Author
General (scope, time limits)
The law provides for a specific procedure regarding applications made at a national border.[1] A distinctive feature of the legal framework of border procedures consists in the provision for the detention of asylum seekers for the duration of the admissibility stage/accelerated procedure (see Detention of Asylum Seekers).[2]
Despite some unclear instances, the border procedure has not been applied in practice between March 2020 and October 2023.
Within that period, persons applying for international protection at the border were, according to CPR’s experience, been granted entry into national territory, referred to the provision of reception conditions if needed, and had their cases under the rules governing applications made in the national territory.
Since November 2023, the border procedure is systematically applied, including to vulnerable applicants.
Following the resumption of the application of border procedures in 2023, CPR has observed a number of problematic practices impacting the procedural guarantees of asylum seekers subjected to the border procedure and the corresponding use of detention (as well as detention conditions). CPR repeatedly raised its concerns with the relevant authorities.
CPR identified significant gaps in the provision of information by the authorities to asylum seekers detained at the border regarding their right to free legal assistance and the contacts that could be used to reach the organisation. At times, this was compounded by the provision of incorrect information regarding the deadlines to file appeals by the authorities.[3] The fact that multiple gaps have been observed in the communications of procedural acts by AIMA to CPR (as required by the Asylum Act) has also compounded the situation of uncertainty and lack of clarity.
Detention conditions in the Lisbon airport have also raised serious concerns, notably due to the fact that high numbers of asylum seekers remained detained for significant periods of time in the transit area of Lisbon airport due to the lack of capacity of the corresponding detention facility in appalling conditions.
Following resumption of the application of border procedures in 2023, CPR has observed a number of problematic practices impacting the procedural guarantees of asylum seekers subjected to the border procedure and the corresponding use of detention (as well as detention conditions). CPR repeatedly raised its concerns with the relevant authorities.
CPR identified significant gaps in the provision of information by the authorities to asylum seekers detained at the border regarding their right to free legal assistance and the contacts that could be used to reach the organisation. At times, this was compounded by the provision of incorrect information regarding the deadlines to file appeals by the authorities.[4] The fact that multiple gaps have been observed in the communications of procedural acts by AIMA to CPR (as required by the Asylum Act) has also exacerbated the situation of uncertainty and the lack of clarity.
Detention conditions in the Lisbon airport have also raised serious concerns, notably due to the fact that high numbers of asylum seekers remained detained for significant periods of time in the transit area of Lisbon airport due to the lack of capacity of the corresponding detention facility in appalling conditions.
In response to media reports and outcry regarding the situation at the border, AIMA affirmed, inter alia, that it was not able to do much regarding detention conditions at the border,[5] and that the Agency was adjudicating applications filled at the border in less than 3 days at the time. In the context of its right of reply to the draft country report, AIMA states that it processed applications within the minimum number of days possible to minimise the number of days in detention, and that it had strengthened its team and procedures to ensure rapid and quality analysis. However, civil society including CPR points out that this short delay for the analysis is highly concerning and raises serious doubts regarding the quality of the analysis conducted by the authorities.[6]
Location and number of border procedures
Portugal has 36 external border posts, of which 8 are air border posts and 28 are maritime border posts.[7] SEF was responsible for border controls, including for refusing entry and exit from the territory until the end of October 2023.[8] Since then:
- The National Republican Guard (Guarda Nacional Republicana, GNR) is responsible for the surveillance and control of maritime and land borders, and for executing expulsion decisions within its jurisdiction;[9]
- The Public Security Police (Polícia de Segurança Pública, PSP) is responsible for the surveillance and control of air borders, and for executing expulsion decisions within its jurisdiction.[10]
According to data provided by AIMA, 669 asylum applications were filled at the border in 2023,[11] and 76 decisions were adopted within border procedures. AIMA further reported that 17 unaccompanied children applied for asylum at the border in 2023. AIMA did not provide data on applications filled at the border by persons in need of special procedural guarantees.
The majority of border procedures were conducted at the Lisbon Airport.[12]
Grounds for activating the border procedure and main characteristics
According to the law, a person who:
- does not meet the entry requirements set in the law;
- is subject to a national or an EU entry ban; or
- represents a risk or a serious threat to public order, national security, or public health,
is refused entry in national territory,[13] and is notified in writing of the corresponding decision.[14] Such a notification bears a reference to the right of individuals refused entry at the border to seek asylum as enshrined in the law.[15]
The authority responsible for border control must inform the carrier company (i.e., the air company in most cases) for the purposes of return of the individual in the shortest possible time either to: the point where the individual initiated travel with the company; the country that issued the travel document; or any country where entrance is guaranteed.[16] This is done in accordance to the Convention on International Civil Aviation,[17] as, according to the national authorities, the individual remains in the international area of the airport and is therefore not subject to the rules applicable to removal procedures from national territory.[18] If the individual refused entry into national territory applies for asylum, the air company must be immediately informed by the authority responsible for border control of the suspension of return.
While the border procedure provides for the basic principles and guarantees of the regular procedure,[19] it lays down time limits for a decision on admissibility or for accelerated procedures regarding applications deemed unfounded on certain grounds (see Accelerated Procedure grounds) that are significantly shorter than those applicable in national territory.
Additionally, border procedures are characterised by shorter appeal deadlines, as well as reduced procedural guarantees such as the exclusion from the right of the applicant to seek revision of the narrative of their personal interview,[20] or the possibility to consult with CPR prior to the individual interview conducted by the asylum authority. Furthermore, asylum seekers are detained for the duration of the admissibility stage/accelerated procedure (see Detention of Asylum Seekers).[21]
The National Director of SEF/Board of AIMA has 7 days to issue a decision either on admissibility or on the merits of the application in an accelerated procedure.[22] In the absence of inadmissibility grounds or grounds for deeming the application unfounded in an accelerated procedure, SEF/AIMA must admit the application to the regular procedure and authorise entry into national territory/release from border detention.[23] Non-compliance with the time limit results in the automatic admission of the applicant to the regular procedure and release from the border.[24]
In practice, within the context of border procedures, asylum seekers are detained in detention centres at the international area of airports or at the transit area of the airport itself until the National Director of SEF/Board of AIMA issues a decision on the admissibility/merits of the claim,[25] or for up to 60 days in the case of appeal (see Duration of Detention).[26]
Exempted categories
The law identifies a sub-category of individuals whose special procedural needs result from torture, rape or other serious forms of psychological, physical or sexual violence who may be exempted from the border procedure under certain conditions (see Procedural Guarantees).[27] Furthermore, the ‘temporary installation’ of unaccompanied and separated children in facilities at the border (detention) – and hence application of border procedures – must comply with applicable international standards such as those recommended by UNHCR, UNICEF, and ICRC.[28]
According to the available information, no standard operational procedures and tools allowing for the early and effective identification of survivors of torture and/or serious violence and their special procedural needs are in place. As such, asylum seekers who claim to be survivors of torture, rape, or other serious forms of psychological, physical, or sexual violence are not exempt from border procedures in practice on such grounds, despite the lack of provision of special procedural guarantees at the border.[29]
Following resumption of the application of border procedures in 2023, CPR has observed a number of problematic practices impacting the procedural guarantees of asylum seekers subjected to the border procedure and the corresponding use of detention (as well as detention conditions). CPR repeatedly raised its concerns with the relevant authorities.
CPR identified significant gaps in the provision of information by the authorities to asylum seekers detained at the border regarding their right to free legal assistance and the contacts that could be used to reach the organisation. At times, this was compounded by the provision of incorrect information regarding the deadlines to file appeals by the authorities.[30]
Furthermore, gaps in the communication of relevant information by AIMA to CPR caused challenges to the provision of adequate legal assistance at this stage.
Despite CPR’s efforts, AIMA’s practices within this context remained largely unchanged until the end of the year. Since the beginning of 2024, CPR has reinforced the provision of legal information at the airport in response to the contextual changes. The provision of information on the right to legal assistance and CPR’s contacts to asylum seekers by the relevant authorities seemed to have improved in the meantime.
Personal interview
The rules and modalities of the interview applicable to the border procedure are the same as those of the regular procedure.
Interviews are generally conducted a few days after arrival, while the applicant is detained. This means that there was little time to prepare and substantiate the asylum application. Furthermore, the legal framework provides for reduced procedural guarantees such as the exclusion from the right of the applicant to seek revision of the interview report.[31]
Many asylum seekers arrive at the border without valid identification documents or supporting evidence to substantiate their asylum application and contacts with the outside from within the EECIT tend to be rarely effective for the purposes of securing supporting evidence in due time, given the short period of time between the arrival, the personal interview and the first instance decision.
The absence of identification and vulnerability assessments means that potential special needs may not be known to the asylum authorities and may not have been taken into account at the time of interview. CPR is unaware of the implementation of special procedural guarantees at the border, such as the postponement of the interview, additional time for submitting supporting evidence, or the presence of supporting personnel in the interview within this context.[32]
An additional concern regarding interviews conducted at Lisbon Airport are the space and privacy constraints of the interview offices, notably due to inadequate sound isolation (see Conditions in Detention Facilities).
Appeal
The Asylum Act provides for an appeal against a rejection decision at the border, either on admissibility grounds or on the merits in an accelerated procedure. The appeal consists of a judicial review of relevant facts and points of law by the Administrative Court.[33] The time limit for lodging the appeal is of 4 days.[34]
Similarly to the regular procedure, the first and onward appeals have an automatic suspensive effect.[35] The law provides for a simplified judicial process with reduced formalities and time limits.[36] However, the Administrative Courts rarely reach a decision on the appeal within the maximum detention time limit of 60 days, meaning that asylum applicants subjected to the border procedure are usually granted access to the territory, albeit liable to a removal procedure in case their application is rejected by final decision.[37]
Without prejudice to issues discussed in Regular Procedure: Appeal such as the poor quality of legal assistance and language barriers therein that have an impact on the quality and effectiveness of appeals, CPR is not aware of specific obstacles faced by asylum seekers in appealing a first instance decision in the border procedure in general. Nevertheless, factors such as the provision of incorrect information regarding the deadlines for appeal by the authorities, gaps in the provision of information regarding the right to legal assistance and relevant contacts to do so, and lack of clarity regarding the mandate of legal aid lawyers appointed within the context of the refusal of entry have at times hindered access to appeals in the end of 2023.
Legal assistance
There are a few distinctions to be made between the border procedure and the regular procedure regarding access to free legal assistance in law and in practice (see Regular Procedure: Legal Assistance).
As regards free legal assistance at first instance, the law expressly provides the possibility for UNHCR and CPR to interview the asylum seeker at the border[39] and to provide assistance.[40]
In practice, free legal assistance provided by CPR in first instance procedures at the border includes:
(a) providing legal information on the asylum procedure, rights and duties of the applicant and the legal aid system;
(b) enabling access to free legal aid for the purpose of appeals;
(c) assisting lawyers appointed under the free legal aid system in preparing appeals with relevant legal standards and COI; and
(d) advocating with the relevant authorities for the release of particularly vulnerable asylum seekers.
The provision of information and assistance to asylum seekers placed in detention at the border by CPR is typically challenging due to factors such as short deadlines, difficulties in accessing applicants detained at the international area of the airport (instead of the detention facility), and communication barriers.
The Asylum Act also provides for an accelerated free legal aid procedure at the border for the purposes of appeal on the basis of a MoU between the Ministry of Interior and the Portuguese Bar Association.[41] However, such a procedure has not been implemented, meaning that securing access to free legal aid at appeal stage remains an integral part of the legal assistance provided by CPR at the border. To that end, CPR resorts to the same procedure used in the territory albeit faced with specific constraints (e.g., shorter deadlines for application, communication barriers, timely access to interpreters, etc.).
In November 2020, the Ministry of Home Affairs, the Ministry of Justice and the Bar Association signed a protocol to ensure the provision of legal counselling and assistance to foreigners to whom entry into national territory was refused (Lisbon, Porto, Faro, Funchal and Ponta Delgada airports. This protocol was made within the framework of Article 40(2) of the Immigration Act and is not intended to cover asylum procedures.
Upon resumption of the application of the border procedure, some of the lawyers appointed within this context supported appeals of negative decisions issued within the asylum procedure. There were practical questions regarding the services covered by their mandate and legitimacy to do so. In some instances, miscommunication and lack of clarity regarding the procedures adopted by such lawyers created confusion and potential obstacles to access to judicial reviews. It has in the meantime been clarified that the appointment does not cover asylum appeals and that representation in such procedures must be requested through an autonomous process as before.
Similarly, to the regular procedure, the overall quality of free legal aid at appeal stage was a relevant concern.
[1] Article 23(1) Asylum Act.
[2] Articles 26(1) and 35-A(3)(a) Asylum Act.
[3] PSP and AIMA systematically told applicants that the deadlines for appeal are to be counted in working days, instead of calendar days.
[4] PSP and AIMA systematically told applicants that the deadlines for appeal are to be counted in working days, instead of calendar days.
[5] Highly doubtful considering that according to the Asylum Act (article 61(1)), the Ministry in charge for migration remains responsible for the provision of conditions to applicants detained at the border (see: Detention Conditions).
[6] See, for instance: Rádio Renascença, “Há pouco que a AIMA possa fazer” pelos migrantes que dormem no aeroporto, 25 January 2024, available at: https://tinyurl.com/yd4v79vm.
[7] Annex II Decree-Law 252/2000.
[8] Article 2 Decree-Law 252/2000.
[9] Article 2(a) Act n. 73/2021 of 12 November 2021 approving the restructure of the Portuguese system of border control, reshaping the regime of the forces and services responsible for internal security and establishing other rules for the redistribution of competences and resources of the Immigration and Borders Service, last amended by Act n. 53/2023, of 31 August 2023, available at: https://bit.ly/3OitRkJ.
[10] Ibid, article 2(b).
[11] While at some point the response to the information request to the AIDA report seems to indicate that this is the number of applications processed at the border, a full analysis of the data provided (that includes the reference to 76 decisions taken under the border procedure), as well as information available to CPR regarding the general context, indicates that this was likely the overall number of applications made at the border, thus including cases that were not analysed under the border procedure. According to CPR’s data (based on communications made by the authorities according to the Asylum Act), 630 applications were made at the border in 2023.
[12] For a detailed overview of the use of border procedures before March 2020, please consult the corresponding AIDA reports, available at: https://bit.ly/3GubAhN.
[13] Article 32 Immigration Act.
[14] Article 38(2) Immigration Act.
[15] Article 40(4) Immigration Act.
[16] Articles 38(3) and 41(1) Immigration Act.
[17] Chicago Convention on International Civil Aviation, 7 December 1944, Annex IX, Chapter V, points 5.9 -5.11.1.
[18] CPR, ‘Access to Protection: A Human Right, country report, Portugal’, 2014, para 2.1, available in Portuguese at: https://bit.ly/3sWjYNx.
[19] This includes access to the procedure, the right to remain in national territory pending examination, the right to information, to a personal interview, the right to legal information and assistance throughout the procedure, the right to free legal aid, special procedural guarantees, among others.
[20] Article 25 Asylum Act.
[21] Articles 26(1) and 35-A(3)(a) Asylum Act.
[22] Article 24(4) Asylum Act. On the territory, decisions on admissibility must be taken within 30 days and decisions in the accelerated procedure within 10 to 30 days.
[23] Article 26(4) Asylum Act.
[24] Ibid.
[25] Article 26(1) Asylum Act.
[26] Article 35-B(1) Asylum Act.
[27] Article 17-A(4) Asylum Act. Exemption from border procedures is dependent on the impossibility to offer “support and conditions to asylum seekers identified as being in need of special procedural guarantees.”
[28] Article 26(2) Asylum Act.
[29] Italian Council for Refugees et al., ‘Time for Needs: Listening, Healing, Protecting’, October 2017, available at: https://bit.ly/3gEoe1T.
[30] PSP and AIMA systematically told applicants that the deadlines for appeal are to be counted in working days, instead of calendar days.
[31] Article 25 Asylum Act. TCA South, Decision 1539/19.0BELSB, 11 September 2020, available at: https://bit.ly/31gEInN.
[32] Article 17-A(3) Asylum Act. See also Italian Council for Refugees et al., ‘Time for Needs: Listening, Healing, Protecting’, October 2017, available at: https://bit.ly/3gEoe1T.
[33] Article 25(1) Asylum Act; Article 95(3) Code of Procedure in Administrative Courts.
[34] Article 25(1) Asylum Act.
[35] Article 25 Asylum Act.
[36] Article 25(2) Asylum Act.
[37] Article 21(2) and (3) Immigration Act.
[38] Applicants may apply for legal aid to have representation in the interview (see below), but this does not happen in practice. The access to free legal advice (provided by CPR) of the following box is automatic (i.e. does not entail an application for access to be granted) and incomparably more frequent. Thus, representatiron in the interview is not considered here as accessible in practice.
[39] Article 24(1) Asylum Act.
[40] Article 49(6) Asylum Act.
[41] Article 25(4) Asylum Act.