Author
The Portuguese asylum procedure is a single procedure for both refugee status and subsidiary protection.[1] Different types of procedure are applicable depending on whether the asylum application:
- is submitted to the regular procedure;
- is deemed unfounded (including in the case of applications following a removal procedure) and therefore submitted to an accelerated procedure;
- is deemed inadmissible, or
- is presented at a national border and processed under the border procedure.
Applications for international protection must be presented, orally, or in writing, to SEF or to any other police authority as soon as possible.[2] In the latter case, the police authority has 48 hours to inform SEF of the application.[3]
SEF has to register the asylum application within 3 working days of presentation and to issue the applicant a certificate of the asylum application within 3 days after registration.[4] The applicant must be informed of their rights and duties in a language they understand or are expected to understand.[5] Moreover, SEF must immediately inform the United Nations High Commissioner for Refugees (UNHCR) and the Portuguese Refugee Council (CPR), as an organisation working on its behalf, of all asylum applications.[6]
UNHCR and CPR are further entitled to be informed of the most relevant procedural acts (e.g. interview transcripts and decisions) upon consent of the applicant,[7] and to provide their observations to SEF at any time during the procedure.[8] The Asylum Act also determines that UNHCR and CPR are to be informed of decisions determining loss of international protection, regardless of the consent of the applicant.[9]
Except for special cases, such as applicants lacking legal capacity,[10] all asylum applicants must undergo either a Dublin interview or an interview that addresses the remaining inadmissibility grounds and the merits of the application. This is provided both on the territory,[11] and at the border.[12]
According to the law, following the interview on the territory, SEF produces a document narrating the essential facts of the application and the applicant has 5 days to seek revision of the narrative (with the exception of subsequent applications and applications following a removal decision).[13] National jurisprudence provides that the applicant must be granted an opportunity to reply to the prospective outcome of the application (admission to the regular procedure, accelerated refusal on the merits or inadmissibility) and not only to the facts adduced during the personal interview.
The admissibility of subsequent applications[14] and applications following a removal order[15] is subject to specific rules.
Admissibility procedure
The National Director of SEF has 30 days to make a decision on the admissibility of applications on the territory[16] (10 days for subsequent applications and applications following a removal order).[17] In the border procedure, that timeframe is reduced to 7 days.[18]
If an application on the territory is rejected as inadmissible, the asylum seeker has 8 days to appeal the decision before the Administrative Court, with automatic suspensive effect,[19] with the exception of inadmissible subsequent applications and applications following a removal order (4 days to appeal, with automatic suspensive effect).[20] Failing an appeal, the applicant has 20 days to leave the country.[21] In the case of border procedures, the time limit to appeal is reduced to 4 days.[22]
In the case of Dublin procedures, the deadline for the admissibility decision is suspended pending a reply from the requested Member State.[23] Upon notification of a ‘take charge’/’take back’ decision, the applicant has 5 days to appeal before the Administrative Court with suspensive effect.[24]
Regular procedure
As soon as an asylum application is deemed admissible,[25] it proceeds to an eligibility evaluation.[26] In accordance with the law, this stage lasts up to 6 months but can be extended to 9 months in particularly complex cases.[27] The asylum seeker receives a provisional residence permit valid for 6 months (renewable).[28]
SEF must evaluate all relevant facts to prepare a reasoned decision.[29] This is generally done on the basis of the personal interview conducted during the admissibility stage of the procedure, given that it also encompasses the merits of the application. As mentioned above, UNHCR and CPR are entitled to present their observations to SEF at any time during the procedure in accordance with Article 35 of the 1951 Refugee Convention.[30]
Upon notification of the proposal for a final decision, the applicant has 10 days to respond.[31] SEF then sends the recommendation to its Director, who has 10 days to present it to the Ministry of Home Affairs. In turn, the Ministry of Home Affairs has 8 days to adopt a final decision.[32]
In case of a negative decision, the applicant may lodge an appeal with automatic suspensive effect before the Administrative Court within 15 days,[33] or voluntarily depart from national territory within 30 days (after this period, the applicant will be subject to the general removal regime).[34]
Accelerated procedure
The law contains a list of grounds that, upon verification, determine that an application is subjected to an accelerated procedure and deemed unfounded. These grounds include, among others, subsequent applications that are not deemed inadmissible and applications following a removal procedure.[35]
While the rules governing accelerated procedures provide for the basic principles and guarantees of the regular procedure,[36] they lay down time limits for the adoption of a first instance decision on the merits of the application that are significantly shorter than those of the regular procedure.[37] In addition, these rules entail reduced procedural guarantees, such as exclusion from the right of the applicant to seek a revision of the narrative of their personal interview,[38] or to be notified of and respond to SEF’s reasoning of the proposal for a final decision,[39] as well as shorter appeal deadlines.[40]
As in the regular procedure, the appeal has an automatic suspensive effect.[41] However, the onward appeal in the case of an application following a removal order does not.[42]
Border procedure
The law provides for a special procedure regarding applications made at a national border.[43] While this procedure provides for the basic principles and guarantees of the regular procedure,[44] it lays down a significantly shorter time limit for the adoption of a decision regarding admissibility or merits (if the application is furthermore subject to an accelerated procedure).[45]
Additionally, the border procedure is characterised by reduced procedural guarantees such as the removal of the applicant’s right to seek revision of the narrative of their personal interview,[46] and a shorter appeal deadline before the Administrative Court (4 days).[47] Furthermore, asylum seekers can be detained during the border procedure.[48]
The border procedure has not been applied in practice since March 2020.[49] Asylum seekers that apply for international protection at the border have generally been granted entry into national territory, not subject to detention, and their applications have been processed according to the rules applicable to applications made in the territory.
[1] Article 10(2) Asylum Act.
[2] Articles 13(1) and 19(1)(d) Asylum Act.
[3] Article 13(2) Asylum Act.
[4] Articles 13(7) and 14(1) Asylum Act.
[5] Article 14(2) Asylum Act.
[6] Articles 13(3), 24(1), 33(3), 33-A(3) Asylum Act.
[7] E.g. Articles 17(3), 20, 24(5), 29(6) Asylum Act.
[8] Article 28(5) Asylum Act.
[9] Article 43(3) Asylum Act.
[10] Article 16(5) Asylum Act.
[11] Articles 16 Asylum Act and 33-A(4) (for applications following a removal decision).
[12] Article 24(2) and (3) Asylum Act.
[13] Article 17 Asylum Act.
[14] Article 33 Asylum Act.
[15] Article 33-A Asylum Act.
[16] Article 20(1) Asylum Act.
[17] Articles 33(4) and 33-A(5) Asylum Act.
[18] Article 24(4) Asylum Act.
[19] Articles 22(1) Asylum Act.
[20] Articles 33(6) and 33-A(6) Asylum Act.
[21] Articles 21(2) and (3) and 33(9) Asylum Act.
[22] Article 25(1) Asylum Act.
[23] Article 39 Asylum Act. This article refers to applications on the territory and border applications with the exception of subsequent applications and applications following a removal decision.
[24] Article 37(4) Asylum Act.
[25] Article 20(4) Asylum Act. In the absence of a decision within 30 days the application is automatically admitted to the procedure.
[26] Article 21(1) Asylum Act.
[27] Article 28(2) Asylum Act.
[28] Article 27(1) Asylum Act. Ministerial Order 597/2015 provides for the model and technical features of the provisional residence permit.
[29] Article 28(1) Asylum Act.
[30] Article 28(5) Asylum Act.
[31] Article 29(2) Asylum Act.
[32] Article 29(4) and (5) Asylum Act.
[33] Article 30(1) Asylum Act.
[34] Article 31 Asylum Act.
[35] Article 19 Asylum Act.
[36] This includes access to the procedure, the right to remain in national territory pending examination, the right to information, personal interviews, the right to legal information and assistance throughout the procedure, the right to free legal aid, special procedural guarantees, among others.
[37] These consist of 30 days (Article 20(1) Asylum Act) except for applications following a removal procedure which are subject to a time limit of 10 days (Article 33-A(5) Asylum Act). The time limit is reduced to 7 days in the case of accelerated procedures at the border (Article 24(4) Asylum Act).
[38] This is limited to accelerated procedures at the border and in the case of applications following a removal procedure.
[39] See infra the section on Accelerated Procedures for details on the current practice in this regard.
[40] These consist of 8 days for accelerated procedures on the territory (Article 22(1) Asylum Act) except for the case of subsequent applications and applications following a removal procedure, where the deadline is 4 days (Articles 33(6) and 33-A(6) Asylum Act). The time limit is reduced to 4 days in the case of accelerated procedures at the border (Article 25(1) Asylum Act).
[41] Articles 22(1) and 33-A(6) Asylum Act.
[42] Article 33-A(8) Asylum Act.
[43] Article 23(1) Asylum Act.
[44] This includes access to the procedure, the right to remain in national territory pending examination, the right to information, personal interviews, the right to legal information and assistance throughout the procedure, the right to free legal aid, special procedural guarantees, among others.
[45] These consist of 7 days for both admissibility decisions and accelerated procedures at the border (Article 24(4) Asylum Act) as opposed to 30 days for admissibility decisions on the territory and between 10 and 30 days for accelerated procedures on the territory.
[46] Article 24 Asylum Act.
[47] Article 25(1) Asylum Act.
[48] Articles 26(1) and 35-A(3)(a) Asylum Act.
[49] Persons applying for international protection at the border have generally been granted entry into national territory, and their applications have been processed according to the rules applicable to applications made in the territory.