Short overview of the asylum procedure

Portugal

Country Report: Short overview of the asylum procedure Last updated: 21/05/21

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The Portuguese asylum procedure is a single procedure for both refugee status and subsidiary protection.[1] There are different procedures applicable depending on whether the asylum application: (i) is submitted to the regular procedure; (ii) is deemed unfounded (including in the case of applications following a removal procedure) and therefore submitted to an accelerated procedure; or (iii) is presented at a national border and processed under the border procedure.

Anyone who irregularly enters or remains on Portuguese territory must present his or her application for international protection to SEF or to any other police authority as soon as possible, orally, or in writing.[2] In the latter case, the police authority has 48 hours to inform SEF of the application.[3] SEF is required 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 his/her rights and duties in a language he/she understands or is 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 the 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, SEF produces a document narrating the essential facts of the application and in the case of applications on the territory (with the exception of subsequent applications and applications following a removal decision) the applicant has 5 days to seek revision of the narrative.[13] National jurisprudence provides that the applicant must be granted an opportunity not only to seek revision of the narrative, but to reply to the prospective outcome of the application (admission to the regular procedure, accelerated refusal on the merits or inadmissibility) leading to changes in the practice in this regard.

Admissibility

With the exception of Dublin decisions, the National Director of SEF has 30 days to make a decision on the admissibility of applications on the territory[14] (10 days for subsequent applications and applications following a removal order),[15] as opposed to 7 days for applications processed under a border procedure.[16] 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,[17] with the exception of inadmissible subsequent applications and applications following a removal order (4 days to appeal, with automatic suspensive effect).[18] Failing an appeal, the applicant has 20 days to leave the country.[19] In the case of border procedures, the time limit to appeal is reduced to 4 days.[20]

In the case of Dublin procedures, the deadline for the admissibility decision is suspended pending a reply from the requested Member State.[21] Upon notification of a “take charge”/“take back” decision, the applicant has 5 days to appeal before the Administrative Court with suspensive effect.[22]

Regular procedure

As soon as an asylum application is deemed admissible,[23] it proceeds to an eligibility evaluation.[24] In accordance with the law, this stage lasts up to 6 months but can be extended to 9 months in cases of particular complexity.[25] The asylum seeker receives a provisional residence permit valid for 6 months (renewable) that grants access to education and employment.[26] During this stage, SEF – acting with due diligence – evaluates all relevant facts to prepare a reasoned decision.[27] 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.[28] Upon notification of the proposal for a final decision, the applicant has 10 days to evaluate SEF’s reasoning and to respond to the proposal.[29] 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.[30] In the event of a negative decision, the applicant may lodge an appeal with automatic suspensive effect before the Administrative Court within 15 days,[31] or voluntarily depart from national territory within 30 days, (after this period, the applicant will be subject to the removal regime).[32]

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.[33] While  the rules governing accelerated procedures provide for the basic principles and guarantees of the regular procedure,[34] 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.[35] 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 his or her personal interview,[36] or to be notified of and respond to SEF’s reasoning of the proposal for a final decision,[37] as well as shorter appeal deadlines.[38]

Similarly to the regular procedure, the appeal has an automatic suspensive effect.[39] However, the onward appeal in the case of an application following a removal order does not.[40]

Border procedure

The law provides for a special procedure regarding applications made at a national border.[41] While this procedure provides for the basic principles and guarantees of the regular procedure,[42] 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).[43] Additionally, the border procedure is characterised by reduced procedural guarantees such as exclusion from the right of the applicant to seek revision of the narrative of his or her personal interview,[44] and a shorter appeal deadline before the Administrative Court (4 days).[45]  Furthermore, asylum seekers are detained during the border procedure.[46] The border procedure was applied in practice to applications made at border points (in particular airports) until March 2020. Since then, and after the reinstatement of air traffic, asylum seekers that apply for international protection at the border have 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 20(1) Asylum Act.

[15] Articles 33(4) and 33-A(5) Asylum Act.

[16]  Article 24(4) Asylum Act.

[17]  Articles 22(1) Asylum Act.

[18] Articles 33(6) and 33-A(6) Asylum Act.

[19] Articles 21(2) and (3) and 33(9) Asylum Act.

[20] Article 25(1) Asylum Act.

[21] 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.

[22] Article 37(4) Asylum Act.

[23]  Article 20(4) Asylum Act. In the absence of a decision within 30 days the application is automatically admitted to the procedure.

[24] Article 21(1) Asylum Act.

[25] Article 28(2) Asylum Act.

[26] Article 27(1) Asylum Act. Ministerial Order 597/2015 provides for the model and technical features of the provisional residence permit.

[27]  Article 28(1) Asylum Act.

[28]  Article 28(5) Asylum Act.

[29]  Article 29(2) Asylum Act.

[30]  Article 29(4) and (5) Asylum Act.

[31]  Article 30(1) Asylum Act.

[32] Article 31 Asylum Act.

[33] Article 19 Asylum Act.

[34] 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.

[35] 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).

[36]  This is limited to accelerated procedures at the border and in the case of applications following a removal procedure.

[37]  See infra the section on Accelerated Procedures for details on the current practice in this regard.

[38] 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).

[39]  Articles 22(1) and 33-A(6) Asylum Act.

[40]  Article 33-A(8) Asylum Act.

[41]  Article 23(1) Asylum Act.

[42] 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.

[43] 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.

[44] Article 24 Asylum Act.

[45] Article 25(1) Asylum Act.

[46] Articles 26(1) and 35-A(3)(a) Asylum Act.

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