Potential AIMA lawsuits regarding protecting "legitimate expectations"

Residencies & citizenships Portugal Golden Visa
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I believe this is a new topic. At this point, it looks nearly certain that the new nationality law will come into force, so let’s assume that it does; also, let’s assume that the “early citizenship application” is not realistic for most people.

It seems then, that all hope for a 5 year citizenship timeline will depend on post hoc lawsuits regarding the protection of “legitimate expectations”. This is what my lawyer had to say (rather contentless):

“Antas da Cunha ECIJA maintains its position that several of the measures contained in this legislation continue to raise serious doubts as to their constitutionality, particularly in light of the principles of equality, proportionality, legal certainty, protection of legitimate expectations, and non-retroactivity of the law. Accordingly, we continue to work in close coordination with leading Portuguese law firms active in this field, in defining the most appropriate legal strategy to fully safeguard the rights and interests of our clients.”

So, that said: I am curious if anyone is in active discussions with lawyers regarding suing AIMA or the government after the new law is in effect on some legal basis of our legitimate expectations.

As far my own case, I have a biometrics appointment scheduled for June. If, in fact, the new timeline will be in effect, I don’t really want to pay the legal fees, government fees, investment fees, and tourist fees for the next 10-15 years for a “shot” at citizenship. So, I would bow out before then. If there’s a reasonably good chance that golden visa holders will prevail upon further litigation, I might stay in the game.

My bias is to just get out now and cut my losses, especially because I believe that within the next 10 years the “easy” 7 day annual stay requirement will turn into something much more demanding. It seems inevitable.

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The supreme court ruled in the review of the original law that extending the timeline for people who hadn’t already applied for naturalization is constitutional. We’re not winning that one. As with everything golden visa related, the lawyers will be happy to take your money on useless lawsuits though.

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I believe that the criteria the supreme court used to review the law itself is potentially more lenient than the law that would be applied in the case of a law suit post hoc. If there is a lawyer here perhaps they could clarify that question. But it makes sense - the supreme court would only say whether the law itself violates any part of the constitution; it may be constitutional but still not ultimately enforcable for other reasons. (I don’t disagree that, big picture, the legal community has a reasonable incentive to create false hopes and generate more fees.)

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This is what AI says - “trust but verify” I suppose - but still the question is how good the case will be: " In Portugal, there is a separate mechanism of concrete constitutional review: a person litigates an actual administrative or judicial decision in their own case, raises the constitutional issue there, and the question can then reach the Constitutional Court through the courts under Article 280 of the Constitution. That is different from a prior, abstract or preventive review of a bill."

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I don’t think you should even start out trusting.

Have you done anything to verify that claim yourself? Googled the phrase, in english or portuguese?

I think (fortunately for us, unfortunately for everyone not on an ARI) that there are expectations that the GV route is legally protected, especially with how it was marketed explicitly by the government and SEF/AIMA. Any lawsuit, I imagine, has to rest on that.

I plan to sue, if necessary, I’m not convinced the law will be promulgated though. We’ve been here before

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I’m not a lawyer, but I think it’s important to understand that legal concepts like “legitimate expectations” or “presumption of innocence” still may not be favorably implemented.

For example, I suspect what most of us want is EU citizenship more than Portuguese citizenship. But what if Portugal still granted you citizenship in five years but voted to leave the EU? Do you think your legitimate expectations can be used to override the results of a referendum?

Or, what if Portugal instituted worldwide income and wealth taxes for citizens? Should you be exempted from the new taxes because you wouldn’t have naturalized had you known this?

Point is, the concept will only protect you so far.

I think there’s a strong case to credit the delays towards citizenship requirements. There is clear harm, a clear culprit, and the remedy is straightforward. It should be easy to convince a court that the proposed remedy is exactly what would’ve happened if the government handled the applications promptly.

I think grandfathering is a much harder point to argue for under law (as opposed to politics or morality†). The government may have put the “five years” clause down as a bullet point on some web page, but let’s be honest: any such thing has always been implicitly subject to changes in law. So we’d basically be arguing that they should’ve put an asterisk on that line to clarify that the law could change in the future, and for that error the remedy is to exempt us from new laws!

Furthermore, it’s universally understood that a government cannot bind a future government, for good reasons. So even if the government that had written that line meant it as a promise, nobody could expect to legally hold a future, different government to that promise.

Again, not a lawyer, and I’d love to be wrong about this, but maybe temper your expectations.

† Politics: reneging on deals will have a chilling effect on foreign investments. Morality: it’s wrong to do that to people who complied with the rules in good faith.

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