NATIONALITY OPTION – CONSTITUTIONAL AMENDMENT NO. 54 DATED 09/20/2007

Carolina Garutti and Daniela Lima
EMDOC MRS
carolina@emdoc.com
daniela@emdoc.com

Former wording of Article 12, item I, indent "c" of the Federal Constitution - Persons born abroad, with Brazilian parents are Brazilian, provided they come to reside in the Federative Republic of Brazil and choose, anytime, the Brazilian nationality”;

Constitutional Amendment no. 54 dated 09/20/2007

Current wording of Article 12, item I, indent "c" of the Federal Constitution - Persons born abroad, with Brazilian parents are Brazilian, provided they are registered in a competent Brazilian office or come to reside in the Federative Republic of Brazil and choose, anytime after becoming of age, the Brazilian nationality”;

Article 95 of the Transitory Constitutional Provisions – “Persons born abroad between June 07, 1994 and the date of the enactment of this Constitutional Amendment (09/21/2007), from Brazilian parents, may be registered in a competent Brazilian consular or diplomatic office or registration office, if they come to reside in the Federative Republic of Brazil”.

In view of the above, we note that before the publication of the Constitutional Amendment no. 54, for children of Brazilians residing abroad (jus sanguinis) to acquire the Brazilian nationality, they had (i) to reside in the Federative Republic of Brazil and (ii) choose, anytime, the Brazilian nationality before the Brazilian Federal Justice.

These requirements created many factual and judicial problems for the children of Brazilians intending to obtain Brazilian nationality, taking into consideration that the majority of them, born abroad, had no means of evidencing “residence” in Brazilian territory, depending, sometimes, on the address of parents, uncles/aunts, friends to obtain water bills, light bills and prove such “residence” in the Brazilian Federal Justice.

Please note that, in order to comply with these provisions there was a problem arising by reason of the applicant’s stay in Brazilian territory, since such persons entered Brazil as foreigners. If they had no labor, student or permanent visa as a consequence of marriage or Brazilian children, they had to remain in our country for the maximum term of 180 days per year.

In order to secure Brazilian citizenship such persons had to hire lawyers and many had no money to finance the judicial process.

I would like to leave here a small criticism to the Judicial Power, since several times I had suits on nationality choice where advanced protection was requested (article 273 of the Civil Proceedings Code), taking into consideration that my clients needed such concession to be able to remain and work in Brazil as Brazilians and in spite of our request, the Judicial Power only granted protection upon the judgment of the sentence (more or less after eight (8) months), sometimes allowing such people to stay irregularly in our country.

I believe such people suffered negative experiences which could be avoided had the Federal Judges of our country been a little more sensitive.

After the Constitutional Amendment, with the change of article 12, item I, indent “c” of our Constitution and with the enactment of article 95 of the Transitory Constitutional Provisions Act, it is noted that, in order for Children of Brazilians born abroad (jus sanguinis) to acquire Brazilian nationality, they must (i) be registered in a competent Brazilian office (Embassies, Consulates) or (ii) choose, anytime, after becoming of age, Brazilian nationality before the Brazilian Federal Justice.

Therefore, the adding conjunction “e" was substituted by the alternative conjunction “or”, which created the alternative (a) of the parents (active subject) of such people registering their children with the Brazilian Consulates and Embassies abroad or (b) the interested parties, themselves (active subject) after coming of age, to request Brazilian nationality before the Brazilian Federal Justice. By adopting either choice, such people will acquire Brazilian nationality.

We emphasize that alternative (a) above, may be exercised by the parents (active subject) until such time when their children reach twelve (12) years of age, because after such condition this registration is no longer accepted by the competent Brazilian offices, as per Book l, Chapter 4, Section 4, article 4.4.1. Therefore, if registration is not affected prior to age 12, the interested party itself will have the option of requesting Brazilian nationality as was the case before the enactment of the Constitutional Amendment no. 54 published on 09/21/2007, i.e., direct request thereby to the Brazilian Federal Justice.

In face of the above, we inquire: what treatment will be given to people born abroad who were not registered by their parents before reaching twelve (12) years of age and who are still minors (under 18 years of age) ? That is, during this period of time, if they reside abroad, may they obtain Brazilian passport to travel to Brazil as Brazilians? I believe yes, and if they are in Brazil, will they be able to obtain a temporary Brazilian Identification Card (RG) to live in Brazil, until such time when they become of age and apply for the Brazilian nationality? I also believe the answer to be yes.

Another issue to be analyzed is article 95 of the Transitory Constitutional Provisions Act, since I have no doubt that people born abroad between June 07, 1994 and September 21, 2007 will acquire the Brazilian nationality if (I) they are registered in a Brazilian Diplomatic Office or Consulate, thus creating an exception to the rule that such registration must occur prior to such time as the child reaches twelve (12) years of age, or (II) in a Brazilian Registrar, if they come to reside in the Federative Republic of Brazil, without having to apply to the Federal Justice in our country.

However, I continue to have doubts about the treatment likely to be given to people born abroad before 1994 and who have not yet applied for the Brazilian nationality, since, if they were registered in a Brazilian diplomatic office or consulate, have they immediately acquired Brazilian nationality with the enactment of the Constitutional Amendment no. 54? (previously, they had to apply for the nationality option before the Federal Justice) I believe yes. And those people which were not registered with a Brazilian diplomatic office or Consulate and are not yet of age (from 1990 to 1993), will they be able to obtain temporary Brazilian passports until they become of age or obtain a temporary Brazilian Identity (RG)? I believe yes. Finally, what about people born before 1990, will they have the sole choice of applying for the Brazilian nationality before the Brazilian Federal Justice? I also believe the answer to be yes.

I would also like to emphasize that the expression nationality “option” is technically totally wrong, and should be substituted with the term “request to exercise” Brazilian nationality, considering that such people, born abroad, are entitled to be Brazilians as of their birth (original nationality). Therefore, when they acquire Brazilian nationality they do not make any choice, they only exercise a right, since they do not loose their nationality of origin. For example, if the person was Japanese, by exercising Brazilian nationality he or she becomes Japanese and Brazilian (double nationality) the same thing happening to other nationalities.

Conclusion: I believe that the enactment of this Amendment is a very positive development affecting the lives of many people living abroad. It also clarifies many doubts previously existing on the matter, particularly in Brazilian Consulates and Embassies, as well as in the Brazilian Federal Judicial Power itself. However, I believe it could be more technical in the sense of not leaving so many doubts on its interpretation.


CAROLINA GARUTTI AND DANIELA LIMA are lawyers and partners of EMDOC MRS, a 20-years company, specialized in rendering services in the immigration market, transferring employees to Brazil and from Brazil to other countries.