Special procedural guarantees

Portugal

Country Report: Special procedural guarantees Last updated: 21/05/21

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Portuguese Refugee Council Visit Website

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.

Case law regarding the provision of special procedural guarantees in the asylum procedure has consolidated the approach of not implementing such guarantees.[3] In one isolated case in 2018, SEF invited CPR to attend a first instance interview in order to provide support to a particularly vulnerable applicant suffering from a mental condition.[4] In one instance in 2019, SEF suspended the asylum procedure of an applicant suffering from a serious mental health condition before issuing a decision on admissibility/accelerated procedure. However, the decision to suspend the procedure was adopted only after the personal interview was conducted and was not framed as a special guarantee for the applicant. Instances of the application of special guarantees to the applicant, for instance due to the inability to be interviewed due to health (including mental health) conditions, remain rare to non-existent, according to CPR’s experience. A similar case occurred in 2020.

In 2020, 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.

Inversely, requests for the extensions 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 framework of the project “Time for Needs: Listening, Healing, Protecting” 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.[5] 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,[6] 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, applicants 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 exempted from border procedures in practice, despite the lack of provision of special procedural guarantees at the border.[8]

Until 2016, certain categories of vulnerable asylum applicants such as unaccompanied children, pregnant women and seriously ill persons were systematically released from detention at the border and channelled to an admissibility procedure and/or regular or accelerated procedure in national territory. However, since then, including in the beginning of 2020, pregnant women, families with children, severely ill persons and victims of torture and/or serious violence were not always exempted from border procedures in practice. Although new guidance from the Ministry of Interior was issued in July 2018 regarding the duration of detention of certain categories of vulnerable asylum seekers, with the exception of unaccompanied children, this had not resulted in significant changes with regard to exemption from border procedures as the latter continued to be regularly applied to vulnerable applicants (see Detention of Vulnerable Applicants).[9]

As mentioned in Border Procedure, since March 2020, the border procedure is not being applied in Portugal to any applicants for international protection.

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, first country of asylum, and third safe country grounds.[10]

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.[11]

Statistical data from SEF for 2019 and 2020 indicated that accelerated procedures were not used in such cases. However, 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.

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 is 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.[12]

 

 

[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] Notwithstanding, following a suggestion from CPR on the need to equate a structured approach to the provision of special procedural guarantees in general, and the provision of adequate special procedural guarantees in the particular case, such as a medical evaluation/report and the presence of support staff from the institution that was providing medical and social support to the applicant at the time, SEF decided to conduct the interview in the absence of any support.

[5] Italian Council for Refugees et al., Time for Needs: Listening, Healing, Protecting, October 2017, available at: https://bit.ly/3gEoe1T.

[6]  Article 79(3) Asylum Act.

[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] Nevertheless, according to SEF, a total of 14 asylum applications lodged by unaccompanied minors were processed under a border procedure, in 2019.

[10]  Article 79(9) Asylum Act.

[11]  TAC Lisbon, Decision 869/18.2BELSB, 24 June 2018, unpublished.

[12] TAC Lisbon, Decision 2154/19.3BELSB, 17 January 2020, unpublished.

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