ANNEX I – Transposition of the CEAS in national legislation

Portugal

Country Report: ANNEX I – Transposition of the CEAS in national legislation Last updated: 30/11/20

Author

Portuguese Refugee Council Visit Website

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)

http://bit.ly/2AfJ7sS (EN)

Directive 2013/32/EU

Recast Asylum Procedures Directive

20 July 2015

[Article 31(3)-(5) – 20 July 2018]

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 he or she 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”.

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 regards to cases where the applicant is deemed unfit/unable due to enduring circumstances beyond his/her 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 regards 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 regards 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 dully 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 his/her 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.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation