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 refers to age, gender, gender identity, sexual orientation, disability, serious illness, mental disorders, 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 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.

According to SEF, its caseworkers received training on the identification of vulnerable persons, and specific interviewing techniques under the EASO training curriculum.

In September 2022, UNHCR and EUAA organised two training sessions on the Agency’s Tool for Identification of Persons with Special Needs in Lisbon.

In 2022, a new SOG sub-group was created in order to address the area of vulnerabilities within the asylum system. The group is composed by ACM, CPR, ISS, SCML, SEF, and UNHCR. According to the information available at the time of writing, during the first semester of 2023, the sub-group will be led by UNHCR and will identify services and mechanisms to address specific vulnerabilities.

Publicly available statistics regarding vulnerable asylum seekers are scarce and relate mostly to unaccompanied children and families with children.^[8] According to the information provided by SEF, a total of 354 children applied for international protection in Portugal in the course of 2022, of which 83 were unaccompanied.^[9]

CPR collects statistical information on asylum seekers who self-identify or are identified as vulnerable on the basis of information received from SEF in accordance with the law, collected directly from the applicants or shared by other service providers. In 2022, of the 2,135 asylum applicants whose cases were communicated by SEF, 513 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. In previous years, some applicants were 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, or based on information received from other EU Member States. The number of such cases regarding unaccompanied children who applied for asylum in 2022 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.^[11]

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’.^[12] 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’.^[13] The necessity and consistency of the assessment of the best interests of the child in asylum procedures were also highlighted by the Committee.^[14]

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.^[15] 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,^[16] ‘[…] 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’.^[17]

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’.^[18]

Victims of human trafficking

According to SEF, staff with specific training in trafficking indicators operate in cases involving victims of trafficking at the Lisbon Airport.^[19] 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 by SEF-GAR specific attention is 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.[20] 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.^[21] 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 SEF’s asylum and criminal investigation departments for the 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 are 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.^[22] 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’.^[23]

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’.^[24]

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’.^[25]

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.[26] 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;[27]
• 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;[28]
• 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’.[29]

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.[30] 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.[31]

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.[32]

In July 2021, a Ministerial Order reviewing the documents issued to persons with victim status and particularly vulnerable victim status was published.[33] 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.

OTSH previously reported that the project ‘Improved prevention, assistance, protection and (re)integration system for victims of sexual exploitation’ (to be implemented with national and Norwegian partners) was launched in March 2022.

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,^[34] 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 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.^[35]

The unaccompanied child must be informed that their age will be determined by means of such expertise and their representative must give prior consent.^[36] 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.^[37]

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.^[38]

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)^[39] or by the unaccompanied child’s legal representative.

As such, age assessment procedures can be triggered either by SEF 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.

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:[40]

• In cases of asylum applicants who were referred by SEF to CACR as children 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 increased use of age assessments by Family and Juvenile Courts without adequate justification of their need and proportionality.

Currently, formal age assessment procedures are triggered by Family and Juvenile Courts and conducted by the National Institute of Legal Medicine and Forensic Science (INMLCF). It is unclear whether child protection concerns are specifically considered in such assessments and according to CPR’s observation the procedures thereto fail to meet the holistic and multidisciplinary standards recommended by UNHCR.^[41] 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.[42]

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.^[43]

Despite the established technical limitations of such methods, their results have been used by SEF and Family and Juvenile Courts 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,^[44] and was criticised by the Council of Europe.^[45]

It is 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.^[46] According to the information available to CPR, if upon registration of the asylum application SEF identifies Eurodac hits with different personal information, the Family and Juvenile Court is informed accordingly.

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 the CACR 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 by SEF for purposes other than the refugee status determination. However, when adopted at administrative level, these that can be challenged before the Administrative Courts in accordance as per general Administrative Lae.^[47] Age assessments conducted within the context of Family and Juvenile Courts procedures may be 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 some 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.

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’.^[48]

^[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] While according to information provided by SEF all caseworkers have specific training in issues such as identification and interview of vulnerable persons under the EASO training curriculum and special needs of applicants are taken into account at all stages, no official data is available regarding the number of applicants identified as vulnerable.

^[9] Discrepancies between the number of unaccompanied children registered by SEF and by CPR (the former usually lower that the later) have been common and may be explained by factors such as the use of different identification criteria and age assessment procedures and registration practices. 

[10] Figures below five are not included.

^[11] 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.

^[12] 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.

^[13] Ibid., para. 42(c).

^[14] Ibid., paras 41(b) and 42(b).

^[15] Italian Council for Refugees et al., Time for Needs: Listening, Healing, Protecting, October 2017, available at: https://bit.ly/3gEoe1T.

^[16] 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.

^[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, paras.133-134.

^[18] 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.  

^[19] 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.

[20] 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. 

^[21] 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.

^[22] 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.

^[23] 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. 

^[24] 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. 

^[25] 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. 

[26] 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.

[27] Ibid, par.177.

[28] Ibid, par.186.

[29] Ibid, par.193.

[30] 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.

[31] 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.

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

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

^[34] Article 79(2) Asylum Act.

^[35] Article 79(6) Asylum Act.

^[36] Article 79(7) Asylum Act.

^[37] 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://bit.ly/3boC2YX.

^[38] Article 79(8) Asylum Act.

^[39] In this case, it is mandatory.

[40] 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.

^[41] UNHCR, The Way Forward to Strengthened Policies and Practices for Unaccompanied and Separated Children in Europe, July 2017, available at: http://bit.ly/2ngwmYT.

[42] 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. See: INMLCF, Norma procedimental – Estimativa da idade em indivíduos vivos indocumentados, NP-INMLCF-018, 14 October 2019, available in Portuguese at: https://bit.ly/3jqFiaV. The grounds for this (regrettable) change of practice are not know.

^[43] According to CPR’s observation, the refusal is usually referred in the relevant report together with an estimation of sexual development.

^[44] See e.g., TAC Leiria, Decision 784/14.9 BELRA, 19 July 2014, unpublished.

^[45] 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.

^[46] Article 38(1) Administrative Procedure Code.

^[47] Article 51(1) and (2) Code of Procedure in Administrative Courts.

^[48] 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.