequal conditions of loss of Union citizenship undermine the equality of the status itself; and EU citizens may be protected against involuntary loss by their genuine links to the EU itself.”
The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences
