Tribunal Constitucional Strikes the Loss-of-Nationality Accessory Penalty Down for the Second Time — Three Central Norms Declared Unconstitutional by Unanimity

The Tribunal Constitucional struck the loss-of-nationality decree down for the second time on Thursday evening, declaring three central norms of the revised Penal Code unconstitutional and doing so — once again — by unanimity. Mariana Canotilho's accordão closes the second preventive review of a decree approved in São Bento by PSD, CDS-PP, Chega and Iniciativa Liberal, and sent to Ratton by President of the Republic on the request of the PS, which had already secured the same outcome in December 2025.

The norms struck

The unconstitutionality declaration covers three articles of the Código Penal that would have written loss of Portuguese nationality into the country's catalogue of accessory penalties — applicable, as drafted, to convictions for qualified homicide, slavery, human trafficking, rape and sexual abuse. The Court found that the construction "in theory neutral, produces a discriminatory effect" because it can only ever be applied to dual nationals and Portuguese-born citizens with a foreign nationality available to them, and never to a mono-national Portuguese convicted of the same offence. That asymmetry, the Court ruled, violates the constitutional principle of equality and the principle of proportionality enshrined in Articles 13 and 18 of the Constitution. Each of the three norms was knocked down unanimously, mirroring the December 2025 result on the first version of the decree.

Why the second draft failed the same test

The right-wing parliamentary majority had attempted to rewrite the decree after the December 2025 ruling by narrowing the catalogue of qualifying offences and inserting language designed to address the proportionality problem. The Court read it the same way: the underlying architecture — a penalty that can only fall on a sub-class of citizens defined by their second nationality — survives even when the trigger offences are narrowed. Mariana Canotilho's relator opinion (cited by Público on 6 May 2026 and confirmed by the Court's communiqué on 8 May) flagged that the second decree "maintains the problems of the previous one," and the plenary agreed without dissent.

The political reaction

The PSD has signalled it will not engineer an institutional confrontation. Government sources told Lusa that the essential perimeter of the new Lei da Nacionalidade was already promulgated by the President in April, and that the loss-of-nationality clause was always going to be the most legally exposed piece of the package. Chega is taking the opposite line: André Ventura has called the ruling "a defeat for Chega" and proposed a parliamentary confirmation vote — under Article 279.4 of the Constitution, the Assembleia da República can re-approve a decree declared unconstitutional by a two-thirds majority, which would force the President to promulgate it. Failing that, Ventura is floating a national referendum on the matter. The PS, for its part, has called the Court's decision the end of the road for the accessory-penalty path: Pedro Delgado Alves said the party expects "that the chapter on loss of nationality as an accessory penalty has now closed."

What this means for foreign residents and dual nationals

The decree being struck removes the most operationally consequential piece of the Lei da Nacionalidade revision for naturalised Portuguese citizens and Portuguese dual nationals. The remaining nationality-law package — extended residence requirements, the AIMA backlog rules, the language-test tightening and the consular pathway redesign — is in force. The collective lawsuit prepared by more than 500 Vistos Gold holders against the State on the new naturalisation timelines (covered in Friday's Brief) runs in parallel: that case is about retroactivity of the residency clock, not about the accessory penalty. Today's ruling does not touch it.

What happens next

Procedurally, the decree returns to São Bento. The Government has not committed to forcing a confirmation vote and Chega's Article 279.4 path requires two-thirds — 154 of 230 deputies — which the right-wing bloc does not currently command without PS support. The realistic outlook is a reformulated, third draft, this time built without the accessory-penalty mechanism, or a quiet shelving of the clause and a pivot to the parts of the package that are already in force.

Sources: Tribunal Constitucional acordão communiqué (8 May 2026); Público; Observador; RTP; Lusa.