Author
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 non–refoulement.
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.[4] 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.[5] 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.
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 were aggravated by the absence of border monitoring by independent organisations. To CPR’s knowledge, no further research on the topic has been conducted on this issue since then.
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).[6] According to available information this protocol was made within the framework of Article 40(2) of the Immigration Act and is not intended to cover asylum procedures.[7]
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.[8]
Since 2018, Portugal has systematically participated in ad hoc relocation mechanisms following rescue operations in the Mediterranean and disembarkation in Malta and Italy.[9]
In 2020, Portugal committed to receiving 500 unaccompanied children from Greece.[10] According to ISS, up to the end of 2021, a total of 199 children and young adults were transferred to Portugal within this programme, of which 127 transfers were in the course of 2021. 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). According to the information provided by SEF, the pilot stage of implementation of the bilateral agreement was concluded in 2021. A total of 84 beneficiaries of and 13 applicants for international protection were relocated to Portugal within this context. SEF also stated that the selection process was conducted by the NGO Focus with the support of EASO and IOM.
According to information provided by SEF, 270 applicants were relocated to Portugal in 2021.
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. In November 2021, 37 persons were rescued by the Portuguese authorities in international waters.[11] According to the information provided by SEF, in 2021, 48 persons arrived in the country by sea, the majority of whom applied for international protection.
[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] Please note that border procedures have not been systematically applied since March 2020.
[5] CPR, Access to Protection: A Human Right, country report, Portugal, 2014, available at: https://bit.ly/3sWjYNx.
[6] 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.
[7] The information publicly available regarding the implementation of this Protocol was still limited at the time of writing. See Ombudsman, ‘Mecanismo Nacional de Prevenção, Relatório à Assembleia da República’, 24 June 2021, pp.96 et seq, available at: https://bit.ly/3lCCedI.
[8] 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).
[9] SEF, Relatório de Imigração, Fronteiras e Asilo 2019, June 2020, available at https://bit.ly/3cstNyf.
[10] Reuters, ‘Portugal to take in 500 unaccompanied migrant children from Greek camps’, 12 May 2020, available at: https://reut.rs/3lCCBoC.
[11] Público, Marinha resgata 37 pessoas que vinham num barco de madeira ao largo do Algarve, 11 November 2021, available at: https://bit.ly/32n1GxU.