Author
General (scope, grounds for accelerated procedures, time limits)
The law contains a list of grounds that, upon verification, determine that an application is subjected to an accelerated procedure and deemed unfounded. The accelerated procedure has significantly shorter time limits for the adoption of a decision on the merits than those of the regular procedure.
The grounds laid down in article 19(1) of the Asylum Act for applying an accelerated procedure are:
- Misleading the authorities by presenting false information or documents or by withholding relevant information or documents with respect to identity and/or nationality that could have had a negative impact on the decision;[1]
- In bad faith, destroying or disposing of an identity or travel document that would have helped establish identity or nationality;[2]
- Making clearly inconsistent and contradictory, clearly false or obviously improbable statements which contradict sufficiently verified COI, thus making the claim clearly unconvincing in relation to qualification for international protection;[3]
- Entering the territory of the country unlawfully or prolonging the stay unlawfully and, without good reason, failing to make an application for international protection as soon as possible;[4]
- In submitting the application and presenting the facts, only raising issues that are either not relevant or of minimal relevance to the examination of whether the applicant qualifies for international protection;[5]
- Coming from a Safe Country of Origin;[6]
- Introducing an admissible subsequent application;[7]
- Making an application merely to delay or frustrate the enforcement of an earlier or imminent decision which would result in removal;[8]
- Representing a danger to the national security or public order;[9] and
- Refusing to comply with an obligation to have fingerprints taken.[10]
The wording of the law does not seem to be fully in line with the recast Asylum Procedures Directive and with the applicable international standards as its literal application may lead not only to the accelerated processing but also to the automatic rejection of applications based on grounds such as the delay in making the application.
A first instance decision on the territory must be taken within 30 days for all grounds, except for applications following a removal order which must be decided within 10 days.[11] In contrast to the Regular Procedure,[12] the National Director of SEF is the responsible authority for issuing a first instance decision on the merits of the application in the accelerated procedure.[13] Non-compliance with the applicable time limits grants automatic access to the regular procedure.[14]
SEF generally admits asylum seekers to the regular procedure in case of non-compliance with applicable time limits. Nevertheless, issuance of the corresponding provisional residence permit has at times required a proactive intervention of the asylum seeker or of their legal counsel.
In the context of the provision of legal assistance to asylum seekers, CPR has also at times observed significant delays in the execution of judicial decisions by SEF (up to one year or more in some cases). According to CPR’s observations, this mostly concerned the execution of judicial decisions that annulled first instance decisions rejecting applications in accelerated procedures and consequently directed the Administration to analyse them under the regular procedure, or to reprocess Dublin. It has also been observed that the authorities do not consider the 30 days’ mandatory deadline for decisions deeming an application inadmissible/unfounded to apply in these circumstances. As such, SEF does not deem the applications admitted to the regular procedure when the deadline is elapsed.
In practice all applications are channelled through the accelerated procedure where the specific grounds provided in the law apply.[15] Data shared by SEF regarding 2022 indicates that 202 asylum applications were processed and rejected under an accelerated procedure. A breakdown by grounds applied was not available.
Nevertheless, according to CPR’s observation, most rejections in accelerated procedures continued to be based on inconsistency and/or irrelevance.
While judicial decisions focusing on the interpretation of the grounds for the application of the accelerated procedure tends to be limited, two particular decisions from the TCA South issued in 2021 focused on the threshold that should be used to ascertain whether a case should be rejected in such procedures.
According to the Court, the application should not be rejected at this stage if the applicant’s statements are not contradictory and unlikely in light of the country of origin information and an objective evaluation of the situation.[16]
In a different case, the Court noted that the interpretation of concept of ‘unfounded application’ referred to in article 19 of the Asylum Act must be guided by ‘criteria of obviousness’, and that only applications that clearly do not fulfil the minimum requisites should be rejected under an accelerated procedure.[17]
In its recent Concluding Observations on Portugal, the UN Human Rights Committee expressed concern with the ‘[e]xcessive use of accelerated procedures, which might compromise the quality of the assessment of applications and increase the risk of refoulement.’ Notably, the Committee recommended Portugal to ‘[c]ontinue its efforts to maintain and strengthen the quality of its refugee status determination procedures, in order to fairly and efficiently identify and recognize those in need of international protection and to afford sufficient guarantees of respect for the principle of non-refoulement under the Covenant’.[18]
Personal interview
Regarding the personal interview for asylum seekers during the accelerated procedure, the general rules and practice of the regular procedure apply (see section on Regular Procedure).
However, the law foresees reduced guarantees in the accelerated procedure, namely by excluding asylum seekers’ right to seek revision of the statements made during the personal interview in cases concerning applications following a removal decision,[19] or the right to be notified of and to respond to SEF’s reasoning of the proposal for a final decision.[20] Nevertheless, the right of the applicant to submit comments to the written report the interview within 5 days is fully applicable in accelerated procedures.[21]
The change of practice regarding interview reports fully described in Regular Procedure.
A decision from TCA South issued in 2021 considered that, despite the absence of an explicit reference in the relevant norm,[22] the authorities are bound to articles 16 and 17 of the Asylum Act (personal interview and report) within the examination of applications made following a removal order.[23]
Appeal
The Asylum Act provides for judicial review of facts and points of law by the Administrative Court against a rejection decision in an accelerated procedure.[24]
The time limit for lodging the appeal on the territory varies according to the specific ground of the accelerated procedure: it ranges from 4 days for applications following a removal decision,[25] to 8 days for the remaining grounds.[26] Similarly to the regular procedure, the appeal has an automatic suspensive effect.[27] The onward appeal in the case of an application following a removal decision does not.[28] The law also provides for a simplified judicial process with reduced formalities and time limits with the objective of shortening the duration of the judicial review.[29]
While CPR may be requested to intervene in the judicial procedure, namely by providing country of origin information or guidance on legal standards, it is not a party thereto and is therefore not systematically notified of judicial decisions by the courts.
The information provided by CSTAF in 2022 regarding the number and nationalities of appellants, as well as the average duration and results of judicial reviews does not make a distinction between the type of asylum procedures (see Statistics). According to the information available to CPR, accelerated procedures were one of the main type of procedure used in 2022 to reject applications in the case of Morocco, one of the five most representative nationalities at appeal stage.
The information provided by CSTAF indicates, in general, a poor success rate at appeals stage. In this regard, it must be acknowledged that the quality of many appeals submitted is often poor, given that very few lawyers have any specific training or relevant expertise in the field.
The concerns regarding the poor quality of legal assistance, the merits test applied by the Bar Association, and language barriers during the regular procedure also apply to the accelerated procedure and have thus an impact on the quality and effectiveness of appeals. CPR is not aware of additional obstacles faced by asylum seekers in appealing a first instance decision in the accelerated procedure.
Legal assistance
With regard to access to free legal assistance in the accelerated procedure, the general rules and practice of the regular procedure apply (see Regular Procedure).
[1] Article 19(1)(a) Asylum Act.
[2] Article 19(1)(b) Asylum Act.
[3] Article 19(1)(c) Asylum Act.
[4] Article 19(1)(d) Asylum Act.
[5] Article 19(1)(e) Asylum Act.
[6] Article 19(1)(f) Asylum Act.
[7] Article 19(1)(g) Asylum Act. In the case of subsequent applications admitted to the procedure under Article 19(1)(g) Asylum Act, there seems to be incoherence in the law as Article 33(5) provides for the application of the regular procedure where, following a preliminary assessment within 10 days, the application is deemed admissible because it includes new elements or findings pertaining to the conditions for qualifying as a beneficiary of international protection.
[8] Article 19(1)(h) Asylum Act.
[9] Article 19(1)(i) Asylum Act.
[10] Article 19(1)(j) Asylum Act.
[11] Articles 20(1) and 33-A(5) Asylum Act.
[12] Article 29(5) Asylum Act.
[13] Articles 20(1) and 24(4) Asylum Act.
[14] Articles 20(2) and 26(4) Asylum Act. However, according to information gathered by CPR in the course of 2021, SEF seems to consider that the deadline prescribed in article 33-A(5) Asylum Act is not mandatory and that elapsing of such a deadline without a decision being issued with regard to the admissibility/merits (accelerated procedure) does not entail admission to the regular procedure. Such an understanding seems to be at odds with an adequate interpretation of the provision and is not in line with the generalised practice in this regard.
[15] There is a distinction to be made between border procedures from which certain categories of vulnerable asylum seekers may be exempted and accelerated procedures. While the vulnerable asylum seeker may be exempted from the bordure procedure and be released from detention, he or she will remain liable to an accelerated procedure in national territory.
[16] TCA South, Decision 1645/20.8BELSB, 4 March 2021, available at: https://bit.ly/3qDacBN. The decision reiterates prior jurisprudence by the Court determining that an application should only be rejected in an accelerated procedure where there is not “some support and plausibility” in the applicant’s statements in light of the country of origin information and an objective assessment of the fear of persecution.
[17] TCA South, Decision 1001/21.0BELSB, 7 October 2021, available at; https://bit.ly/3NADUkw.
[18] Human Rights Committee, Concluding Observations on the fifth periodic report of Portugal, CCPR/C/PRT/CO/5. 28 April 2020, par 34(b) and 35(b), available at: https://bit.ly/2Q1ftn8.
[19] Article 33-A(4) and (5) Asylum Act.
[20] Article 29(2) Asylum Act. See infra the current practice in this regard as well as its link to the national jurisprudence.
[21] Article 17(1) and (2) Asylum Act.
[22] Article 33-A Asylum Act.
[23] TCA South, Decision 139/21.9 BELSB, 23 September 2021, available at: https://bit.ly/3N7cHov. Note that, while the decision systematically refers to subsequent applications, it is indeed analysing the rules applicable to asylum applications made following a removal order (article 33-A Asylum Act).
[24] Articles 22(1), 33-A(6) and 25(1) Asylum Act and Article 95(3) Code of Procedure in Administrative Courts.
[25] Article 33-A(6) Asylum Act.
[26] Articles 22(1) Asylum Act.
[27] Articles 22(1) and 33-A(6) Asylum Act.
[28] Article 33-A(8) Asylum Act.
[29] Article 22(2) and 33-A(7) Asylum Act.