Portugal

Portugal has a relatively good record on accession to relevant human rights instruments, including three of the four core statelessness conventions. Some data on the stateless population is available, but this is limited due to the lack of mechanisms to identify and determine statelessness, inconsistencies in recording, and overlapping data categories. There are no procedures through which statelessness can be determined in Portugal nor a stateless protection status established in law. There are also gaps in protections to prevent the arbitrary detention of stateless people, and it is likely that some stateless people are detained in practice. However, there are relatively strong procedural safeguards in place and cumulative time spent in detention counts towards the maximum (relatively short) time limit.

Portugal performs well on the prevention and reduction of statelessness, although some improvements could be made. For example, the legal safeguard for otherwise stateless children born on the territory is not necessarily automatic in practice, and the burden of proof in evidencing statelessness lies with the child. In practice, foundlings acquire nationality by birth, there is no risk of statelessness in adoption procedures, and no discriminatory conditions on the acquisition of nationality by children born to nationals abroad. The registration of all births in Portugal is mandatory and facilitated even if parents cannot prove their identity or miss the registration deadline, and the law contains safeguards to prevent statelessness in cases of withdrawal of nationality.

Last updated:

Feb 2020

Next scheduled update:

Mar 2021

Country expert(s):

Inês Carreirinho and Rita Santos, Portuguese Refugee Council

Additional resources

ASSESSMENT KEY

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+ SOMEWHAT POSITIVE

+-POSITIVE and NEGATIVE

- SOMEWHAT NEGATIVE

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ADDITIONAL INFO

NORMS & GOOD PRACTICE

International and Regional Instruments

Assesses whether countries are state party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

Portugal has a relatively good accession record to relevant human rights treaties, including the 1954 and 1961 statelessness conventions, as well as the European Convention on Nationality. Portugal is state party to most other relevant regional and international instruments with no significant reservations, except for the European Convention on the Avoidance of Statelessness in Relation to State Succession and the UN Convention on the Rights of All Migrant Workers and Members of their Families to which it is not party.

The 1954 Convention

Portugal is state party to the 1954 Convention, and it has direct effect. It entered a reservation at the time of accession to clarify that under Article 38, it does not consider the more favourable treatment it provides to nationals of countries with special relations (such as EU countries and Portuguese-speaking States) the general standard of treatment of foreign nationals that should apply to stateless people.

The 1961 Convention

Portugal is state party to the 1961 Convention with no reservations and it has direct effect.

Other Conventions

Portugal is state party to the European Convention on Nationality, but not to the Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession.
Portugal is party to all other relevant regional and international human rights instruments with no relevant reservations, except for the Convention on the Rights of All Migrant Workers and Members of their Families, to which it is not signatory.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries and migration databases. Notes whether statelessness has been mapped in the country and whether there are effective measures in place to count stateless people in detention.

Some limited data is available on the stateless population in Portugal. The last (2011) census included a nationality category ‘stateless persons’, disaggregated by age and gender. Statistics Portugal and the Immigration and Borders Service report on the resident population under the categories ‘stateless’ and ‘unknown nationality’, and some data on asylum applicants registered as ‘stateless’ is available. UNHCR published a mapping study of statelessness in Portugal in 2018 but reported that only limited population data was available. It is not clear on what basis people are recorded as stateless in official statistics as there is no statelessness determination procedure in Portugal, there are overlapping categories, and evidence suggests that only those with residence permits are counted. The Government does not routinely publish data on people held in immigration detention.

Availability and sources

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The latest census (2011) included a nationality category 'stateless persons', which is disaggregated by age and gender (284 men; 269 women; most common age groups: 30-34 years (76 people), 35-39 years (100), and 40-44 years (56)).
Statistics Portugal publishes data on the resident stateless population (31 stateless people in 2017 - 19 men, 12 women) as well as residents recorded as having 'unknown nationality' (none in 2017). Data is also available on the number of stateless people acquiring Portuguese nationality (none in 2017).
The Immigration and Borders Service (SEF) publishes an annual report, which includes stock and flow numbers for resident stateless people (30 in 2018) and people with unknown nationality (9 in 2018).
According to the Asylum Act, SEF must communicate all asylum applications filed in Portugal to the Portuguese Refugee Council (CPR) (6 applicants for international protection registered as stateless in 2018).
According to EUROSTAT data, of 1285 asylum applications filed in Portugal in 2018, 5 were stateless and 5 were Palestinians.
It is not clear on what basis stateless people are recorded in the statistics as there is no statelessness determination procedure in Portugal. Some evidence suggests that the data covers those issued with residence permits only. There are also overlapping categories, for example, the 2018 Immigration, Borders and Asylum Report included figures under the category 'Palestinians' (70 people - 36 male, 34 female), despite internal guidance that states that applicants for international protection identifying as Palestinian and Saharawi should be recorded in the statistics as 'stateless'.
UNHCR published a mapping study of statelessness in Portugal in 2018, but it noted that available data on the stateless population was limited so it does not provide an overall figure for the stateless population in the country.

Stateless in detention data

The Government does not routinely publish data on people held in immigration detention, and IOM reports that it does not have reliable data on the nationality status/statelessness of detainees.
Some data has been made available through reports by the Ombudsperson, UNHCR in its 2018 mapping study, and IOM. In a report of 2017, the Ombudsperson reported the number of people detained during the second semester of 2016 by region of origin but not by nationality/statelessness, although a category of 'unknown nationality' was included (35 people). UNHCR reported in its 2018 mapping study that of 184 detainees in Portugal's main detention centre 'Unidade Habitacional de Santo António' in Porto in 2016, 50 were ‘un-returnable’, and in 2017, 66 of 196 detainees were ‘un-returnable’.

Statelessness Determination and Status

Identifies whether countries have a definition of a stateless person in national law that aligns with the 1954 Convention, and whether they have a dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and legal status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place, those with other administrative procedures, those with a status but no clear mechanism, and those without any status or mechanism. Where a procedure and status exist, these are assessed against norms and good practice, and the rights granted to recognised stateless persons are examined.

There is no definition of a stateless person in Portuguese law, but since the 1954 Convention has direct effect, the convention definition applies. However, Portugal does not have a statelessness determination procedure nor any other administrative procedure through which statelessness can be identified or determined. There is no stateless protection status nor specific rights attached to being considered stateless by the authorities. If a stateless person is eligible for international protection, they will be able to regularise their stay that way; but if not, they are likely to face barriers to regularisation without a valid travel document. There is an exceptional regularisation regime intended to address 'extraordinary situations' but this is discretionary and does not lead to a specific protection status. In theory, stateless people have access to the relatively flexible Portuguese nationality regime. However, in practice, requirements such as documentary evidence of identity, may hamper access to nationality.

Definition of a stateless person

There is no definition of a stateless person in domestic law, but the 1954 Convention has direct effect, so the convention definition and exclusion clauses apply.

Existence of a dedicated SDP

Although stateless people may be encountered in the context of other administrative procedures, none amounts to formal identification or determination, and there is no stateless protection status nor specific rights attached to being considered stateless by the authorities.

Other routes to regularisation

In cases where a stateless person is eligible for international protection, they will be able to regularise their presence on the territory through that route. While the number of stateless applicants for international protection is low, there is no record of specific challenges faced by this group when compared to applicants with a nationality.
Stateless people may be able to regularise their stay through general routes under the Immigration Act, but if they have not previously been identified as stateless by another State, they will likely face significant obstacles, for example, due to the need to present a valid travel document.
The Immigration Act also includes an exceptional regularisation regime intended to address 'extraordinary situations' where there are national interest, humanitarian or public interest grounds, but this is discretionary and does not lead to a specific protection status. In its mapping study, UNHCR refers to data provided by SEF on the number of applications and residence permits granted for humanitarian reasons under this exceptional regime (for example, of 388 applications in 2016, 267 residence permits were granted), but there is no data on nationality/statelessness of the beneficiaries.
In principle, anyone holding a residence permit is entitled to healthcare, education, work and vocational training, access to justice and the courts, and family reunification, but those working with stateless people report challenges for them to access any legal route to a residence permit.

Access to nationality

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In theory, stateless people have access to the relatively flexible Portuguese nationality regime; however, in practice, residence and procedural requirements, such as documentary evidence of identity, may hamper access to nationality. There is a facilitated naturalisation regime in the Nationality Act for people who lost their Portuguese nationality and never acquired another one (exemption from legal residence and language requirements).

Detention

Analyses law, policy and practice relating to immigration detention generally, focusing in on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, whether alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release and whether statelessness is considered juridically relevant in bilateral return and readmission agreements.

There are gaps in protections to prevent the arbitrary detention of stateless people in Portugal. For example, there is no requirement that a country of removal is identified prior to detention and statelessness is not routinely considered juridically relevant in detention decisions. The Immigration Act implies that the least-restrictive effective measure should be applied in the consideration of detention for removal, but this is not explicit. In practice, judges consider the necessity and proportionality of detention, and voluntary return is more common than coercive removal. There are relatively strong procedural safeguards including a time limit, regular ex officio reviews, and access to legal aid. However, there are few protections on release from detention, although people receive a document confirming they were detained, and cumulative time spent in detention is counted towards the maximum time limit.

Detention screening

Powers for immigration detention in Portugal are provided for in the Constitution, Immigration Act and Asylum Act.
There is no specific obligation in law to identify a country of removal prior to detention for removal, nor is statelessness routinely considered juridically relevant in decisions to detain. There is little general awareness of the relevance of statelessness to detention decision-making. Given the low awareness and lack of mechanisms to identify and determine statelessness, it is likely that stateless people are detained in practice.
There is no clear legal provision stating that detention should be a measure of last resort after all alternatives have been exhausted, but the structure of the Immigration Act implies that the least-restrictive effective measure should be applied in each individual case.
There is no specific requirement in the Immigration Act to undertake a vulnerability assessment in the context of a decision to detain, and statelessness is not routinely considered a factor impacting on detention decision-making in practice.

Alternatives to detention

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There is no mention in the Immigration Act of alternatives to detention on refusal of entry to the territory. In the context of detention for removal, the Immigration Act implies that the least-restrictive effective measure should be applied in an individual case, but this is not explicit. Measures include mandatory reporting to the Immigration & Borders Service, residential detention with electronic surveillance, and detention in a detention facility.
According to the information available, in practice judges consider the necessity and proportionality of detention, similarly to the process followed in Criminal Law. This requirement also arises from the constitutional provisions.
The Portuguese removal regime has a clear preference for voluntary removal which is born out in the statistics: in 2018, 3,611 voluntary removal notifications were issued compared to 780 coercive return orders.
The Asylum Act states that detention must only be applied if less coercive measures cannot be effectively implemented. Alternatives in the Asylum Act include periodic reporting to the authorities and residential detention with electronic surveillance. In practice, detention of asylum seekers is limited to applicants at the border, where it is routinely applied.

Procedural safeguards

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Under the Immigration Act, detention can only be maintained for the time needed to carry out the removal order and cannot exceed 60 days. People who have been released can be subject to an additional detention period of 30 days. Detention under the Asylum Act is also subject to a 60-day time limit.
Detainees are informed of the reasons for detention and provided with legal information. This is information of technical nature and sometimes it is reportedly not provided in a language they understand.
People detained in the ‘Unidade Habitacional de Santo António’ (UHSA) receive written and oral information about their rights and duties from centre management, IOM and the Jesuit Refugee Service.
There are regular, periodic ex officio reviews of detention before a court every eight days, and a person detained for irregular entry/presence on the territory must be brought before a judge within 48 hours.
The law establishes that detained asylum seekers must be informed in writing and in a language they understand or are expected to understand of the grounds of detention, possibility to appeal and the right to legal aid in order to do so. While the documents pertaining to the asylum application include a reference to the legal framework on detention of asylum seekers within border procedures, information is not available regarding the specific provision of detailed information regarding detention.
Under the Immigration Act, people refused entry or subject to removal have the right to legal aid subject to a means test, on the same basis as nationals. In practice, access to legal aid within the context of removal procedures is generally fast and straightforward in the UHSA, but lack of funds to cover the costs of interpretation and difficulties accessing detainees' files (which may remain in their place of former residence) are potential barriers. People detained at Lisbon Airport may face practical barriers to accessing a lawyer as all visitors are charged a fee to access the airport restricted area.
Information on the rules governing the process of re-documentation/ascertaining nationality is not available.

Protection on release

People released following expiry of the maximum detention period are issued with a document proving they have been detained, but it is not clear if this provides access to any other rights and for what purposes it can be used.
The law does not establish a legal status for people released from detention. In the case of applicants for international protection, their status will depend on the outcome of the asylum procedure.
Cumulative time spent in detention is counted towards the maximum time limit.

Return and readmission agreements

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According to available information, Portugal has entered into seven bilateral readmission agreements and is party to EU protocols with Russia and Serbia.
In general, the agreements provide for the readmission of nationals and people who can clearly be presumed to be nationals based on ‘strong indications.’
The agreement with Hungary clearly establishes that there is no obligation on the contracting parties to readmit stateless people as defined in the 1954 Convention.
The agreement with Lithuania establishes that a contracting party must on request readmit a stateless person who has entered the territory with a travel document issued by the requesting state.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy and practice on birth registration, including access to late birth registration, reduction measures taken by states to prevent statelessness among groups at high risk, and provisions regarding withdrawal of nationality.

Portugal presents some good practice on the prevention and reduction of statelessness, but there are some remaining gaps. There is a safeguard for the acquisition of nationality at birth by a child born on the territory who would otherwise be stateless, but in practice, evidence of statelessness may be required, and the burden of proof lies with the child. Infant foundlings are presumed to have been born in Portugal unless proven otherwise and acquire Portuguese nationality. The same procedure is followed for older children in practice. There is no risk of statelessness in adoption procedures, and no discriminatory conditions on the acquisition of nationality by children born to nationals abroad, although registration with the Portuguese authorities is required. The registration of all births in Portugal is mandatory and facilitated even if parents cannot prove their identity or miss the registration deadline. A free birth certificate is issued upon registration and only the nationality of non-Portuguese parents is noted. The law contains safeguards to prevent statelessness in cases of withdrawal of nationality.

Stateless born on territory

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The law provides for the automatic acquisition of nationality by children born on the territory who do not have another nationality.
There is no requirement for a period of legal residence of the child or parents and no age limit.
Regulations establish that the acquisition of Portuguese nationality is automatic if the person is born on national territory and it is registered in their birth certificate that they do not hold another nationality (which it must be, if this is proven).
In practice, if the parents are not previously registered as stateless and hold a document identifying them as such, statelessness must be proven through statements from relevant consular authorities and the burden of proof lies on the child/their representative.
The law does not require the parents to be stateless, but in practice, the application of the safeguard is much more straightforward when parents are documented as stateless.
There is also a general provision in the Nationality Act for any child born on the territory to foreign parents legally residing for at least two years to acquire Portuguese nationality by birth.

Foundlings

According to the Nationality Act, new-born foundlings are presumed to have been born in Portugal unless proven otherwise and, in practice, nationality is established at birth registration.
While according to the available information, in practice, the same procedure is adopted in the case of older children of unknown parentage whose apparent age is under 14, or people who are intellectually disabled whose parents, known or unknown, are absent and their whereabouts are unknown, such practice results from the application by analogy of legal provisions on birth registration.
Nationality cannot be withdrawn from foundlings.

Adoption

Portuguese nationality can only be withdrawn in cases of voluntary renunciation or fraudulent acquisition, so adoption by foreign parents does not affect the Portuguese nationality of the child.
Acquisition of nationality by a child adopted by Portuguese nationals is automatic in the case of a full adoption. If the adoption was determined under the Hague Convention, the Institute of Social Security is responsible for communications for the purposes of nationality acquisition; if it was otherwise determined by a foreign court, the final decision must be reviewed and confirmed by the competent national court. If the full effect of the adoption is not mentioned in the original decision, additional judicial steps may be required.
There is no age limit on acquisition of nationality by adoption so long as the full adoption took place while the person was under 18.

Ius sanguinis

A child born to nationals abroad is Portuguese if the parents are abroad at the Service of the Portuguese Republic. In other cases, the child is Portuguese if their birth is registered in the Portuguese Civil Registry or if they (or their representative) declare willingness to be Portuguese through submitting a request to the competent consular authority for registration along with proof of Portuguese nationality of one of their parents.
There are no discriminatory conditions.

Birth registration

The law establishes that birth registration is mandatory irrespective of the status of the parents. If parents cannot provide an identity document, this can be replaced by the testimony of two witnesses.
Births must be declared in a civil registry office within 20 days or, if it took place in a medical facility where declaration is possible, before medical discharge of the mother. The duty to report the birth applies successively to: the parents or other legal representative of the child or person empowered to do so; the closest relative who is aware of the birth; the director/administrator or other official of the medical facility where the birth took place/was declared.
It is currently possible to register the birth of a child in all public hospitals and maternities as well as in some private hospitals. Where applicable, it is also possible to request the national identity document for the child immediately.
Late birth registration is possible but may be subject to a fine of between 50-150 EUR for an individual, and 150-400 EUR for a legal person. However, if the declaration is voluntarily performed before the legal process begins, the fine is not applied, and fines are generally not enforced in practice. When the birth occurred more than a year ago, it can only be voluntarily reported by one of the parents, by the person responsible for the child or by the person concerned if they are over 14 years old. If possible, the parents must be heard even if they are not the ones reporting the birth. If the birth occurred more than 14 years ago, two witness are required for late birth registration. If possible, a document confirming the truthfulness of the declaration must be presented. The official performing the registration may require/perform additional inquiries.
A free birth certificate (either digital or on paper) is issued to all children upon registration.
The nationality of the child is not recorded on the birth certificate, but the birth registration of a child born to non-Portuguese parents must indicate the nationality of the parents or the fact that their nationality is unknown.
There are no mandatory reporting requirements that would deter undocumented migrants from registering the birth of a child.

Reduction

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Portugal acceded to the two statelessness conventions in 2012.
The successive amendments to the Nationality Act have been generally positive in terms of avenues for acquisition of Portuguese nationality.
With regards to birth registration, Nascer Cidadão ('Born a Citizen'), a joint initiative of the Ministry of Justice, Ministry of Solidarity & Social Security, and Ministry of Interior, promotes birth registration by enabling all births in public hospitals and maternity wards, as well as some private hospitals, to be registered on site, and where applicable, national ID cards to be requested immediately.
UNHCR's 2018 mapping study identified 9 main types and causes or risks of statelessness in Portugal including the impact of decolonisation on the nationality of people born in the former colonies, and the nexus between forced displacement and statelessness.

Withdrawal of nationality

The Portuguese nationality regime only allows for withdrawal of nationality in the case of renunciation and fraudulent acquisition.
In the case of renunciation, the law requires that the person presents documentary proof of another nationality before being able to renounce Portuguese nationality.
In the case of withdrawal on the basis of fraudulent acquisition, there is a safeguard against statelessness so that provisions do not apply where it would result in statelessness.

Additional resources

ASSESSMENT KEY

ADDITIONAL INFO

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