Author
The Asylum Act determines that all unaccompanied child asylum seekers and beneficiaries of international protection are entitled to legal representation.[1] Legal representation can be provided by an organisation and can take the form and modalities laid down in law,[2] such as those provided by the General Legal Regime of Civil Guardianship Act.[3]
In this regard, SEF/AIMA is required to immediately flag the need for legal representation to the Family and Juvenile Court.[4]
The legal representative must be informed in advance and in a timely manner by SEF/AIMA of the asylum interview and is entitled to attend and to make oral representations.[5] The presence of the legal representative does not exempt the unaccompanied child from the personal interview.[6] Additionally, SEF/AIMA must ensure that the legal representative is given the opportunity to inform the child of the meaning and implications of the personal interview as well as to explain how to prepare for it.[7] The legal representative must also give their consent to age assessment procedures triggered by SEF/AIMA.[8]
In practice, the legal representation of unaccompanied children has taken varying legal modalities in accordance with the General Legal Regime of Civil Guardianship Act and the Children and Youths at Risk Protection Act.[9] Its scope usually covers the representation of the child for all legal purposes, including the asylum procedure and reception conditions.[10]
The Family and Juvenile Court at times appoints a free legal aid lawyer to the child in the judicial procedures conducted under the framework of the Children and Youths at Risk Protection Act. Practice in this regard is, however, inconsistent. Furthermore, according to CPR’s experience, the assistance provided by such lawyers is usually limited.
As noted by UNICEF, the procedures in place are not in line with the principles of independence and impartiality of the guardian, as the role is typically assigned to the head of the institution responsible for the implementation of the child-protective measure (i.e., notably, for the provision of accommodation and daily assistance and care).[11]
In the case of spontaneous applicants for international protection referred to CPR’s care, the Family and Juvenile Court appoints CPR’s Director to act as legal representative, including for the purpose of representation/assistance in the asylum procedure. Material protection is provided in accordance with the protective measures set out in the Children and Youths at Risk Protection Act.
CPR’s Legal Department provides legal information and assistance to unaccompanied children throughout the asylum procedure. It further attends personal interviews given its legal representative capacity, ensures that children have access to legal aid for appeals when necessary, and provides assistance to lawyers appointed within this mechanism.
In the course of 2023, CPR has often reported to the relevant authorities of not being able to accept further referrals of unaccompanied children due to lack of capacity of CACR. According to the information available to CPR, in such cases, children are usually referred to child-care facilities of the general national protection system. According to ISS, by the end of 2023, a total of 41 unaccompanied asylum-seeking children were under the care of such facilities.
CPR has also received reports of unaccompanied children provided accommodation directly by AIMA in general facilities used by the Agency for the accommodation of asylum seekers (such as hostels), despite being underage. To the extent of CPR’s knowledge, such children are provided assistance by organisations specialised in child-care but it is unclear whether further adaptations are made by the authorities to ensure compliance with the rules applicable to the reception of unaccompanied children. Information regarding the reasons/criteria underlying this practice.
Within the context of the right of reply of the authorities to the draft AIDA report, AIMA noted that procedures regarding the accommodation of such children are coordinated with the relevant authorities, that such entities have met regularly and are developing standard operational procedures for the reception of unaccompanied asylum-seeking children. [12]
Upon admission to one of its reception centres, CPR immediately informs the competent entities as well.
While SEF/AIMA does not conduct individual interviews prior to the appointment of a legal representative, there is no best interests’ assessment or intervention of a legal representative prior to the registration of the asylum claim.[16] The Asylum Act allows children to lodge their own asylum application.[17]
When appointed as legal representative, CPR was normally asked by SEF to give its consent to age assessments conducted within the asylum procedure. This is not the case regarding age assessment procedures that are conducted by the Family and Juvenile Courts in the framework of the General Legal Regime of Civil Guardianship Act and the Children and Youths at Risk Protection Act (the most frequent situation currently).[18]
While the law does not provide for specific requirements for acting as legal representative of an unaccompanied child, the Children and Youths at Risk Protection Act contains rules governing the composition of the technical staff of reception centres for children. Accordingly, the teams must be multidisciplinary and include personnel which holds at least a BA in the field of Psychology and Social Work. The technical director of the centre must further be appointed among staff members with such an academic background.[19]
In 2019, the UN 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’.[20] 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’.[21]
A study focusing on the situation of asylum-seeking unaccompanied children and ageing out in Portugal published in 2021 states that the analysis conducted reveals the lack of a national strategy for unaccompanied asylum-seeking children.[22]
[1] Article 79(1) and (2) Asylum Act.
[2] Ibid. See also Article 2(1)(ad) Asylum Act.
[3] Act 141/2015 of 8 September 2015.
[4] Article 79(1) and (2) Asylum Act.
[5] Article 79(3) Asylum Act.
[6] Article 79(5) Asylum Act.
[7] Article 79(4) Asylum Act.
[8] Article 79(7) Asylum Act.
[9] Act 147/99 of 1 September 1999.
[10] Article 25(1)(a) recast Asylum Procedures Directive; Article 24(1) recast Reception Conditions Directive.
[11] As per the information shared by UNICEF to the 2023 AIDA Report.
[12] Information provided by AIMA on 25 June 2024.
[13] Information provided by UNICEF to the 2023 AIDA Update.
[14] Article 91 General Legal Regime of Civil Guardianship Act and the Children and Youths at Risk Protection Act.
[15] In addition to the relevant rules of the General Legal Regime of Civil Guardianship Act and the Children and Youths at Risk Protection Act, this is provided for in article 79(2) Asylum Act.
[16] A prior assessment of the best interest of the child would bring the procedure more in line with UNHCR’s recommendations in this regard. See UNHCR, The Way Forward to Strengthened Policies and Practices for Unaccompanied and Separated Children in Europe, July 2017.
[17] Article 13(6) Asylum Act.
[18] According to article 6(1) Act no.45/2004, of 19 of August as amended by Decree-Law no.53/2021, of 16 June, nobody is allowed to refuse the performance of medico-legal examinations necessary to a process if it is determined by the relevant judicial authority. Available at: https://tinyurl.com/5n6dkrnm.
[19] Article 54 Children and Youth at Risk Protection Act.
[20] 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, available at: https://bit.ly/2G1F07z, par.41 (c).
[21] 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, available at: https://bit.ly/2G1F07z, par. 42(c).
[22] Sandra Roberto, Carla Moleiro, ed. Observatório das Migrações, De menor a maior: acolhimento e autonomia de vida em menores não acompanhados, April 2021, p.60, available at: https://bit.ly/3fqMKBK.