Author
General (scope, criteria, time limits)
The law provides for an admissibility procedure that is characterised by:
- specific grounds for considering an asylum application inadmissible;[1]
- specific time limits for the first instance decision on admissibility;[2]
- legal implications in case the competent authority does not comply with those time limits;[3]
- the right to an appeal against the inadmissibility decision;[4] and
- specific rights related to admission to the regular procedure[5]
The grounds laid down in article 19-A (1) of the Asylum Act for considering an asylum application inadmissible include cases where the asylum seeker:
- Falls under the Dublin procedure;[6]
- Has been granted international protection in another EU Member State;[7]
- Comes from a First Country of Asylum,e., has obtained refugee status or otherwise sufficient protection in a third country and will be readmitted to that country;[8]
- Comes from a Safe Third Country,e., due to a sufficient connection to a third country, can reasonably be expected to seek protection in that third country, and there are grounds for considering that they will be admitted or readmitted to that country;[9]
- Has made a subsequent application without new elements or findings pertaining to the conditions for qualifying for international protection;[10] and
- Is a dependant who had lodged an application after consenting to have their case be part of an application lodged on their behalf, in the absence of valid grounds for presenting a separate application.[11]
The National Director of SEF has 30 days to take a decision on the admissibility of the application,[12] which is reduced to 10 days in the case of subsequent applications[13] and applications following a removal decision,[14] and to 7 days in the case of the Border Procedure.[15] In case SEF does not comply with these time limits, the claim is automatically admitted to the procedure.[16]
In practice, all asylum applicants undergo an interview that assesses the above-mentioned inadmissibility clauses along with the merits of the application.[17]
According to the information available to CPR, except for Dublin-related decisions, the number of asylum applications deemed inadmissible in 2022 was low. Statistics shared by SEF for 2022 indicate that out of 343 inadmissibility decisions, there were only 8 non-Dublin inadmissibility decisions, either on the grounds of protection in another Member State,[18] or subsequent applications deemed not to have new elements.[19]
While SEF generally admits asylum seekers to the regular procedure in case of non-compliance with applicable time limits, the automatic admission and issuance of a provisional residence permit has at times required a proactive intervention of the asylum seeker or of their legal counsel.
Personal interview
The Asylum Act provides for the systematic personal interview of all asylum seekers, including to assess admissibility,[20] except for cases where:
- the evidence already available allows for a positive decision; or
- the applicant lacks legal capacity due to long lasting reasons that are not under their control.[21]
As mentioned above, SEF confirmed that applicants are guaranteed the right to an interview before any decision regarding their application is adopted, emphasising that interviews can only be waived in the cases listed in the Asylum Act. SEF also noted that interviews are conducted in all types of procedure, including Dublin (see Regular procedure and Dublin procedure).
In practice, the individual interview can either focus on Dublin related questions only or cover both the admissibility and the merits of the claim. The modalities of the interview are the same as those of the regular procedure and the interview is generally conducted by SEF-GAR, although interviews are at times conducted by SEF’s regional representations in cases of asylum applications made outside the Lisbon area (see Regular procedure).
CPR is not aware of the use of videoconferencing for interviews, even within the context of the coronavirus pandemic. This has been confirmed by SEF.
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 an appeal against an inadmissibility decision consisting of a judicial review of relevant facts and points of law by the Administrative Court.[24] The time limit for lodging the appeal varies according to the inadmissibility ground. It is further impacted by the application of the border procedure.
| Time limits for appealing inadmissibility decisions in calendar days | ||
| Inadmissibility ground | Asylum Act provision | Days |
| Inadmissibility at the border | Article 25(1) | 4 |
| Inadmissibility on the territory: | ||
| Subsequent application with no new elements | Article 33(6) | 4 |
| Application following a removal decision | Article 33-A(6) | 4 |
| Dublin decision | Article 37(4) | 5 |
| Protection in another EU Member State | Article 22(1) | 8 |
| First country of asylum | Article 22(1) | 8 |
| Safe third country | Article 22(1) | 8 |
| Application by dependant | Article 22(1) | 8 |
As in the regular procedure, the first and onward appeals are automatically suspensive,[25] with the exception of onward appeals concerning inadmissible subsequent applications and applications following a removal order.[26]
The law provides for a simplified judicial process with reduced formalities and time limits with the objective of shortening the duration of the judicial review.[27]
Without prejudice to issues already discussed in Regular Procedure, such as the poor quality of legal assistance and language barriers therein that have an impact on the quality and effectiveness of appeals, CPR is not aware of systemic or relevant obstacles faced by asylum seekers when appealing a first instance decision on admissibility in practice.
The information provided by the CSTAF for 2022 regarding the number, nationalities of appellants, and average duration and results of judicial reviews of first instance decisions does not make a distinction between the type of asylum procedures (see Statistics).
Legal assistance
Regarding access to free legal assistance for asylum seekers during the first instance admissibility procedure and at appeal stage, the general rules and practice of the regular procedure apply (see section on Regular Procedure).
[1] Article 19-A Asylum Act.
[2] Articles 20(1),24(4), 33(4) and 33-A(5) Asylum Act.
[3] Articles 20(2) and 26(4) Asylum Act.
[4] Articles 22(1) and 25(1) Asylum Act.
[5] Article 27(1)-(3) Asylum Act pertaining to the issuance of a provisional residence permit. Furthermore, until the amendment to the Asylum Act enacted in 2022, only applicants admitted to the regular procedure had the right to work according to article 54(1) Asylum Act.
[6] Article 19-A(1(a) Asylum Act.
[7] Article 19-A(1(b) Asylum Act.
[8] Article 19-A(1(c) and Article 2(1)(z) Asylum Act.
[9] Article 19-A(1(d) and Article 2(1)(r) Asylum Act.
[10] Article 19-A(1(e) Asylum Act.
[11] Article 19-A(1(f) Asylum Act.
[12] Article 20(1) Asylum Act.
[13] Article 33(4) Asylum Act.
[14] Article 33-A(5) Asylum Act.
[15] Article 24(4) Asylum Act.
[16] 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.
[17] Article 16 Asylum Act.
[18] Article 19-A(1)(b) Asylum Act.
[19] Article 19-A(1)(4).
[20] Article 16(1)-(3) Asylum Act.
[21] Article 16(5) 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), 25(1), 33(6) and 37(4) Asylum Act and Article 95(3) Code of Procedure in Administrative Courts.
[25] Articles 22(1), 25(3) and 37(6) Asylum Act.
[26] Articles 33(8) and 33-A(8) Asylum Act, respectively.
[27] Articles 22(2), 25(2), 33(7) and 37(5) Asylum Act.