Concept of nacionality
The concept of nacionality is result of the link between people and territory.
We can say that born in the same territory has the same origin, the same linguage, the same customs and traditions as yours ancestors forming a socio-cultural based community called nation.
They are the Nacionals. They one who is born within the boundaries of certain sovereign territory.
So nacionality is link political and legal of the internal public law. That makes the person one of the component elements of the state’s personal dimension.
In Brazilian law the terminology nacionality and citizen are not equal.
National is the Brazilian born in Brazil or naturalized. That is, who has a political and legal link with State because birth or naturalized.
Citizen is the one who as all the political rigths. Right to vote and be voted In the Federative Republic of Brazil.
So we have two situations. Nationals and citizens. They’re not the same.
National doesn’t need to be a citizen. However, the citizen needs to be national, natural or naturalized.
All state say who is your national. The form and base about the aquisition of the nacionality is constitution matter, even in those cases that it is considered in ordinary legal text or Infraconstitucional Law.
It is tradition to write in the Constitution the rules on nationality. In Brazil the right of nationality is material and formally constitutional.
Primary and secondary nationality
The nacionality can be primary or can be secondary.
The primary nationality or nationality of origin is the result of the natural fact, the birth. Secondary nationality is to which it acquires voluntarily, after birth.
Ways of acquiring nationality
Ways of acquiring nacionality is State-to-State variable. But, in any one of them the primary nacionality is involuntary and the second nacionality is voluntary.
To determination primary nacionality, two observation:
- a) Blood origin criterion or ius sanguinis: It is the nationality in its blood link. It is nacionality. National descendant of the National.
- b) Territory criterion or ius solis: Nationality is attributed to those who are born in the territory of the State.
Constitucional source of the right nacionality
The model for the acquisition of nationality is provided for in article 12 of the Constitution of Brazil.
That article determine two groups with diferent legal result. The Brazilian nato, that corresponds to primary nacionality (Art. 12, I, Brazil Constituition/1988) and Brazilian naturalized, that corresponds to secundary nacionality (Art. 12, II, Brazil Constitution/1988).
The infraconstitutional law it integrates the constitutional device, mainly in the form of the acquisition of secondary nationality, loss and acquisition of nationality, legislation N. 6.815 / 8.19.1980 with change legislation N. 6.964 / 12.9.1981.
The brazilian nato or nation
The Brazilian Constituition determine who is entitled to the Brazilian nationality who is born in the Brazilian territory. The factor is of birth. Place of birth.
So say Brazilian nato, nation, is to say the one who is born in Brazilian territory.
The criterion is the ius solis. Birth in territory. However, other criterion are possible or used by Brazilian law to determine who is entitled to Brazilian nationality.
The observation of this legal device indicates the existence of three primary nationality situations, for the person to be regarded as Brazilian National.
Article 12. Are Brazilians:
- a) The Born in the Federative Republic of Brazil, although foreign parents, provided that they are not in the service of their country;
- b) Those born abroad, of Brazilian parent or Brazilian mother, provided that any of them are in the service of the Federative Republic of Brazil;
- c) Those born abroad of Brazilian or Brazilian parent, provided that they are registered in a competent Brazilian division or are resident in the Federative Republic of Brazil and opt in any time after the majority of the Brazilian nationality; (Essay given by constitutional Amendment No. 54, of 2007).
- a) Those who, in the form of the law, acquire the Brazilian nationality, required by the originating in Portuguese-speaking countries only for an uninterrupted year and moral suitability;
- b) Foreigners of any nationality, resident in the Federative Republic of Brazil for more than fifteen years and without criminal conviction, as long as they require Brazilian nationality. (essay given by the constitutional amendment of revision No. 3, of 1994);
Â§ 1st to the Portuguese with permanent residence in the country, if there is reciprocity in favour of Brazilians, the rights inherent to the Brazilian, except the cases provided for in this Constitution are attributed. (essay given by the constitutional amendment of revision No. 3, of 1994).
Relacioned with the naturalized:
Those who, if the form of the law, acquire the Brazilian nationality, requerid by the originating in Portuguese-speaking countries only for an uninterrupted and moral reputation.
Originating in Portuguese-speaking: Portugal, Angola, Mozambique, Guinea-Bissau, Azores, Cape Green, Prince, Goa, Gamon, Dio, Macau, Timor.
Foreigners of any nationality, resident in the Federative Republic of Brazil for more than fifteen years uninterrupted and no criminal conviction, as long as they require Brazilian nationality.
Legal Status Brazilian nato
The legal status Brazilian nato gives some advantages over Brazilian naturalized as the possibility of exercising all rights conferred on the legal order.
The difference between Brazilian and Brazilian naturalized is determined in article 12, 2, of the Constitution of 1988.
The law will not be able to distinguish between Brazilian and naturalized Brazilians, except in the cases provided for in this Constitution.
Legal Status Brazilian naturalized
The limitation of the Brazilian naturalized is only that provided for in article 12, of the Constituition of 1988.
The offices of: Brasilian nato privative
Chairman and Vice President of the Republic, Chairman of the Chamber of Deputies, President of the Federal Senate, Minister of the Supreme Court, diplomatic career, officer of the Armed Forces, Minister of Defence. Article 12, §3º.
It also private of Brazilian Nato the member function of the Council of the Republic. Article 89, VII.
Brazilian nato cannot be extradited.
Brazilian naturalized can be extradited, in the case of a common crime, practised before the naturalization or proven involvement in illicit trafficking in narcotics and related drugs in the form of the law. Article 5Âº, LI.
The naturalized less than 10 years can not be owned by the company of newspaper and radio broadcasting and sound and image. Article 222.
Loss of Brazilian nationality
Loses the nationality of the Brazilian who:
Its has cancelled its naturalization by judicial decision because of harmful activity to the national interest;
Acquire another nationality (Article 12, Â§4o,) – except in cases of:
Recognition of originating nationality by foreign law;
Imposition of naturalization, by the foreign standard, to the Brazilian resident in foreign State, as a condition of permanence in its territory or for the exercise of civil law (ECR-3/94);
Requisition of brazilian nationality
The one who had the naturalization cancelled can never recover lost nationality, unless the cancellation is undone by itself in court.
What you have lost by voluntary naturalization can reacquire by decree of the President of the Republic.
The one who lost pursuant to the previous constitution, 1988 may reacquire the nationality.
Como citar: Silveira, Alex Garcia. Brazilian Nacionality Rigth. 1. São Paulo: 2017. Disponível em: alexgarcias.com.br