Author
As mentioned in Identification, the Asylum Act does not include an exhaustive list of asylum seekers presumed to be in need of special procedural guarantees. Nevertheless, 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 which may indicate the need for special procedural guarantees.[1]
The Asylum Act establishes that, when such needs are identified, applicants must be provided the necessary support and conditions to exercise their rights and duties within the asylum procedure.[2] While the Asylum Act does not provide an exhaustive list of special procedural guarantees, it explicitly provides for the possibility to postpone the personal interview, to extend deadlines for presenting evidence, and to carry out interviews with the assistance of experts.[3]
According to the Asylum Act, victims of torture and/or serious violence in need of special procedural guarantees shall be exempted from the border procedure and from detention in the context of border procedures when the necessary support and conditions cannot be ensured within that context.[4]
While the implementation of certain special procedural guarantees will in practice depend on action from SEF/AIMA, according to the law, the responsibility for implementing these measures lies with the Institute of Social Security (ISS).[5]
Adequate support during the interview
As mentioned in Identification, there is no specific unit in place with specially trained staff that can provide special procedural guarantees such as special interview techniques or tailored support during personal interviews. In practice, with the exception of asylum applicants whose reduced ability to benefit from the rights and comply with the obligations stemming from the Asylum Act are self-evident (e.g., due to serious illness, pregnancy), such guarantees are not implemented.
It must be noted that the practices of the national authorities in this regard are not homogeneous or systematic. CPR has observed cases of manifest inability or reduced ability of applicants to exercise the rights and comply with the obligations stemming from the Asylum Act where no or insufficient special measures were adopted by the authorities (e.g. cases where there were clear signs of mental illness).
Case law regarding the provision of special procedural guarantees in the asylum procedure has consolidated the approach of not implementing such guarantees.[6]
In some cases supported by CPR, where applicants were not able to exercise procedural rights (e.g., provide comments to the interview report/summary report or to decision proposals) due to certified temporary medical reasons, extensions of the relevant deadlines were granted upon request. Such requests were typically refused within the context of Dublin procedures as SEF argued that it could not extend deadlines due to the direct applicability of EU Law. SEF refused to extended a deadline on the grounds that it could not do so in the case of Dublin procedures (due to the applicability of EU legislation). The duration of the postponement/extension of deadlines varied. AIMA’s practice in this regard was not yet clear at the time of writing.
Requests for the extension of deadlines due to the impossibility to secure interpreters to carry out the relevant diligences in due time were usually not accepted by SEF. When accepted, the extension granted was very short (e.g. 1 day).
In accordance with the law,[7] CPR provides specific legal assistance to unaccompanied asylum-seeking children under its care, inter alia, through the presence of a legal officer during the personal interview with SEF (see Legal Representation of Unaccompanied Children).
Exemption from special procedures
Exemption from the border procedure
According to the Asylum Act, victims of torture and/or serious violence in need of special procedural guarantees shall be exempted from the border procedure and from detention in the context of border procedures when the necessary support and conditions cannot be ensured within that context.[8]
However, no standard operational procedures and tools allowing for the early and effective identification of survivors of torture and/or serious violence and their special procedural needs are in place. As such, asylum seekers who claim to be survivors of torture, rape, or other serious forms of psychological, physical or sexual violence are not specifically exempted from border procedures in practice, despite the lack of provision of special procedural guarantees at the border.
According to CPR’s observations, since the resumption of the application of border procedures, even if an applicant alleges that they were victims of torture and/or serious violence, AIMA does not conduct an assessment of the need of special procedural guarantees, nor exempts them from the border procedure.
Exemption from the accelerated procedure
According to the Asylum Act, unaccompanied children are exempt from accelerated procedures (with the exception of subsequent applications that have not been deemed inadmissible) as well as from the application of certain grounds for inadmissibility, such as Dublin, and first country of asylum/third safe country grounds.[9]
According to information available to CPR, SEF resorted to accelerated procedures once regarding an unaccompanied asylum-seeking child in 2018 and that decision was later overturned at appeal stage for being in breach of the Asylum Act and the recast Asylum Procedures Directive.[10]
CPR requested clarification on this practice in the past, and was informed by SEF that all procedural guarantees for unaccompanied children were provided in such procedures.
This understanding was clearly at odds with the applicable legal provisions as well as with the national jurisprudence. In the beginning of 2020, TAC Lisbon confirmed this assessment by overturning another decision and reaffirming the reasoning adopted in 2018.[11]
While jurisprudence focusing on the impact of vulnerabilities in the asylum procedure and particularly on the use of accelerated procedures remains extremely rare, TCA South issued a decision deeming that an application should not have been subject to an accelerated procedure as the health condition of the applicant’s daughter amounted to a special vulnerability on health grounds. The Court noted that this element was taken into account by the examining authority and considered that, in light of article 31(7)(b) of the APD and article 17-A of the Asylum Act, the application should not have been analysed in an accelerated procedure, but instead fast-tracked.[12]
While CPR is not aware of the adoption of similar decisions in 2023, it has been observed that at least in some cases of applicants claiming to be children, the asylum procedure has been suspended for more than a year (allegedly while waiting for the results of age assessment procedures).
[1] Article 17-A(1) Asylum Act.
[2] Article 17-A(2) Asylum Act.
[3] Article 17-A(3) Asylum Act.
[4] Article 17-A(4) Asylum Act.
[5] Article 17-A(5) Asylum Act.
[6] TAC Lisbon, Decision 1502/18.8BELSB, 24 October 2018, unpublished. The case relates to an asylum seeker suffering from documented epilepsies and depression who was not identified as a vulnerable before the interview and was therefore not provided special procedural guarantees during the first instance procedure. The applicant was unable to review the report of his interview due to his condition and later (but before the issuance of a first instance decision) managed to submit SEF medical reports to SEF. According to TAC Lisbon, such issues were not material to the asylum application and were not relevant to assess the need for special procedural guarantees in accordance to the law “as the serious condition of the appellant was not due to him being a victim of torture, rape or other form of psychological, physical of sexual violence in his country of origin […]”.
[7] Article 79(3) Asylum Act.
[8] Article 17-A(4) Asylum Act.
[9] Article 79(9) Asylum Act.
[10] TAC Lisbon, Decision 869/18.2BELSB, 24 June 2018, unpublished.
[11] TAC Lisbon, Decision 2154/19.3BELSB, 17 January 2020, unpublished.
[12] TCA South, Decision 637/21.4BELSB, 18 November 2021, available at: https://bit.ly/381jeBZ.