Identification

Author

Portuguese Refugee Council Visit Website

The Asylum Act defines an ‘applicant in need of special procedural guarantees’ in terms of reduced ability to benefit from the rights and comply with the obligations stemming from the Asylum Act due to individual circumstances.[1] Even though it does not include an exhaustive list of asylum seekers presumed to be in need of special procedural guarantees, it does refer to age, gender, gender identity, sexual orientation, disability, serious illness, mental disorders, and victims of torture, rape or other serious forms of psychological, physical or sexual violence as possible factors underlying individual circumstances that could lead to the need of special procedural guarantees.[2]

The Asylum Act provides for the need to identify persons with special needs and the nature of such needs upon registration of the asylum application or at any stage of the asylum procedure.[3] The nature of special procedural needs should be assessed before a decision on the admissibility of the application is taken.[4]

Screening of vulnerability

Despite these legal obligations, there are no (specific) mechanisms, standard operating procedures, or units in place to systematically identify asylum seekers who need special procedural guarantees.

In 2020, the UN Human Rights Committee expressed concern with the lack of such a mechanism and recommended the establishment of ‘an effective mechanism for the identification of vulnerable applicants, in particular stateless persons’.[5]

The questionnaire used by SEF/AIMA in first instance asylum includes two questions on the applicant’s self-assessed health condition and capacity to undergo the interview.[6] Dublin interview forms also contain a couple of questions on health-related vulnerabilities.[7] According to CPR’s observation, there is no clear link between the answer provided by the applicant and the adoption of special procedural guarantees in practice. In the context of the right of reply to the draft country report, AIMA stated that an appropriate referral mechanism was put in place if a particular vulnerable person or a particular health situation was identified, depending on the specific case, but did not provide further information as to specific measures adopted in such cases.[8]

According to the information provided by SEF in previous years, its caseworkers received training on the identification of vulnerable persons, and specific interviewing techniques under the EASO training curriculum. It is unclear whether AIMA’s caseworkers received similar specific training. UNHCR reported having provided training covering the identification and referral of asylum seekers and refugees with special needs to AIMA, PSP, GNR, ISS and entities involved in the reception of unaccompanied children. Within the context of the right of reply of the authorities to the draft AIDA report, AIMA noted that it is expected that staff will attend EUAA training until the end of 2024.[9]

In 2022, a new SOG sub-group was created in order to address the area of vulnerabilities within the asylum system. The group was composed by ACM, CPR, ISS, SCML, SEF, and UNHCR. According to the information provided by UNHCR, the group was active during the first semester, but its activities were halted with the suspension of the activity of the SOG.[10]  In April 2023, the sub-group organised a meeting with multiple stakeholders active in the field of asylum, migration, healthcare, security and child-protection to discuss, inter alia, practices and recommendations concerning special needs. Further output of its activity was not publicly available at the time of writing.

Publicly available statistics regarding vulnerable asylum seekers are scarce and relate mostly to unaccompanied children and families with children.

AIMA reported that the identification of vulnerabilities as determined by article 21 of the recast RCD is conducted within the context of relocation and resettlement programmes. According to AIMA, vulnerabilities are identified by the relevant entities in the country of resettlement/relocation and communicated to the Portuguese authorities. According to the information provided by AIMA, in 2023, a total of 174 persons were identified as vulnerable within such programmes, of which 56 were unaccompanied children. AIMA further informed that 71 persons evacuated from Afghanistan were identified as vulnerable. A breakdown per vulnerability is not available.

AIMA did not provide further information regarding the identification of vulnerabilities in Portugal and by the national authorities.

CPR collects statistical information on asylum seekers who self-identify or are identified as vulnerable on the basis of information received from SEF/AIMA in accordance with the law, collected directly from the applicants or shared by other service providers. In 2023, of the 2,565 asylum applicants whose cases were communicated by the asylum authority, 482 were identified as vulnerable:

Source: CPR.

According to the information available to CPR, a number of age assessment procedures were pending at the time of writing. Applicants may be later determined to be adults including on the basis of their own statements, second-stage age assessment procedures requested by the Family and Juvenile Court, assessments made by SEF/AIMA, or based on information received from other EU Member States. The number of such cases regarding unaccompanied children who applied for asylum in 2023 remained minimal at the time of writing.

Unaccompanied children

The Asylum Act determines that the staff handling asylum applications of unaccompanied children must be specifically trained.[12]

In 2019, the Committee on the Rights of the Child expressed concern with ‘[…] weaknesses in policy and practice relating to unaccompanied and separated children, particularly in respect of legal representation and guardianship during refugee determination processes’.[13] The Committee recommended Portugal to ‘strengthen policies and practices to improve the identification and registration of unaccompanied and separated children, including through ensuring that they are provided with effective legal representation and an independent guardian immediately after they have been identified’.[14] The necessity and consistency of the assessment of the best interests of the child in asylum procedures were also highlighted by the Committee.[15]

Victims of torture and serious violence

In the case of survivors of torture and/or serious violence, research has demonstrated that identification is conducted on an ad hoc basis and mostly on the basis of self-identification during refugee status determination, social interviews, or initial medical screenings.[16] Staff working with asylum seekers lacks specific training on the identification of survivors of torture and/or serious violence and their special needs.

According to the information provided by the Portuguese authorities to the UN Committee Against Torture in June 2018,[17] ‘[…] the number of asylum applicants that claimed to have been victims of torture or identified as victims of torture is residual.’ The report also states that ‘[i]n general, the applicant is assessed as credible when the claims are reliable or visible signs of the act exist. This leads to a positive decision and to the granting of international protection status without the need for medical examinations. Applicants are then subject to evaluation as well as to medical and psychological monitoring in the reception centres in order to address potential traumas. There are no statistical data on these cases.[18]

Following this report, the identification of survivors of torture was one of the issues addressed by the UN Committee Against Torture in its Concluding Observations on Portugal. The Committee observed that ‘[…] the State party has not provided complete information on the procedures in place for the timely identification of victims of torture among asylum seekers […]’ and recommended ‘[…] the establishment of effective mechanisms to promptly identify victims of torture among asylum seekers’.[19]

Victims of human trafficking

According to information previously provided SEF, staff with specific training in trafficking indicators operated in cases involving victims of trafficking at the Lisbon Airport.[20] The Observatory on Trafficking in Human Beings (Observatório do Tráfico de Seres Humanos, OTSH) previously reported that, in addition to the internal training provided by SEF, the Anti-Trafficking Unit of the entity developed a flowchart on procedures to address situations involving unaccompanied children at border points. According to the information provided in the past by SEF-GAR specific attention was given to possible instances of trafficking in human beings within the asylum context.

In addition to the existing general national referral mechanism for victims of trafficking in human beings, in 2021 the national ‘Protocol for the definition of procedures aimed at the Prevention, Detection and Protection of (presumed) children victims of Trafficking in Human Beings – National Referral Mechanism’ was launched.[21] The new referral mechanism, comprised of nine practical tools, aims to establish specific procedures, to reinforce cooperation and communication among professionals and to ensure respect for the best interests of the child.[22] One of the practical tools focus on identification at the border, explaining the referral and identification procedures together with relevant indicators.

With regard to asylum seeking children, CPR systematically flags presumed victims of trafficking under its care to OTSH (on the basis of an anonymous form with indicators), to the relevant authorities for purposes of criminal investigation and protection, and to the competent Family Court. Where CPR caseworkers are able to obtain the unaccompanied child’s consent for adequate protection, the cases can be further referred to the multidisciplinary team of the Family Planning Association (APF) that conducts an initial assessment that can lead to the placement of the presumed victim in an Anti-Trafficking Reception and Protection Centre (CAP).

Trafficking in human beings was addressed by the UN Committee Against Torture in its Concluding Observations published in 2019. The Committee expressed concern with reports of lack of training of law enforcement officers and with delays in the process of issuance of residence permits to victims.[23] As such, the Committee recommended Portugal to, among other things: ‘(a) Intensify its efforts to prevent and combat trafficking in persons, including by putting in place effective procedures for the identification and referral of victims among vulnerable groups, such as asylum seekers and irregular migrants; (b) Improve the training of law enforcement officers and other first responders by including statutory training on the identification of potential victims of trafficking in persons; and (c) Ensure access to adequate protection and support, including temporary residence permits, irrespective of their ability to cooperate in legal proceedings against traffickers’.[24]

According to the information provided by the national authorities to the UN Human Rights Committee on the occasion of the consideration of the relevant report, ‘[s]pecial emphasis had been placed on identifying trafficking victims among the children who arrived at the border accompanied by adults who might not be their parents or legal guardians. Strict procedural rules governed how those cases were handled; the minors in question were placed into care while investigations were conducted to clarify the circumstances surrounding their journey and the nature of their relationship with the adult or adults accompanying them’.[25]

In its assessment, with regard to trafficking in human beings and asylum, the UN Human Rights Committee flagged, inter alia, the absence ‘of an adequate identification mechanism for victims of trafficking in persons in the asylum procedures, including with respect to children’. Importantly, the Committee recommended Portugal to ‘[p]rovide adequate training to judges, prosecutors, law enforcement officials, immigration officers and staff working in all reception facilities, including on procedures for identifying victims of trafficking in persons’ and to ‘[e]nsure that victims of trafficking in persons have access to asylum procedures in which their potential needs can be determined’.[26]

In June 2022, the Group of Experts on Action on Trafficking in Human Beings (GRETA), published its third report on Portugal, focusing on access to justice and effective remedies for victims, and following-up on issues specific to the national context, including the link between asylum and trafficking in human beings.[27] Notably, GRETA:

• Urged the national authorities to ‘set up effective procedures on the identification of victims of trafficking among applicants for international protection and their referral to assistance’, to ‘provide systematic training and guidance to staff working at immigration detention facilities and asylum seekers accommodation centres, including social workers, medical and other staff, on the identification of victims of trafficking and the procedures to be followed’, as well as to ensure adequate legal support;[28]
• While welcoming the adoption of the national referral mechanism for children, recommended the adoption of ‘guidance on the identification of child victims of trafficking among unaccompanied and separated asylum-seeking children’, and the provision of training to relevant actors;[29]
• Recommended the authorities to ensure that ‘assistance is provided to presumed THB victims who are detained in detention centres for migrants, by setting up specific protocols and by providing specific training on trafficking indicators to police forces, social workers, medical and other staff working at facilities for asylum seekers and detained migrants’.[30]

GRETA also issued a number of recommendations concerning broader issues such as the national framework on trafficking, identification of victims, access to information, non-punishment provisions, and return of victims of trafficking.[31] The Group also highlighted the need to ensure that the reform of SEF does not impair the specialised law enforcement action in the field of trafficking in human beings.[32]

Within the context of the termination of SEF’s activities, competences concerning the investigation of crimes relating to the assistance of illegal migration, trafficking in human beings and related crimes were transferred to the Judiciary Police (PJ) in 2023.[33] It is worth mentioning that a significant number of inspectors who were previously part of SEF were transferred to PJ. It was not possible to gather information regarding the practical impact of this institutional change in the protection of victims of trafficking within the asylum system.

In its Concluding Observations published in July 2022, the Committee on the Elimination of Discrimination Against Women (CEDAW), also highlighted the need for effective identification and referral of victims of trafficking in Portugal.[34]

In July 2021, a Ministerial Order reviewing the documents issued to persons with victim status and particularly vulnerable victim status was published.[35] Importantly, the documents to be handed to victims of trafficking in human beings and assistance to illegal migration clearly refer to their right to apply for international protection in Portugal.

CPR is unaware of instances where asylum applicants were granted international protection on the basis of a well-founded fear of persecution for reasons of trafficking in human beings.

Age assessment of unaccompanied children

Despite the obligation to refer unaccompanied children to Family and Juvenile Courts for the purposes of legal representation,[36] the Asylum Act does not provide for a specific identification mechanism for unaccompanied children or objective criteria to establish which asylum seekers must undergo an age assessment.

According to the Asylum Act, SEF/AIMA may resort to medical expertise using a non-invasive examination to determine the age of the unaccompanied child who must be given the benefit of the doubt in case well founded doubts persist regarding their age after the examination.[37] The law does not define or list the non-invasive methods that may be used within this context.

The unaccompanied child must be informed that their age will be determined by means of such expertise and their representative must give prior consent.[38] In early 2020, following the results of workshops with children on age assessment funded by the Council of Europe, the National Commission for the Promotion of Rights and the Protection of Children and Young People published a leaflet with information on age assessment procedures to children. The leaflet is available in Portuguese, English, and French.[39]

Refusal to allow an expert’s examination does not prevent the issuance of a decision on the application for international protection but shall not determine its rejection.[40]

The age assessment procedure may also be triggered by the Family and Juvenile Court in the framework of judicial procedures aimed at ensuring legal representation for the child and the adoption of protective measures (see Legal Representation of Unaccompanied Children)[41] or by the unaccompanied child’s legal representative.

As such, age assessment procedures can be triggered either by SEF/AIMA when there are significant doubts regarding the age of the applicant on the basis of physical appearance and/or demeanour, or by Family and Juvenile Courts in the framework of legal representation and child protection procedures (see Legal Representation of Unaccompanied Children).

While official data is not available, in recent years CPR observed that age assessment procedures were triggered by Family and Juvenile Courts to almost all unaccompanied children by default, and without an analysis of the individual need for such procedures.[42]

The absence of objective criteria to establish what constitutes reasonable doubt, who must undergo an age assessment, and the nature of the initial age assessments is particularly problematic:[43]

• In cases of asylum applicants who were referred by SEF/AIMA to childcare facilities despite legitimate doubts regarding the age of the applicant on the basis of their physical appearance and/or demeanour thus putting at risk the integrity and security of the facility;
• In a few cases where asylum applicants claim to be adults but there are legitimate doubts about the possibility of them being children on the basis of statements, physical appearance and/or demeanour; and
• Due to the systematic use of age assessments triggered by Family and Juvenile Courts without adequate justification of their need and proportionality.

The law also does not establish further specific rules and principles applicable to age assessment procedures.

Age assessment procedures are conducted by the National Institute of Legal Medicine and Forensic Science (INMLCF).[44] It is unclear whether child protection concerns are specifically considered in such assessments. According to CPR’s observation the procedures thereto fail to meet the holistic and multidisciplinary standards recommended by UNHCR.[45] This has also been observed by UNICEF.[46] The methods used for age determination include wrist and dental X-rays, as well as an evaluation of sexual development as part of the age assessment procedure.[47] These methods, in particular the evaluation of sexual development, are arguably invasive and therefore not in line with those permitted by the Asylum Act.

According to the information available to CPR, where the applicant did not consent to an examination of their genitals, such examinations were not performed and the age assessment examinations proceeded.[48]

Despite the established technical limitations of such methods,[49] their results have been used by the national authorities as evidence of the adulthood of the applicant and as grounds for refusing the benefit of the doubt despite their inability to establish an exact age. This practice has been overturned by Administrative Courts in at least one instance regarding the asylum procedure,[50] and was criticised by the Council of Europe.[51]

It was common for SEF to suspend the asylum procedure on the basis of general administrative rules in order to wait for the results of age assessment procedures ordered by the Family and Juvenile Courts.[52] According to the information available to CPR, if upon registration of the asylum application SEF identified Eurodac hits with different personal information, the Family and Juvenile Court was informed accordingly. AIMA’s practice in this domain remained unclear at the time of writing, but CPR is aware of cases that remained suspended.

The initial and second-stage of age assessment procedures are made for different purposes including: (i) the provision of special procedural guarantees i.e., referral to the Family and Juvenile Courts for the purposes of legal representation in the asylum procedure; (ii) the provision and the cessation of special reception conditions, i.e., immediate referral to childcare services and referral to the Family and Juvenile Courts for purposes of confirming the provision of special reception conditions there; and (iii) for the purposes of refugee status determination as a material fact of the asylum application.

The law does not provide for a specific legal remedy against the initial age assessment procedure conducted for purposes other than the refugee status determination. However, if adopted at administrative level, in principle, these that can be challenged before the Administrative Courts as per general Administrative Law.[53] Age assessments conducted within the context of Family and Juvenile Courts procedures may be, in principle, appealed pursuant to general rules. In practice, this is rarely – if ever – the case given the individual circumstances, and the lack of available legal expertise.

As a general rule, upon the existence of medical examinations determining that the applicant is an adult, the protective measures adopted within the context of child-protection processes cease. It is concerning that, in many cases, however, the documents issued to the applicant within the asylum procedure do not reflect a change in the date of birth of the person concerning, thus hindering integration both as a child and as an adult.

According to information available to CPR, in some cases, upon reception of the results of the medical report and before the issuance of a decision on the age assessment procedure, the competent Family and Juvenile Court gave the applicant and the appointed guardian the opportunity to reply to the analysis. According to the experience of CPR’s CACR, in some instances, where the protective measure is deemed to have a positive effect in the individual case by the Family and Juvenile Court, it can be maintained. Nevertheless, this is not a standard or systematic practice within the context of age assessment procedures.

At least in some instances, cases where the applicant is deemed to be an adult were immediately referred by the Family and Juvenile Court for criminal investigation for the provision of false statements to the authorities. While no data is available in this regard, this practice has been observed both by CPR and UNICEF.[54]

In 2019, the UN Committee on the Rights of the Child raised concerns about age assessment procedures and recommended that Portugal ‘continue to enforce multidisciplinary and transparent procedures that are in line with international standards and adequately train staff to ensure that the psychological aspects and personal circumstances of the person under assessment are taken into account’.[55]

[1] Article 17-A(1) Asylum Act.

[2] Ibid.

[3] Article 77(2) Asylum Act.

[4] Article 17-A(1) Asylum Act.

[5] Human Rights Committee, Concluding Observations on the fifth periodic report of Portugal, CCPR/C/PRT/CO/5. 28 April 2020, para 34(c) and 35(c) available at: https://bit.ly/2Q1ftn8.

[6] The questions read (1) “Do you feel alright, are you comfortable? Do you have any health problems?”, and (2) “Do you feel capable of talking to me at the moment?”.

[7] The questions read (1) “Are you in good health – Y/N? Do you have health problems – Y/N? Which problems?” and (2) “Are you accompanied by a relative with health problems?”.

[8] Information provided by AIMA on 25 June 2024.

[9] Information provided by AIMA on 25 June 2024.

[10] The activity of the SOG was not resumed until the end of the year.

[11] Figures below five are not included in this table.

[12] Article 79(12) Asylum Act. The provision of mandatory training on the rights of the child to all relevant professionals, including immigration and asylum officers was also recently recommended by the Committee on the Rights of the Child. See Committee on the Rights of the Child, Concluding observations on the combined fifth and sixth periodic reports of Portugal, CRC/C/PRT/CO/5-6, 9 December 2019, par.13 (c), available at: https://bit.ly/2G1F07z.

[13] Committee on the Rights of the Child, Concluding observations on the combined fifth and sixth periodic reports of Portugal, CRC/C/PRT/CO/5-6, 9 December 2019, par.41(c), available at: https://bit.ly/2G1F07z.

[14] Ibid., para. 42(c).

[15] Ibid., paras 41(b) and 42(b).

[16] Italian Council for Refugees et al., Time for Needs: Listening, Healing, Protecting, October 2017, available at: https://bit.ly/3gEoe1T.

[17] Committee Against Torture, Seventh periodic report submitted by Portugal under article 19 of the Convention pursuant to the optional reporting procedure, due in 2017, CAT/C/PRT/7, 18 December 2018, available at: https://bit.ly/3cwgaec.

[18] Committee Against Torture, Seventh periodic report submitted by Portugal under article 19 of the Convention pursuant to the optional reporting procedure, due in 2017, CAT/C/PRT/7, 18 December 2018, available at: https://bit.ly/3cwgaec, paras.133-134.

[19] Committee Against Torture, Concluding Observations on the seventh periodic report of Portugal, CAR/C/PRT/CO/7, 18 December 2019, par.38(d), available at https://bit.ly/2G1F07z. In the List of Issues published in June 2023, the Committee Against Torture (CAT) requested information regarding, inter alia, “the number of successful applications and the number of asylum-seekers whose applications were accepted because they had been tortured or might be tortured if returned.” See Committee Against Torture (CAT), List of issues prior to submission of the eight periodic report of Portugal, 9 June 2023, par.7, available at: https://tinyurl.com/5ynxhpx9.

[20] See Expresso, ‘SEF cria equipas especializadas para proteção das vítimas de tráfico de seres humanos’, 18 October 2018, available in Portuguese at: https://bit.ly/2TIN8OU; Público, ‘SEF vai ter três equipas especializadas em tráfico de seres humanos’, 29 May 2018, available in Portuguese at: https://bit.ly/2ANfFfj. According to these sources, in 2018 SEF expanded its capacity for the identification and protection of victims of trafficking at the border and on national territory following the concerns raised by the Council of Europe Group of Experts on Action Against Trafficking in Human Beings (GRETA) report published in 2017, available at: https://bit.ly/2RLfYRy, which also raised specific concerns regarding the disappearance of unaccompanied asylum-seeking children.

[21] OTSH (coord.), Protocolo para a definição de procedimentos de atuação destinado à prevenção, deteção e proteção de crianças (presumíveis) vítimas de tráfico de seres humanos – Sistema de Referenciação Nacional, May 2021, available at: https://bit.ly/3k3BXQh  

[22] The tools focus on: 1. Guiding principles of children’s protective intervention; 2. Overall indicators and types of exploitation by indicators. 3. Detection in National Territory. 4. Detection at External Borders. 5. Procedures for assessing the child’s age. 6. Appointment of Tutor or Legal Representative. 7. Assistance, Sheltering, (Re) Integration and Return. 8. Rights of children victims of Trafficking in Human Beings. 9. Training Module.

[23] Committee Against Torture, Concluding Observations on the seventh periodic report of Portugal, CAR/C/PRT/CO/7, 18 December 2019, para 43, available at https://bit.ly/2G1F07z. In the List of Issues published in June 2023, the Committee Against Torture (CAT) requested information regarding, inter alia, the investigation of cases of trafficking of persons, data concerning victims, complaints, prosecutions, convictions and sentences, provision of redress to victims, data on protection and support measures, as well as measures to increase training of relevant officials.” See Committee Against Torture (CAT), List of issues prior to submission of the eight periodic report of Portugal, 9 June 2023, par.6, available at: https://tinyurl.com/5ynxhpx9.

[24] Committee Against Torture, Concluding Observations on the seventh periodic report of Portugal, CAR/C/PRT/CO/7, 18 December 2019, para 44, available at https://bit.ly/2G1F07z. 

[25] Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant (continued), CCPR/C/SR.3697, 13 March 2020, para 33, available at: https://bit.ly/2R7z2e0. 

[26] Human Rights Committee, Concluding Observations on the fifth periodic report of Portugal, CCPR/C/PRT/CO/5. 28 April 2020, par 32 and 33(b) and (c), available at: https://bit.ly/2Q1ftn8. 

[27] Group of Experts on Action on Trafficking in Human Beings (GRETA), Evaluation Report – Portugal – Third Evaluation Round – Access to justice and effective remedies for victims of trafficking in human beings, 13 June 2022, available at: https://bit.ly/3ii2V9o.

[28] Ibid, par.177.

[29] Ibid, par.186.

[30] Ibid, par.193.

[31] Ibid, pp. 47-52. See also the subsequent recommendation by the Committee of the Parties to the Council of Europe Convention on Action against Trafficking in Human Beings: Recommendation CP/Rec(2022)06 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Portugal, 17 June 2022, available at: https://bit.ly/3ii2V9o.

[32] Group of Experts on Action on Trafficking in Human Beings (GRETA), Evaluation Report – Portugal – Third Evaluation Round – Access to justice and effective remedies for victims of trafficking in human beings, 13 June 2022, par.27, available at: https://bit.ly/3ii2V9o.

[33] Article 2(c) Act n. 73/2021 of 12 November 2021 approving the restructure of the Portuguese system of border control, reshaping the regime of the forces and services responsible for internal security and establishing other rules for the redistribution of competences and resources of the Immigration and Borders Service, last amended by Act n. 53/2023, of 31 August 2023, available at: https://bit.ly/3OitRkJ.

[34] CEDAW, Concluding Observations on the tenth periodic report of Portugal, CEDAW/C/PRT/CO/10, 12 July 2022, available at: https://bit.ly/3vkbN1n.

[35] Ministerial Order n. 138-E/2021 of 1 July, available at: https://bit.ly/3vD6kCk.

[36] Article 79(2) Asylum Act.

[37] Article 79(6) Asylum Act.

[38] Article 79(7) Asylum Act.

[39] National Commission for the Promotion of Rights and the Protection of Children and Young People, Une évaluation de l’âge qui respecte les droits des enfants/An age assessment procedure that respects children’s rights, 19 February 2020, available at: https://tinyurl.com/mw8ydu2n

[40] Article 79(8) Asylum Act.

[41] In this case, it is mandatory.

[42] This has also been confirmed by UNICEF.

[43] While the border procedure has not been applied since March 2020, it is worth mentioning that, within that context, SEF has in the past refused to trigger age assessment procedures and/or give the benefit of the doubt to asylum seekers claiming to be children, with significant implications regarding detention and access to procedural rights in the absence of a legal representative.

[44] Article 2(1) Act no.45/2004, of 19 of August as amended by Decree-Law no.53/2021, of 16 June, available at: https://tinyurl.com/5n6dkrnm.

[45] UNHCR, The Way Forward to Strengthened Policies and Practices for Unaccompanied and Separated Children in Europe, July 2017, available at: http://bit.ly/2ngwmYT.

[46] As per the information shared by UNICEF to the 2023 AIDA Report. UNICEF has further reported that, in some instances, legal representatives are not properly informed or trained to fully advocate for the best interest of the child within these procedures.

[47] While an examination of genitals was not used in age assessment in the past, INMLCF published a procedural note in 2019 on the estimation of age in living and undocumented persons that includes it in the age assessment procedure.  INMLCF, Norma procedimental – Estimativa da idade em indivíduos vivos indocumentados, NP-INMLCF-018, 14 October 2019, previously available in Portuguese at: https://bit.ly/3jqFiaV (not available at the time of writing). The grounds for this (regrettable) change of practice are not know.

[48] According to CPR’s observation, the refusal is usually referred in the relevant report together with an estimation of sexual development.

[49] For an analysis of the framework of the use of medical examinations for this purpose see, for instance: ECRE, Age assessment in Europe – Applying European and International Legal Standards at stages of age assessment procedures, December 2022, pp.12 et seq, available at: https://tinyurl.com/ysm249fw.

[50] See e.g., TAC Leiria, Decision 784/14.9 BELRA, 19 July 2014, unpublished.

[51] GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Portugal, GRETA (2017)4, 17 March 2017, available at: https://bit.ly/2RLfYRy.

[52] Article 38(1) Administrative Procedure Code.

[53] Article 51(1) and (2) Code of Procedure in Administrative Courts.

[54] As per the information shared by UNICEF to the 2023 AIDA Report.

[55] Committee on the Rights of the Child, Concluding observations on the combined fifth and sixth periodic reports of Portugal, CRC/C/PRT/CO/5-6, 9 December 2019, pars.41(e) and 42(e), available at: https://bit.ly/2G1F07z.