Conditional jus soli — 5-year parental legal residence (Art 1(1)(f))

PT-BTH-01 is the conditional jus soli pathway by which a child born on Portuguese territory to foreign parents acquires Portuguese nationality as nationality of origin (originária) where, at the moment of birth, at least one parent has been legally resident in Portugal for at least five years and the child (through its legal representatives) makes a declaration of will (declaração de vontade) to be Portuguese. The route sits at the heart of Portugal's treatment of the "second generation" — children of immigrant families born in the country — and is the principal birthright route for children who are not otherwise covered by the unconditional birth provisions (a Portuguese parent under Art 1(1)(a)-(c), a Portuguese-born parent under Art 1(1)(e), or statelessness-prevention under Art 1(1)(g)).

The decisive feature of this route under the current law is that it is conditional and opt-in, not automatic. Two elements must both be present: (i) an objective condition — five years of one parent's legal residence at the moment of the child's birth; and (ii) a subjective condition — a positive declaration that the child wishes to be Portuguese. Absent either element, Portuguese nationality is not attributed under this alínea (although the child may still qualify under another route, most importantly Art 6 n.2 minor naturalisation — see PT-NAT-05 — once a parent reaches the five-year mark by the time of a later request).

This route confers nationality of origin, with effects ex tunc from the moment of birth (Art 11 Lei 37/81). It is therefore materially stronger than a naturalisation grant: the child is treated as Portuguese from birth and can transmit nationality to its own children under the jus sanguinis chain (Art 1(1)(a)-(c)).

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A child qualifies under PT-BTH-01 only where all of the following are satisfied at the moment of birth (the residence condition is measured at birth, not at the date of the declaration):

1. Birth on Portuguese territory. The child must be born in Portuguese territory. "Portuguese territory" includes the mainland and the autonomous regions of the Azores and Madeira; the autonomous regions confer no distinct nationality (PT-ASSERT-XCT-010).

2. Foreign parentage, not in State service. The parents must be foreign nationals (if a parent were Portuguese, the child would qualify under jus sanguinis, Art 1(1)(a)-(c), PT-DSC-01). The parents must not be in the service of their respective (home) State — i.e. the child of a foreign diplomat or official posted to Portugal in that capacity is excluded, consistent with the customary diplomatic exception.

3. Parental legal residence of at least five years. At the moment of birth, at least one parent must have been legally resident in Portuguese territory for at least five years. The residence must be legal — held under a valid residence title or recognised status — not mere physical presence and not residence "of any title". The five-year clock is the reverted standard; the one-year/any-title standard of LO 2/2020 is superseded (PT-VC-005).

4. Declaration of will (opt-in). The child must declare the wish to be Portuguese ("se declararem que querem ser portugueses"). For a newborn, the declaration is made by the child's legal representatives. This is a constitutive, positive step — nationality does not arise automatically by operation of law under this alínea.

Boundary distinctions (do not confuse):

• vs Art 1(1)(e) / PT-BTH-02 (third-generation jus soli): if a parent was also born in Portugal and resided there at birth, the child is Portuguese unconditionally and automatically with no declaration and no five-year condition. PT-BTH-01 applies where the parent was not born in Portugal.
• vs Art 1(1)(g) / PT-BTH-03 (statelessness-prevention jus soli): automatic, no declaration, where the child would otherwise be stateless. PT-BTH-01 applies where the child has (or could have) another nationality.
• vs Art 6 n.2 / PT-NAT-05 (minor naturalisation): a naturalisation (concessão) assessed at the moment of the request, not attribution at birth, also keyed to a parent's five-year legal residence and the child's mandatory-schooling enrolment. PT-NAT-05 is the fallback where the Art 1(1)(f) conditions were not met at birth (e.g. the parent reached five years only after the birth). The procedure under Art 6 n.2 is free (Art 6 n.12).

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|---|---|---|---| | R1 | Child born in Portuguese territory | src-B1-02 (T1) | Mainland + Azores + Madeira | | R2 | Parents foreign; not in service of their home State | src-B1-02 (T1) | Diplomatic-service exclusion | | R3 | ≥1 parent in legal residence ≥5 years at the moment of birth | src-B1-02 (T1); src-B1-04 (T1) | Legal residence under a recognised title; reverted from LO 2/2020 1y/any-title (PT-VC-005) | | R4 | Declaration of will to be Portuguese (opt-in) | src-B1-02 (T1) | Made by legal representatives for a newborn; NOT automatic |

Evidentiary requirements (Art 1(4) — proof of the legal-residence condition):

|---|---|---|---| | E1 | Parent's identification document | src-B1-03 (T1); src-B1-01 (T2) | Presented at the moment of declaration | | E2 | One document evidencing a valid residence title/status under Art 15(1)-(2) | src-B1-03 (T1) | Establishes the legal (titled) character of the five years | | E3 | Child's birth registration (registo de nascimento) in Portugal | src-B1-02 (T1); PT-ASSERT-XCT-010 | Establishes R1 (birth in territory) |

What is NOT required (express scope guard): there is no language test, no culture/civics/history test, no solemn declaration, no subsistence-means test, and no criminal-record bar for this route. Those conditions belong to the naturalisation battery (Art 6 n.1 c)-i)) and to the grandchild attribution under Art 1(3) — they do not attach to Art 1(1)(f) jus-soli attribution. PT-BTH-01 is an attribution route resting solely on the birth-in-territory + parental-legal-residence + declaration triad. Importing the Art 6 integration battery into this route would be a fabrication.

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Where the declaration is made. The declaration of will under Art 1(1)(f) is made before the Instituto dos Registos e do Notariado (IRN) through the Conservatória dos Registos Centrais (CRC), the single national registry layer for nationality acts. For a newborn the declaration is filed by the child's legal representatives, normally contemporaneously with or shortly after the birth registration (registo de nascimento).

Indicative process flow:

1. Birth registration of the child in Portugal (establishes birth in territory, R1).
2. Assembly of proof of one parent's five-year legal residence (Art 1(4)): parent identification document + a document evidencing a valid residence title/status under Art 15(1)-(2).
3. Filing of the declaração de vontade with the IRN/CRC, made by the legal representatives, declaring the child wishes to be Portuguese.
4. Registry assessment and registration of the attribution at the CRC; the attribution, once registered, takes effect ex tunc from birth (Art 11).

Authorities involved:

• IRN / Conservatória dos Registos Centrais (CRC) — receives and processes the declaration; registers the attribution.

• Ministério da Justiça — supervising ministry; responsible for the Regulamento da Nacionalidade.

• Administrative courts / Supremo Tribunal Administrativo (STA) — the appellate route for contested nationality decisions since the 2006 modernisation. STA Proc. 0219/10 (0219/10.6BEPRT, 1.ª Secção, 14-02-2019) confirms that the administration may not read unlegislated conditions into the nationality law — the executive is confined to implementing, not supplementing, the organic law (CRP Art 164 f reserva). This is directly relevant to PT-BTH-01: a conservatória cannot add eligibility conditions beyond the Art 1(1)(f) text.

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Primary provision — Art 1(1)(f) Lei 37/81 (LO 1/2026 redação). The consolidated text pinned at pgdlisboa.pt (src-B1-02, T1) reads, in relevant part: "Os indivíduos nascidos no território português, filhos de estrangeiros que não se encontrem ao serviço do respetivo Estado, se declararem que querem ser portugueses, desde que, no momento do nascimento, um dos progenitores resida legalmente no território português há pelo menos cinco anos." This establishes four cumulative components — (1) birth on Portuguese territory; (2) foreign parents not in the service of their home State; (3) a declaration that the child wishes to be Portuguese; and (4) at least one parent in legal residence in Portuguese territory for at least five years at the moment of birth.

Proof provision — Art 1(4) Lei 37/81 (new, LO 1/2026). A new paragraph governs how the legal-residence condition is proven. Per the legislative text pinned from the parliamentary debates record (src-B1-03, T1; src-B1-01, T2), proof of the Art 1(1)(f) legal-residence condition is made, at the moment of the declaration, by the parent's identification document together with one of the documents evidencing valid residence titles or statuses under Art 15(1)-(2) of the nationality framework. This formalises the evidentiary basis and is load-bearing because it confirms that the five years must be legal residence backed by a recognised title — distinguishing the current rule from the 2020 "any title" standard.

Temporal entry into force. LO 1/2026 was published in DR 95/2026 Série I on 18-05-2026 and entered into force the day after publication, i.e. 19-05-2026 (S-JUSTICA-NOTE, T1; S-COLLEX-LO12026). The criminal-bar threshold elsewhere in the Act was corrected by Declaração de Retificação n.º 17/2026/1 — that rectification does not bear on the Art 1(1)(f) jus-soli condition, but it confirms the operative instrument set for the whole Act.

Transitional rule (LO 1/2026 Art 7). Administrative procedures pending at the moment of entry into force continue under the prior Lei 37/81 redação. The operative anchor for "pending" is the IRN electronic-submission date: a declaration validly submitted to the IRN on or before 18-05-2026 is processed under the prior (one-year) rule; declarations from 19-05-2026 onward are governed by the five-year rule. The transitional protection was constitutionally necessary after TC Acórdão 1133/2025 (Proc. 1383/2025, 15-12-2025) struck the retroactivity provision of the predecessor Decreto AR 17/XVII for breach of the protection of legitimate expectations.

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