Border procedure (border and transit zones)

Portugal

Country Report: Border procedure (border and transit zones) Last updated: 21/05/21

Author

Portuguese Refugee Council Visit Website

General (scope, time limits)

In mid-March 2020, the detention centre at Lisbon airport was closed (both due to the coronavirus pandemic and for renovation work). This was traditionally the border post where most asylum border procedures were conducted. The facility re-opened on 1 August 2020, and a new internal regulation has also been approved. While it was not possible to have access to the text of the new regulation, according to official statements of the Government and media reports, it determines that applicants for international protection cannot be held in the detention centre.

While applications for international protection at the border have been lodged later in 2020 since the international air traffic resumed, it seems that applicants were granted entry into national territory, referred to accommodation if needed and their cases were not subject to the rules applicable to the border procedure. At the time of writing of this report, it was not clear whether this new practice is temporary or will become permanent practice. It was also unclear whether this practice applies to all border posts. Nevertheless, the border procedure is provided in national law and has been systematically applied until March 2020. Therefore, references throughout this section of the report refer to the application of the border procedure up until March 2020 and must be read in light of this context.

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]

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 has been systematically conducted at Lisbon Airport.

In Portugal, the number of applications for international protection has varied year by year, while the number of border procedures has remained relatively stable at around 400-500 cases per year. In 2020, a sharp decrease can be observed, likely related to the restrictions to air traffic related to the coronavirus pandemic and with the above-mentioned change in practice.

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, 8 unaccompanied children were subjected to the border procedure in 2020.

Grounds for activating the border procedure and main characteristics

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 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. 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).[13]

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.[14] 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.[15] Non-compliance with the time limit results in the automatic admission of the applicant to the regular procedure and release from the border.[16]

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,[17] 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).[18] 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.[19]

Since 2016, a significant percentage of vulnerable applicants – including unaccompanied children, families with children and pregnant women – have been detained and subject to the border procedure (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). CPR subsequently noted shorter detention periods of families with children and of 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 these continued to be 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 on such grounds, despite the lack of provision of special procedural guarantees at the border.[20]

The identification of survivors of torture was addressed by the UN Committee Against Torture in its 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 […]”,[21] and recommended “[…] the establishment of effective mechanisms to promptly identify victims of torture among asylum seekers”.[22]

The UN Human Rights Committee expressed a similar concern in 2020 and recommended the establishment of “an effective mechanism for the identification of vulnerable applicants, in particular stateless persons”.[23]

Until March 2020, the border procedure continued to be applied systematically in practice. Since then, the border procedure has not been applied to the extent of CPR’s knowledge. It is not clear whether this is a permanent or a temporary change due to the coronavirus pandemic, and to the revised rules governing the functioning of the detention facility at Lisbon airport. It is also unclear whether this change in practice applies to all border posts.

Decisions on applications in the border procedure

Practice indicates that only a minority of applicants subject to the border procedure in recent years were usually admitted to the regular procedure.[24] Nevertheless, according to the data provided by SEF, out of the 183 applications subject to the border procedure in 2020, 76 were rejected on the merits (accelerated procedure) and 107 were admitted to the regular procedure.

 

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 a few days after arrival, while the applicant is detained at the Temporary Installation Centre (CIT). This means there is 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.[25] An additional concern regarding interviews conducted at the Lisbon Airport were the space and privacy constraints of the interview offices, notably due to inadequate sound isolation (see Conditions in Detention Facilities).[26]

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 EECIT 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 while the border procedure was applied in 2020.[27]

 

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.[28] The time limit for lodging the appeal is of 4 days for all grounds.[29]

Similarly to the regular procedure, the first and onward appeals have an automatic suspensive effect.[30] 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.[31] 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.[32]

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 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: 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[33] and to provide assistance.[34] However, in practice, 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.[35] However, such a procedure remains to be implemented to date, 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 has 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 continued to be underlined by the Ombudsman (National Preventive Mechanism).[36]

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).[37] According to the information available at the time of writing, 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 during the first quarter of 2020 continued to be challenging and was aggravated by the shorter deadlines, communication challenges, bureaucratic clearance procedures for accessing the restricted area of the airport where the CIT is located (in particular regarding interpreters), and the lack of 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 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 remained 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 EECIT, providing poor quality services in exchange for excessively high fees, remained a problem in 2020. 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,[38] 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”.[39] 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, para 2.1, available in Portuguese at: https://bit.ly/3sWjYNx.

[11]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.

[12] Article 25 Asylum Act.

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

[14] 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.

[15] Article 26(4) Asylum Act.

[16] Ibid.

[17]  Article 26(1) Asylum Act.

[18] 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.”

[19]  Article 26(2) Asylum Act.

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

[21] 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.

[22] Ibid. para 38(d).

[23] Human Rights Committee, Concluding Observations on the fifth periodic report of Portugal, CCPR/C/PRT/CO/5. 28 April 2020, para 34(c) and 35(c), available at: https://bit.ly/2Q1ftn8.

[24] According to the data provided by SEF to AIDA regarding 2019, for instance, out of 406 applicants subjected to the border procedure, only 45 were admitted to the regular procedure.

[25]  Article 25 Asylum Act. TCA South, Decision 1539/19.0BELSB, 11 September 2020, available at: https://bit.ly/31gEInN.  

[26] While the facility was recently subject to renovation work, CPR has not visited it since the border procedure is not applied since March 2020.

[27]  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.

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

[29]  Article 25(1) Asylum Act.

[30]  Article 25 Asylum Act.

[31]  Article 25(2) Asylum Act.

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

[33] Article 24(1) Asylum Act.

[34]   Article 49(6) Asylum Act.

[35]  Article 25(4) Asylum Act.

[36] Ombudsman, ‘Mecanismo Nacional de Prevenção, Relatório à Assembleia da República’, June 2020, p.64, available at: https://bit.ly/2Pz1ZiN.

[37] Ministry of Home Affairs, Estrangeiros impedidos de entrar em Portugal vão ter direito a advogado, 4 November 2020, available at: https://bit.ly/3oCd8L3.

[38] 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.

[39]  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