Some Portugal Golden Visa Investors Aren’t Getting Citizenship in Year 5 Despite Meeting Presence Requirements

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First heralded with the change in the Nationality Law in 2017 and confirmed as viable with the first successful cases in 2018, the route to Portuguese citizenship on the basis of spending the minimum mandated 35 days over five years and mastering an A2 level of Portuguese has become a leading competitive advantage for the program. 

Spend seven weeks in the country over the initial five-year period, learn how to order a beer at a restaurant, and you’ll get citizenship. That has been the conventional wisdom and the basis for marketing that compares Portugal’s golden visa favorably to those of Greece, Spain, and Malta. 

We have previously confirmed, with several local lawyers, that many golden visa investors have indeed obtained citizenship upon fulfilling the minimum presence and language requirements. 

Earlier this year, however, we began hearing disconcerting whispers about rejections of such cases. We have now confirmed with two separate sources that some golden visa investors are getting their applications for naturalization in year five rejected, despite having spent the necessary 35 days in the country (and not much more) and having reached the stipulated level of Portuguese proficiency. 

Why are they getting rejected?

Here’s what our local legal sources are telling us:

Matters of naturalization in Portugal are governed by the Nationality Act and its attendant regulations.

For our purposes, the salient changes to the Portuguese Nationality Act in 2017 were two-fold:

• The number of years of residency required before becoming eligible for citizenship was reduced from six to five years; and
• The requirement for prospective citizens to demonstrate a “connection” to the Portuguese community was removed.

Following the amendments to the Nationality Act, the regulations were expected to change as well, to reflect the legal alterations. Corresponding changes to the regulations, however, have yet to materialize. 

While the nationality act says that anyone who has been a lawful resident in Portugal for five years is eligible for citizenship (golden visa-based residence is lawful residence), the regulations of the nationality act additionally stipulate that the applicant should have a “connection” to the Portuguese community.

Prior to 2017, the burden of proving a connection to the community lay on the citizenship applicant. Now, however, it is up to the state to prove that the applicant does not have a connection to Portugal.

The connections requirement has historically not been applied in most non-investment based naturalization cases – such as naturalization by birth, marriage, or after long-term employment in the country – because the connection in such cases tends to be self-evident (e.g. you have a Portuguese parent or wife or you’ve worked for a local company for many years). For golden visa investors, however, such ties are not typically self-evident. 

Naturalization applications are first screened by the Central Registry Office. If everything looks good, it’s sent to the Ministry of Justice for final approval. Both entities can refuse your application. In case of refusal, you can either:

• Contest the decision in court; or
• Re-apply

As mentioned, the golden visa investor doesn’t need to prove connections. The burden is on the state to prove that the GV investor does not have connections to the Portuguese community. Disproving a negative (i.e. Hitler did not die in the bunker but lived out his days in Argentina) is a notoriously more difficult task. If the applicant does absolutely nothing to demonstrate links to Portugal, however, some judges nonetheless interpret that to indicate that zero links between the applicant and the country exist and use this as a basis for denying the naturalization application. 

It is likely that certain judges, empowered to employ their personal interpretation of vaguely phrased regulations, give golden visa-based naturalization applicants additional scrutiny, particularly if they object to the practice, which many in Portugal do. 

Such rejections, which remain rare, run counter to what the legislation actually prescribes. Luckily, preventing rejection is not difficult.

What can applicants and their advisors do to mitigate this and reduce the risk of rejection?

First, take the initiative to forge some plausible links. Remember, the burden is on the state to disprove that you have connections. The law does not explicitly define “connections,” which leaves room for a great deal of interpretation.

But if you don’t lift a finger to show connections, the risk of rejection is elevated. Take a page from the old Malta IIP playbook: Join a local association, buy season tickets to Benfica games, register a local business, spend more time than the bare minimum in the country, etc. Substantiate your argument. Don’t make it easy for a judge to reject your naturalization case.

One local lawyer who has successfully helped many golden visa investors naturalize says she tells her clients they should “do something each time they come to Portugal. Go to an exhibition – and keep the stub. Make a donation to a local cause. Get a gym membership and a library card, and get a Portuguese driver’s license. In our experience, those pieces of evidence, in aggregate, are sufficient to demonstrate ties. We can be super-creative here. The law does not demand that the applicant live in Portugal. We have had many successful cases because the citizenship application is a document-based application; there’s no interview. So, if you provide plenty of documentation of your ties to Portugal, neither the registry office nor the Ministry of Justice will have reasons to object”.

Yes, golden visa investors can and do get citizenship in Portugal after five years, even if they spent only a few weeks in the country over that period and mastered only basic Portuguese. But they must still make the case that they have some connection – however tenuous – to the country, or risk an unpleasant judgment from a finicky official.