Regular procedure

Author

Portuguese Refugee Council Visit Website

General (scope, time limits)

The first instance determining authority is required to take a decision on the asylum application within 6 months. This time limit is additional to the duration of the admissibility procedure and can be extended to 9 months in particularly complex cases.[1] The Asylum Act does not provide for specific consequences in case of failure to meet the time limit. Nevertheless, it establishes that when the six-month deadline is extended, the determining authority must inform the applicant accordingly. If the applicant so requests, the determining authority must also inform them of the reasons for the extension and of the expected timeline for the issuance of a decision.[2]

Asylum seekers are usually reluctant to act on the delay on the basis of general administrative guarantees, e.g., by requesting Administrative Courts to order SEF/AIMA to issue a decision on the application within a given time limit.[3]

AIMA did not share an estimation of the average duration of the procedure at first instance for 2023. OM’s Statistical Reports of Asylum do not indicate the average duration of the asylum procedure either.

The UN Human Rights Committee, in its Concluding Observations published in 2020, expressed concern with ‘[r]eported delays in the processing of regular asylum applications and in the issuance and renewal of residence permits.’ The Committee recommended that Portugal ‘continue its efforts to maintain and strengthen the quality of its refugee status determination procedures, in order to fairly and efficiently identify and recognise those in need of international protection and to afford sufficient guarantees of respect for the principle of non-refoulement under the Covenant.’[4]

According to CPR’s observation, significant delays in the processing of regular asylum applications still persist. CPR was able to gather information on 11 regular procedure decisions issued in the course of 2023, including decisions communicated by the authorities in accordance with the law, and decisions that reached CPR’s knowledge by other avenues, i.e., through direct contacts with applicants. In these cases, the overall duration of the procedure[5] ranged from 128 to 1,581 days, with an average duration of 565 days. CPR is uncertain whether the low number of notifications of asylum decisions is related to gaps in communication or indicates further delays in the decision-making process (or a combination of both).

CPR has further observer significant delays between the date of issuance of decisions and its notification to the asylum seeker. In some cases, this delay was of over one year.

Throughout the year, CPR often contacted the determining authority, on behalf of asylum seekers, requesting information regarding the status of their application and the expected timeline for the issuance of a decision. The competent authorities have very rarely replied to such requests. In instances where a response was provided, CPR/the applicant was merely informed that the analysis of the application was delayed due to the high number of applications and to the low number of staff members of the authority, and that there was no expectation of a timeline for the issuance of the decision.

A study focusing on the situation of asylum-seeking unaccompanied children and ageing out in Portugal published in 2021 revealed that among those questioned, the majority waited for more than 12 months for a decision on their application for international protection.[6]

In the context of the provision of legal assistance to asylum seekers, CPR has also at times observed significant delays in the execution of judicial decisions by SEF (up to one year or more in some cases). According to CPR’s observation, this mostly concerned the execution of judicial decisions ruling that an application should not be processed under an accelerated procedure and consequently ordering the Administration to reanalyse the case under the regular procedure, or Dublin cases that should be reprocessed. It has also been observed that the authorities do not consider the 30-days mandatory deadline for decisions deeming an application inadmissible/unfounded to apply in these circumstances. As such, SEF does not deem the applications admitted to the regular procedure when the deadline is elapsed. At the time of writing, it was not yet possible to ascertain AIMA’s practice in this regard.

AIMA did not share the number of pending cases at first instance by the end of the year. According to Eurostat, 365 asylum applications were pending by the end of 2023.[7]

Prioritised examination and fast-track processing

AIMA did not provide information regarding prioritisation and fast-tracking of asylum applications. CPT’s observation does not indicate trends in this regard.

Personal interview

The Asylum Act provides for the systematic personal interview of all asylum seekers in the regular procedure prior to the issuance of a first instance decision.[8] The personal interview can only be waived where:

• The evidence already available allows for a positive decision; or
• The applicant lacks legal capacity due to long-lasting reasons beyond their control.[9]

According to the law, if the interview is waived, SEF/AIMA is required to offer the applicant or their dependant(s) the opportunity to communicate relevant information by other means.[10]

The asylum seeker is entitled to give their statement in their preferred language or in any other language that they understand and in which they are able to communicate clearly.[11] To that end, the asylum seeker is entitled to the assistance of an interpreter when applying for asylum and throughout the asylum procedure, if needed.[12] The asylum seeker can also be assisted by a lawyer but the absence thereof does not preclude SEF from conducting the interview.[13]

The transposition of the provisions of the recast Asylum Procedures Directive (APD) regarding the personal interview into national legislation presents some incompatibilities, most notably:

• Cases of applicants deemed unfit/unable to be interviewed due to enduring circumstances beyond their control – the final part of Article 14(2)(b) of the recast APD was not transposed (‘[w]hen in doubt, the determining authority shall consult a medical professional to establish whether the condition that makes the applicant unfit or unable to be interviewed is of a temporary or enduring nature’). The safeguard contained in Article 14(4) of the recast APD, determining that the absence of a personal interview in such situations ‘shall not adversely affect the decision of the determining authority’, was also not explicitly transposed to the Asylum Act.
• Conditions of the personal interview – the requirements set out in Article 15 of the recast APD, particularly those regarding to the characteristics of the interviewer and the use of interpreters (Article 15(3) recast APD), are not fully transposed. Furthermore, and without prejudice to Article 84 of the Asylum Act which refers to the adequate training of all staff working with applicants and beneficiaries of international protection, the specific training requirement for interviewers provided for in Article 4(3) of the recast APD was not transposed to the domestic order (‘[p]ersons interviewing applicants pursuant to this Directive shall also have acquired general knowledge of problems which could adversely affect the applicants’ ability to be interviewed, such as indications that the applicant may have been tortured in the past’).
• Content of the personal interview – the final part of Article 16 of the recast APD, establishing that the personal interview ‘shall include the opportunity to give an explanation regarding elements which may be missing and/or any inconsistencies or contradictions in the applicant’s statements’ was not transposed to the Asylum Act.

In practice, asylum seekers are only interviewed once throughout the asylum procedure, which means that the general rules and practice of the regular procedure apply to the vast majority of cases (except border procedures, applications following a removal order, subsequent applications).

The Asylum Act does not provide the right of the applicant to request the interviewer and/or the interpreter to be of a specific gender (Article 15(3)(b) and (c) of the recast APD). According to the information provided by SEF, this can happen in practice at the applicant’s request and if possible. It is unclear to CPR whether applicants are systematically made aware of that possibility. Information on the criteria used to analyse such requests or the arrangements in place to ensure effective implementation is not available.

In the past, SEF affirmed that applicants are guaranteed the right to an interview before any decision regarding their application is adopted, emphasising that interviews could only be waived in the cases listed in the Asylum Act. SEF also noted that interviews were conducted in all types of procedure, including Dublin. AIMA did not provide information regarding its interviewing practices, notably the number of interviews conducted, number of applications decided without a personal interview, and use of remote means (for the conduction of interviews or for interpretation).

According to CPR’s observation in 2023, personal individual interviews were generally conducted in practice. Nevertheless, CPR found that AIMA had internal guidance according to which in the case of evacuated Afghan citizens only the head of the family (i.e. the man) was to be interviewed. CPR was not able to confirm this information and to establish when such a practice may have begun.

It is unclear whether there are specific internal guidelines for interviewers regarding the identification of vulnerabilities and the precautions to take when interviewing particularly vulnerable applicants.

According to SEF, interviews were not conducted by remote communication means, but interpretation may be provided by phone/videoconferencing. While according to CPR’s observation, this continued to be the case with AIMA, the Agency did not provide information in this regard (see infra the sub-section on Interpretation).

The interview was generally conducted by SEF-GAR, although some interviews were conducted by SEF’s regional delegations in cases of asylum applications made outside the Lisbon area. Such interviews were conducted on the basis of a questionnaire prepared by SEF-GAR.

Since the beginning of AIMA’s activity, CPR has observed that interviews were also conducted outside AIMA-CNAR. It is unclear whether the officials conducting such interviews were associated to CNAR specifically.

Since the beginning of AIMA’s operation, CPR has been observing concerning systematic practices regarding interviews, notably:

• Oversimplification of the interviews and of the questions asked to the applicant;
• Interviews being conducted late in the night/early in the morning and following trips to different areas of the country;[14]
• Applicants systematically asked during the interview if they wish to be immediately notified of the decision of their asylum application without being informed that such a decision implies a relinquishment of their right to reply to the interview/case report and without having access to legal information and assistance before making a decision;
• Applicants not being informed of the possibility to be interviewed in a language they understand with the assistance of an interpreter, despite clear difficulties in communicating in another language;
• Refusal by the interviewing officers to receive evidentiary elements despite the applicant’s attempts on the grounds that it would not be necessary (no written decision/explanation provided).

Since 2021, CPR has observed the adoption of decisions not to proceed with the analysis of the application due to the impossibility of performing the personal interview (e.g., where the applicant absconded). These decisions are based on general administrative procedure rules.[15] Procedures were also suspended in cases while the results of age assessment procedures triggered by the Family Courts were pending.[16]

Throughout the year, CPR was also informed of decisions extinguishing the asylum procedure according to Article 32 of the Asylum Act, either due to explicit or implicit withdrawal of the application.

According to the law, an application is deemed as implicitly withdrawn if the procedure is inactive for more than 90 days, namely if the applicant:

• does not provide essential information for their application when requested to do so;
• does not attend the personal interview;
• absconds without contacting SEF/AIMA;
• does not comply with the obligation to appear or to communicate with the authorities.[17] The competence to determine the extinction of an application belongs to the National Director of SEF/Board of AIMA.[18]

Notwithstanding, the applicant is entitled to reopen their asylum case by presenting themselves to SEF/AIMA at a later stage.[19] In this case, the file is to be resumed at the exact stage where it was discontinued.[20] According to CPR’s observation, the extinction of a procedure usually follows a decision to halt the analysis of an application.

A number of decisions from TCA South issued in 2021 focused on the right of the applicant to request legal aid in order to have a lawyer present during the interview. According to the analysed decisions, the Court overall considered that:

• Applicants for international protection may request legal aid in order to have a lawyer present in the asylum interview;[21]
• Conducting an asylum interview without a lawyer present per se does not violate the Portuguese Constitution;[22]
• To effectively guarantee the applicant’s rights, the authority (SEF) must fully and correctly inform the applicant of the possibility of being accompanied by a lawyer in the interview and of applying to legal aid for that purpose. If that does not happen, the decision on the asylum application may be annulled.[23]

The appeal of one such case was decided by the Supreme Administrative Court (STA) in 2022.[24] Overall, the Court considered that:[25]

• CPR does not have legal representation powers, and its role does not prevent representation by certified lawyers;
• The Asylum Act determines that legal assistance in the administrative stage of the procedure is primarily provided by CPR, which is due to the non-governmental character of the organisation, its independence, impartiality and the gratuity of the support provided;
• While the role of CPR’s legal officers is not equivalent to that of certified lawyers, they are particularly suited to provide assistance in first instance procedures due to their specialisation in the field of asylum;
• The law provides CPR and UNHCR broad intervention powers in the asylum procedure;
• The legal framework as a whole does not lack avenues to access adequate legal assistance and information.

As such, the Court ruled that SEF is not bound by a duty to inform applicants of international protection that they may request legal aid for the purposes of legal representation within the administrative stage of the procedure. Furthermore, it considered that, in extremis, CPR legal officers will explain the differences between the different types of assistance to applicants and facilitate access to legal aid if the applicant so wishes. This has not led, consequently, to notable changes in law or practice.

Interpretation

The Asylum Act does not provide the right of the applicant to request the interviewer and/or the interpreter to be of a specific gender (Article 15(3)(b) and (c) of the recast APD).

According to the information provided by SEF, this could happen in practice at the applicant’s request and if possible. It is unclear to CPR whether applicants were systematically made aware of that possibility. Information on the criteria used to analyse such requests or the arrangements in place to ensure effective implementation was not available. AIMA’s practice in this regard is unclear and the Agency did not provide information on this matter.

The quality of interpretation services used for interviews remains a serious challenge. In many cases, service providers are not trained interpreters but rather individuals with sufficient command of source languages. Interpreters are bound by a legal duty of confidentiality. It is unclear whether SEF/AIMA has a code of conduct/guidance applicable to interpreters.[26]

According to the information previously provided by SEF, interpretation was at times provided by phone/videoconferencing. According to CPR’s observation, since the beginning of AIMA’s operation, recourse to phone interpretation (via the translation hotline managed by AIMA) became very frequent. The systematic use of the translation hotline for asylum interviews raises a number of concerns namely regarding confidentiality and the creation of an environment that assures the applicant and promotes the proper sharing of information.

CPR has also received reports of applicants not being informed of the possibility to be interviewed by AIMA in a language they understand with the assistance of an interpreter, despite clear difficulties in communicating in another language (such as English).

According to CPR’s experience, securing interpreters with an adequate command of certain target languages remains challenging (e.g., Amharic, Somali, Punjabi, Tigrinya, Pashto, Bambara, Lingala, Tamil, Kurdish, Mandinka, Nepalese, Sinhalese, Bengali, and Gujarati).

Recording and reporting

The Asylum Act does not provide for the audio and/or video recording of the interview or for conducting interviews and/or interpretation through videoconferencing.

According to the Asylum Act, following the interview, SEF/AIMA must prepare a transcript of de statements provided by the applicant or a detailed and factual report containing all the essential elements of the statements provided by the applicant.[27] This provision of the Asylum Act was amended in August 2023 (entering into force on 29 October 2023). The previous wording only referred to the transcript of the statements provided by the applicant during the interview.[28]

The applicant must be notified of the document and their right to reply to it.[29]

In practice, SEF/AIMA produces a written report summarising the most important elements raised during the interview, which is generally provided to the applicant immediately after the interview. Applicants are also notified of a report summarising the information that will underlie the decision to deem the application admissible/not unfounded and, as such, submit it to the regular procedure, or to reject it as inadmissible/unfounded (accelerated procedure). It should be noted that, since the beginning of 2024, CPR has been observing frequent changes of practice by AIMA regarding the documents and procedures connected to the interview and the summary report, leading to lack of clarity and to an increase of potential violations of procedural rights.

The summary report broadly contains information on: (i) identification of the applicant; (ii) family members; (iii) time and place of the application for international protection; (iv) prior information; (v) itinerary; (vi) summary of the facts that will underlie the decision;[30] (vii) the prospective decision to be taken (brief reference to the relevant legal basis).

Until 29 October 2023, the applicant had 5 days to submit comments in response to the summary report. Following an amendment to the Asylum Act, the deadline was reduced to 3 days since then.[31]

This reduced deadline to reply to the report is highly concerning for a number of reasons. Firstly, it is appalling that there was no broad consultation in this regard, and that no justification was provided for such a change. Secondly, according to CPR´s experience, the 3-day deadline is not sufficient to ensure the right at stake and will create obstacles to its effective exercise.

The right to reply to the interview report, provided for in article 17(2) Asylum Act, is an integral part of the right of the asylum seeker to be heard within the asylum procedure. Along with the personal interview provided for in article 16 Asylum Act, this is, in practice, the moment when the facts underlying the application for international protection are established.

Article 17(2) Asylum Act is also to be read in line with the right of applicants for international protection to access legal information and assistance (article 49(1)(e) Asylum Act). This is because, in practice, applicants usually resort to legal assistance in order to be able to fully exercise the right to respond in writing to the report on their application (which usually includes a proposal to reject the application either on admissibility grounds or under an accelerated procedure).

According to CPR’s experience in providing legal assistance at this stage, in order to ensure that applicants can effectively exercise their right to reply it is, for instance, often necessary to involve interpreters. Furthermore, time is required for the provision of adequate information and to adequately take into account the individual characteristics of the applicant concerned.

Furthermore, the written reply of the applicant is usually critical to a better understanding of the material facts of the application.

A deadline of 3 days cannot be deemed as reasonable to ensure an effective right to respond to the report. This is particularly the case when taking into account the structure and duration of the asylum procedure, as well as the importance of this procedural guarantee, and the practicalities required for its effective exercise. The reduction of this procedural guarantee will not only affect asylum seekers, it will also negatively impact the overall quality of the asylum procedure as it will reduce the information available to the asylum authority (and later, to judges) to conduct a fair and proper assessment of cases.

According to law, upon consent of the applicant, the report must also be communicated to UNHCR and to CPR, and the organisations may submit observations within the same deadline.[32] In the past, interview reports were usually communicated to CPR accordingly. Currently, only the summary reports are communicated to CPR (although reports for Dublin cases are not systematically communicated). As such, access to interview transcripts by CPR depends on the applicant. The systematic non-communication of interview transcripts is an obstacle to the full monitoring of the national asylum procedure.

CPR provides systematic legal assistance to asylum seekers at this stage, with the support of interpreters, for the purpose of reviewing and submitting comments/corrections to the summary report and to the interview transcript.

According to CPR’s observation, the summary reports tend to oversimplify the statements provided by the

applicant to the authorities, and the merits analysis tends to be simplistic. Furthermore, applicants usually find it difficult to understand the meaning of the document and to comment meaningfully on its content. Given its content and context, this new practice has not improved the quality of the asylum procedure.

AIMA’s practice in this regard has been deteriorating since the beginning of the Agency’s operation. The case reports have become more and more laconic both regarding the information provided by the applicant and the grounds for the analysis of the application (mostly, the report merely refers to the legal rule invoked to reject the application).

CPR has also observed that some SEF case workers usually deemed any clarifications or corrections provided by asylum seekers as inconsistencies, even when such elements are provided within the relevant legal framework and are duly justified. According to CPR’s observation, since the beginning of AIMA’s operation, clarifications/corrections provided in writing by the applicants are not usually properly analysed by the authority nor taken into account in the decision-making process.

As mentioned above, AIMA’s officials systematically ask the applicants during the interview if they wish to be immediately notified of the decision of their asylum application. Applicants are not properly informed that such a decision implies a relinquishment of their right to reply to the interview/case report, and do not have access to legal information and assistance before making a decision. As a consequence of this practice, a significant number of applicants have been unable to exercise their right to reply to the written report since the beginning of AIMA’s operations.

During SEF’s operations, CPR observed inconsistent practices with regard to cases that are to be admitted to the regular procedure. Depending on the assigned caseworker, the applicant could be notified of a report and given the corresponding deadline to provide written comments or could only be notified of a decision deeming the application admissible. The latter was potentially problematic given that, usually, no further interviews are conducted during the procedure. Consequently, in practice, such applicants were potentially not given the possibility to offer comments on the facts adduced during the interview before being notified of a decision at the final stage of the procedure. AIMA’s practice in this regard remained unclear at the time of writing.

CPR has made efforts to mitigate the negative impacts of this practice by adding the applicant’s comments to the file in accordance with article 28(5) of the Asylum Act, that allows the organisation to add observations on individual cases at any stage of the procedure.

CPR has also been made aware that, when the interview is conducted following admission to the regular procedure, the written report of the interview was not systematically provided by to the applicants. Such reports were not communicated to CPR on a systematic basis as well.[33]  AIMA’s practice in this regard remained unclear at the time of writing.

This practice is problematic as it curtails the applicant’s right to submit comments and corrections to the interview report and may also impact the applicant’s ability to fully exercise other procedural rights at later stages of the procedure (e.g., replying to a proposal of decision on the grant of international protection). Moreover, it seems to be in contradiction both with the domestic legal framework and the recast Asylum Procedures Directive as the relevant requirements apply to the personal interview, regardless of the moment in which it is conducted.[34]

A decision from TCA South issued in 2021 considered that, despite the absence of an explicit reference in the relevant norm,[35] the authorities are bound by articles 16 and 17 of the Asylum Act (personal interview and report) within the examination of applications made following a removal order.[36]

Worryingly, a decision from TCA South issued in 2023 considered that the information provided by the applicant in writing following the interview are irrelevant as such statements are not spontaneous and are, consequently, motivated by the willingness to fulfil the requirements to be granted international protection.[37]

Appeal

First appeal before the Administrative Court

The Asylum Act provides for an appeal against the first instance decision in the regular procedure consisting of judicial review of relevant facts and points of law by the Administrative Court.[38] The asylum seeker has 15 days to lodge the appeal, which has automatic suspensive effect.[39]

The Asylum Act that provides for the free and urgent nature of procedures regarding the grant or loss of international protection both in the administrative and judicial stages.[40]

Administrative Courts have a review competence, which allows them to either:

• confirm the negative decision of the first instance decision body;
• annul the decision and refer the case back to the first instance decision body with guidance on applicable standards;[41] or
• overturn it by granting refugee or subsidiary protection status.[42]

The Asylum Act qualifies the judicial review as urgent,[43] and provides for a simplified judicial process with reduced formalities and time limits with the objective of shortening the duration of the judicial review.[44]

A decision issued by TCA South in 2021 confirmed that, when legal aid is requested by the appellant, the appeal is deemed as having been filed on the date of submission of the request for legal aid.[45]

The information provided by the High Council of Administrative and Fiscal Courts (Conselho Superior dos Tribunais Administrativos e Fiscais – CSTAF) for 2023 regarding the duration of judicial reviews of first instance decisions does not make a distinction between the type of asylum procedure. According to these statistics, the average duration of appeals at first instance courts in 2023 was of 74 days.

While the Asylum Act does not specifically provide for a hearing of the asylum seeker during the appeal procedure, such a guarantee is enshrined in the general rules.[46] This is rarely used in practice by lawyers and accepted by the Court when requested, as procedures before the Administrative Court tend to be formalistic and essentially written.[47] As a general rule, the hearing of the appeal body is public but the judge may rule for a private audience based on the need to protect the dignity of the individual or the smooth operation of the procedure.[48] CSTAF confirmed that no such hearings occurred in 2023.

In practice, and without prejudice to issues such as the poor quality of Legal Assistance and the merits test applied by the Bar Association, and language barriers that have an impact on the quality and effectiveness of appeals, CPR is not aware of systemic or relevant obstacles faced by asylum seekers in appealing a first instance decision in the regular procedure.

According to CSTAF, a total of 306 appeals were lodged against negative asylum decisions in 2023, an increase of around 26% compared to 2022. Out of these, 287 were filled in TAC Lisbon.

The information provided by the CSTAF for 2023 regarding the outcome of judicial reviews of first instance decisions indicates a poor success rate at appeal stage (8% at TAC Lisbon, and 9% at national level). As mentioned in Statistics, these figures do not make a distinction between the type of asylum procedure. In the experience of CPR, the majority of the appeals filed usually follow decisions adopted in the accelerated and Dublin procedures. In this regard, it must also be acknowledged that the quality of many appeals submitted is often poor, given that very few lawyers have relevant expertise in the field.

According to the information previously provided by CSTAF, in early 2022, the Working Group for Administrative and Fiscal Justice, created by the Ministry of Justice, proposed an amendment to the Statute of the Administrative and Fiscal Courts that would allow CSTAF to create specialised sections in the Administrative Courts, namely in the field of asylum. In order for this to be implemented, the Statute would have to be amended and the CSTAF would then have to deliberate on the creation of the relevant section. No further developments were observed in 2023 in this regard. 

Onward appeal

In case of rejection of the appeal, an onward appeal may be presented to the Central Administrative Court (Tribunal Central Administrativo – TCA). This is a full judicial review of relevant facts and points of law,[49] with automatic suspensive effect.[50]

The law further provides for an additional appeal with automatic suspensive effect before the Supreme Administrative Court (Supremo Tribunal Administrativo, STA) on points of law but only in exceptional cases of fundamental importance of the appeal for legal and social reasons or to improve the quality of legal reasoning in decision-making more broadly.[51] STA makes its own assessment and decision on the facts of the case.[52] In both cases the asylum seeker has 15 days to lodge the appeal.[53]

The rulings of second instance Administrative Courts (TCA) and the STA are systematically published.[54]

According to information provided by CSTAF, Higher Courts do not collect autonomous data on asylum-related processes. Nevertheless, CSTAF reported that, in 2023, a total of 50 appeals were filed in second instance courts (TCA South and TCA North), out of which 28 were decided. According to the information provided by CSTAF, the average duration of appeals at second instance courts was of 180 days.

Legal assistance

The Portuguese Constitution enshrines the right of every individual to legal information and judicial remedies regardless of their financial condition.[55]

Legal assistance at first instance

The Asylum Act provides for the right of asylum seekers to free legal assistance at all stages of the asylum procedure, which is to be understood as including the first instance of the regular procedure.[56] Such legal assistance is to be provided without restrictions by a public entity or by a non-governmental organisation in line with a Memorandum of Understanding (MoU).[57]

Furthermore, under the Asylum Act, UNHCR and CPR as an organisation working on its behalf must be informed of all asylum applications and are entitled to personally contact all asylum seekers irrespective of the place of application to provide information regarding the asylum procedure, as well as regarding their intervention in the procedure (dependent on the consent of the applicant).[58] These organisations are also entitled to be informed of key developments in the asylum procedure upon consent of the applicant,[59] and to present their observations at any time during the procedure pursuant to Article 35 of the 1951 Refugee Convention.[60]

In practice, CPR provides free legal assistance to spontaneous asylum seekers during first instance procedures on the basis of MoUs with the Ministry of Home Affairs and UNHCR. The legal assistance provided by CPR at this stage includes:

• Providing information regarding the asylum procedure, rights and duties of the applicant;
• Conducting refugee status determination interviews in order to assist the applicants in reviewing and submitting comments/corrections to the report narrating the most important elements of their interview/application with the determining authority;
• Providing SEF with observations on applicable legal standards and country of origin information (COI);
• Providing assistance in accessing free legal aid for appeals; and
• Assisting lawyers appointed under the free legal aid system in preparing appeals with relevant legal standards and COI.

Regarding particularly vulnerable asylum seekers, CPR provides specific legal assistance to unaccompanied asylum-seeking children. This includes the presence of a legal officer during the personal interview with SEF (see Legal Representation of Unaccompanied Children) as well as the provision of information and assistance in the framework of procedures before the Family and Juvenile Court.[61]

CPR also provides legal information and assistance to beneficiaries of international protection, including resettled refugees. This includes, for instance, providing information on the legal status, providing information and assistance in family reunification procedures, nationality acquisition and other integration-related matters, and submitting observations on applicable legal standards when relevant.

In 2023, CPR provided legal support to 1,772 spontaneously arrived asylum seekers in all types of asylum procedures lodged throughout the year, which represents around 69% of the total number of applications communicated to CPR according to the law (2,565) and 65% of the total number of applicants registered by the national authorities (2,715, excluding resettled refugees).

All the applicants whose cases are communicated to CPR that are not provided accommodation by the organisation are sent a letter setting out details of the legal assistance provided by CPR and relevant contacts. Bilateral contacts are also established with other organisations responsible for the reception of applicants for international protection.

There are other organisations that provide legal information and assistance to asylum seekers during the first instance of the regular procedure such as the Jesuit Refugee Service (JRS) Portugal, the High Commissioner for Migration (ACM) through its National Centres for Migrants’ Integration (CNAIM) and Local Support Centres for Migrants Integration (Centro Local de Apoio à Integração de Migrantes, CLAIM) spread throughout the country (until the end of October 2023), and Crescer. According to the available information, these services remain residual and mostly focused on integration.

A number of decisions from TCA South issued in 2021 focused on the right of the applicant to request legal aid in order to have a lawyer present during the interview. According to the analysed decisions, the Court overall considers that:

• Applicants for international protection may request legal aid in order to have a lawyer present in the asylum interview;[62]
• The performance of the asylum interview without a lawyer present per se does not violate the Portuguese Constitution;[63]
• To effectively guarantee the applicant’s rights, the authority (SEF) must fully and correctly inform the applicant of the possibility to be accompanied by a lawyer in the interview and of the possibility to apply to legal aid to that purpose. If that does not happen, the decision on the asylum application may be annulled.[64]

The appeal of one such case was decided by the Supreme Administrative Court (STA) in 2022.[65] Overall, the Court considered that:[66]

• CPR does not have legal representation powers, and its role does not prevent representation by certified lawyers;
• The Asylum Act determines that legal assistance in the administrative stage of the procedure is primarily provided by CPR, which is due to the non-governmental character of the organisation, its independence, impartiality and the gratuity of the support provided;
• While the role of CPR’s legal officers is not equivalent to that of certified lawyers, they are particularly suited to provide assistance in first instance procedures due to their specialisation in the field of asylum;
• The law provides CPR and UNHCR broad intervention powers in the asylum procedure;
• The legal framework as a whole does not lack avenues to access adequate legal assistance and information.

As such, the Court ruled that SEF is not bound by a duty to inform applicants of international protection that they may request legal aid for the purposes of legal representation within the administrative stage of the procedure. Furthermore, it considered that, in extremis, CPR legal officers will explain the differences between the different types of assistance to applicants and facilitate access to legal aid if the applicant so wishes.

Legal assistance in appeals

Regarding legal assistance at the appeal stage, the Asylum Act provides for the right of asylum seekers to free legal aid in accordance with the law.[67]

The legal framework of free legal aid provides for a ‘means assessment’ on the basis of the household’s income,[68] as only applicants who do not hold sufficient income are entitled to free or more favourable conditions to access legal aid.[69] The application is submitted to the Institute of Social Security (Instituto da Segurança Social, ISS) that conducts the means assessment and refers successful applications to the Portuguese Bar Association (Ordem dos Advogados).[70]

The Bar appoints a lawyer,[71] on the basis of a random/automatic selection procedure.[72] The sole responsibility for organising the selection lies with the Portuguese Bar Association but such procedure should ensure the quality of the legal aid provided.[73] While the average duration of this procedure in 2023 was around 2 weeks, the law provides for the suspension of the time limit for the appeal upon presentation of the free legal aid application and until the appointed lawyer submits the judicial appeal.[74]

The national legislation provides for a ‘merits test’ to be conducted by the appointed lawyer. Accordingly, free legal assistance can be refused on the basis that the appeal is likely to be unsuccessful. In that case, the appointed lawyer can excuse themselves from the case and the Portuguese Bar Association can choose not to appoint a replacement.[75]

CPR supported the submission of 292 applications for legal aid in the course of 2023. While a breakdown of application by type of procedure is not available, the overwhelming majority of such requests followed refusals in accelerated and Dublin procedures.

In general, asylum seekers enjoy unhindered access to free legal aid at appeal stage. Nevertheless, the practical implementation of the ‘means test’ conducted by ISS, and of the ‘merits test’ conducted by appointed lawyers have occasionally raise some concerns:

• In the case of the ‘means test’ conducted by the ISS, the fact that some asylum seekers (particularly those admitted to the regular procedure) are employed has at times resulted in asylum applicants having a level of income that excludes them from the free legal aid regime. In this case, given the usually limited levels of income, applicants can still be offered more favourable conditions to access legal aid such as payment in instalments. Occasionally, CPR has been informed of cases where legal aid requests by applicants within the regular procedure have been refused due to the residency documents presented and to the lack of proof of income (notably where such applicants were benefiting from social support provided by the ISS due to the lack of income).
• In the case of the ‘merits test’, as reported in previous years, the practice of the Portuguese Bar Association remains inconsistent. CPR has observed cases where, following a refusal by the appointed lawyer to provide free legal aid on the grounds that the chances of success were limited, the Bar Association chose not to appoint a replacement. In some instances, this happened following the assessment of only one lawyer. The objective criteria for such decisions remain unclear. While CPR has provided support in the submission of revision requests, the Bar Association generally considers that it is up to the appointed lawyer to analyse whether the applicant’s position is legitimate and legally viable. As such, reversals are systematically refused.[76] Up until now, this practice has mostly impacted applicants within Dublin/Admissibility/Accelerated procedures. This remains a concerning practice that may have an impact on the effective access to legal aid by asylum seekers.

Additional persisting challenges in this regard include the absence of an easily accessible interpretation service, which hinders communication between the lawyer and the client during the preparation of the appeal. Although ACM’s/AIMA’s translation hotline can constitute a useful tool in this regard, according to CPR’s experience, it is insufficiently used by lawyers.[78] Moreover, the expenses for the preparation of the appeal, including for interpretation and translation of documents, need to be paid in advance by the appointed lawyer who can then ask the court for reimbursement.[79]

[1] Article 28(2) Asylum Act.

[2] Ibid.

[3] Article 129 Administrative Procedure Code; Article 66(1) Administrative Courts Procedure Code.

[4] Human Rights Committee, Concluding Observations on the fifth periodic report of Portugal, CCPR/C/PRT/CO/5. 28 April 2020, par.35(a) and (b), available at: https://bit.ly/2Q1ftn8.

[5] Time comprised between the date of the application and the date of issuance of the first instance decision on the (regular) asylum procedure.

[6] Sandra Roberto, Carla Moleiro, ed. Observatório das Migrações, De menor a maior: acolhimento e autonomia de vida em menores não acompanhados, April 2021, p.43, available at: https://bit.ly/3fqMKBK.

[7] Eurostat, Persons subject of asylum applications pending at the end of the month by citizenship, age and sex – monthly data, available at: https://tinyurl.com/ykpb3ykn.

[8] Article 16(1) (2) and (3) Asylum Act.

[9] Article 16(5) Asylum Act.

[10] Article 16(6) Asylum Act.

[11] Article 16(1) Asylum Act.

[12] Article 49(1)(d) Asylum Act.

[13] Article 49(7) Asylum Act.

[14] In some cases, applicants in such situations have also reported not being provided adequate food in the meantime.

[15] Article 119(3) Administrative Procedure Code.

[16] Article 38(1) Administrative Procedure Code.

[17] Article 32(1) Asylum Act.

[18] Article 31(2) Asylum Act.

[19] The Asylum Act does not establish a deadline to do so.

[20] Article 31(3) Asylum Act.

[21] TCA South, Decision 2285/20.7BELSB, 21 April 2021, available at: https://bit.ly/3tQAjHc.

[22] Ibid.

[23] TCA South, Decision 806/21.7BELSB, 23 September 2021, available at: https://bit.ly/3iQyns9; TCA South, Decision 2144/20.3BELSB, 7 October 2021, available at: https://bit.ly/3IR83IZ.

[24] STA, Decision 02144/20.3BELSB, 25 January 2022, available at: https://bit.ly/3EMaIEI.

[25] Following the same reasoning, see also TCA North, Decision 02331/21.7BELSB, 2 March 2022, available at: https://bit.ly/3YmUcSA.

[26] In this regard, SEF previously reported that the entity followed the interview recommendations issued by EUAA. AIMA did not provide information on this matter.

[27] Article 17(1) Asylum Act.

[28] For information regarding the evolution of national practice in this regard, please refer to the previous AIDA reports.

[29] Article 17(2) Asylum Act.

[30] Presentation of the application, motives, relevant elements.

[31] Article 17 (1) and (2) Asylum Act.

[32] Article 17(3) Asylum Act.

[33] According to article 17(3) Asylum Act, upon consent of the applicant, the report is to be communicated to UNHCR and to CPR as organisation working on its behalf. Such entities may submit observations.

[34] Article 17(3) Asylum Procedures Directive. Articles 16 and 17 of the Asylum Act do not make a distinction between interviews conducted prior to admission and interviews conducted following admission to the regular procedure.

[35] Article 33-A Asylum Act.

[36] TCA South, Decision 139/21.9 BELSB, 23 September 2021, available at: https://bit.ly/3N7cHov. Note that, while the decision systematically refers to subsequent applications, it is indeed analysing the rules applicable to asylum applications made following a removal order (article 33-A Asylum Act).

[37] TCA South, Decision 3275/22.0BELSB, 23 March 2023, available at: https://tinyurl.com/2bpmc3c5.

[38] Article 30(1) Asylum Act; Article 95(3) Code of Procedure in Administrative Courts.

[39] Article 30(1) Asylum Act.

[40] Article 84 Asylum Act.

[41] Article 71(2) Code of Procedure in Administrative Courts. In practice this is normally the case when the courts find that there are relevant gaps in the assessment of the material facts of the claim, thus requiring the first instance decision body to conduct further investigations.

[42] Article 71(1) Code of Procedure in Administrative Courts.

[43] Article 84 Asylum Act.

[44] Article 30(2) Asylum Act; Article 110 Code of Procedure in Administrative Courts.

[45] TCA South, Decision 1441/20.2BELSB, 18 March 2021, available at: https://bit.ly/3Lo2bbP.

[46] Article 90(2) Code of Procedure in Administrative Courts.; Article 466 Act 41/2013.

[47] Quite strangely, despite having the possibility of hearing the applicant directly, TAC South determined in a 2019 decision that the opinion of the officer that conducted the applicant’s interview on his/her credibility is relevant as only direct contact with the applicant will allow to ascertain the credibility of his/her statement, as well as his/her general credibility “as a person”. Therefore, in the absence of a gross error of the determining authority, the court cannot query its assessment of the credibility of the statements. TCA South, Decision 713/18.0BELSB, 10 January 2019, unpublished.

[48] Article 91(2) Code of Procedure in Administrative Courts; Article 606 Act 41/2013.

[49] Article 149(1) Code of Procedure in Administrative Courts; Article 31(3) Act 13/2002.

[50] Article 143(1) Code of Procedure in Administrative Courts.

[51] Articles 143(1) and 150(1) Code of Procedure in Administrative Courts.

[52] Article 150(3) Code of Procedure in Administrative Courts.

[53] Article 147 Code of Procedure in Administrative Courts.

[54] Decisions are available at: https://bit.ly/3abzUaZ.

[55] Article 20(1) Constitution.

[56] Article 49(1)(e) Asylum Act.

[57] Ibid.

[58] Article 13(3) Asylum Act. See also Article 24(1) concerning applications at the border; Article 33(3) concerning subsequent applications; Article 33-A(3) concerning applications following a removal procedure.

[59] Article 17(3) Asylum Act: document narrating the essential facts of the request; Article 20(1): decision on admissibility and accelerated procedures in national territory; Article 24(5): decision on admissibility and accelerated procedures at the border; Article 29(6) first instance decision in the regular procedure; Article 37(5): Dublin take charge decision.

[60] Article 28(5) Asylum Act.

[61] These procedures are provided in the General Regime of Civil Guardianship Process, 141/2015, and the Children and Youths at Risk Protection Act, 147/99.

[62] TCA South, Decision 2285/20.7BELSB, 21 April 2021, available at: https://bit.ly/3tQAjHc.

[63] Ibid.

[64] TCA South, Decision 806/21.7BELSB, 23 September 2021, available at: https://bit.ly/3iQyns9; TCA South, Decision 2144/20.3BELSB, 7 October 2021, available at: https://bit.ly/3IR83IZ.

[65] STA, Decision 02144/20.3BELSB, 25 January 2022, available at: https://bit.ly/3EMaIEI.

[66] Following the same reasoning, see also TCA North, Decision 02331/21.7BELSB, 2 March 2022, available at: https://bit.ly/3YmUcSA.

[67] Article 49(1)(f) Asylum Act.

[68] Act 34/2004; Ministerial Order 10/2008.

[69] Article 8-A and Annex Act 34/2004.

[70] Article 22 Act 34/2004.

[71] Article 30 Act 34/2004.

[72] Article 2(1) Ministerial Order 10/2008.

[73] Article 10(2) and (3) Ministerial Order 10/2008.

[74] Article 33(4) Act 34/2004. See e.g., TCA South, Decision 10733/13, 2 April 2014, available in Portuguese at: http://bit.ly/2gyVQOJ.

[75] Article 34(5) Act 34/2004.

[76] In such cases, the solution suggested by the Bar Association is to file a new application for legal aid, which raises questions with regard to respect for the applicable deadlines and the efficiency of the solution.

[77] Article 3(3)(c) Regulation of the Bar Association 330-A/2008 of 24 June 2008.

[78] ACM’s interpretation hotline relied on a database of 60 interpreters/translators to enable communication with non-Portuguese speaking citizens. Access was free of charge (cost of a local call) and the line could be used on working days, between 9:00 and 19:00. It was possible to request the interpretation immediately (upon availability of interpreter) or to schedule a call. With the termination of ACM’s activity, the management of this hotline was transferred to AIMA. Since the beginning of 2024 access to the service is conditioned upon email request. Direct access by phone is theoretically available through AIMA’s general contact but, according to CPR’s experience, contact through this avenue is not practically possible. Additional information, including the list of languages covered, is available at http://bit.ly/2A4Ekga.

[79] Article 8(3) Ministerial Order 10/2008.