Author
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]
Despite some unclear instances, the border procedure has not been applied in practice since March 2020.
Persons applying for international protection at the border have, according to CPR’s experience, been granted entry into national territory, referred to the provision of reception conditions if needed, and had their cases under the rules governing applications made in the national territory. According to the information provided by SEF, while a total of 694 were made at the border in 2022, only a residual number were analysed under the border procedure (due to the existence of relevant precautionary measures).
It is unclear whether this is temporary or will become permanent practice, and whether it will apply to all national border posts or just to Lisbon Airport.
Location and number of border procedures
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 used to be conducted at Lisbon Airport.[5]
Grounds for activating the border procedure and main characteristics
According to the law, 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[6] and is notified in writing by SEF of the corresponding decision.[7] Such a notification bears a reference to the right of individuals refused entry at the border to seek asylum as enshrined in the law.[8]
SEF must inform the carrier company (i.e., the air company in 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.[9] This is done in accordance to the Convention on International Civil Aviation,[10] 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.[11] If the individual refused entry into national territory applies for asylum, the air company must be immediately informed by SEF of the suspension of return.
While the border procedure provides for the basic principles and guarantees of the regular procedure,[12] 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 applicable 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 their personal interview,[13] or the possibility to consult with CPR prior to the individual interview conducted by SEF. This is in addition to the provision for the detention of asylum seekers for the duration of the admissibility stage/accelerated procedure (see Detention of Asylum Seekers).[14]
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.[15] In the absence of inadmissibility grounds or grounds for deeming the application unfounded in an accelerated procedure, SEF must admit the application to the regular procedure and authorise entry into national territory/release from border detention.[16] Non-compliance with the time limit results in the automatic admission of the applicant to the regular procedure and release from the border.[17]
Within the context of border procedures, asylum seekers were detained in the international area of the airport until the National Director of SEF issued a decision on the admissibility/merits of the claim,[18] or for up to 60 days in the case of appeal (see Duration of Detention).[19]
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 who may be exempted from the border procedure under certain conditions.[20] Furthermore, the ‘temporary installation’ of unaccompanied and separated children in temporary installations at the border (detention) – and hence application of border procedures – must comply with applicable international standards such as those recommended by UNHCR, UNICEF, and ICRC.[21]
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 were not exempt from border procedures in practice on such grounds, despite the lack of provision of special procedural guarantees at the border.[22]
Personal interview
The rules and modalities of the interview applicable to the border procedure are the same as those of the regular procedure and interviews were generally conducted by SEF-GAR.
Interviews were conducted a few days after arrival, while the applicant was detained. This meant that there was little time to prepare and substantiate the asylum application. Furthermore, the legal framework provides for reduced procedural guarantees such as the exclusion from the right of the applicant to seek revision of the interview report.[23
Many asylum seekers arrive at the border without valid identification documents or supporting evidence to substantiate their asylum application and contacts with the outside from within the EECIT were usually 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.
An additional concern regarding interviews conducted at Lisbon Airport were the space and privacy constraints of the interview offices, notably due to inadequate sound isolation (see Conditions in Detention Facilities). While the facility has been subject to extensive renovation work in 2020, CPR confirmed that the problems of the offices persisted during visits in 2022.
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 within this context.[24]
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.[25] The time limit for lodging the appeal is of 4 days.[26]
Similarly to the regular procedure, the first and onward appeals have an automatic suspensive effect.[27] 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.[28] However, the Administrative Courts rarely reach a decision on the appeal within the maximum detention time limit of 60 days, meaning that asylum applicants subjected to the border procedure were granted access to the territory, albeit liable to a removal procedure in case their application is rejected by final decision.[29]
Without prejudice to issues 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 specific obstacles faced by asylum seekers in 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).
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[30] and to provide assistance.[31] In practice, following the registration of the asylum claim, CPR only had access to applicants once SEF 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.[32] However, such a procedure has not been implemented, meaning that securing access to free legal aid at appeal stage remained an integral part of the legal assistance provided by CPR at the border. To that end, CPR resorted to the same procedure used in the territory albeit faced with specific constraints (e.g., shorter deadlines for application, communication problems, timely access to interpreters, etc.).
In November 2020, the Ministry of Home Affairs, the Ministry of Justice and the Bar Association signed a protocol to ensure the provision of legal counselling and assistance to foreigners to whom entry into national territory was refused (Lisbon, Porto, Faro, Funchal and Ponta Delgada airports. This protocol was made within the framework of Article 40(2) of the Immigration Act and is not intended to cover asylum procedures.
The provision of information and assistance to asylum seekers placed in detention at the border by CPR was typically challenging due to factors such as short deadlines, communication barriers, and bureaucratic clearance procedures for accessing the EECIT (particularly regarding interpreters).[33] Other challenges included the lack of timely provision of information by SEF on the dates of interviews and languages spoken by the asylum seekers. This made it challenging to ensure assistance by interpreters.
In practice, free legal assistance provided by CPR in first instance procedures at the border included: (a) providing legal information on the asylum procedure and the legal aid system; (b) enabling access to 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 was a relevant concern.
[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] For a detailed overview of the use of border procedures before March 2020, please consult the corresponding AIDA reports, available at: https://bit.ly/3GubAhN.
[6] Article 32 Immigration Act.
[7] Article 38(2) Immigration Act.
[8] Article 40(4) Immigration Act.
[9] Articles 38(3) and 41(1) Immigration Act.
[10] Chicago Convention on International Civil Aviation, 7 December 1944, Annex IX, Chapter V, points 5.9 -5.11.1.
[11] CPR, ‘Access to Protection: A Human Right, country report, Portugal’, 2014, para 2.1, available in Portuguese at: https://bit.ly/3sWjYNx.
[12] This includes access to the procedure, the right to remain in national territory pending examination, the right to information, to a personal interview, the right to legal information and assistance throughout the procedure, the right to free legal aid, special procedural guarantees, among others.
[13] Article 25 Asylum Act.
[14] Articles 26(1) and 35-A(3)(a) Asylum Act.
[15] 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.
[16] Article 26(4) Asylum Act.
[17] Ibid.
[18] Article 26(1) Asylum Act.
[19] Article 35-B(1) Asylum Act.
[20] 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.”
[21] Article 26(2) Asylum Act.
[22] Italian Council for Refugees et al., ‘Time for Needs: Listening, Healing, Protecting’, October 2017, available at: https://bit.ly/3gEoe1T.
[23] Article 25 Asylum Act. TCA South, Decision 1539/19.0BELSB, 11 September 2020, available at: https://bit.ly/31gEInN.
[24] Article 17-A(3) Asylum Act. See also Italian Council for Refugees et al., ‘Time for Needs: Listening, Healing, Protecting’, October 2017, available at: https://bit.ly/3gEoe1T.
[25] Article 25(1) Asylum Act; Article 95(3) Code of Procedure in Administrative Courts.
[26] Article 25(1) Asylum Act.
[27] Article 25 Asylum Act.
[28] Article 25(2) Asylum Act.
[29] Article 21(2) and (3) Immigration Act.
[30] Article 24(1) Asylum Act.
[31] Article 49(6) Asylum Act.
[32] Article 25(4) Asylum Act.
[33] The renovation work in the facility has solved the physical access constraints.