Border procedure (border and transit zones)

Portugal

Country Report: Border procedure (border and transit zones) Last updated: 30/11/20

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General (scope, time limits)

 

The law provides for a specific procedure regarding applications made at a national border.[1] A distinctive feature of the legal framework of border procedures consists in the provision for the detention of asylum seekers for the duration of the admissibility stage/accelerated procedure (see Detention of Asylum Seekers).[2]

Portugal has 36 external border posts, of which 8 are air border posts and 28 are maritime border posts.[3] SEF is responsible for border controls, including for refusing entry and exit from the territory.[4] The overwhelming majority of border procedures in 2019 were conducted at Lisbon Airport. The statistics provided by the SEF indicate a total of 406 border procedures, but do not include a breakdown per border post. The information collected by CPR suggests that at least 327 procedures were conducted at Lisbon Airport in 2019, compared to 376 in 2018.

In practice a person who: (i) does not meet the entry requirements set in the law; (ii) is subject to a national or an EU entry ban; or (iii) represents a risk or a serious threat to public order, national security or public health, is refused entry in national territory,[5] and is notified in writing by SEF of the corresponding decision.[6] The notification bears a reference to the right of individuals refused entry at the border to seek asylum as enshrined in the law.[7] SEF also informs the carrier company (i.e. the air company for most cases) for the purposes of return of the individual in the shortest possible time either to: the point where the individual initiated travel with the company; the country that issued the travel document; or any country where entrance is guaranteed.[8] This is done in accordance to the Convention on International Civil Aviation,[9] as according to SEF the individual remains in the international area of the airport and is therefore not subject to the rules applicable to removal procedures from national territory.[10] When the individual refused entry into national territory applies for asylum, the air company is immediately informed by SEF of the suspension of return.

While the border procedure provides for the basic principles and guarantees of the regular procedure,[11] it lays down time limits for a decision on admissibility or for accelerated procedures regarding applications deemed unfounded on certain grounds (see Accelerated Procedure grounds) that are significantly shorter than those in national territory. Additionally, border procedures are characterised by shorter appeal deadlines, as well as reduced procedural guarantees such as the exclusion from the right of the applicant to seek revision of the narrative of his/her personal interview,[12] or the possibility to consult with CPR prior to the individual interview conducted by SEF.

The National Director of SEF has 7 days to issue a decision either on admissibility or on the merits of the application in an accelerated procedure.[13] In the absence of inadmissibility grounds or grounds for deeming the application unfounded in an accelerated procedure, SEF admits the asylum seeker to the regular procedure and authorises entry into national territory/release from border detention.[14] Non-compliance with the time limit results in the automatic admission of the applicant to the regular procedure and release from the border.[15]

The asylum seeker remains in detention in the international area of the airport or port until the National Director of SEF issues a decision on the admissibility/merits of the claim,[16] or for up to 60 days in the case of appeal (see Duration of Detention). While in the overwhelming majority of cases the National Director of SEF issues a decision within the 7-day time limit, the automatic admission of the asylum application is generally upheld in the rare cases where that does not happen.

Exempted categories

The law identifies a sub-category of individuals whose special procedural needs result from torture, rape or other serious forms of psychological, physical or sexual violence and who may be exempted from the border procedure under certain conditions (see Special Procedural Guarantees).[17] Furthermore, the placement of unaccompanied and separated children in temporary installations (detention) at the border – and hence application of border procedures – must comply with applicable international standards such as those recommended by UNHCR, UNICEF and ICRC.[18]

The border procedure is applied systematically in practice. Until 2016, certain categories of vulnerable asylum applicants such as unaccompanied children, pregnant women and seriously ill persons were released from detention at the border and channelled to an admissibility procedure and/or regular or accelerated procedure in national territory. This changed in 2016 and a significant percentage of vulnerable applicants – including unaccompanied children, families with children and pregnant women – have been detained and subject to the border procedure since then (see Detention of Vulnerable Applicants). Following media coverage and stark criticism by the Ombudsman and NGOs, the Ministry of Home Affairs issued an instruction in July 2018 focusing inter alia on the detention of children at the border (see Detention of vulnerable applicants). As a result, CPR has noted shorter detention periods of families with children and unaccompanied children. However, with the exception of unaccompanied children, this had not resulted in significant changes with regard to the exemption from border procedures as the latter are still routinely applied to vulnerable applicants.

According to the available information, 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 exempted from border procedures in practice, despite the lack of provision of special procedural guarantees at the border. [19]

The identification of survivors of torture was recently addressed by the UN Committee Against Torture in its recent Concluding Observations on the seventh periodic report of Portugal. The Committee observed that “[…] the State party has not provided complete information on the procedures in place for the timely identification of victims of torture among asylum seekers […]”[20], and recommended “[…] the establishment of effective mechanisms to promptly identify victims of torture among asylum seekers.[21]

Statistics provided by SEF for 2019 refer to a total of 406 asylum seekers subject to the border procedure (approximately 22% of the 1,849 spontaneously arriving asylum seekers). Figures from SEF indicate that of those, 45 were admitted to the regular procedure and 361 were rejected as inadmissible (a number that likely includes both applications deemed inadmissible and applications rejected on the merits in accelerated procedures conducted at the border). Figures on the number of persons in need of special procedural guarantees that were subject to border procedures were not available, except for unaccompanied children (see also Detention of Vulnerable Applicants). According to SEF, 14 unaccompanied children were subjected to the border procedure in 2019.

 

Personal interview

 

The rules and modalities of the interview are the same as those of the regular procedure and the interview is generally conducted by SEF-GAR. However, given the short time limits applicable to the border procedure, the interview is conducted in detention at the Temporary Installation Centre (CIT) a few days after arrival. This means little time to prepare and substantiate the asylum application and reduced guarantees such as the exclusion from the right of the applicant to seek revision of the narrative of the interview.[22] An additional problem regarding interviews conducted at the Lisbon Airport are the space constraints of the interview offices which leave very limited space and privacy, notably due to inadequate sound isolation (see Conditions in Detention Facilities).

Many asylum seekers arrive at the border without valid identification documents or supporting evidence to substantiate their asylum application and contacts with the outside world from within the CIT are limited and rarely effective for the purposes of securing supporting evidence, given the short period of time between the arrival, the personal interview and the first instance decision.

Regarding certain categories of vulnerable asylum seekers such as survivors of torture, rape or other serious forms of psychological, physical or sexual violence, the absence of identification and vulnerability assessments means that potential special needs may not be known to the asylum authorities and may not have been taken into account at the time of interview. CPR is unaware of the implementation of special procedural guarantees at the border such as the postponement of the interview, additional time for submitting supporting evidence or the presence of supporting personnel in the interview in 2019.[23]

 

Appeal

 

The Asylum Act provides for an appeal against a rejection decision at the border, either on admissibility grounds or on the merits in an accelerated procedure. The appeal consists of a judicial review of relevant facts and points of law by the Administrative Court.[24] The time limit for lodging the appeal is of 4 days for all grounds.[25]

Similarly to the regular procedure, the first and onward appeals have an automatic suspensive effect.[26] 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.[27] However, the Administrative Courts rarely reach a decision on the appeal within the maximum detention time limit of 60 days, meaning that the asylum applicant is granted access to the territory, albeit liable to a removal procedure in case his or her application is rejected by final decision.[28]

In practice the average duration of the judicial review of a first instance rejection decision at the border is similar to the regular procedure (see Statistics).

The information shared by CSTAF does not include a breakdown by type or outcome of procedures but indicates a poor success rate at appeals stage. In this regard, it must be acknowledged that the quality of many appeals submitted is often poor as in the other procedures, given that very few lawyers have relevant expertise and training in the field. It should be noted that 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.

Without prejudice to issues discussed in Regular Procedure: Appeal 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 to appealing a first instance decision in the border procedure.

 

Legal assistance

 

There are a few distinctions to be made between the border procedure and the regular procedure regarding access to free legal assistance in law and in practice (see Regular Procedure: Legal Assistance).

As regards free legal assistance at first instance, the law expressly provides the possibility for UNHCR and CPR to interview the asylum seeker at the border [29] and to provide assistance.[30] However, following the registration of the asylum claim CPR only has access to applicants once SEF has conducted its individual interview covering admissibility and eligibility.

The Asylum Act also provides for an accelerated free legal aid procedure at the border for the purposes of appeal on the basis of a MoU between the Ministry of Interior and the Portuguese Bar Association.[31] However, such a procedure remains to be implemented to date, meaning that securing access to free legal aid at appeal stage is currently an integral part of the legal assistance provided by CPR at the border. To that end, CPR is obliged to resort to the same (bureaucratic and lengthy) procedure used in the territory albeit faced with specific constraints (e.g. shorter deadlines for application, communication problems, timely access to interpreters, etc.). The relevance of broader legal support within the context of detention and the possibility of adopting a specific MoU with the Bar Association for that purpose was also underlined by the Ombudsman.[32]

As mentioned in Regular Procedure: Legal Assistance, in 2019, CPR, in partnership with UNHCR, continued its efforts to engage with the Portuguese Bar Association with the aim of providing training to free legal aid lawyers. CPR also continued advocating for the Portuguese Bar Association to engage with the Ministry of Interior in order to promote the full implementation of the legal provisions mentioned above regarding an accelerated free legal aid procedure at the border for the purposes of appeal.

While CPR provided support to 1,553 asylum seekers that applied for international protection in 2019, the continued increase of spontaneous asylum applications has further impacted its capacity to provide legal information and assistance to asylum seekers placed in detention at the border, similar to the regular procedure. This problem is aggravated by shorter deadlines, communication problems, bureaucratic clearance procedures for accessing the restricted area of the airport where the CIT is located (in particular regarding interpreters), and limitations in the timely provision of information by SEF on the dates of interviews and language skills of the asylum seekers.

In practice, free legal assistance provided by CPR in first instance procedures at the border includes: (a) providing legal information on the asylum procedure and the legal aid system; (b) accessing free legal aid for the purpose of appeals; (c) assisting lawyers appointed under the free legal aid system in preparing appeals with relevant legal standards and COI; and (d) advocating with SEF for the release of particularly vulnerable asylum seekers such as unaccompanied children, families with children, pregnant women and the severely ill.

Similarly to the regular procedure, the overall quality of free legal aid at appeal stage remains a concern due to the current selection system of lawyers.

The unscrupulous activity of a limited number of private lawyers at the Lisbon Airport’s CIT, providing poor quality services in exchange for excessively high fees, remained a problem in 2019. This concern has been raised by CPR with SEF and the Portuguese Bar Association but is still ongoing despite past criminal investigations conducted by SEF that have resulted in criminal charges related to smuggling and trafficking in human beings. In September 2018, SEF reported that an investigation involving a lawyer in the Lisbon area was ongoing. According to the press note,[33] the authorities conducted house and office searches and the lawyer was formally put under investigation (“constituída arguida”). The topic was covered by multiple media outlets that emphasised that the lawyer incited “abusive asylum applications”.[34] No updated information on this case was publicly available at the time of writing.   

 


[1] Article 23(1) Asylum Act.

[2] Articles 26(1) and 35-A(3)(a) Asylum Act.

[3] Annex II Decree-Law 252/2000.

[4] Article 2 Decree-Law 252/2000.

[5] Article 32 Immigration Act.

[6] Article 38(2) Immigration Act.

[7] Article 40(4) Immigration Act.

[8] Articles 38(3) and 41(1) Immigration Act.

[9] Chicago Convention on International Civil Aviation, 7 December 1944, Annex IX, Chapter V, points 5.9 -5.11.1.

[10] CPR, Access to Protection: a Human Right, country report, Portugal, 2014, available in Portuguese at: http://bit.ly/2xA2aiV, para 2.1.

[11] This includes access to the procedure, the right to remain in national territory pending examination, the right to information, personal interviews, the right to legal information and assistance throughout the procedure, the right to free legal aid, special procedural guarantees, among others.

[12] Article 25 Asylum Act.

[13] Article 24(4) Asylum Act. On the territory, decisions on admissibility must be taken within 30 days and decisions in the accelerated procedure within 10 to 30 days.

[14] Article 26(4) Asylum Act.

[15] Ibid.

[16] Article 26(1) Immigration Act.

[17] Article 17-A(4) Asylum Act. Exemption from border procedures is dependent on the impossibility to offer “support and conditions to asylum seekers identified as being in need of special procedural guarantees.”

[18] Article 26(2) Asylum Act.

[19] Italian Council for Refugees et al., Time for Needs: Listening, Healing, Protecting, October 2017, available at: http://bit.ly/2xZqCGh.

[20] Committee Against Torture, Concluding Observations on the seventh periodic report of Portugal, CAR/C/PRT/CO/7, 18 December 2019, available at https://bit.ly/2G1F07z, para 37.

[21] Ibid. para 38(d).

[22] Article 25 Asylum Act.

[23] Article 17-A(3) Asylum Act. See also Italian Council for Refugees et al., Time for Needs: Listening, Healing, Protecting, October 2017, available at: http://bit.ly/2xZqCGh.

[24] Article 25(1) Asylum Act; Article 95(3) Administrative Court Procedure Code.

[25] Article 25(1) Asylum Act.

[26] Article 25 Asylum Act.

[27] Article 25(2) Asylum Act.

[28] Article 21(2) and (3) Immigration Act.

[29] Article 24(1) Asylum Act.

[30]  Article 49(6) Asylum Act.

[31] Article 25(4) Asylum Act.

[32] Ombudsman, National Preventive Mechanism, Report to the Parliament 2018, 30 May 2019, available in Portuguese at: https://bit.ly/2S7tdcW, p.46-47;

[33] SEF, ‘SEF faz buscas em casa de advogada suspeita de envolvimento numa célula em Dakar’, 28 September 2018, available in Portuguese at: https://bit.ly/2uQ4D5L.

[34] See e.g. Sic Noticias, ‘SEF constitui arguida advogada suspeita de pedidos de asilo abusivos’, 28 September 2018, available in Portuguese at: https://bit.ly/2IlvyOv; Expresso, ‘SEF. Advogada suspeita de se dedicar à apresentação abusiva de pedidos de asilo’, 28 September 2018, available in Portuguese at: https://bit.ly/2Kl8LVQ.

 

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