Changes to the Rules on Portuguese Nationality for Sephardim

22 Adar II, 5782

25 March 2022

Intended Use and Legal Disclaimer

Below is a report of what we believe to be the situation on 25 March 2022. Our intent is to share with the Sephardic Jewish community and others what we believe to be the relevant developments. The developments may change.

This is a non-authoritative journalistic report on developments in the law. This report should not be interpreted or relied on as a legal opinion or advice.

Background

Recent developments in Portugal have caused concern to (i) those currently applying for nationality, and (ii) those who have already received nationality on the basis of certification by the Jewish Community of Porto. Further, there are fears that the behaviour of the Portuguese Government and media may cause an antisemitic backlash.

The Sephardic Genealogical Society has stated that we are shocked and embarrassed if allegations of malfeasance in relation to the process of applying for Portuguese citizenship made against certain Jewish institutions and individuals in Portugal are proven correct. We demand the highest ethical standards. We note that the Sephardic genealogy community has been concerned for years, and have encouraged applicants to use the considerably slower more rigorous genealogical authentication service of the Jewish Community of Lisbon (CIL) in preference to the Jewish Community of Porto (CIP).

The Sephardic Genealogical Society is, as the name suggests, a genealogical society. We are not legally qualified, and do not have specialist knowledge of Portuguese politics or Portuguese constitutional law.

History

Portugal forcibly converted its Jewish population, including new arrivals from Spain, in 1496/1497. The Inquisition was introduced in 1536 and not abolished until 1821. ‘New Christians’ were denied access to certain professions, arrested, tortured, had their property expropriated, impoverished, driven into exile or burnt alive. Jewish resettlement in Portugal was tacitly officially acknowledged in 1868, although there had been earlier settlement. The Vatican apologised for the Inquisition in 2000, during the lifetime of most people reading this document. Portugal’s 2015 nationality concession was intended as an act of historic restoration and reparation.

The nationality concession in Portugal was introduced under Decreto-Lei n.º 30-A/2015 in 2015, amending Decreto-Lei n.º 237-A/2006 and other regulations. The nationality application process has two main stages. First, an applicant needs a certificate confirming Sephardic ancestry from either the Jewish Community of Lisbon (CIL) or the Jewish Community of Porto (CIP). Next, there is an application to the Ministry of Justice.

Summary of Public Media Reporting on the CIP and CIL Processes

The two Jewish communities took different approaches to verification of applications. CIL (Lisbon) employed a team of historians to review applications while CIP (Porto) relied on rabbinic leadership, reportedly advised by experts. Approval by CIL can often take eight months, while approval by CIP could be as fast as one hour. 11% of certificates confirming Sephardic ancestry have been issued by CIL and 89% by CIP.

Within the Sephardic genealogy community there have been long standing concerns about the research methodology of CIP. We have seen applications from Ashkenazim, Mizrahim and others of no obvious Sephardic ancestry receive certification from CIP. Many of these candidates were Israelis. There has been concern about the activities of certain law firms, especially some in Israel and Spain. It is common knowledge that strategies for gaming the system have been discussed on social media. It is improbable that competent Portuguese authorities were unaware of this.

The Portuguese National Assembly planned to discuss reform of the system in 2020 but the COVID pandemic caused that to be shelved. Global attention was drawn to the nationality concession subsequent to the Russian-Israeli businessman, Roman Abramovich, receiving Portuguese citizenship in April 2021. This grant of citizenship by the Portuguese Government relied on CIP certifying his claimed Sephardic ancestry. An unverified source alleges that Mr Abramovich reports having Western/Portuguese Sephardic ancestry in Hamburg. Presumably an ancestor later settled in Lithuania. If reported correctly, this is a remarkable claim and we hope to see the evidence. The vast archives of the period show virtually no involvement of the Western/Portuguese Sephardic diaspora with the Jews of the Polish-Lithuanian Commonwealth where Mr Abramovich’s ancestors are assumed to have lived. Of course, Mr Abramovich’s researchers may have uncovered records that disprove this assumption, which would represent a significant scholarly advance.

Mr Abramovich was unsuccessful in renewing his UK visa in 2018. The Russian invasion of Ukraine on 24 February 2022 was followed by Russian oligarchs, of which Mr Abramovich is the best-known thanks to his then ownership of Chelsea football club, being sanctioned.

On 10 March 2022, Rabbi Daniel Litvak of the Jewish Community of Porto (CIP) was reportedly arrested by Portuguese police at Porto airport while seeking to travel to Israel via Germany. Some sources report that computers and documents were seized by the police from the CIP office. CIP stated that they had been slandered and that they were ending their participation in the programme certifying Sephardic ancestry.

There was a frenzy in the Portuguese media which in some cases had an unpleasant tint. Some media wrongly alleged that the Sephardic businessman Patrick Drahi who had previously obtained citizenship through the Jewish Community of Lisbon was, in fact, not Sephardic. Against this background on 14 March 2022 the Sephardic Genealogical Society issued a statement in which we emphasised the importance of genealogical and ethical standards, expressed confidence in the Portuguese judicial system and shame that the reputation of the Jewish community was being tarnished by the alleged actions of a handful of individuals. The statement received good coverage in the Portuguese media, which was our target, but little elsewhere.

The Sephardic Genealogical Society understood that there was only discussion of legal reform when, in fact, the new decree-law, Decreto-Lei n.º 26/2022, was already in the process of receiving approval from President Rebelo de Sousa. It was published in Portugal’s national gazette on 18 March 2022, becoming law on 15 April 2022. The law comes into force on 1 September 2022.

Certain Portuguese constitutional, regulatory and other scholars have raised questions about the procedural methods and timing by which the new decree-law was created, as it was enacted/promulgated while the Portuguese National Assembly was in recess. However, unless invalidated by a Portuguese court or amended by the Portuguese National Assembly, we understand that the change in decree-law stands.

Decreto-Lei n.º 26/2022

The new regulation, Decreto-Lei n.º 26/2022, ignores the stated purpose of the nationality concession – historic restoration and reparation – and instead demands proof of ties to Portugal that virtually no Sephardic Jews will have, not least because the country had a far-right government until 1974. Fascism has never been conducive to Jewish tourism or settlement.

Requirements relevant to late 20^th Century emigrants are also now imposed on Sephardic families who were driven out in the 17th and 18th centuries. These requirements are:

• Inheritance (not ownership) of property or a business in Portugal: How would families whose property had been expropriated before they fled the country have property left to inherit? This raises the interesting question of whether the Portuguese Government now intends to offer financial restitution (reparations) to descendants of Sephardic ancestors if they are closing the nationality option. Inquisition files often contain inventories of confiscated items, so it may be possible to calculate current value and interest accrued since confiscation. Demanding that Sephardim show current ownership of the assets stolen from their families is an odd way to manage a restitution process, but might trigger a reparations movement as an unintended consequence of the new decree-law.

• Regular trips to Portugal throughout a lifetime: This requirement is provable by a family with relatives still living in Portugal. But what about families whose last relative in Portugal was burnt alive by the Inquisition? It is not reasonable to expect families whose relatives were tortured or deported from Portugal with the tacit license from the Portuguese Government at the time to make any visits prior the act of reconciliation represented by Decreto-Lei n.º 30-A/2015. This “regular visits” requirement is also insipidly unfair as it favours the rich over the poor, and those who live close to Portugal over those who live far away.

The new regulation will be applied on applications made to the Ministry of Justice on or after 1 September 2022. So, as things stand, it is important that applications be submitted before that date. It is possible that the punitive nature of the law is a reaction to Rabbi Litvak’s allegedly helping Roman Abramovich acquire Portuguese citizenship. Of course, neither of these gentlemen are Sephardic, although the claim is made that Mr Abramovich has Sephardic ancestry.

The Conservatória dos Registos Centrais, part of the Ministry of Justice, will issue a guidance note on how these rules are to be enforced.

Para inglês ver

The Portuguese expression “para inglês ver” (“for the English to see”) means that they offer an impression of progress while continuing as they always have.

Those who drafted Decreto-Lei n.º 26/2022 must have been aware of the impossibility of virtually any Sephardic applicant meeting the new more rigorous requirements. Such virtual impossibility leads us to conclude that the 2022 decree-law is an administrative mechanism to close the 2015 offer. It is entirely within the Portuguese Government’s right to decide who receives citizenship, but Sephardim were persuaded that Portugal had embarked on a genuine process of reparation and reconciliation that would be fair, honest and transparent. Instead, the 2022 decree-law runs the risk of the Portuguese Government appearing to have introduced regulatory conditions - and even impossibilities - as obstacles to citizenship.

What Next?

The Jewish Community of Lisbon (CIL) – a Sephardic community – have adhered to the letter and spirit of the law at a significant opportunity cost. They have seen CIP process far more candidates at significantly lower cost. While a larger community than CIP, and employing a small army of Portuguese historians, they only processed 11% of applications. This is because they adhered to genealogical standards as generally understood internationally. Presumably CIL will now be deluged by new applicants who would previously have applied to CIP. It is also left to CIL to clean up the mess created by others.

Who is Rabbi Litvak?

There is little in the public domain about Rabbi Daniel Litvak. We do not know where he achieved his semiha, his rabbinic degree, or the circumstances surrounding his appointment as rabbi at the Jewish Community of Porto. It has been speculated that there may be a connection with the controversial Rabbi Yoshiyahu Yosef Pinto. We presume the Portuguese Ministry of Justice checked Rabbi Litvak’s credentials before placing their trust in him.

In an interview two months before his arrest, Rabbi Litvak stated: “No one will have the satisfaction of seeing any Jew from our community linked to unlawful acts and suitcases full of cash.” He was arrested by the police at Porto airport while attempting to leave the country. Unverified reports allege that he had $3 million in his bank account. CNN reports that: “At stake are the crimes of influence peddling, active corruption, document falsification, money laundering, qualified tax fraud and criminal association.” It is reported that police seized evidence for 80,000 naturalisation processes. If there has been misconduct, it is difficult to believe that it was limited to a single individual. The Sephardic Genealogical Society has full confidence in the Portuguese police investigation. Should anyone be found guilty of the offences enumerated by CNN, Sephardic honour demands custodial prison sentences.

Challenges to the reformed rules

Various legal theories have been advanced to challenge the new rules, but those legal challenges have yet to be made in court or in other appropriate forum. For instance, there may be legal and constitutional justifications to challenge the new decree-law. Also the National Assembly has a right of review over decree-laws signed by the President (we are told). It is also reported that Portugal’s Nationality Law is due to be revised in around six months, so perhaps it would be a waste of time and legal fees to seek any judicial review with which the Government disagrees.

The Sephardic Genealogical Society believes that an act of historic reparation and reconciliation is best not settled in court. The tiny Sephardic community has produced more Nobel laureates and billionaires than the Republic of Portugal. If Portugal has decided they no longer want historic reconciliation, they should clarify that as their intent. If the assumed goodwill and sense of justice of the Government of Portugal towards the families of its former Jewish citizens is also now a relic of the nation’s past, then as the Sephardic Genealogical Society, we would respect others’ decisions to seek justice in Portugal’s, and perhaps the European Union’s, courts.

Practically, the withdrawal of the Jewish Community of Porto from the certification process probably resolves the two key concerns of the Portuguese Government: too many applicants, and applicants with no real connection to Portugal. We believe the Government of Portugal has a right, and perhaps a duty, to review all approved applications and to revoke citizenship from all who have obtained it under false pretences. The Sephardic Genealogical Society has offered to assist in this process. We note that the Spanish Government has already started down this path. It is possible that the Portuguese Government’s goal is to revoke citizenship from Roman Abramovich. That is their sovereign right. But collective punishment of legitimate applicants is far-reaching and wrong. We do not ask for special favours from the Government of Portugal, just that they do what they promised.

What the future could look like

As in Spain, we are unaware of any misconduct being attributed to any Sephardic Jew. It was not the Sephardim but the Portuguese Government who chose the involvement of the Ashkenazi-led Jewish Community of Porto. It is unjust that Sephardim be punished for the actions of individuals who are not even part of our community.

The Western Sephardim, the Nação Portuguesa, are a community close to the edge of extinction. The Holocaust (the Shoah) and declining congregations mean that surviving communities are often focused on the maintenance of historic buildings rather than cultural activities. The Nação Portuguesa were the world’s first modern and globalised community, they have produced leaders in science, the arts, business and politics. This is a heritage that Portugal could and should celebrate and help to preserve.

Portugal has suffered much from the economic crisis of 2008. Courting the Jewish community – prominent in both business and media – was a cheap and effective way for Portugal to reach out to a global audience. The nationality process created a lot of positive publicity. A retreat from the project may well be interpreted as Iberian antisemitism bubbling to the surface. Portugal’s Estado Novo (Portugal’s fascist dictatorship) and the Inquisition are dark periods of the nation’s past – periods when the nation also denied the full rights of citizenship to its Sephardic Jewish community members. The original stated intention of the 2015 law was to allow restoration of Portuguese citizenship to people with a clear line of descent from Sephardic Jews. Such people could be a great asset to Portugal. The additional requirements now being introduced will have the effect of excluding almost all people who can demonstrate such descent.

Building on Portugal’s Sephardic Jewish History, this time, in earnest

If the 2015 law had its faults, let’s collaborate to fix them. Paramount would be to create an easily navigable and expandable data clearinghouse for sources of the genealogical and histological migration journeys of the Sephardim who once called Portugal home. The data science and computer science that would enable creation and use of such a clearinghouse would bring incredible modern talent to Portugal, as well as a technology sector that the nation needs to better compete in the global economy. As genealogists, we would welcome creation of such a resource in much the same way that real estate developers, bankers and investors require a property and secured collateral ownership recording system to conduct their investigations, and limit fraud.

Secondly, we would advise the Portuguese government to establish a fund from which Sephardic initiatives across the globe can be financed. Those initiatives may support educational, cultural and religious activities, as well as projects to raise historical awareness of Sephardic history and activities to strengthen the bonds of Sephardic communities worldwide with Portugal. It should be possible to further develop tourism in the less developed east of the country which was once the Jewish heartland. The fund should be administered by an independent board of a foundation established in Portugal, recruited from Sephardic communities, and in part funded by global Jewish heritage donors. If Portugal recovers damages from abusers of the citizenship law who falsely claimed Sephardic heritage, that money could go into the fund as well.

FAQs

Please be aware that this advice was published on 25 March 2022, and the situation may change. We reiterate that this report is not meant as, and does not provide, legal advice or legal opinion. If your personal situation is affected by anything contained in this Report, such as if you or a family member or friend received or has applied for Portuguese citizenship as a Sephardic Jew, we urge you to review the facts and documents that describe your personal case with competent Portuguese lawyers.

What if my application is not approved by the Jewish Community of Lisbon by 30 August 2022? We are told that you can submit your application to the Ministry of Justice before receiving your certification from the Jewish Community of Lisbon (CIL). You then later add the CIL certificate to the Ministry of Justice process. We believe this only works if the Ministry of Justice has not yet started to review your application documents, which normally is several months after the application is made. Please remember that the Ministry of Justice application requires you to obtain extra documents, have documents translated, notarised and apostilled. This can take weeks or months depending on where you live, and you should allow sufficient time. There is guidance on the CIL website at https://cilisboa.org/portuguese-nationality-concession/

I received Portuguese nationality with certification from the Jewish Community of Porto, should I be scared? We do not know what the Portuguese Government will do next. If your application was legitimate and well-documented, we hope you have no cause for alarm. If your application was legitimate but not well-documented, then it is possible the Portuguese Government may require you to provide proper documentation. If your application was illegitimate then we recommend in consultation with your legal counsel, writing to your local Portuguese consul-general stating that you have another nationality and renouncing your Portuguese citizenship, returning your Portuguese passport, birth certificate and Citizenship Card.

My application is currently in process at the Jewish Community of Porto, what will happen now? We understand that CIP will issue certificates for applicants they have already approved. We do not know about applications they have received but not yet approved. We understand they are not taking new applicants.

What will happen now if I apply to the Ministry of Justice with a certificate issued by the Jewish Community of Porto? We do not know. It is possible they will want to review the evidential documents previously reviewed by CIP, but we do not know. If you have not already done so, we recommend gathering documents that support your claim to Sephardic ancestry.

What happens if I apply to the Ministry of Justice on 1 September 2022 or later? As matters stand at the time of writing, you will need to meet the requirements of Decreto-Lei n.º 26/2022. These have not yet been precisely defined by the Conservatória dos Registos Centrais but, assuming the goal of this decree-law is to exclude Jews, we are not optimistic that there remains a route to citizenship after 30 August 2022.

Can you recommend a lawyer? A lawyer is not a requirement. Should you want to retain a lawyer, your national embassy in Portugal probably has a list, or you can consult the Portuguese Bar Association. The Sephardic Genealogical Society can provide an introduction to the law firm who advised us in this matter.

If this information has been helpful, please consider supporting the Sephardic Genealogical Society through a small monthly donation. This is also an opportunity to deepen your knowledge of Sephardic history, genealogy and culture. https://www.patreon.com/sephardi We are also seeking support for major research projects, including some that are technologically innovative.