Legal representation of unaccompanied children

Portugal

Country Report: Legal representation of unaccompanied children Last updated: 30/11/20

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Under the Asylum Act, 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 is required to immediately flag the need for legal representation to the Family and Juvenile Court while informing the child of the procedure.[4]

As regards the scope of legal representation of unaccompanied children, the legal representative must be informed in advance and in a timely manner by SEF of the interview and is entitled to attend the interview as well as to make oral representations.[5] The presence of the legal representative does not exempt the unaccompanied child from the personal interview.[6] Additionally, SEF must ensure that the legal representative is given the opportunity to inform the child of the significance and implications of the personal interview as well as to explain how to prepare for it.[7] The legal representative must also give his/her consent to SEF for the purpose of age assessment procedures.[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 usually appoints CPR’s Director to act as legal representative. The material protection of the child is provided in accordance with the protective measures set out in the Children and Youths at Risk Protection Act, which includes referring him/her to the CACR managed by the CPR.

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. The Family and Juvenile Court at times also appoints a free legal aid lawyer to the child in the framework of the judicial procedures conducted in the framework of the Children and Youths at Risk Protection Act.

In the rare instances where representation and/or accommodation of unaccompanied children were ensured by other organisations, CPR provided legal assistance to their staff and directly, as appropriate.

Except in cases where there is a doubt regarding the age of the applicant (see Identification), SEF usually flags the need to provide the child with legal representation and refers him or her to the Family and Juvenile Court within a few days following the registration of the asylum application, including in the case of border procedures. Upon admission to one of its reception centres, CPR immediately informs the competent entities.

An additional challenge in this regard concerns children travelling with adult siblings in possession of valid travel documents and entry visas for Portugal or having been transferred to Portugal with adult siblings in the framework of the Dublin Regulation. According to the information provided to CPR by SEF in 2018, in these cases the understanding is that there is a presumption of legal representation by the adult sibling, thus exempting SEF from the legal obligation to refer the child to the Family and Juvenile Court.[11]

The Family and Juvenile Court usually appoints CPR as a legal representative/guardian of unaccompanied children within a few weeks following SEF’s communication, including for the purpose of representation in the asylum procedure, given its knowledge and experience in the field of international protection.

It should be noted that even if SEF 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. Despite the law providing for the possibility of a child lodging his/her own asylum application,[12] in 2017, SEF refused to register the asylum application of two unaccompanied children in the absence of legal representatives.[13]

When appointed as legal representative, CPR is normally asked by SEF to give its consent to age assessments in the asylum procedure. However, 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.

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 a background.[14]

The UN Committee on the Rights of the Child recently 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”.[15] 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”.[16]

 


[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]  The current definition of unaccompanied children in the Asylum Act contributes to this problematic understanding from SEF which, in CPR’s view, is not in line with the protective duties entrusted to all public authorities regarding children at risk in accordance to relevant provisions in the General Legal Regime of Civil Guardianship Act and the Children and Youths at Risk Protection Act. Indeed, the current Asylum Act has failed to transpose into national law the definition of “unaccompanied minor” enshrined in Article 2(l) recast Qualification Directive and still refers to “third-country nationals (…) unaccompanied by an adult responsible for them whether by law or custom” as per the definition contained in Article 2(i) Directive 2004/83/EC.

[12] Article 13(6) Asylum Act.

[13] 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.

[14] Article 54 Children and Youth at Risk Protection Act.

[15] 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).

[16]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).

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation