Author
Registration of childbirth
Civil registration acts of foreign authorities regarding foreigners, can only be transcribed into the Portuguese civil registry if the applicant demonstrates a legitimate interest in the transcription,[1] and if the act is: duly translated,[2] legal, and does not raise well-founded doubts as to its authenticity.[3]
In practice, the need of beneficiaries of international protection to transcribe foreign birth certificates normally arises in the framework of naturalisation procedures that require the registration of birth by the Central Registrations Service (Conservatória dos Registos Centrais, CRC) based on a duly legalised birth certificate prior to the registration of the acquisition of Portuguese nationality.[4] It may also arise in the case of marriage (transcription of foreign marriages and registration of marriages contracted in Portugal) and the regulation of parental authority as both are added to the birth registry of the parties involved.[5] In the case of Naturalisation procedures and registration of marriages, the law provides for alternative avenues in case the applicant is unable to produce a duly legalised birth certificate.
According to the experience of CPR, there are no other recurring instances where the need for the registration of birth with the national authorities arises as SEF does not require such registration for identification and issuance of international protection residence permits. Furthermore, according to the law, residence permits issued by the authorities replace identification documents for all legal purposes.[6]
It is mandatory to register any birth occurred in Portuguese territory, regardless of nationality.[7] The birth must be declared to the civil registry authorities either by: (1) the parents, another legal representative of the child, or a person assigned that responsibility in writing by the parents; (2) the next closest relative of the child, or; (3) an official of the institution where the birth took place or to which the birth was orally reported.[8]
According to the law, if the child is born in a medical facility where it is possible to declare the birth, that should be done before medical discharge of the mother. When that is not the case, the birth must be declared in a civil registry office within 20 days.[9]
The actual registration of birth that follows the declaration can either take place at the maternity ward or at a civil registry office.[10]
The law does not contain limitations on birth registration due to the legal status of parents.
The registration of birth requires that identification documents of the parents are presented ‘whenever possible’.[11] According to the Immigration Act, the residence permit replaces the identification document for all legal purposes.[12] Furthermore, according to the Civil Registration Code, if the parents cannot provide an identification document, this requirement may be replaced by the presentation of two witnesses.[13] An interpreter must be appointed in case the parents are unable to communicate with the civil registry officer in Portuguese and the civil registry officer is not familiar with the language spoken by the parents.[14]
If the child or their parent(s) are foreign citizens, were born abroad or have an additional nationality, the law allows for their registration under a foreign first name.[15]
Following the registration of birth, the information is automatically transferred to the Ministry of Health, ISS and, upon request, to the Ministry of Finance for purposes of registration of the child with its services.[16]
According to CPR’s experience, applicants for and beneficiaries of international protection whose children are born in Portugal do not face significant or systematic challenges in registering their birth. However, some problems may arise with the registration of paternity where the father cannot personally declare his willingness to be registered as such before a Portuguese civil registry office, and the marriage contracted abroad is not previously registered in Portugal, as is generally the case. In these cases, a paternity investigation is usually conducted by the Family Court with uncertain results given the potential difficulties of applicants and beneficiaries of international protection to meet evidentiary requirements.[17] The requirement of presenting two witnesses in the absence of an identification document may also be challenging in some cases.
In this regard, it is also important to note that children born in Portugal to foreigners who are not representing their country (i.e. in an official capacity), are Portuguese by birth if:
- one of the parents legally resides in the country at the time of the birth; or
- one of the parents resides in Portugal for at least one year at the time of birth (regardless of status), and if they do not declare that they do not want to be Portuguese.[18]
According to official information obtained by CPR within the context of provision of legal assistance to applicants for and beneficiaries of international protection, this provision, that was amended in 2020, is applicable retroactively.[19]
While according to information previously gathered by CPR, for this purpose, applicants for international protection were deemed to be legally residing in Portugal from the moment the application for international protection is made, discrepant practice was observed in 2021 and 2022, whereby some registration services did not consider the certificate of the asylum application as proof of regular residence. In the course of 2022, the Ministry of Justice officially informed CPR that the certificate of the asylum application is not to be accepted as proof of regular residence, as, according to the law, it only allows permanence in the national territory.[20] Furthermore, the Nationality Regulation also determines that, for these purposes, legal residency requires the existence of a residence permit (Immigration Act or Asylum Act).[21]
In 2022, CPR has also observed instances where the temporary residence permit granted to asylum seekers admitted to the regular procedure was also insufficient to prove legal residency. While the former is in line with the applicable legal framework, the later seems to be at odd with the intent of the provisions of the Asylum Act. The issue was raised by CPR with the Ministries of Justice and Home Affairs, but official information on this matter was not available at the time of writing.
Additional problems observed in this regard relate to the (non)issuance of citizen cards to such children due to the lack of an identification document from the mother. This issue was also raised with the Ministry of Justice, that recognised that the practice was incorrect and reportedly clarified the internal procedures in this regard.
Registration of marriage
In practice, according to CPR’s experience, the need of beneficiaries of international protection to transcribe foreign marriage registries is not a recurring issue given that SEF does not require such registration for the purposes of derivative international protection (i.e., when protection is extended to someone else) or family reunification of procedures (see Family Criteria).
Marriage between foreigners in Portugal, on the other hand, requires the presentation of the spouses’ residence permits,[22] birth certificates,[23] and certificates of no impediment,[24] that must be either duly legalised or not raise well-founded doubts regarding their authenticity.[25] Where the spouses are unable to produce a legal birth certificate or a certificate of no impediment for the purposes of marriage, the law provides for alternative legal avenues to either replace the birth certificate,[26] or justify the absence of the certificate of no impediment,[27] where there are strong reasons thereto. To that end, the civil registry officer may choose to conduct the investigations deemed appropriate,[28] and consider alternative evidence such as witness statements.[29]
According to CPR’s experience, beneficiaries of international protection do not face significant or systematic challenges in contracting marriage in Portugal as civil registry offices generally accept alternative legal avenues to either replace the birth certificate or to justify the absence of the certificate of no impediment due to their legal status and recognised protection needs.
[1] Article 6(4) Civil Registration Code.
[2] Article 49(8) Civil Registration Code.
[3] Article 49(1) Civil Registration Code. In case the civil registry officer is not satisfied with the credibility of the foreign registration act, it may suspend the procedure and contact ex officio the issuing authority for clarifications at the expense of the applicant, an option that is ill adapted to beneficiaries of international protection (Article 49(2) and (3) Civil Registration Code). The applicant may also lodge a judicial appeal against the decision of the civil registration officer to refuse partially or in total the authenticity of the document (Article 49(4)-(6) and 292(2) Civil Registration Code) in which case he or she will be allowed to present statements and alternative evidence (Article 49(7) Civil Registration Code).
[4] Article 50(1) Portuguese Nationality Regulation.
[5] Article 69(1)(a) and (e) Civil Registration Code.
[6] Article 84 Immigration Act.
[7] Article 1(1) and (2) Civil Registration Code.
[8] Article 97(1) Civil Registration Code.
[9] Article 96 Civil Registration Code.
[10] Articles 101, 101-A and 101-B Civil Registration Code.
[11] Article 102 Civil Registration Code.
[12] Article 84 Immigration Act.
[13] Article 45 Civil Registration Code.
[14] Article 42 Civil Registration Code.
[15] Article 103 Civil Registration Code.
[16] Article 102-A Civil Registration Code.
[17] Article 120 Civil Registration Code and Articles 1847, 1853(a), 1864 and 1865 Civil Code.
[18] Article 1(1)(f) Nationality Act. Until the 2020 recast, a minimum of 2 years of legal residence of one of the parents at the time of birth was required.
[19] The provision’s retroactive application has also been confirmed by na opinion of the Advisory Board of the Institute of Registries and Notary Affairs (IRN). See Conselho Consultivo do Instituto de Registos e Notariado, Parecer n.º 1/CC/2021, 21 February 2021, available at: https://bit.ly/33jFXH3.
[20] Article 14(1) Asylum Act.
[21] Article 10(3)(a) Nationality Regulation.
[22] Article 137(1) Civil Registration Code.
[23] Article 137(2) Civil Registration Code.
[24] Article 166(1) Civil Registration Code.
[25] Article 49(1) Civil Registration Code.
[26] Articles 135(5), 137(5) and 266 to 269 Civil Registration Code.
[27] Article 166(2) Civil Registration Code.
[28] Article 268(1) Civil Registration Code.
[29] Articles 143(1) and 166(3) Civil Registration Code.