Conditional jus soli — 1-year parental residence any title, opt-out [CLOSED W5]

PT-BTH-01-W5 documents the superseded W5-era conditional jus soli mechanism operative in Portugal from 10 November 2020 through 18 May 2026. During this window, Art 1(1)(f) of Lei 37/81 conferred Portuguese nationality on children born in Portugal to foreign parents if, at the moment of birth, one parent had resided in Portugal for at least one year under any residence title — with nationality arising automatically unless the parent exercised an opt-out declaração.

This route is closed to new entrants: births on or after 2026-05-19 are governed by the more restrictive W7 rule (PT-BTH-01, requiring 5 years of legal residence and an opt-in declaration). Children who acquired nationality under the W5 mechanism during their birth window retain that nationality; the change in law does not revoke acquired status. This document preserves the W5 lifecycle for historical reference, ongoing administrative processing of legacy cases, and genealogical research.

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Under the W5 redação of Art 1(1)(f) (LO 2/2020 era), a child born in Portugal acquired Portuguese nationality if:

1. Born in Portugal — in Portuguese territory, including the Azores and Madeira (which confer no separate nationality, CRP Art 225(3)).
2. Parent not in service of home State — neither parent was in Portugal in the service of their respective foreign State (diplomatic/consular immunity carve-out, consistent across all Art 1(1)(f) eras).
3. One-year parental residence — at the moment of birth, at least one parent had resided in Portugal for a minimum of one year.
4. Any-title residence — the one-year period could be fulfilled under any title: work permit, student visa, irregular residence cured by amnesty, or any other basis. The pre-LO 2/2020 requirement of a "regular" (legal) title was removed.
5. No opt-out filed — nationality arose automatically at birth unless the qualifying parent filed a declaração of renúncia within the applicable procedural window.

Comparison with adjacent windows:

• W3/W4 (pre-LO 2/2020): 2 years, legal title, opt-in declaração required.
• W5 (LO 2/2020, operative 2020-11-10 to 2026-05-18): 1 year, any title, automatic/opt-out.
• W7 (LO 1/2026, from 2026-05-19): 5 years, legal title, opt-in declaração required (see PT-BTH-01).

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Because the W5 regime was opt-out and automatic, the administrative process differed from an opt-in system. No affirmative action was required by the parent to secure the nationality; however, registration with the civil registry and documentation were still required to create an official record. Typical evidentiary requirements at the time included:

• Birth certificate issued by the Portuguese Conservatória dos Registos Centrais (CRC) or registration of a foreign birth certificate.
• Proof of parental residence for one year — any documentation evidencing residence: residence card (Título de Residência), work or student permit, health-service user registration (Serviço Nacional de Saúde), or equivalent. The "any title" standard was broadly applied.
• Parent's identification document — passport or national identity card.
• Declaration of non-service-of-foreign-State — implicit where no diplomatic accreditation was held.

If the nationality was not registered at the time of birth, a registration application could be filed subsequently to the IRN / Conservatória dos Registos Centrais (CRC) on the basis of the W5-era criteria, provided the birth predates 19 May 2026.

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During the W5 window, birth registration in Portugal automatically triggered the jus soli assessment. Where a qualifying birth was not registered or the nationality was not noted, the parent or child (upon majority) could apply to the CRC for registration of the nationality.

For legacy W5 cases not yet finalised:

• File at the competent Conservatória or via the IRN portal.
• The operative criteria for the assessment are those of LO 2/2020 (W5), not LO 1/2026.
• Appeals lie to the administrative courts and, ultimately, the Supremo Tribunal Administrativo (STA), not the civil courts (STJ).

AIMA (Agência para a Integração, Migrações e Asilo) has no role in jus soli attributions; its role is confined to residence permit matters.

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The W5 jus soli mechanism was introduced by Lei Orgânica n.º 2/2020, de 10 de novembro (DR 219/2020 Série I). LO 2/2020 amended Art 1(1)(f) of Lei 37/81 to reduce the parental residence requirement from two years (the W3/W4 standard under LO 2/2006) to one year and converted the mechanism from opt-in (declaração required) to opt-out (automatic attribution unless the parent filed a renúncia). This represented a significant liberalisation in the direction of inclusive birthright citizenship policy.

The W5 regime remained in force through 18 May 2026. On 19 May 2026, Lei Orgânica n.º 1/2026 (DR 95/2026 Série I) entered into force, republishing Lei 37/81 and restoring the pre-LO 2/2020 standard: five years of legal residence and an opt-in declaração de vontade (now Art 1(1)(f) in the LO 1/2026 redação).

Constitutional Basis

Nationality law falls within the exclusive non-delegable competence of the Assembleia da República under CRP Art 164(f), exercised by organic law (CRP Art 166(2)). LO 2/2020 and LO 1/2026 are both organic laws, satisfying this requirement.

Effect of Acquisition

Acquisition under Art 1(1)(f) during the W5 window conferred originária (original) Portuguese nationality with effect ex tunc from the moment of birth (Art 11 Lei 37/81). This is attribution, not concessão — the child was regarded as having been Portuguese from birth, with all rights flowing from that moment.

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