Access to the territory and push backs

Portugal

Country Report: Access to the territory and push backs Last updated: 30/11/20

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Portuguese Refugee Council Visit Website

The Portuguese authorities are bound by the duty to protect asylum seekers and beneficiaries of international protection from refoulement.[1] National case law has reaffirmed on different occasions the protection against refoulement both on national territory and at the border, regardless of the migrant's status and in cases of either direct or indirect exposure to refoulement.[2] CPR is unaware of national case law that addresses the extraterritorial dimension of nonrefoulement.

There are no published reports by NGOs about cases of actual refoulement at the border of persons wanting to apply for asylum. CPR does not conduct border monitoring and only has access to applicants after the registration of their asylum claim and once SEF has conducted the individual interview, which constitutes an additional risk factor. However, it receives at times third party contacts reporting the presence of individuals in need of international protection at the border. With rare exceptions, and even where CPR does not immediately intervene, the registration of the corresponding applications in these cases is normally communicated by SEF to CPR in the following days.

Notwithstanding this, in 2014 CPR carried out research on access to protection and the principle of non-refoulement at the borders and in particular at Lisbon Airport.[3] While no cases of actual push backs at the border were identified, the research allowed for the identification of certain shortcomings such as extraterritorial refoulement in the framework of extraterritorial border controls by air carrier personnel in conjunction with SEF in Guinea Bissau. To the extent of CPR’s knowledge, no further research has been conducted since then.

Regarding persons refused entry at border points, shortcomings with the potential to increase the risk of refoulement included: (a) challenges in accessing free legal assistance and an effective remedy, compounded by the absence of a clear legal/policy framework for the systematic assessment of the risk of refoulement; and (b) poor information provision to persons and lack of training to immigration staff on non-refoulement obligations.

While the information available does not substantiate ongoing instances of extraterritorial refoulement, there have not been significant changes regarding shortcomings for persons refused entry at the border, notably regarding access to free legal assistance and an effective remedy. These risk factors are aggravated by the absence of border monitoring by CPR and/or other independent organisations as well as by the delays in having access to asylum seekers (see Border Procedure). In this context, the situation in relation to refusals of entry and resulting possible risks of refoulement is opaque.

The UN Committee Against Torture recently noted that Portugal should “[e]sure that, in practice, no one may be expelled, returned or extradited to another State where there are substantial grounds for believing that he or she would run a personal and foreseeable risk of being subjected to torture and ill-treatment” and that procedural safeguards and effective remedies with regard to the prohibition of refoulement are available.[4]

It should be noted that in 2017 CPR was denied access by the SEF to a stowaway on board of a vessel that docked in Portugal travelling from Spain to the United Kingdom on the grounds that the individual, reportedly of Eritrean nationality, did not intend to apply for asylum in Portugal but rather seek international protection in the UK. This information was later confirmed by the captain of the vessel to UNHCR and CPR and highlights the ongoing constraints on border monitoring by civil society organisations in Portugal. No such incidents were reported since then, however.

Since 2018, Portugal has systematically participated in ad hoc relocation mechanisms following rescue operations in the Mediterranean and disembarkation in Malta and Italy. According to information from SEF[5], between July and November 2018, 86 applicants for international protection from 13 countries of origin were transferred to Portugal within this context.[6]

While sea arrivals are not common in Portugal, in December 2019, a group of seven men and one unaccompanied child from Morocco arrived by sea in a small boat in the region of Algarve. Following disembarkation, all of them applied for international protection and their applications were processed under the rules governing applications made in national territory.[7] In early 2020, another group of eleven men from Morocco arrived in similar circumstances in Algarve.[8]

 


[1]Articles 2(aa), 47 and 65 Asylum Act; Articles 31(6), 40(4) and 143 Immigration Act.

[2] See e.g. Administrative Court of Lisbon, Decisions No 1480/12.7BELSB and No 2141/10.7BELSB.

[3]CPR, Access to Protection: a Human Right, country report, Portugal, 2014, available at: http://bit.ly/2xA2aiV.

[4] Committee Against Torture, Concluding Observations on the seventh periodic report of Portugal, CAR/C/PRT/CO/7, 18 December 2019, available at https://bit.ly/2G1F07z, par.38(a) and (b).  

[5] SEF, Relatório de imigração, Fronteiras e Asilo 2018, June 2019, available at: https://bit.ly/2znV7fs.

[6] For 2019 see for instance: Ministy of Home Affairs and Ministry of Presidency, Nota à Comunicação Social – Portugal recebe migrantes resgatados ao largo da Líbia, 25 June 2019, available at: https://bit.ly/2VDYlEp;  Reuters, ‘EU countries agree to share out Ocean Viking migrants’, 23 August 2019, available at: https://reut.rs/2VCIEgT, 49; Público, ‘Portugal disponível para receber oito refugiados do barco Ocean Viking’, 14 September 2019, available at: https://bit.ly/3bFNtLN.  

[7] Público, Jovens que desembarcaram no Algarve transferidos para Conselho Português para os Refugiados, 12 December 2019, available in Portuguese at: https://bit.ly/2V85Lzu; Expresso, Portugal vai acolher os jovens marroquinos que desembarcaram no Algarve, 12 December 2019, available in Portuguese at: https://bit.ly/3ciyrf2.

[8] Público, Polícia Marítima intercepta barco com 11 migrantes marroquinos em Olhão, 29 January 2020, available at: https://bit.ly/2XA6FGs (in Portuguese).

 

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