Author
While the implementation of certain special procedural guarantees will necessarily require a decision from SEF, according to the law, the responsibility for implementing these measures lies with the Institute of Social Security (ISS).[1]
Adequate support during the interview
Applicants identified as needing special procedural guarantees can benefit from the postponement of refugee status determination interviews, extended deadlines for presenting evidence or carrying out interviews with the assistance of experts.[2]
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.
CPR is aware of a couple of instances in 2022 where SEF flagged cases of severe mental health concern to the organisation for further referral or analysis or requested a medical evaluation. It is unclear whether this is a systematic practice, why these were the measures adopted, and which criteria are used to determine appropriate action. This is so especially considering that according to CPR’s observation other cases where there were clear signs of mental illness, no specific measures were adopted to address the special needs of the applicants. The procedural consequences of such measures are also unclear.
Case law regarding the provision of special procedural guarantees in the asylum procedure has consolidated the approach of not implementing such guarantees.[3]
According to CPR’s observation, when applicants were unable to be interviewed because they were quarantining/subject to prophylactic isolation due to the coronavirus, SEF usually suspended the asylum procedure. 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 such constraints, extensions of the relevant deadlines were granted upon request. However, in one such case in 2022, 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). In the case of an applicant that had given birth, an extension of only 2 weeks was granted.
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.
In the particular case of survivors of torture and/or serious violence, research conducted in the past found that the practical implementation of special procedural guarantees such as the possibility to postpone the refugee status determination interview is hampered by the lack of a specific identification tool or mechanism.[4] Even where a medical report concerning the vulnerability of the applicant for mental health reasons is presented, SEF may refuse to postpone the interview unless the medical report clearly states the reduced capacity of the applicant, the need for medical assistance, as well as a prediction of when the applicant is expected to be able attend the interview, if need be accompanied by a mental health professional, in order to avoid excessive delays in the procedure. CPR is not aware of additional research on this topic.
In accordance with the law,[5] 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[6]
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.[7] 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 have not been specifically exempted from border procedures in practice, despite the lack of provision of special procedural guarantees at the border.
As mentioned in Border Procedure, since March 2020, the border procedure is not applied in Portugal.[8]
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]
Statistical data from SEF for 2022 indicates that accelerated procedures were not used in such cases.[13]
[1] Article 17-A(5) Asylum Act.
[2] Article 17-A(3) Asylum Act.
[3] 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 […]”.
[4] Italian Council for Refugees et al., Time for Needs: Listening, Healing, Protecting, October 2017, available at: https://bit.ly/3gEoe1T.
[5] Article 79(3) Asylum Act.
[6] For further information on the application of border procedures to vulnerable applicants prior to 2020, please check prior AIDA reports, available at: https://bit.ly/43mdTxp.
[7] Article 17-A(4) Asylum Act.
[8] Italian Council for Refugees et al., Time for Needs: Listening, Healing, Protecting, October 2017, available at: https://bit.ly/3gEoe1T.
[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.
[13] While according to SEF such procedures have not been used in 2019 and 2020, according to the information available to CPR, accelerated procedures were indeed applied to unaccompanied children in four cases in 2019 and in one case in 2020.