Author
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 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. Furthermore, it only has access to applicants after the registration of their asylum claim and, within the context of border procedures, once SEF conducted the individual interview.[4] At times, CPR receives 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 border and in particular at Lisbon Airport.[5] While no cases of actual push backs at the border were registered, 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]
CPR is aware of one case in the course of 2022 where an extradition was carried out while the asylum application was pending.
According to the information provided by SEF, no sea arrivals occurred in the course of 2022.
Legal access to the territory (beyond family reunification)
Since 2018, Portugal has systematically participated in ad hoc relocation mechanisms following rescue operations in the Mediterranean and disembarkation in Malta and Italy.[9]
IOM supports the implementation of relocation to Portugal through the use of medical screenings, the provision of pre-departure orientation information, and logistical support for the transfer.
According to information provided by SEF, a total of 150 applicants were relocated to Portugal in 2022.
In 2020, Portugal committed to receiving 500 unaccompanied children from Greece.[10] According to IOM, 126 children and young adults were transferred to Portugal in 2022 within this programme.
Portugal was one of the EU Member States that signed the declaration on a voluntary solidarity mechanism promoted by the French Presidency of the Council.
Resettlement is explicitly provided for in the Asylum Act since 1998.
The law determines that requests for resettlement of refugees under UNHCR’s mandate are to be presented to the Ministry of Home Affairs.[11] Within 60 days, SEF must conduct all the actions needed for the analysis and decision of each case.[12] The law provides for the issuance of an opinion on each request by an NGO named for that purpose within the framework of a specific MoU.[13] Following referral of the case by SEF, the Ministry of Home Affairs must issue a decision within 15 days.[14]
Portugal has a resettlement programme in place since 2006. Currently, resettlement is mostly funded through European funds. Within the context of an MoU with the Portuguese authorities, IOM performs medical assessments and organises pre-departure orientation activities.
For 2022, Portugal pledged to resettle 300 persons from Turkey, Egypt and Jordan. However, according to the information available to CPR, no one was resettled during the year.
In 2021, Portugal was involved in the evacuation of Afghan citizens. In August 2021, the Government announced the country’s availability to host Afghans who had collaborated with the Portuguese military forces deployed to Afghanistan, and persons who have collaborated with EU, NATO and UN missions in the country.[15] Specific references to vulnerable cases (e.g., women and girls) were also made by Government officials.
While official information on the selection criteria and procedures has not been shared by the authorities, according to the information available to CPR, those evacuated mostly fell in one of the following categories: persons who worked with the Portuguese Military Forces in Afghanistan, in the EU mission or with links to the UN; journalists; persons identified by the Directorate General for Consular Affairs and Communities (Direcção-Geral dos Assuntos Consulares e das Comunidades), or relatives of national citizens. A group of the Afghanistan Women’s Soccer Team,[16] and another of the Afghanistan National Institute of Music,[17] and respective family members have also been hosted in the country.[18]
A specific scheme was adopted to ensure the reception of those evacuated to Portugal (see Differential treatment in reception).[19] The asylum applications followed the regular procedure. According to the information available to CPR, admission to the regular procedure and issuance of the corresponding temporary residence permits were overall quick, and, according to the information available to CPR the vast majority of first instance decisions issued to these applicants granted them refugee status.
A total of 768 applications for international protection were made in 2021 within this context.
In 2022, the national authorities continued to allow for humanitarian admissions of Afghans for the purposes of family reunification.
Such requests must be submitted to ACM, and fulfil the following requirements: (1) existence of travel documents; (2) logistical ability to travel from a third country, as the persons concerned must be outside Afghanistan to request the relevant visa; [20] (3) financial ability to travel – as costs must be fully covered by the persons concerned; (4) prior identification of a hosting entity in Portugal to ensure the provision of support.[21] ACM assesses the request, and accepted applications are referred to the relevant Portuguese Embassy for the purposes of visa issuance.
According to the information provided by SEF, a total of 140 persons evacuated from Afghanistan applied for international protection in Portugal in 2022.
[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] According to the information provided by IOM, 8 persons were transferred from Malta and 26 from Italy in the course of 2022.
[10] Reuters, ‘Portugal to take in 500 unaccompanied migrant children from Greek camps’, 12 May 2020, available at: https://reut.rs/3lCCBoC.
[11] Article 35(1) Asylum Act.
[12] Article 35(2) Asylum Act.
[13] Article 35(3) Asylum Act.
[14] Article 35(4) Asylum Act.
[15] See, for instance: Expresso, Afeganistão: Portugal participa na mobilização internacional de apoio a refugiados, 15 August 2021, available at_https://bit.ly/36EvmbY.
[16] Diário de Notícias, Portugal recebeu grupo de 80 afegãos, a maioria jogadoras de futebol, 20 September 2021, available at: https://bit.ly/3LbtYfS.
[17] Euronews, Jovens músicos afegãos encontram esperança em Portugal, 14 December 2021, available at: https://bit.ly/3xMZKvQ.
[18] See also Observatório das Migrações (OM), Requerentes e Beneficiários de Proteção Internacional – Relatório Estatístico do Asilo 2022, June 2022, pp.78-79, available in Portuguese at: https://bit.ly/3XySygz.
[19] The corresponding financial framework was adopted by Decision of the Council of Ministers no.166/2021, of 10 December, available at: https://bit.ly/3MBvuvv.
[20] According to the information available at the time of writing, Portuguese Embassies in Pakistan and Iran are only able to issue visas if the persons concerned left Afghanistan legally.
[21] According to the information available at the time of writing, no public funding stream will be available for such provision of such support by civil society organisations.