Access to the territory and push backs

Portugal

Country Report: Access to the territory and push backs Last updated: 21/05/21

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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 reaffirmed the protection against refoulement both on national territory and at the border, regardless of the migrant’s status[2] and in cases of either direct or indirect exposure to refoulement.[3] 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, within the context of border procedures, 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 (see Registration of the asylum application).

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.[4] 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 on this issue since then.

Regarding persons refused entry at border points, shortcomings with the potential to increase the risk of refoulement identified in 2014 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. These risk factors are aggravated by the absence of border monitoring by independent organisations.

With regard to access to free legal assistance, 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] According to information available at the time of writing, this protocol was made within the framework of Article 40(2) of the Immigration Act and is not intended to cover asylum procedures.

While available information does not substantiate any ongoing instances of extraterritorial refoulement, to the extent of CPR’s knowledge, there are no other significant changes regarding shortcomings for persons refused entry at the border. As such, the situation in relation to refusals of entry and related possible risks of refoulement remains unclear.

The UN Committee Against Torture noted in 2019 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 regarding the prohibition of refoulement are available.[6]

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, in 2019, 100 applicants for international protection were transferred to Portugal within this context (52 from Malta and 48 from Italy).[7]

In 2020, Portugal committed to receive 500 unaccompanied children from Greece.[8] According to the information provided by the Minister of the Presidency to the Parliament on 21 December 2020,[9] 72 unaccompanied children from 14 countries of origin were transferred from Greece to Portugal throughout the year. According to the Minister, at the time of the statement, the arrival of a group of 6 unaccompanied children was being prepared. This followed a 2019 agreement with the Greek authorities to implement a pilot relocation process for 100 applicants/beneficiaries of international protection (See Dublin: Procedure). In September 2020, following the tragic events in Moria, Portugal announced that it communicated to the European Commission its availability to participate in the common effort for the reception of persons that were at the camp, within the framework of its two bilateral agreements with Greece.[10]

While sea arrivals are not common in Portugal, since December 2019, multiple groups of people from Morocco arrived by sea in small boats in the region of Algarve. According to the information provided by SEF, 66 applications for international protection were made throughout 2020 within this context.

 

 

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

[2] Nevertheless, the recent replies of Portugal to the list of issues of the Committee on the Elimination of Discrimination against Women (CEDAW) seem to indicate an understanding of the principle of non-refoulement as being almost exclusively linked to refugee status determination: ““[t]he principle of “non-refoulement” is established in Law 27/2008 and guarantees the applicant’s right to not be returned to a country (of origin, residence or otherwise), where his/her life or freedom would be threatened if specific conditions are met and referred in the Geneva Convention and in the Portuguese Asylum Law – provided that this risk occurs “(… ) because of their race, religion , nationality , membership of a particular social group, or opinions policies ( … )” and should be a clear and intrinsic relation of cause and effect between the return of the applicant and the specific threat that can be targeted. The observance of the principle of non-refoulement is intrinsically linked to the determination of refugee status, thus when it is established that an asylum application is unfounded, for not meeting any of the criteria defined by the Geneva Convention and New York Protocol in recognition of refugee status, the principle mentioned above is fully observed to that extent.” (available at: https://bit.ly/3cnDTjy.)  

[3] See e.g., TAC Lisbon, Decisions 1480/12.7BELSB and no. 2141/10.7BELSB (unpublished). More recently, TCA South noted that Portugal is also bound to protect applicants against indirect refoulement within the context of Dublin procedures (TCA South, Decision 775/19.3BELSB, 10 September 2020, available at: https://bit.ly/3mzaaYx

[4] CPR, Access to Protection: A Human Right, country report, Portugal, 2014, available at: https://bit.ly/3sWjYNx.

[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.

[6] 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).  

[7]  SEF, Relatório de Imigração, Fronteiras e Asilo 2019, June 2020, available at https://bit.ly/3cstNyf.  

[8] Reuters, ‘Portugal to take in 500 unaccompanied migrant children from Greek camps’, 12 May 2020, available at: https://reut.rs/3r5HirI.

[9]  Video recording available at: https://bit.ly/3ouCeeM.  

[10]  Nota à Comunicação Social, 11 September 2020, available at: https://bit.ly/2YsQD0B

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