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. 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.
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. The nature of special procedural needs should be assessed before a decision on the admissibility of the application is taken.
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 2018, SEF-GAR has introduced two general questions in the questionnaire used in first instance asylum interviews that address the applicant’s self-assessed health condition and capacity to undergo the interview, as well as a couple of questions in Dublin interviews on health-related vulnerabilities. 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 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”.
Publicly available statistics regarding vulnerable asylum seekers are scarce and relate mostly to unaccompanied children and families with children. According to the information provided by SEF, a total of 193 children applied for international protection in Portugal, of which 96 were unaccompanied.
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 2020, of the 893 spontaneous asylum applicants whose cases were communicated by SEF, 204 were identified as vulnerable:
|Asylum seekers communicated to CPR and identified as vulnerable: 2017-2020|
|Category of vulnerable group||2017||2018||2019||2020|
|Survivors of torture||12||14||19||6|
|Survivors of physical, psychological or sexual violence||74||91||49||18|
|Persons with chronic or serious illnesses||13||12||40||21|
|Persons with addictions||–||–||–||–|
|% of applicants identified as vulnerable (out of the total spontaneous applications communicated to CPR)||42%||39%||29%||23%|
According to the information available to CPR, a significant 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 2020 remained minimal at the time of writing.
The Asylum Act provides that the staff handling asylum applications of unaccompanied children must be specifically trained to that end.
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”. 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”. The necessity and consistency of the assessment of the best interests of the child in asylum procedures were also highlighted by the Committee.
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. 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, “[…] 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”.
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”.
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. 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 with regard to 2020, specific attention is given to possible instances of trafficking in human beings within the asylum context.
In 2018, at the request of OTSH, CPR offered recommendations regarding the flowchart of the National Referral Mechanism which does not provide for clear procedures regarding referrals of unaccompanied asylum-seeking children in the asylum procedure or age assessment procedures.
OTSH reported that, in 2019, an Intersectoral Working Group started to develop specific procedures for the prevention, detection and protection of children victims of trafficking in human beings. According to OTSH, a final version of this referral mechanism was submitted to the relevant counterparts in the course of 2020 for validation. The referral mechanism, comprising nine practical tools, aims to establish specific procedures, to reinforce cooperation and communication among professionals and to ensure full respect for the best interests of the child.
In 2018, AKTO, a Portuguese NGO, inaugurated the first CAP in Portugal exclusively dedicated to child victims of trafficking, and conducted bilateral meetings with relevant stakeholders, including with CPR, to provide information on service provision and referral procedures.
In the absence of common identification procedures for unaccompanied child victims of trafficking, CPR systematically flags presumed unaccompanied child victims of trafficking under its care to OTSH (on the basis of an anonymous form with indicators), and to SEF’s asylum and criminal investigation departments for the purposes of criminal investigation and protection. 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).
In addition to the coordination of the above mentioned activities on a National Referral Mechanism for Children Victims of Trafficking, OTSH reported that a series of webinars on the potential impact of Covid-19 on Trafficking in Human Beings was organised jointly with the multidisciplinary teams of the Family Planning Association (APF), as well as a number of other trainings targeting different professionals (namely ACM staff, associations of immigrants, police officers, healthcare professionals, CPR staff, and child protection entities).
Trafficking in persons 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. As such, the Committee recommended Portugal to: “(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; (c) Ensure access to adequate protection and support, including temporary residence permits, irrespective of their ability to cooperate in legal proceedings against traffickers”.
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”.
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”.
According to OTSH, the competent authorities did not confirm cases of victims of trafficking among applicants for or beneficiaries of international protection. 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, 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 his or her age after the examination.
The unaccompanied child must be informed that his/her age will be determined by means of such expertise and his/her representative must give prior consent. 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.
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.
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) or by the unaccompanied child’s legal representative.
In practice, age assessment procedures can be triggered either by SEF after the personal interview 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 SEF did not provide statistics in this regard, in 2020, CPR observed that age assessment procedures were triggered by Family and Juvenile Courts to almost all unaccompanied children.
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:
- in the framework of border procedures, where 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;
- in cases of asylum applicants who were referred by SEF to the CACR as children despite legitimate doubts regarding the age of the applicant on the basis of his or her 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 regarding the possibility of them being children on the basis of statements that were later withdrawn, physical appearance and/or demeanour; and
- due to the increased use of second stage age assessment by Family and Juvenile Courts without adequate justification of their necessity and proportionality.
An initial age assessment is conducted by SEF and does not involve child protection staff. Second stage assessments fail to meet the holistic and multidisciplinary standards recommended by UNHCR. The assessment is conducted by the National Institute of Legal Medicine and Forensic Science (INMLCF) and relevant methods used include wrist and dental X-rays. While an examination of genitals was not used in age assessment in the past, the INMLCF published a procedural note in 2019 on the estimation of age in living and undocumented persons that includes the evaluation of sexual development as part of the age assessment procedure. The grounds for this (regrettable) change of practice are not known but, according to the information gathered by CPR, these methods were indeed applied in 2019, and continued in 2020.
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, and was criticised by the Council of Europe.
The referral by SEF to the CACR of applicants whose appearance and demeanour raised serious doubts regarding their age has led CPR to refer those applicants to the CAR managed by CPR so as to achieve a balance between their protection and the preservation of the security and integrity of the CACR, informing the Public Prosecutor’s Office accordingly.
In various instances in 2020, SEF suspended 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. According to the information available to CPR, if upon registration of the asylum application SEF identifies Eurodac hits with different personal information, it informs the Family and Juvenile Court accordingly within the context of the necessary referral of the case.
In 2018, age assessments from other EU Member States have been used by SEF as negative credibility indicators, notably for those coming from Malta. This concerned asylum seekers who were transferred to Portugal in the framework of ad hoc relocation schemes and who claimed to be children upon arrival in Portugal.
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, these procedures remain administrative decisions that can be challenged before the Administrative Courts in accordance with the law. Additionally, the Family and Juvenile Courts also conduct their own second stage age assessment for purposes of legal representation and application of protective measures (following SEF’s referral) that can be appealed pursuant to general rules. In practice, however this is rarely – if ever – the case given the individual circumstances, and the lack of available legal expertise.
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. Nevertheless, this is not a standard or systematic practice within the context of age assessment procedures. At least in some instances, cases 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”.
 Article 17-A(1) Asylum Act.
 Article 77(2) Asylum Act.
 Article 17-A(1) Asylum Act.
 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?”.
 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?”.
 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.
 These figures likely include children relocated to Portugal whose applications had not been communicated to CPR at the time of writing. 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.
 Figures below five are not included.
 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.
 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.
 Ibid., para. 42(c).
 Ibid., paras 41(b) and 42(b).
 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.
 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.
 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 the 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.
 The National Referral Mechanism consists of guidance for the identification, referral and integration of trafficking victims in Portugal and aims to set out the procedures to be adopted by relevant professionals. The National Referral Mechanism was developed by the Network for the Support and Protection of the Victims of Trafficking (Rede de Apoio e Protecção às Vítimas de Tráfico, RAPVT) and is based on a Manual available in Portuguese at: https://bit.ly/2uClYPz, and a flowchart containing referral procedures developed in 2014, available in Portuguese at: https://bit.ly/2TzCNV6.
 Composed by the Ministry of Home Affairs, National Republican Guard (GNR), Public Security Police (PSP), SEF, OTSH, Commission for Citizenship and Gender Equality (CIG), Criminal Policy (PJ), National Commission for the Promotion of Rights and the Protection of Children and Young People; Prosecutor General’s Office – Family, Children and Youth Office (PGR), AKTO, Directorate General for Health.
 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.
AKTO, ‘Centro de Acolhimento e Proteção para Crianças Vítimas de Tráfico de Seres Humanos’, available in Portuguese at: https://bit.ly/2wYsrck.
 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.
 Article 79(2) Asylum Act.
 Article 79(6) Asylum Act.
 Article 79(7) Asylum Act.
 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.
 Article 79(8) Asylum Act.
 In this case, it is mandatory.
 INMLCF, Norma procedimental – Estimativa da idade em indivíduos vivos indocumentados, NP-INMLCF-018, 14 October 2019, available in Portuguese at: https://bit.ly/3jqFiaV.
 In some instances, the individuals subjected to the age assessment refused to be subjected to this method. Refusal was referred in the relevant report together with an estimation of sexual development.
 See e.g., TAC Leiria, Decision 784/14.9 BELRA, 19 July 2014, unpublished.
 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.
 Article 38(1) Administrative Procedure Code.
 According to the information provided by SEF, these assessments were conducted on the basis of physical appearance, demeanour, demography and other types of relevant country of origin information, and X-Rays (FAV Test).
 Article 51(1) and (2) Administrative Court Procedure Code.
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.