22
mar-2022
As many of you may already know, and as we have already published in previous posts, last week the Portuguese press reported the recent arrest of the rabbi of the Israelite Community of Porto in connection with an alleged fraud committed with the granting of certification to Russian oligarch Roman Abramovich, which allowed his subsequent naturalisation as a descendant of Sephardim. The rabbi is accused of other alleged fraud offences related to this process of Portuguese nationality.
Last Friday, the Portuguese government published a regulation, Decree-Law No. 26/2022, which modifies various aspects of the Portuguese nationality regulation. Among the approved modifications is the procedure regulating the acquisition of Portuguese nationality for descendants of Sephardic Jews. Although it is difficult to establish a direct connection between these scandals and the approval of the legal changes, everything seems to indicate that they may have precipitated the government's decision.
The main change to the nationality process for Sephardim is that following the entry into force of the new regulations, applicants will be required to prove the existence of certain personal ties to the country. These ties are specified in the presentation of a certificate proving A) The acquisition mortis causa of real estate located in Portugal, (or of rights of use and enjoyment of the same), B) the holding of shares or social participations in Portuguese trading companies or cooperatives, or C) Regular trips to Portugal throughout the applicant's life.
Unfortunately, the wording of the rule on this point is very confusing and an urgent clarification has already been requested from the Portuguese government, but with the text presented it seems that it will require the holding or enjoyment of real rights over real estate located in Portugal, or other personal rights of enjoyment over real estate, provided that these rights have been received mortis causa, i.e. through inheritance. The rule also refers to the holding of shares in commercial or cooperative companies located in Portugal, and it is not clear whether such shares must also be acquired through inheritance, or whether it is possible to acquire them by the applicant himself. Finally, regular travel to Portugal throughout life is also considered to be a link, which is very difficult to prove. The wording ends with the condition that such "facts demonstrate an effective and lasting connection with Portugal", a requirement added to all of the above that adds a component of administrative discretion when considering the links presented.
The only logical conclusion that can be drawn from these changes is that they aim, de facto, to eliminate the process of acquiring Portuguese nationality for the descendants of Sephardim. The obligation to justify being the beneficiary of an inheritance in the country in order to be eligible for nationality is something bizarre, unheard of in any other foreigners' process and devoid of any common sense.
These regulatory changes will come into force on the first day of the sixth month following their publication. That is to say on 01 September next.
Regardless of the clarifications that the Portuguese government may make regarding these changes, our firm is already working on the possibility of being able to legally prepare sufficient links with Portugal to be able to continue with the submission of new applications for Sephardic nationality. However, our main concern now, are those processes that are already underway and how the changes will affect these applications. In this regard, we must make the following observations:
- The changes introduced by the new rule regarding the need to justify personal ties with Portugal will only apply to those nationality application processes initiated after 01 September 2022. Therefore, those clients who have already submitted their nationality applications are exempt from these changes as the regulation is not retroactive.
- We cannot know at the moment how these changes will affect those processes already initiated before the Israeli Community of Lisbon and which are still being processed. Some authoritative voices are of the opinion that they should be respected, especially when the corresponding donations have already been paid, otherwise we would be facing an unjust enrichment and a complete abuse by the Portuguese government, but the truth is that there is no real guarantee that these processes will be respected.
- With regard to the submission of new applications, in theory new applications for certification could be submitted until 30 August 2022, but the only guarantee that the process will be processed in its entirety according to the old procedure will be the submission, also before that date, of the corresponding application for nationality to the Portuguese Ministry of Justice, even if it has not been possible to submit the certificate of the Israelite Community that would have to be provided later.
We will shortly contact each client individually to inform them of the situation of each case and to plan the best legal strategy.
For his accurate analysis of the current situation, we also recommend reading the article published by our colleague, the Brazilian lawyer Alex Guedes dos Anjos published in the following link.
Alejandro de Vicente de Rojas. Abogado
Larrauri & Martí Abogados
