Folks, I spent a couple of hours researching the topic using Claude Research and ChatGPT deep research with manual verification of original articles. At first I got encouraging results, given the retrospective clauses and the law regarding reasonable expectations. But the reality appeared much more nuanced.
First, for the reasonable expectation law there is a set of criteria where all of them need to be satisfied, and it seems we check 3 out of 4 confidently. The 4th is debatable and could be argued in a court.
Second, and the most important one, is that the definition of a acquisition of nationality by naturalization is not considered a fundamental right under Portuguese law, but a legal benefit, therefore eligibility for protection is questionable and would be argued in court. I’ll keep digging into that, as I recall there were some lawsuits last year around benefit vs right thingy.
The most thorough report I got was from ChatGPT, I’ll hide it below.
So for now, the summary is that it’s far from being streightforward and outcomes are not guaranteed in the court, unfortunately.
Summary
Impact of Portugal’s 5-to-10 Year Nationality Law Amendment on Golden Visa Investors
Context: Proposed Nationality Law Change (2025) and Golden Visa Holders
In June 2025, Portugal’s new government approved a draft law to amend the Nationality Law (Lei da Nacionalidade), doubling the general residency requirement for naturalization from 5 years to 10 years for most applicants (and to 7 years for nationals of Lusophone CPLP countries). This change, once enacted, will apply retroactively to naturalization requests filed on or after 19 June 2025, per the proposed transitional provisions. Under current law (Law No. 37/81, as amended), a foreigner may apply for Portuguese citizenship after 5 years of legal residency. Golden Visa holders (beneficiários de Autorização de Residência para Investimento, ARI) invested substantial funds in Portugal under that 5-year rule, expecting to become eligible for citizenship after five years of residency. The question is whether these investors have any legal protection – under Portuguese constitutional principles or EU law – against the new 10-year requirement being applied to them without a favorable transitional regime.
Portuguese Constitution: Article 2 and Proteção da Confiança (Legitimate Expectations)
Article 2 of the Portuguese Constitution enshrines Portugal as a “Estado de direito democrático” (democratic rule-of-law state). From this fundamental principle of the rule of law, the Constitutional Court has derived sub-principles of legal certainty (segurança jurídica) and the protection of legitimate expectations (proteção da confiança). In essence, the State must respect a “mínimo de certeza e de segurança” (minimum of certainty and security) in legal relationships and in the expectations it creates for individuals. Laws or state acts that arbitrarily or intolerably frustrate legitimately created expectations can violate Article 2.
Over decades of jurisprudence, the Constitutional Court has developed a test for when a legislative change violates legitimate expectations. In a leading case (Acórdão 287/90, later reaffirmed), the Court held that all of the following conditions must be met for a breach of the confiança principle:
-
Legitimate, justified expectations: The state, through its laws or conduct, must have engendered in the affected individuals an expectation of regulatory continuity. The expectation must be reasonable, lawful, and founded on solid grounds (expectativas legítimas, justificadas e fundadas em boas razões).
-
Unpredictable change: The legislative change must represent a surprising disruption – a “mutação da ordem jurídica com que (…) os destinatários não possam contar razoavelmente”. In other words, the change could not have been reasonably anticipated by those who planned their affairs under the old law.
-
Reliance with life plans or investments: Those holding the expectation must have made decisions or investments in reliance on the continuation of the prior legal regime (“os privados ter feito planos de vida tendo em conta a perspetiva de continuidade” do regime anterior). The more substantial and irrevocable the reliance (e.g. long-term investments), the weightier the expectation.
-
No overriding public interest: Finally, there must be no prevailing public interest that justifies the legal change despite the harm to individual expectations. Even a legitimate expectation can be overridden if the change is required to protect other constitutional values or an imperative public interest, provided the measure is proportional. The Court will balance the private reliance interests against the public aims of the new law in a proportionality analysis.
Only if all four criteria are satisfied will the Constitutional Court deem that proteção da confiança was violated. Notably, the bar is high: the Court often emphasizes that these “strict criteria” were developed for situations of mere prospective expectations, as opposed to acquired rights already fully formed or exercised. In cases of “direitos já completamente formados” (vested rights), legal changes are subject to even stricter scrutiny, but when only a future opportunity is at stake, the individual’s claim is weaker.
Application to Golden Visa investors: Holders of ARI Golden Visas likely have a strong argument that the State induced a legitimate expectation: the government created the Golden Visa program to attract investment, openly advertising the benefit that investors could seek citizenship after 5 years of residency. Indeed, this 5-year naturalization rule was set by law (and even shortened from 6 to 5 years by a 2018 amendment, signaling a favorable trend for investors). Many investors structured their affairs and committed capital (often €500,000 or more) relying on that legal framework. In Constitutional Court terms, the State “encetou comportamentos capazes de gerar… ‘expectativas de continuidade’” in these individuals; their expectation of a 5-year path to citizenship was prima facie legitimate and justified. Furthermore, these investors can demonstrate concrete reliance: they made long-term financial investments and relocation decisions based on the prospect of obtaining Portuguese (and thus EU) nationality for themselves and their families after five years – a classic case of life planning around an existing law.
However, the critical question is whether forcing Golden Visa holders to meet a 10-year residency period (without an adequate grandfathering or transitional regime) amounts to an “intolerable, arbitrary” frustration of their expectations, or whether it will be deemed constitutionally acceptable in light of countervailing public interests. Several factors weigh in the analysis:
-
Nature of the right involved: The acquisition of nationality by naturalization is not considered a fundamental right under Portuguese law, but rather a legal benefit granted under conditions set by the legislature. The Constitutional Court recently underscored this in its February 2024 decision on the (somewhat analogous) tightening of the Sephardic Jewish descendent naturalization regime: “A aquisição da nacionalidade […] é uma opção legal e não pode ser considerada uma forma de exercício de qualquer direito, liberdade ou garantia”, i.e. there is no inherent constitutional right to be naturalized. In that case, the Court emphasized “we cannot even speak of the existence of a legal right” to naturalization; it is within the legislator’s discretion. This diminishes the strength of any individual claim – a Golden Visa holder’s interest in a faster citizenship timeline, however important to them, is not a protected fundamental right under the Constitution, but a statutory expectation subject to change. Accordingly, the constitutional protection of their expectation is “less robust” than it would be for a vested right.
-
Public interest cited: The government justifies the law as strengthening the requirement of “effective connection” to the national community, in order to uphold the value of Portuguese citizenship. Officials described the change as ensuring a “genuína, robusta, duradoura ligação” of new citizens to Portugal, after a period of what they called “uncontrolled immigration” in recent years. In constitutional terms, this corresponds to a public interest in safeguarding the integrity of the political community and the principle that nationality should not be obtained too easily or without sufficient integration. The draft law also contains related measures (language and civics tests, ending the jus soli for short-term residents’ children, etc.) aimed at tightening nationality criteria. These objectives – ensuring new citizens have real ties and limiting abuse of immigration pathways – are “constitutionally protected interests” the legislature may prioritize. If challenged, the State will argue that these interests are weighty enough to justify even a serious disruption to individual expectations. The Constitutional Court’s doctrine indeed allows the legislator a “margem de livre conformação” (broad leeway) in defining nationality law policy, so long as the core of rule-of-law principles are not flouted.
-
Foreseeability of the change: Another key element is whether investors reasonably could have anticipated this change. The principle of confiança does not protect expectations in the face of foreseeable legal evolution. In the Sephardic naturalization case, the Court found that tightening that exceptional regime was expected and publicly debated, so applicants could not claim surprise. For Golden Visas, it can be argued that as early as 2023 there were political signals: the previous government had already moved to phase out Golden Visa property investments, and opposition parties (now in power) campaigned on stricter immigration and nationality rules. The new Government publicly announced its intent to lengthen the residency requirement in Parliament and in its program, prior to actually approving the bill (indeed the law’s retroactivity to 19 June 2025 is justified by the fact that the Prime Minister and Minister had revealed these plans in Parliament on 18 June). Thus, by the time the Council of Ministers formally adopted the proposal, the possibility of a 10-year rule was known. However, from the perspective of an investor who entered the program 2–5 years earlier, such a drastic doubling of the timeline may not have been foreseeable. The nationality law had been stable (or becoming more liberal) for years; a sudden reversal to a 10-year term is unprecedented in recent history. This point could be argued both ways: the State will say the change was a political platform openly signaled (hence predictable), whereas investors may claim they could not reasonably foresee such a fundamental policy shift when they committed their funds.
-
Transitional provisions (or lack thereof): Crucially, the proposed law itself does include a transitional rule – but one that is cut-off rather than grandfathering. It provides that the new 7/10-year requirement applies to all naturalization procedures initiated on or after 19 June 2025, while procedures already initiated before that date (and meeting the then-required 5 years of residence by that time) may proceed under the old 5-year rule. In other words, no special exemption is given to Golden Visa investors who had not yet filed for nationality by the cutoff date. If an investor reached 5 years of residency in, say, July 2025 and had been planning to apply then, they are out of luck – they must now wait until 10 years. The only persons “protected” are those who already filed (and qualified) under the old law by 18 June 2025. This retroactive cutoff was intentionally set to prevent a rush of last-minute applications.
The lack of a more generous transitional regime (such as grandfathering all those who already held ARI residence permits under the old expectations) might be challenged as an unfair and disproportional disruption of trust. The Constitutional Court has stated that, when examining a potential confiança violation, it will consider “se era ou não necessária e indispensável uma disciplina transitória, ou se esta [a que foi adotada] regulou, de forma justa, adequada e proporcionada, os problemas decorrentes da sucessão de regimes”. In plainer terms: Was a transitional scheme needed to protect legitimate expectations, and if so, has the legislature crafted a fair and proportional one? Here, one could argue a more nuanced phase-in (for example, letting current Golden Visa residents naturalize after 5 or perhaps 7 years, while applying 10 years only to new entrants) would better respect the trust those investors placed in the Portuguese legal regime. The petition signed by thousands of Golden Visa investors urging Parliament to include a regime transitório for them underscores this reliance interest (though that petition has no legal force).
Likely Constitutional Outcome: Based on past judgments, the Portuguese Constitutional Court is inclined to uphold such legislative changes, provided they are not flagrantly arbitrary. In Acórdão 128/2024, which reviewed the new transitional rules for Sephardic Jewish descendant naturalizations, the Court by majority rejected the President of the Republic’s concerns that those changes violated Article 2. The Court concluded that the transition clause (imposing new connection requirements on pending applications) “não fere as expetativas legítimas dos requerentes da nacionalidade, nem […] viola o princípio da proteção da confiança, ínsito ao […] artigo 2.º da Constituição”. It decided that the applicants’ reliance interests were not unduly harmed, given the foreseeability of the legislative tightening and the fact that nationality is a discretionary conferment. In that case, the legislature had at least some transitional arrangement (it did not invalidate pending applications, but added extra criteria), and the Court found it proportionate. By analogy, for the Golden Visa situation the Court could rule similarly: that naturalization after five years was never a guaranteed right, and that extending the wait to ten years – though disadvantageous – does not reach the level of “intolerable” disruption of trust in light of the public interest.
On the other hand, there is a conceivable argument that doubling the required residency mid-stream for those who already invested is an “excessive, inadmissible or intolerable” retroactive effect on legitimately founded expectations. If a particular investor or group could show extremely substantial hardship caused by the change, and that they never would have invested had the rule been 10 years, a sympathetic court might find a violation of trust. But Portuguese constitutional jurisprudence sets a high threshold: it tends to uphold even retrospective economic laws unless the individual harm is truly egregious and no strong public rationale exists. Here the State’s rationale (protecting the value of citizenship and national identity) is fundamental and likely to be deemed “constitutionally prevalecente” (paramount) over the investors’ economic interests. Moreover, since the law does not strip anyone of Portuguese nationality already granted (it only delays eligibility), it might be viewed as a permissible policy adjustment within legislative discretion.
In summary, Portuguese constitutional law does not outright forbid applying the 10-year rule to current Golden Visa holders, though it provides a framework to assess fairness. The proteção da confiança principle could support an argument for a friendlier transitional regime, but the ultimate question is one of proportionality. Given the indications from case law, the Constitutional Court would likely uphold the new 10-year requirement as long as the basics of due notice and non-retroactivity in the strict sense are observed (which the cutoff date handles). There is no express constitutional obligation that the Government must grandfather existing investors under the old 5-year rule – that is a policy choice left to the legislature’s judgment, subject only to the loose constraint that it not be manifestly arbitrary. If Parliament enacts the law without special exceptions for Golden Visa holders, a constitutional challenge by those investors “provavelmente não terá provimento” (likely will not succeed).
EU Law Considerations: Limited Protection for Nationality Expectations
Lastly, we consider whether EU law or principles offer any recourse for these investors. In general, questions of naturalization and citizenship are reserved to Member State competence. EU treaties establish that Union citizenship is derivative of holding a Member State’s nationality: “é cidadão da União qualquer pessoa que tenha a nacionalidade de um Estado‑Membro”, and nationality is defined by national law. The EU has no direct legal requirement for Portugal to maintain a 5-year citizenship track for investors. Indeed, the EU’s stance in recent years has been to tighten or discourage “golden passport” schemes, not to protect investors’ interests in them. While a Member State must exercise its nationality-law competence with due regard to EU law (for instance, not discriminating on prohibited grounds, and not arbitrarily stripping persons of EU citizenship once conferred), there is no EU fundamental right to a particular naturalization timeline.
Could the investors invoke the EU principle of legitimate expectations or legal certainty? The EU legal order does recognize those principles, but primarily in the context of EU institutions or implementation of EU legislation. Here, Portugal’s nationality law change is a unilateral sovereign act in a domain not harmonized by EU law. No EU directive or regulation governs how long a third-country national must reside before citizenship – this remains a purely national rule. Therefore, EU bodies like the Court of Justice would likely consider it outside their purview, as long as the new rules do not infringe specific EU-law rights. In this case, the investors do face a longer wait for an EU passport, but they retain their acquired Portuguese resident status and related rights, and no EU-law right is being removed. Importantly, unlike some situations in which EU law intervened (e.g. the Rottmann case, which dealt with loss of nationality leading to loss of EU citizenship), here we are dealing with delay of a prospective benefit, not deprivation of an acquired status.
One could argue (creatively) that drastically changing the conditions after inducing cross-border investments might implicate the free movement of capital (Article 63 TFEU), since many Golden Visa investments involved moving capital into Portugal under expectations of certain benefits. However, this argument would be tenuous. The nationality requirement change is a general condition and is nationally uniform – it does not discriminate against investors of any particular country, nor does it prevent them from withdrawing or reallocating their capital. EU institutions have not suggested that altering naturalization timelines violates any free movement principles. To the contrary, the European Parliament has warned against too lenient investor citizenship programs as potential security and money-laundering risks. Thus, it is hard to see an EU-law hook for these investors to challenge the Portuguese amendment.
In conclusion, EU law offers essentially no avenue of relief for Golden Visa investors in this scenario. Nationality policy is for Portugal to decide, and the EU’s general legal principles (legitimate expectations, proportionality, non-retroactivity) are enforced primarily through the Portuguese courts in this context, not through any separate EU oversight. The investors’ best legal arguments lie in the Portuguese constitutional principles discussed above. But if those arguments do not prevail domestically, EU forums are unlikely to provide an additional remedy. In practical terms, unless the law is softened politically (for example, Parliament could yet introduce a cláusula transitória to grandfather certain in-process investors), these Golden Visa holders will be bound by the new 10-year rule. They can take some solace that the change, though disadvantaging their plans, has been enacted in a manner the Constitutional Court considers respectful of the rule-of-law minima – the law was announced in advance, not applied retroactively to filed applications, and pursues a legitimate public purpose. Absent a clear breach of fundamental rights (which has not been identified here), courts would defer to the legislature’s prerogative to redefine the terms of naturalization, even if it disappoints the expectations of those who invested under the prior regime.
Sources:
-
Constituição da República Portuguesa, Artigo 2.º (“Estado de direito democrático”) (principle of rule of law, underpinning proteção da confiança) (Original text) – “A República Portuguesa é um Estado de direito democrático, baseado na soberania popular, no pluralismo de expressão e organização política democráticas, no respeito e na garantia de efetivação dos direitos e liberdades fundamentais…”
-
Acórdão do Tribunal Constitucional n.º 202/2014 (discussing the requirements for violation of legitimate expectations) (Portuguese) – The Court requires legitimately grounded expectations, an unforeseeable legal change, reliance by the individual, and lack of overriding public interest for Article 2 to be violated.
-
Draft Nationality Law Amendment (2025) – Government Press Release, Council of Ministers 23/06/2025 (announcing increase of residency requirement to 7/10 years) and Proposal of Law No. 1/XVII/1.ª (2025) (transitional provision applying new 10-year rule to requests after 19 June 2025).
-
Acórdão do Tribunal Constitucional n.º 128/2024 – Fiscalização Preventiva (naturalization of Sephardic descendants). Tribunal Constitucional Press Release, 20 Feb. 2024 (Portuguese) – The Court upheld a new transitional regime that imposed stricter requirements on pending nationality applications, finding it did not violate legitimate expectations or Article 2: “o preceito […] nem viola o princípio da proteção da confiança, ínsito […] no artigo 2.º da Constituição”.
-
EU Law (EU Citizenship) – Article 20 TFEU and Article 9 TEU (Union citizenship derived from Member State nationality). European Parliament Fact Sheet: “O acesso à cidadania europeia passa pela nacionalidade de um Estado-Membro, que é regulada pelo direito nacional, mas…deve ser exercida em conformidade com o Direito da União”. (Nationality rules are national, with only minimal EU constraints.)
Absolute comedy