Brazil is experiencing a new migratory scenario: the number of immigrants registered by the Federal Police has increased by 160% in the last ten years.
Because of this phenomenon, issues related to the right to acquire Brazilian nationality have enjoyed a high degree of interest.
In Brazil, unlike most European countries, the rules for granting Brazilian nationality are not detailed by law or decree. Instead, the right to Brazilian nationality is foreseen in the Federal Constitution itself.
Thus, an individual can either acquire original Brazilian nationality [nacionalidade brasileira originária], by which he/she is considered a Brazilian-born citizen [brasileiro nato], or derived Brazilian nationality, by which he/she is considered a naturalized Brazilian citizen [brasileiro naturalizado].
Can foreigners acquire Brazilian nationality?
The Constitution of the Federative Republic of Brazil of 1988 provides that those born in Brazil are native Brazilian citizens, even if of foreign parents, provided they are not at the service of their original country.
Therefore, a child born to foreign parents while in Brazil will be considered a native Brazilian citizen.
This is possible because in Brazil the system that governs nationality is Jus Soli, a Latin term which stands for “right of the soil”, meaning that original nationality is acquired by virtue of the territory in which one was born.
In general terms, every child born in Brazil is considered of Brazilian origin, even its parents are foreigners. However, when the parents are at the service of their foreign country, the Jus Soli rule does not apply.
How to proceed when a child of foreign parents is born in Brazil?
In bureaucratic terms, there is no different rule for children born in Brazil to Brazilian parents or foreign parents. In both cases, the parents must present their identification document, with photo. Married parents must show their marriage certificate.
Every child born in Brazil is entitled to a Birth Registry, which is free of charge and guaranteed by law. The child must be registered soon after birth.
The maternity will provide a Declaration of Live Birth [Declaração de Nascido Vivo], which must be presented at the Civil Registry [Cartório de Registro Civil]. If the child was not born in a hospital, its parents must register it accompanied by two witnesses who confirm pregnancy and childbirth.
The Brazilian Federal Constitution also provides the right to Brazilian nationality for those born abroad to a Brazilian father or mother, provided that they have been registered in a competent Brazilian office or reside in Brazil and opt for Brazilian nationality, at any time after reaching the age of majority.
Similarly, those born abroad to a Brazilian father or mother are considered to be Brazilians, provided that at least one of them is at the service of Brazil.
The Federal Constitution equally provides for the granting of Brazilian nationality, by naturalization, to foreign citizens who declare their will to obtain it, as long as they abide by the requirements set forth in the Constitution.
The Constitution establishes diverse groups of foreigners that may apply for Brazilian nationality. These are:
- Foreign nationals from Portuguese-speaking countries
- Foreign nationals of any nationality
- Equality statute for Portuguese nationals
How to acquire Brazilian nationality by naturalization?
Foreign nationals from Portuguese-speaking countries need to have carried a residence permit for one year without interruption and are required to be morally apt.
Please bear in mind that this residence must be a regular one, meaning that one needs to be in the due possession of a foreigner identification card [cédula de identificação de estrangeiro].
Many foreigners mistakenly believe that in order to apply for Brazilian nationality, it suffices that they reside in Brazil (have a proof of address). However, this is not the case, as it is necessary to reside legally in Brazil (to be documented).
Foreigners of any nationality are required to remain in residence for more than fifteen years without interruption and without criminal convictions. Remembering once again that this residence must be a regular one.
Portuguese nationals with a permanent residence in Brazil will be entitled to the rights that are inherent to Brazilians, only if there is reciprocity in favor of the latter.
This legal provision is included in the Equality Statute [Estatuto de Igualdade] and has been ratified after the signing of the Friendship Treaty [Tratado de Amizade] between Portugal and Brazil. This Treaty provides for equal civil and political rights for Portuguese citizens in Brazil and Brazilian citizens in Portugal, respectively.
In this sense, the Portuguese are the only non-Brazilian nationals that are allowed to exercise Brazilian citizenship. This is a rare exception to the nationality principle, which includes Portuguese nationals provided that a reciprocal treatment of Brazilians takes place.
It should be noted that the Constitution provides that the law cannot distinguish between native and naturalized Brazilians. It does, however, classify a number of political offices – such as the position of President and Vice-President of the Republic, among others – as exclusive to Brazilian natives.
The Federal Constitution is the only norm that indicates who can acquire Brazilian nationality, whether in its original or derived form.
Nevertheless, many have been unsure as to whether it is possible to apply for Brazilian nationality by marriage or by having a Brazilian child.
The answer is no. Being married to a Brazilian citizen or having a child with the Brazilian nationality does not entitle you to acquire Brazilian nationality.
Contracting marriage with a Brazilian spouse by itself does not justify a nationality request.
This is because, as we have verified above, the Federal Constitution does not provide that the marriage between a foreigner and a Brazilian spouse is a requirement for the granting of Brazilian nationality.
However, it should be clarified that the conditions for the granting of naturalization are set forth in the Alien Statute [Estatuto do Estrangeiro], Law No. 6.815, of August 19, 1980, which provides a number of benefits for a foreigner married to a Brazilian spouse or having a Brazilian child, as we will detail below.
The Alien Statute indicates the following conditions for obtaining Brazilian nationality:
- Have civil capacity, according to Brazilian law;
- Be registered as permanent in Brazil;
- Have continuous residence in national territory, for a minimum period of four years, immediately prior to the application for naturalization;
- Know how to read and write in Portuguese;
- Exercise of profession or possession of sufficient assets for self- and family maintenance;
- Good conduct;
- No denunciation or condemnation in Brazil or abroad for an intentional crime to which a minimum sentence of imprisonment is attached which in theory exceeds 1 (one) year ;
- To be in good health, proof of which is not required for foreigners that have resided in Brazil for more than two years.
All these requirements are complementary to the ones set forth in the Federal Constitution. Therefore, foreign nationals, in addition to fulfilling the required minimum period of residence, must meet these formalities.
Given the above, the Alien Statute does provide for a reduction in the periods of residence that are required by the Federal Constitution to obtain naturalization, provided that the foreign applicant meets one of the following conditions:
- Has a Brazilian child or spouse;
- Is the child of a Brazilian father or mother;
- Has provided or is able to provide relevant services to Brazil;
- Has outstanding professional, scientific or artistic capacity;
- Owns real estate in Brazil.
This means that the law does not directly provide for naturalization by marriage, or for having a Brazilian child, but it does benefit those who are married to a Brazilian or who have a Brazilian child.
In this sense, the Alien Statute provides that the residence for the purpose of naturalization has to be at least one year for those who either have a Brazilian child or spouse or provide relevant service to Brazil.
With regard to foreigners recommended by their professional, scientific or artistic capacity, the Statute requires at least two years of residence.
Finally, foreign owners of Brazilian real estate are legally required to have resided in Brazil for at least three years.
In addition to the situations listed above, the Alien Statute also provides for the dismissal of residence in the case of foreigners married to Brazilian diplomats in activity for more than five years, requiring only a thirty-day stay in the country.
The same thirty-day rule applies to foreigners that are employed in a Diplomatic Mission or in a Consular Office in Brazil and have completed ten years of uninterrupted services.
However, it should be clear that the fulfillment of all the requirements laid down by law does not ensure the right to naturalization. This is because the granting of naturalization abroad is considered an act of state sovereignty, so it is the discretionary act of the head of the Executive Branch, who may decide to grant it or not.
Naturalization of foreign children under the age of five
The Alien Statute also provides for naturalization of foreigners that have been admitted to Brazil under the age of five, provided that they are settling definitively in national territory and require their naturalization up to two years after reaching the age of majority.
In this case, the law provides that the minor’s legal representative must request the Minister of Justice to issue a provisional certificate of naturalization, which will be valid as proof of Brazilian nationality up to two years after reaching the age of majority.
In this respect, naturalization only becomes definitive if the holder of the provisional certificate, up to two years after reaching the age of majority, expressly confirms his/her intention to continue being a Brazilian national, in an application addressed to the Minister of Justice.
Naturalization of foreigners that have attended higher education in Brazil
Likewise, the naturalization of foreigners residing in Brazil before reaching the age of majority is admitted when they have taken an upper course in a national educational institution. In this case, naturalization must be applied for up to one year after graduation.
Where to apply for Brazilian naturalization?
The application for naturalization must be submitted to the Ministry of Justice and Citizenship [Ministério da Justiça e Cidadania] which, in order to facilitate the various types of naturalization provided by law, has separated them into modalities such as:
- Ordinary Naturalization, for those who have a permanent residence, have lived in Brazil for four years, can read and write in Portuguese and have no conviction for more than one year;
- Extraordinary Naturalization, for those who have lived in Brazil for fifteen years and have not been convicted;
- Provisional Naturalization, for foreigners admitted in Brazil during their first five years of life, definitively established in the national territory;
- Transformation of Provisional Naturalization into Definitive Naturalization, which is requested up to two years after reaching the age of majority;
- Special Naturalization by means of marriage with a member of the Brazilian Foreign Service in activity or with a person at the service of the Brazilian State abroad;
- Special Naturalization for being or having been employed in a diplomatic mission or consular office of Brazil.
Applications for Ordinary Naturalization, Extraordinary Naturalization and Transformation of Provisional Naturalization into Definitive Naturalization may be submitted to the nearest Federal Police Station [Delegacia de Polícia Federal] of the interested party.
Applications for Special Naturalization may be submitted to the Brazilian consular authority abroad.
Applications for Provisional Naturalization, Equality for Portuguese nationals, Loss or Reacquisition of Brazilian nationality and Reacquisition of political rights may be filed at the Ministry of Justice and Citizenship.
What happens after naturalization? What are its effects?
First of all, naturalization will only take effect after the certificate has been issued, which grants the naturalized person the fruition of all civil and political rights, except those which are exclusively assigned to Brazilian natives by the Federal Constitution, as explained above.
It should be emphasized that naturalization does not imply the acquisition of Brazilian nationality by the naturalized Brazilian’s spouse and their children, nor does it authorize the latter to enter or reside in Brazil without satisfying legal requirements.
Unfortunately, many families remain undocumented as they believe that by having a Brazilian child, other family members do not need to regularize their situation in the country. This is a serious misunderstanding, as everyone must reside regularly in Brazil.
Finally, naturalization does not limit the civil or criminal liability to which the naturalized Brazilian was previously subject in another country.
Is it possible to lose Brazilian nationality?
Yes, it is. Loss of nationality may be declared to Brazilians which have had their naturalization canceled, either by judicial decision, due to activities that are potentially harmful to the national interest, or because they have acquired another nationality.
It is necessary to bear this last point in mind, since many believe that by acquiring another nationality, Brazilian nationality is lost.
Can one have dual nationality?
Loss of Brazilian nationality only occurs when there is no recognition of the original nationality by foreign law. That is, when the law of the foreign country does not allow double nationality, merely permitting that one has a single nationality, chosen by him/herself.
Thus, if one chooses the nationality of the other country, by the rules of that country, he/she will have to abdicate of his/her Brazilian nationality.
In addition, in some cases there is an imposition of naturalization upon Brazilian residents abroad by foreign norms, creating a condition for permanence in foreign territory or for the exercise of civil rights.
Because of this imposition, some Brazilians may lose their Brazilian nationality. This loss is not automatic, since the national will always have to make a formal request through a specific process.
In Brazil, there is no restriction on multiple nationality, because the system recognizes both the rule of Jus Soli (place of birth) and Jus Sanguinis (ancestry).
(Vanessa C. Bueno)
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