Author
The law sets out the right of asylum seekers to free legal aid under the same conditions as nationals,[1] which thus includes proceedings in front of the Criminal Court regarding detention at the border. Access to legal aid is processed under the same conditions as nationals, which include a ‘means test’.[2] In the context of legal aid for the purposes of appealing the rejection of the asylum application, this test is generally applied in a flexible manner. CPR has no experience with legal aid applications for the purposes of detention review.
While the law provides for an accelerated free legal aid procedure at the border on the basis of a MoU between the Ministry of Home Affairs and the Bar Association,[3] such procedures are only for purposes of the application and remain to be implemented to date. The relevance of broader legal support within the context of detention and the possibility of implementing specific MoUs with the Bar Association for that purpose have also been repeatedly underlined by the Ombudsperson.[4]
In practice, detained asylum seekers benefit from legal information and assistance from CPR. This includes free legal information regarding detention and assistance for the purposes of detention review, albeit the latter is limited to vulnerable asylum seekers due to capacity constraints.
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).[5] This protocol was made within the framework of Article 40(2) of the Immigration Act and is not intended to cover the application for international protection (see: Border Procedure: Legal Assistance).
In its report covering 2022, the National Preventive Mechanism highlighted the fact that the protocol also did not cover persons with a removal order, noting that they should also have access to legal assistance. The National Preventive Mechanism also noted having encountered persons who were not aware of their legal status and rights has they had not been provided with necessary interpretation.[6]
The report also noted that, out of the 2,655 persons refused entry at the border at Lisbon airport, 1,769 (66.6%) waived their tight to legal assistance. Out of the 93 persons refused entry at the border at Porto airport, 87 (94%) waived their tight to legal assistance.[7]
[1] Article 49(1)(f) Asylum Act.
[2] Act 34/2004.
[3] Article 25(4) Asylum Act.
[4] Ombudsman, ‘Mecanismo Nacional de Prevenção, Relatório à Assembleia da República’, June 2020, p.64, available at: https://bit.ly/2Pz1ZiN.
[5] Ministry of Home Affairs, Estrangeiros impedidos de entrar em Portugal vão ter direito a advogado, 4 November 2020, available in Portuguese at: https://bit.ly/3oCd8L3. According to the National Preventive Mechanism, the practical implementation of the Protocol was only ensured from March 2021. See: Ombudsman, ‘Mecanismo Nacional de Prevenção, Relatório à Assembleia da República’, 24 June 2021, available at: https://bit.ly/329nbSK.
[6] Ombudsman, Mecanismo Nacional de Prevenção – Relatório à Assembleia da República 2022, July 2023, p.92-93, available at: https://tinyurl.com/yumbbkwf.
[7] The National Preventive Mechanism praised the fact that such waivers are done in writing, while highlighting that the document should be written in a language that the person understands or that it should be translated by an interpreter to ensure full understanding of its content. Ombudsman, Mecanismo Nacional de Prevenção – Relatório à Assembleia da República 2022, July 2023, pp.92; 95, available at: https://tinyurl.com/yumbbkwf.