Country Report: ANNEX I – Transposition of the CEAS in national legislation
Last updated: 12/05/23
Author
Directives and other CEAS measures transposed into national legislation
| Directive / Regulation | Deadline for transposition | Date of transposition | Official title of corresponding act | Web Link |
| Directive 2011/95/EU
Recast Qualification Directive |
21 December 2013 | 5 May 2014 | Act n. 26/2014 of 5 May 2014 amending Act n. 27/2008, transposing Directives 2011/95, 2013/32/EU and 2013/33/EU | http://bit.ly/1jd3hcG (PT) |
| Directive 2013/32/EU
Recast Asylum Procedures Directive |
20 July 2015
[Article 31(3)-(5) – 20 July 2018] |
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| Directive 2013/33/EU
Recast Reception Conditions Directive |
20 July 2015 | |||
| Regulation (EU) No 604/2013
Dublin III Regulation |
Directly applicable
20 July 2013 |
The following section contains an overview of some of the most significant incompatibilities in transposition of the CEAS in national legislation:
| Directive | Provision | Domestic law provision | Non-transposition or incorrect transposition |
| Directive 2011/95/EU
Recast Qualification Directive |
Article 12 recast QD | Article 9 Asylum Act (exclusion clauses) | Article 9(1)(c)(ii) transposes Article 12(2)(b) of the recast Qualification Directive to the national legal order. While the directive refers to the commission of a serious non-political crime, the Asylum Act refers to the commission of an intentional non-political crime punishable with prison sentence of over three years. By operation of Article 9(2)(a) of the Asylum Act, this exclusion clause is also applicable to exclusion from subsidiary protection. While CPR is not aware of the practical application of this clause, defining the gravity threshold as a prison sentence of over three years may open the door to the exclusion of cases not envisaged by the relevant provision of the recast Qualification Directive.
Furthermore, Article 9(1)(d) allows for the exclusion from refugee status where there are serious reasons for considering that the person constitutes a danger or substantiated threat to internal or external security or to the public order |
| Article 8 recast Qualification Directive | Article 18 Asylum Act (analysis of the application – internal protection alternative) | Article 18(2)(e) of the Asylum Act establishes that an internal protection alternative may be considered in the adjudication of the application for international protection. There is some ambiguity in the transposition as a literal interpretation of the provision of the Asylum Act would determine that the criteria established in Article 8(1) in fine of the recast Qualification Directive (‘and they can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there.’) would only apply to situations where the applicant ‘has access to protection against persecution or serious harm’.
Furthermore, while the definition mirrors Article 8(1) of the recast Qualification Directive, the procedural requirements established in Article 8(2) of the Directive were not transposed by the Asylum Act. |
|
| Article 16(3) recast QD | Article 41 Asylum Act (cessation of protection) | The Asylum Act does not contain the safeguard clause determining that subsidiary protection should not cease in situations where the beneficiary can reasonably invoke reasons connected to past serious offense not to return to the country of origin. | |
| Article 25(2) recast QD | Article 69(1) Asylum Act (issuance of travel documents to beneficiaries of international protection) | According to the Asylum Act, issuance of travel documents to beneficiaries of subsidiary protection is left to the discretion of national authorities. | |
| Article 12 recast QD | Article 41 Asylum Act (revocation of, ending or refusal to renew international protection) | See supra the analysis of exclusion clauses, relevant to revocation of, ending or refusal to renew international protection per Article 41(5)(a) of the Asylum Act. | |
| Directive 2013/32/EU
Recast Asylum Procedures Directive |
Article 37 recast APD | Article 2(1)(q) Asylum Act (safe country of origin) | The Asylum Act provides for a definition of ‘safe country of origin’ that is in line with Article 36 of the recast Asylum Procedures Directive. However, the law does not further regulate its application. Notably, the Asylum Act does not refer to the need to adopt complementary legislation for the designation of safe countries of origin and the substantive and procedural criteria for such designation as provided in Article 37 and Annex I of the recast Asylum Procedures Directive. The safe country of origin concept is not applied in practice. |
| Article 38 recast APD | Article 2(1)(r) Asylum Act
(definition of safe third country) |
The Asylum Act provides for a definition of ‘safe third country’ that presents some inconsistencies with Article 38 of the recast Asylum Procedures Directive. Most notably:
˗ The provision applies ratione personae to asylum seekers alone, as opposed to applicants for international protection; ˗ The provision does not include the absence of a risk of serious harm as a condition for the application of the concept; ˗ The provision does not include the possibility for the applicant to challenge the existence of a connection between him or her and the third country; ˗ A standard of possibility rather than reasonableness is set in the provision concerning the return on the basis of a connection between the applicant and the third country concerned. In this regard, it is worth noting that there is a difference between the English and Portuguese versions of the Directive. While Article 38(2)(a) of the English version refers to the reasonableness of the person returning to the third country, the Portuguese version does not include such reference, simply indicating that the connection between the applicant and the country allows return ‘in principle’. |
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| Article 14(2)(b) and (4) recast APD | Article 16 Asylum Act
(personal interview) |
The circumstances in which the determining authority may omit the personal interview are exhaustively listed in Article 16(5) of the Asylum Act and mirror the corresponding provision of the recast Asylum Procedures Directive (Article 14(2)). However, with regard to cases where the applicant is deemed unfit/unable due to enduring circumstances beyond their control, the final part of Article 14(2)(b) of the Directive was not transposed (‘When 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 Asylum Procedures Directive that determines that the absence of personal interview in such situations ‘shall not adversely affect the decision of the determining authority’, was also not explicitly transposed to the Asylum Act. | |
| Article 15 recast APD
(also article 4(3) in fine recast APD) |
Article 16 Asylum Act
(personal interview) |
With regard to the conditions of the personal interview, the Asylum Act does not fully transpose the requirements set out in the recast Asylum Procedures Directive (Article 15), particularly those regarding to the characteristics of the interviewer and on the use of interpreters (Article 15(3) recast Asylum Procedures Directive). Furthermore, and without prejudice to Article 84 of the Asylum Act that refers to the adequate training of all staff working with applicants and beneficiaries of international protection, the specific training requirement for interviews provided for in Article 4(3) in fine of the recast Asylum Procedures Directive was not transposed to the domestic order (‘Persons 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.’). | |
| Article 16 recast APD | Article 16 Asylum Act (personal interview) | With regard to the content of the personal interview, the national legislator did not transpose the final part of Article 16 of the recast Asylum Procedures Directive, 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.’ | |
| Article 10 recast APD | Article 18 Asylum Act (analysis of the application – country of origin information) | While Article 18(2)(a) orders the national authorities to duly consider country of origin information in the analysis of applications, the domestic law does not fully transpose the requirements set out in Article 10(3)(b) of the recast Asylum Procedures Directive. Namely, it fails to state that the information must be precise and up-to-date. Even though the norm refers to different sources for such information (EASO, UNHCR and relevant human rights organisations) it does not clearly state that different sources must be consulted in each analysis. Furthermore, Article 18(2)(a) of the Asylum Act refers exclusively to the country of origin, as opposed to Article 10(3)(b) of the recast Directive that also refers to the use of information regarding transit countries whenever necessary. | |
| Articles 31(8) and 32 recast APD | Article 19 Asylum Act (accelerated procedures) | The wording of the Asylum Act does not seem to be fully in line with the recast Asylum Procedures Directive and with the applicable international standards as its literal application may lead not only to the accelerated processing but also to the automatic rejection of applications based on the listed grounds (e.g., a delay in making the application). | |
| Article 35 recast APD | Articles 2(1)(z) and 19-A(1)(c) Asylum Act
(first country of asylum) |
Neither Article 2(1)(z) of the Asylum Act, that defines the ‘first country of asylum’ concept, nor Article 19-A(1)(c) of the Asylum Act that provides for the corresponding inadmissibility clause, explicitly contain the safeguard of Article 35 of the recast Asylum Procedures Directive, entitling the applicant to challenge the application of the concept to their particular circumstances. | |
| Article 46(4) recast APD | Article 25(1) Asylum Act
(time limits for appeal – border procedure) |
Article 25(1) of the Asylum Act establishes a 4-day time limit for the appeal of a refusal (inadmissibility or merits) adopted within the context of a border procedure. While current practical implementation mitigates some of the negative consequences of such a reduced timeframe, this time limit is hardly compatible with the requirement for ‘reasonable time limits’ that do ‘not render such exercise impossible or excessively difficult’ provided for in Article 46(4) of the recast Asylum Procedures Directive. | |
| Article 24 recast APD
(also article 22 recast RCD) |
Articles 17-A and 77 Asylum Act
(mechanisms for assessing vulnerability and special needs – procedural and reception) |
The Asylum Act provides for the need to identify persons with special needs and the nature of such needs but no procedure or mechanism for such identification and assessment has been established so far at domestic level. | |
| Article 25(5) recast APD | Article 79 (6) and (7) Asylum Act
(age assessment) |
The Asylum Act does not contain the limitation on the use of medical examination for age assessment enshrined in the first part of Article 25(5) recast Asylum Procedures Directive: ‘Member States may use medical examinations to determine the age of unaccompanied minors within the framework of the examination of an application for international protection where, following general statements or other relevant indications, Member States have doubts concerning the applicant’s age’.
Furthermore, the right to information of the unaccompanied children regarding the age assessment procedure established in Article 79(7) of the Asylum Act does not fully transpose all the requirements of Article 25(5)(a), in particular with regard to the methods used and to the consequences of results. |
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| Directive 2013/33/EU
Recast Reception Conditions Directive |
Articles 8 and 9 recast RCD
(also article 26 recast APD) |
Article 26(1) Asylum Act
(detention at the border) |
Article 26(1) of the Asylum Act determines that asylum seekers that applied for asylum at the border remain in the international area of the (air)port while waiting for the decision without establishing further requirements (e.g., necessity and proportionality, individual assessment, alternatives to detention), in contravention with Articles 8 and 9 of the recast Reception Conditions Directive and with Article 26 of the recast Asylum Procedures Directive. It should be noted that further requirements to detention of asylum seekers are established in Article 35-A of the Asylum Act. It is our understanding that a correct application of Article 26(1) of the Asylum Act requires due regard for such requirements. Notwithstanding, in practice, asylum seekers that file their applications at the border are indeed systematically detained. |
| Article 9(5) recast RCD | Article 35-B(1) Asylum Act
(revision of detention) |
Article 35-B(1) of the Asylum Act establishes that detention may be reviewed ex officio or upon request of the applicant if relevant circumstances or new information which may affect its lawfulness arise. This seems to fall short from the guarantees provided for in Article 9(5) of the recast Asylum Procedures Directive that establishes that revision should be conducted by a judicial authority and does not limit such revision to situations where new circumstances or information becomes available (‘Detention shall be reviewed by a judicial authority at reasonable intervals of time, ex officio and/or at the request of the applicant concerned, in particular whenever it is of a prolonged duration, relevant circumstances arise or new information becomes available which may affect the lawfulness of detention’). | |
| Article 14(2) recast APD | Article 53 Asylum Act
(access to education) |
The Asylum Act does not contain any reference to a maximum time limit with regard of access to education by children. | |
| Article 22 recast RCD
(also article 24 recast APD) |
Articles 17-A and 77 Asylum Act
(mechanisms for assessing vulnerability and special needs – procedural and reception) |
The Asylum Act provides for the need to identify persons with special needs and the nature of such needs but no procedure or mechanism for such identification and assessment has been established so far at domestic level. |