Dublin

Portugal

Country Report: Dublin Last updated: 30/11/20

Author

Portuguese Refugee Council Visit Website

General

 

Dublin statistics: 2019

Outgoing procedure

Incoming procedure

 

Requests

Transfers

 

Requests

Transfers

Total

666

46

Total

1,938

355

Italy

373

12

France

1,090

121

Germany

94

11

Germany

537

145

Spain

56

12

Belgium

114

8

France

49

4

Netherlands

34

14

Switzerland

21

0

Switzerland

32

19

Sweden

20

3

Sweden

30

15

Austria

11

3

Austria

22

12

Belgium

8

0

Finland

17

0

Denmark

7

1

Italy

12

1

Netherlands

7

0

Norway

11

12

Bulgaria

4

0

Luxembourg

10

1

Hungary

4

0

Ireland

7

0

United Kingdom

4

0

United Kingdom

6

2

Slovakia

2

0

Denmark

5

4

Croatia

1

0

Greece

3

1

Finland

1

0

Iceland

3

0

Lithuania

1

0

Slovenia

2

0

Malta

1

0

Malta

1

0

Norway

1

0

Slovakia

1

0

Romania

1

0

Spain

1

0

Source: SEF.

 

Application of the Dublin criteria

The Asylum Act makes a formal reference to the criteria enshrined in the Dublin III Regulation for determining the responsible Member State.[1] However, CPR is unaware of additional formal guidelines from SEF regarding the practical implementation of those criteria.

Empirical evidence of the implementation of the Dublin criteria pertaining to family unity is also scarce given the usually very limited number of incoming or outgoing requests pursuant to responsibility criteria provided in Articles 8-11 of the Regulation. According to the information provided by SEF, in 2019, there were only 2 outgoing requests and 13 incoming “take charge” requests under Articles 8-11.

In the very few instances where CPR has contacted SEF regarding the potential application of family unity criteria, in particular regarding Article 8 on minors, evidence and information required from SEF for applying those provisions included identification documents, address and contacts of relatives residing in other EU Member States. It should be noted that, in general, such contacts did not result in the outgoing transfer of the unaccompanied children as they generally absconded prior to any relevant development in the procedure.

In 2018, SEF issued multiple transfer decisions regarding asylum seekers claiming to be under 18-years-old but who have been previously registered as adults in other Member States and that were unaccompanied. These decisions made no reference to the applicant’s claim of minority. In 2018, there was one case where the applicant eventually disclosed that he was in fact over 18-years-old, but this did not happen in all cases. Moreover, in one case in 2018, SEF overturned a transfer decision motu proprio following an appeal on the basis that the applicant was indeed an unaccompanied child. CPR is aware of similar cases in 2019 where a transfer request was issued based on the previous registration in other Member States and no reference was made to the age assessment conducted by the Portuguese authorities as the applicant claimed to be under 18 years old (see below). 

In 2017, the TAC of Lisbon offered clear guidance to the SEF regarding the interpretation of Article 6 of the Dublin Regulation in a judgment that overturned a transfer decision to Germany of an unaccompanied child under the care of CPR, for failing to give due consideration to the best interests of the child in its reasoning, notably regarding the child’s well-being, social development and views.[2]

Two similar situations were analysed by the TAC of Lisbon in 2019. In both cases, an unaccompanied child applied for asylum in Portugal, and it was determined that there were Eurodac hits in Italy. Following information requests, the Italian authorities informed that the applicants were registered as (young) adults. SEF decided to issue transfer decisions for both applicants despite the fact that they were claiming to be under 18 years old and that no age assessment was conducted. The transfer decisions made no reference to the alleged minority. In one case, the TAC Lisbon upheld the transfer decision as it relied on the information provided by the Italian authorities, according to which the applicant was not a child.[3] In the other case, however, the Court considered that, in the absence of evidence regarding the age of the applicant, he/she must be treated as a child and, as such, Article 8(4) of the Dublin Regulation is applicable. The transfer decision was annulled because the best interest of the child was not taken into account by the national asylum authority.[4]

As for the remaining family unity criteria, CPR is aware of a “take charge” request in 2017 regarding a border application that was presented by the SEF on the basis of Article 9. The application was rejected by the competent authority of the requested Member State on the basis of insufficient evidence of family ties. This could indicate a flexible interpretation of evidence requirements from the SEF to initiate the procedure.

The discretionary clauses

The “sovereignty clause” enshrined in Article 17(1) of the Dublin Regulation and the “humanitarian clause” enshrined in its Article 17(2) are at times applied in practice but the criteria for their application are unclear and no specific statistics are available on their use, except for the number of outgoing and incoming take charge requests under these clauses.[5]

In 2017 a group of four unaccompanied children and one young adult were transferred from Greece to Portugal in accordance with the “humanitarian clause” enshrined in Article 17(2) of the Dublin Regulation under a pilot project involving the national authorities, CNIS in Portugal and the Greek organisation Metadrasi.

According to the data shared by SEF, there were 3 incoming requests based on the “humanitarian clause” in 2019.

According to SEF, the “sovereignty clause” was applied in two cases in 2017. CPR was informed of the use of the “sovereignty clause” by SEF in the case of an asylum application for health reasons. However, in CPR’s experience, the underlying criteria in the application of the clause remain unclear. According to the information shared by SEF, the sovereignty clause was not applied in 2018 and in 2019.

There have been no transfer decisions to Greece since the M.S.S. v. Belgium and Greece judgment of the European Court of Human Rights (ECtHR) with the sovereignty clause being applied in potential transfer cases to Greece assisted by CPR during this period. Unlike in 2016 and 2017, no transfer decisions to Bulgaria or Hungary were communicated to CPR in 2018 or in 2019.[6] This is confirmed by the data on Dublin transfers provided by SEF for 2019. 

In October 2018, the authorities announced a bilateral agreement with Greece to implement a pilot relocation process for 100 asylum seekers from Greece to Portugal.[7] The agreement was signed in early 2019, and covers asylum seekers and beneficiaries of international protection who are in refugee camps in Greece. According to the Ministry of Home Affairs, the process may lead to the transfer of up to 1,000 seekers and beneficiaries of international protection. The Ministry also reported that the project has received green light from the European Commission and will be supported by IOM.[8] No further information on the implementation of the agreement was available at the time of writing.

 

Procedure

 

According to the Asylum Act a procedure for determining the Member State responsible for examining an application for international protection under the Dublin Regulation shall be conducted whenever there are reasons to believe that such responsibility lies with another Member State. In such cases, SEF shall make a “take charge” or “take back” request to the competent authorities of the relevant Member State.[9]

While the law allows for the detention of asylum seekers submitted to a procedure for determining the responsible Member State pursuant to Article 28 of the Dublin III Regulation,[10] the consequences of an asylum seeker's refusal to comply with the obligation to be fingerprinted[11] are limited to the application of an Accelerated Procedure.[12] There are no legal provisions on the use of force to take fingerprints and CPR is not aware of any operational guidelines to that end. According to the information available to CPR, asylum seekers are systematically fingerprinted and checked in Eurodac in practice. Among those who benefit from CPR's legal assistance, instances of accelerated procedures due to a refusal to be fingerprinted are a very rare (to non-existent) occurrence.

In practice, SEF systematically determines which country is responsible for examining the asylum application in accordance with the criteria set out in the Dublin Regulation. This is done among others on the basis of the information collected through a preliminary form that must be filled by the asylum seeker upon registration and/or the individual interview. The preliminary form includes information on identification, itinerary, grounds for the asylum application, prior stays in Europe and supporting evidence. During the individual interview with SEF, the asylum seeker is also asked to clarify relevant Dublin-related issues such as his/her identity and nationality, travel documents, visas and travel arrangements, itinerary and transportation to Portugal, and prior asylum applications. This information can eventually lead to a Dublin procedure that is preliminary to the assessment of the application and, once initiated, suspends the applicable time limits for the issuance of a decision on the (other) inadmissibility grounds or the merits of the application.[13

The Asylum Act provides for the right of the asylum seeker to be informed of the purpose of fingerprinting as well as of other rights provided in the Eurodac Regulation.[14] CPR has no indication on whether this obligation is systematically implemented in practice as, to the extent of its knowledge, the leaflets distributed contain very limited information on fingerprinting and on the Eurodac Regulation. Moreover, CPR has no indication on whether the common information leaflet set out in Article 4(3) of the Dublin III Regulation is systematically distributed. The information contained in the documents that are systematically distributed to asylum seekers by SEF[15] do not include all the relevant information included on the Annex X (Parts A and B) of the corresponding Implementing Regulation.[16]

Even when the personal interview focuses on the grounds of the application for international protection, the document narrating the individual interview that is signed and handed out to the applicant includes a reference to the Dublin Regulation, as well as a waiver for sharing information under Article 34 of the Regulation. In cases where at the time of the individual interview there are relevant indicators that warrant a Dublin procedure, SEF may give the applicant the opportunity at that point to raise any relevant objections to the transfer that should be considered in the procedure. However, according to CPR’s observation, even when such objections are raised, they are not specifically addressed by SEF in the reasoning of the inadmissibility decision.

The full extent and implications of the right to be heard in Dublin procedures continued to be discussed in national jurisprudence in 2019.

Asylum seekers are systematically informed in writing of the request made to another Member State, the corresponding supporting evidence and the reply of that Member State but only at the time of written notification of the actual transfer decision.[17]

 

Individualised guarantees

 

According to information available to CPR, SEF does not seek individualised guarantees ensuring that the asylum seeker will have adequate reception conditions upon transfer in practice, either systematically or for specific categories of applicants or specific Member States.[18]

In the case of transfer decisions to Italy issued in 2018 and 2019, the reasoning bore no reference to possible risks of ill-treatment in the responsible Member State, with most of the decisions being issued on the basis of the absence of a timely response from the Italian authorities. This has also been the practice in 2017, namely regarding transfer decisions to Italy and Hungary. CPR has no indication that such guarantees are sought following the notification of the transfer decision / prior to the transfer of the asylum applicant to the responsible Member State as well.

 

While certain Dublin-related judicial decisions refer to the individual circumstances of the applicant as a relevant element to assess the legality of a transfer decision (for instance in order to determine if there is a risk of inhuman or degrading treatment)[19] CPR is not aware of judicial decisions focusing specifically on individualised guarantees.

 

Transfers

 

While the law provides for the detention of asylum seekers subject to the Dublin procedure,[20] this provision is not implemented in practice and CPR is unaware of detentions on this ground.

In accordance with the law, asylum seekers are entitled to a standard laissez-passer upon notification in writing of the transfer decision.[21] However, given the high rate of appeals, such a document is usually not issued at this point in time. According to the information available to CPR, all transfers are voluntary and the applicant is informed of the exact date, time and place he/ she should present him/ herself to SEF for travel purposes.

According to SEF, in the absence of a judicial appeal or abscondment, the average duration of the Dublin procedure from the moment an outgoing request is issued until the effective transfer takes place is of 35 days (“take back”) or of 80 days (“take charge”). The average duration from the moment another Member State accepts responsibility until the effective transfer takes place, if the applicant does not abscond or appeal, is of 15 to 20 days. Practical experience in this regard is limited as, only 46 transfers were implemented out of the total of 666 outgoing requests. The transfer rate was thus as low as 6.9% in 2019.

 

Personal interview

 

The Asylum Act provides for the systematic personal interview of all asylum seekers, including of those in a Dublin procedure.[22] The personal interview can only be waived where: (i) the evidence already available allows for a positive decision; or (ii) the applicant lacks legal capacity due to long lasting reasons that are not under his or her control.[23]

As mentioned above (see: Regular Procedure: Personal interview),  while SEF did not share the number of cases where a decision was adopted in the absence of a personal interview in 2019,[24] it confirmed that applicants are guaranteed the right to an interview before any decision regarding their application is adopted, emphasizing that interviews can only be waived in the specific cases listed in the Asylum Act. SEF also noted that interviews are conducted in all types of procedure, including Dublin.

While in recent years asylum seekers in a Dublin procedure were systematically offered a personal interview, it is not clear to CPR whether all applicants were provided a personal interview in the framework of Dublin procedures in 2018 and 2019. CPR was informed by SEF of 466 transfer decisions regarding applications filed in 2019[25] by adult applicants/unaccompanied minors but only of 93 individual interviews,[26] raising the question of whether the gap is related to a failure of the authorities to communicate the interviews to CPR in accordance with the law and/or the absence of individual interviews altogether.[27]

Case law from the TAC of Lisbon has confirmed the right of an asylum seeker to an individual interview in accordance with Article 5 of the Dublin Regulation and overturned a transfer decision to Denmark because SEF failed to provide the applicant with such an interview.[28]

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 regional representations in cases of asylum applications made in more remote locations.

Previous practice regarding the content of the interview seemed to vary depending on the existence and type of Dublin indicators available at that time. The individual interview could either focus on Dublin-related questions only or cover both the admissibility and the merits of the claim, as well as specific questions to clarify relevant Dublin-related issues.

In 2018, the TAC Lisbon annulled transfer decisions on the basis that, according to its interpretation of either Article 17 of the Asylum Act or Article 5 of the Dublin Regulation, SEF has to inform the applicant and give him/her the opportunity to reply not only to the statements provided during the Dublin interview, but also to a report containing the information that underlies the transfer decision.[29] This jurisprudence followed a decision from the Supreme Administrative Court from 2017 that considered that failing to give the applicant the possibility to be heard regarding the “essential information” of the application in similar circumstances amounted to an omission of an essential procedural requirement.[30]

These decisions revealed a trend on the part of the Portuguese courts to go beyond the threshold imposed by Article 5(6) of the Dublin Regulation, that establishes that the “written summary… shall contain at least the main information supplied by the applicant at the interview”.

In the course of 2018, SEF altered the format of Dublin interviews and corresponding transcripts. According to the current transcripts to which CPR had access, the interview includes an explanation of the aims and criteria of the Dublin Regulation and questions focus on identification and contacts of family members, travel documents/visas, Eurodac registrations, information on entry/stay and previous applications for international protection. The form also contains a section on vulnerability but apparently follows a limited understanding of the concept, as it only includes questions on the health condition of the applicant and family members.

The transcript form also includes a section where the relevant Dublin Regulation criteria for the case are signalled and a question allowing the applicant to reply to such information.

The full extent and implications of the right to be heard in Dublin procedures, and the applicability of Article 17 of the Asylum Act in such procedures, continued to be discussed in national jurisprudence in 2019, including by appeal courts. While it seems undisputed that applicants are entitled to the right to be heard in Dublin procedures, there is still divergence with regard to its legal basis and to the exercise of such right. Three major interpretations were adopted by TCA South and the Supreme Administrative Court in 2019:

  • Article 17 of the Asylum Act is applicable to Dublin procedures. As such, it is required that after the personal interview, the applicant is notified of the statements provided and of a report containing all information underlying the decision and the likely result of the procedure. Following the general regime established in article 17 of the Asylum Act, the applicant then has 5 days to submit comments to the report.[31]
     
  • The right to be heard may be fully exercised during the interview referred to by article 5 of the Dublin Regulation as long as the applicant is informed of the decision that will likely be adopted by the adjudicating entity (i.e. the transfer to a specific Member State) and if the applicant is furthermore given the opportunity to specifically respond to that possibility.[32]
     
  • While article 17 of the Asylum Act is not applicable to Dublin procedures, Article 5 of the Dublin Regulation must be combined with the general administrative rules on the right to be heard about the possible decision before its adoption.[33] As such, the Administration has to inform the applicant of the probable decision and of all the elements underlying such decision and provide a reasonable timeframe for the applicant to respond to all elements relevant to the decision, to request complementary action, and/or to present documentation.[34

In late 2019, CPR observed that applicants interviewed within the context of Dublin Procedures started to be notified of the above-mentioned form as well as of a document stating that the application will likely be subject to an inadmissibility decision and corresponding transfer to a concrete Member State according to the Dublin Regulation. This document also notifies the applicant of the possibility to provide written comments according to the general administrative rules[35].

 

Appeal

 

The Asylum Act provides for an appeal against the decision in the Dublin procedure consisting of a judicial review of relevant facts and points of law by the Administrative Court.[36] The asylum seeker has 5 days to lodge the appeal.[37] As in the regular procedure, the initial and onward appeals are automatically suspensive,[38] and 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.[39]

The available case law indicates that the asylum seeker can challenge the correct application of the Dublin criteria,[40] as per the ruling of the Court of Justice of the European Union (CJEU) in Ghezelbash.[41] The court also verifies if all formalities have been respected by the SEF, including applicable deadlines set forth in the Dublin Regulation.[42]

According to the information available to CPR, in certain cases where deficiencies have been raised by the applicant, the court has failed to conduct an ex officio inquiry on the nature of those deficiencies on the basis of objective criteria such as reception conditions, recognition rates or procedural guarantees.[43]

The information provided by the CSTAF for 2019 regarding the number, nationalities of appellants, average duration and results of judicial reviews does not make a distinction between the type of asylum procedures (see Statistics). However, according to the information available to CPR, Dublin procedures were the main type of asylum procedure used in 2019 to reject asylum applications at first instance in the case of nationals of Guinea-Bissau, Gambia and Guinea (three of the most represented nationalities at appeals stage). Moreover, according to CSTAF, out of the 525 appeals lodged in front of the TAC Lisbon in 2019, 63 concerned Dublin cases.

 

Legal assistance

 

With regard to access to free legal assistance for asylum seekers during the Dublin procedure and at appeal stage, the general rules and practice of the regular procedure apply (see section on Regular Procedure: Legal Assistance).

 

Suspension of transfers

 

Greece: According to the information available to CPR there have been no transfer decisions to Greece since the M.S.S. v. Belgium and Greece judgment of the European Court of Human Rights (ECtHR). During this period SEF has applied ex officio the sovereignty clause in potential transfer cases to Greece assisted by CPR and the asylum seekers were granted access to the asylum procedure.

Hungary: In 2017 SEF issued transfer decisions to countries such as Hungary without any relevant reasoning pertaining to possible risks of refoulement. In the case of Hungary, in 2016, Administrative Courts failed to conduct an ex officio inquiry on the nature of potential deficiencies of the asylum system despite the appeal court stating that systemic deficiencies in the asylum system of the requested Member State could be a valid ground for challenging the authorities compliance with the Dublin Regulation.[44]

In February 2018, however, the Tribunal Administrativo e Fiscal de Sintra (TAF Sintra)  annulled a transfer decision to Hungary on the basis that the available information regarding the functioning of the Hungarian asylum system revealed the existence of valid reasons to believe that there were systemic flaws in the asylum procedure and reception conditions amounting to the threshold of inhuman or degrading treatment (namely due to the systematic detention and acts of violence towards asylum seekers in the country).[45]

While CPR is not aware of any transfer decision to Hungary adopted in 2019, according to the information shared by SEF, there were 4 outgoing requests thereto during the year, but no transfer was carried out.[46]

France, Spain and Germany: In 2018, TAC Lisbon upheld transfer decisions to France and Spain, ruling that it was not demonstrated that there were valid reasons to believe that asylum procedures and reception systems of the Member States do not comply with the applicable standards.[47]

TCA South underlined in a 2019 judgement that the mere allegation by an asylum seeker that he/she would receive better conditions in Portugal than in the receiving Member State, is not enough to waive the rules on responsibility established by the Dublin Regulation.[48]

In the appeal of a judgement of the TAC Lisbon that confirmed a transfer decision to Germany, the TCA South stated that the applicant did not provide elements showing a risk of inhuman or degrading treatment in the relevant Member State, nor health-related information requiring his/her presence in Portugal. Moreover, the Court noted that there is no indication of systematic flaws in the asylum procedure and reception conditions in Germany.[49]

Italy: The jurisprudence regarding transfers to Italy continued to increase and vary in 2019, both in first and second instance courts, with divergence with regard to the extent of the applicant’s burden of allegation/substantiation of systemic flaws, and the extent of SEF’s duty to assess the situation in the receiving Member State.

Two main trends can be observed in the interpretation of TCA South:

  • The determining authority must assess whether there are systemic flaws in the asylum procedure and reception conditions of the Member State deemed responsible before issuing a transfer decision. This duty is particularly relevant in situations where, such as in Italy, it is publicly known that the asylum system faces disfunctions which may as amount to systemic flaws. As such, SEF must include reliable and up to date information in the process in order to verify if the safeguard clause should be applied. According to this interpretation, the duty to investigate does not depend on the allegation by the applicant of the existence of systemic flaws/risk of inhuman or degrading treatment as the relevant facts are not necessarily personal issues and the determining authority must act in accordance with the inquisitorial principle.[50]
     
  • The burden of allegation regarding the conditions in the responsible Member State lies with the applicant. As such, the determining authority only has to assess the existence of systemic flaws/risk of inhuman or degrading treatment when such question is raised by the asylum seeker in the procedure (namely in the personal interview). There are apparently different interpretations on the exact terms in which this burden of allegation must be discharged.[51]

 

In one case, TCA South upheld a judgement from TAF Sintra which annulled a transfer of an applicant with hepatitis B to Italy and determined that, in the absence of other legal obstacles, the national authorities must examine the application for international protection. The Court decided that, in light of available information on the situation in Italy and the applicant’s health condition, the transfer would amount to a serious risk of inhuman or degrading treatment.[52]

In September 2019, the Supreme Administrative Court decided that it would examine an appeal concerning the issue of systemic flaws in Italy and the duties of SEF in this context.[53]The judgment from January 2020 established an even higher threshold in these cases. According to the Court, the requesting Member State is only bound to a duty to obtain up-to-date information on the risk of inhuman or degrading treatment where there are valid reasons to believe that there are systemic flaws in the asylum procedure and reception conditions of the receiving Member State and where such flaws amount to a risk ok inhuman or degrading treatment.[54]

 

The situation of Dublin returnees

 

The National Director of SEF is the competent authority to accept the responsibility of the Portuguese State for “assessing an application for international protection” presented in other Member States of the European Union.[55] In practice, asylum seekers do not face relevant or systematic obstacles in accessing the asylum procedure following a “take charge” decision and their transfer to Portugal.

SEF usually informs CPR beforehand of the date of arrival, flight details and medical reports (if applicable). Upon arrival at the airport, asylum seekers receive a notification to present themselves at SEF-GAR in the following day(s) and are sent to CPR’s Refugee Reception Centre (CAR) in Bobadela or to other facilities, as applicable, for the provision of reception conditions.

In accordance with the Asylum Act, where the asylum seeker withdraws his/her application implicitly by disappearing or absconding for at least 90 days without informing SEF, the file can be deemed closed by the National Director of SEF.[56] Notwithstanding, the applicant is entitled to reopen his/her asylum case by presenting him/herself to SEF at a later stage. In this case, the file is to be resumed at the exact stage where it was discontinued by the National Director of SEF.[57]

According to the information available to CPR, asylum seekers who had previously abandoned their application and left the country have not faced relevant or systematic problems in reopening their asylum cases and have not been treated as subsequent applicants following incoming transfers. Indeed, none of the subsequent asylum applications communicated to CPR by SEF in 2019 concerned individuals transferred back to Portugal after having abandoned their application, despite 355 incoming transfers throughout the year.[58]

On 10 September 2018, Portugal and Germany signed an administrative arrangement pursuant to Article 36 of the Dublin Regulation. The agreement aims to facilitate returns by introducing non-binding shorter timeframes – one month instead of three months for a “take charge” request – and providing for group instead of individual transfers. The European Commission has notified the two countries that the arrangement is generally in line with the Dublin Regulation.[59]

In October 2018, the Ministry of Home Affairs publicly stated that Portugal had readmitted at least seven asylum seekers from Germany under the administrative arrangement.[60] The applicants have been returned similarly to other Dublin cases, and have been accommodated in CAR. No change has been witnessed so far in the Dublin procedure. SEF did not provide information on the implementation of such agreement in 2019.

 


[1] Article 37(1) Asylum Act.

[2] TAC Lisbon, Decision 2334/17.5BELSB, 24 November 2017, unpublished.

[3] TAC Lisbon, Decision 1216/19.1BELSB, 22 October 2019, unpublished. It is interesting to note that the same course of action was followed by the Family Court responsible for the application of the protective measure.

[4] TAC Lisbon, Decision 1516/19.0BELSB, 16 October 2019, unpublished.

[5] According to the SEF, in 2019 there were 4 outgoing and 3 incoming take charge requests pursuant to Article 17(2) of the Regulation.

[6] The transfer decisions to such countries issued in 2016 and 2017 did not include any reference to possible risks of refoulement, indicating that detention and reception conditions, guarantees in the asylum procedure and access to an effective remedy in the responsible State are not consistently taken into consideration when deciding whether or not to apply the “sovereignty clause”.

[7] See further AIDA, ‘Portugal/Greece: Bilateral agreement for relocation of asylum seekers’, 24 October 2018, available at: https://bit.ly/2CUcKn6.

[8] Ministry of Home Affairs, ‘Portugal e Grécia formalizam Acordo Bilateral para transferência de refugiados’, 8 March 2019, available in Portuguese at: https://bit.ly/2ImWSMl.

[9] Articles 36 and 37(1) Asylum Act.

[10] Article 35-A(3)(c) Asylum Act.

[11] Article 15(1)(e) Asylum Act.

[12] Article 19(1)(j) Asylum Act.

[13] Article 39 Asylum Act.

[14] Article 49(1)(b) Asylum Act.

[15] While the version distributed to applicants, according to CPR’s knowledge, is an handout in Portuguese, English and French, another version of the document (containing similar information) is available online in Portuguese at: https://bit.ly/2Hq5aEy.

[16] Commission Implementing Regulation (EU) no.118/2014 of 30 January 2014, available at: https://bit.ly/3emtXFT.

[17] Article 37(2) Asylum Act.

[18] ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.

[19] For instance, TCA South, Decision 1982/18.1BELSB, 22 August 2019, available in Portuguese at: https://bit.ly/36vzJAV, confirming a judgement of TAF Sintra (unpublished) that annulled the decision to transfer an applicant with hepatitis B to Italy; TAC Lisbon, Decision 2364/18.0BELSB, 22 March 2019 (unpublished), annulling a transfer decision to Italy, inter alia, because the adjudicating authority did not properly assess the nature and severity of health issued referred by the applicant in the personal interview; TAC Lisbon, Decision 2048/19.2BELSB, 13 December 2019 (unpublished), confirming a transfer decision to Italy as it was not proved that there are systemic flaws in the receiving Member State and, even so, the applicant would have to demonstrate that, given his/her specific circumstances, the situation would amount to a risk of inhuman or degrading treatment.

[20] Article 35-A(3)(c) Asylum Act.

[21] Article 37(3) Asylum Act.

[22] Article 16(1)-(3) Asylum Act.

[23] Article 16(5) Asylum Act.

[24] According to information shared by SEF for 2018, there were no cases where a decision was taken without a personal interview.

[25] Data may include decisions and interviews issued/performed in early 2020.

[26] This includes cases where the applicants themselves informed the organisation of the interviews performed by the authorities.

[27] At least since the third trimester of the year, CPR was often contacted by applicants within Dublin procedures that were interviewed by SEF but whose interview reports have not been communicated to the organisation.

[28]  TAC Lisbon, Decision 2379/17.6 BELSB, 15 January 2018, unpublished.

[29] TAC Lisbon, Decision 275/18.9BELSB, 12 April 2018.

[30] Supreme Administrative Court, Decision 0306/17, 18 April 2017, available in Portuguese at: https://bit.ly/2RYEoXW.

[31] This interpretation, which was already adopted in previous jurisprudence, was reaffirmed by the Supreme Administrative Court in at least three rulings in 2019: Supreme Administrative Court, Decision 1143/18.0BELSB, 28 March 2019, available in Portuguese at: https://bit.ly/2QDRR4G; Supreme Administrative Court, Decision 2095/18.1BELSB, 3 October 2019, available in Portuguese at: https://bit.ly/39FeIpp; Supreme Administrative Court, Decision 1770/18.5BELSB, 17 December 2019, available in Portuguese at: https://bit.ly/2wcyLws.

[32] Supreme Administrative Court, Decision 970/18.2BELSB, 30 May 2019, available in Portuguese at: https://bit.ly/2ZKaCHV.  The judgement argues for a combined reading of the relevant provisions (e.g. Article 16 of Asylum Act, Article 5 of the Dublin Regulation, and Article 121 of the Administrative Procedure Code), emphasising that the applicant must be given the opportunity to provide his/her comments on the possible transfer during the personal interview or in a subsequent moment, allowing the competent authority to duly consider all elements in its decision. TCA South, Decision 557/19.2BELSB, 26 September 2019, available in Portuguese at: https://bit.ly/2ZMhlkm; TCA South, Decision 751/19.6BELSB, 26 September 2019, available in Portuguese at: https://bit.ly/2Ql0GS8; TCA South, Decision 780/19.0BELSB, 26 September 2019, available in Portuguese at: https://bit.ly/39Ca5fG; TCA South, Decision 689/19.7BELSB, 24 October 2019, available in Portuguese at: https://bit.ly/35gByQx. Following this interpretation, a decision from the TAC Lisbon (Decision 1680/19.9BELSB, 12 November 2019, unpublished), interestingly underlined that the authority must inform the applicant of the relevant responsibility criteria as well as of the safeguard clause, creating the conditions for the applicant to respond to the possible transfer/application of the clause. It also noted that, if the right to be heard is to be implemented exclusively through an interview, the authorities have to adjust the questions to the concrete situation at stake. 

[33] Articles 121 et seq Administrative Procedure Code.

[34] TCA South, Decision 90/19.2BELSB, 6 June 2019, available in Portuguese at: https://bit.ly/2FiKOcg; TCA South, Decision 2379/18.9BELSB, 4 July 2019, available in Portuguese at: https://bit.ly/36lFzEM; TCA South, Decision 1026/19.6BELSB, 10 December 2019, available in Portuguese at: https://bit.ly/37B1aZR

[35] Article 121 Administrative Procedure Code. However, despite the general rule prescribed in article 122 Administrative Procedure Code, according to which the dealine for response cannot be of less than 10 days, the deadline prescribed by the above-mentioned notifications is of only 5 days. It is also worth mentioning that such documents are not communicated to CPR by the authorities on a systematic basis.

[36] Article 37(4) Asylum Act; Article 95(3) Administrative Court Procedure Code.

[37] Ibid.

[38] Article 37(4) and (6) Asylum Act.

[39] Article 37(5) Asylum Act.

[40] TCA Lisbon, Decision 2183/15.6BESLB, 25 November 2015, unpublished, which states that a Dublin transfer decision can be challenged in case of incorrect application of the criteria enshrined in the Dublin Regulation and then moves on to assess the content of the criteria enshrined in Articles 8 to 10 and 17(1) in light of the particular circumstances of the applicant.

[41] CJEU, Case C-63/15 Ghezelbash, Judgment of 7 June 2016.

[42] TCA Lisbon, Decision 1235/16.0BESLB, 14 September 2016, unpublished.

[43] TCA Lisbon, Decision 350/17.7BESLB, 3 May 2017, unpublished; TCA South, Decision 13607/16, 22 September 2016, unpublished.

[44] TCA Lisbon, Decision 1062/16.4BELSB, 12 June 2016, unpublished; TCA South, Decision 13607/16, 22 September 2016.

[45] TAF Sintra, Decision 555/17.0BESNT, 15 February 2018, unpublished.

[46]  In 2018, CPR was not aware of transfer decisions to Hungary, but the data from SEF indicated 3 outgoing requests.

[47] TAC Lisbon, Decision 461/18.1BELSB, 10 April 2018, unpublished; TAC Lisbon, Decision 741/18.6BELSB, 8 August 2018, unpublished.

[48] TCA South, Decision 235/19.2BELSB, 26 September 2019, available in Portuguese at: https://bit.ly/2QI4SdC. In a similar understanding, TCA South considered that the fact that the applicant affirmed, during the personal interview, that he would like to stay in Portugal because the population was friendly and not racist, without referring to racist acts suffered in Spain was not enough to trigger the obligation of SEF to analyse the existence of systemic flaws in the Spanish asylum system given that it is not publicly known that such system has clear systemic deficiencies, TCA South, Decision 409/19.6BELSB, 7 November 2019, available in Portuguese at: https://bit.ly/2tu6U8Y.

[49] TCA South, Decision 1383/19.4BELSB, 10 December 2019, available in Portuguese at: https://bit.ly/36lL06E.

[50] Article 58 Administrative Procedure Code; TCA South, Decision 557/19.2BELSB, 26 September 2019, available in Portuguese at: https://bit.ly/2ZMhlkm; TCA South, Decision 751/19.6BELSB, 26 September 2019, available in Portuguese at: https://bit.ly/2Ql0GS8; TCA South, Decision 1059/19.2BELSB, 21 November 2019, available in Portuguese at: https://bit.ly/2MS8Z5z; TCA South, Decision 1157/19.2BELSB, 21 November 2019, available in Portuguese at: https://bit.ly/2sI56tc.

[51] In one case, the Court decided that in the absence of any reference from the applicant to the treatment and conditions in Italy, SEF did not have to assess the risk of inhuman or degrading treatment despite recognising that the reception conditions in Italy were deficient and worsening (TCA South, Decision 559/19.9BELSB, 26 September 2019, available in Portuguese at: https://bit.ly/35kGVOK). Ruling that invoking a lack of security and a lack of care in the place of accommodation is sufficient to discharge the (mitigated) burden of allegation and proof, see: TCA South 2240/18.7BELSB, 6 June 2019, available in Portuguese at: https://bit.ly/2Fhewyp. Deciding that referring to a lack of living conditions is not enough to trigger SEF’s duty to assess the existence of systemic flaws, see: TCA South 1013/19.4BELSB, 7 November 2019, available in Portuguese at: https://bit.ly/2QhJfBI. See also: TCA South, Decision 817/19.2BELSB, 26 September 2019, available in Portuguese at: https://bit.ly/2QkakEr; TCA South, Decision 743/19.5BELSB, 26 September 2019, available in Portuguese at: https://bit.ly/36nqna7; TCA South, 1258/19.7BELSB, 21 November 2019, available in Portuguese at: https://bit.ly/35kaccn

[52] The decisions also emphasised the duty of the authorities to dully consider information about the asylum procedure and reception conditions in the receiving Member State. Information revealing the existence of gaps in medical treatment provided to persons in similar situations was also taken into account. TAF Sintra, Decision 1982/18.1BELSB, 3 April 2019, unpublished; TCA South, Decision 1982/18.1BELSB, 22 August 2019, available in Portuguese at: https://bit.ly/36vzJAV.

[53] Supreme Administrative Court, Decision 2240/18.7BELSB, 27 September 2019, available in Portuguese at: https://bit.ly/2FftdSu.

[54] Supreme Administrative Court, Decision 2240/18.7BELSB, 16 January 2020, available in Portuguese at: https://bit.ly/3cq4BFd.

[55] Article 40(1) Asylum Act.

[56]  Article 32(1)(c) and (2) Asylum Act.

[57] Article 32(3) of the Asylum Act.

[58] According to the statistics collected by the SEF, a total of 8 subsequent applications were lodged in 2019 (see Subsequent Applications).

[59] European Commission, Ares (2018)4489201, 31 August 2018.

[60] Ministry of Home Affairs, ‘Nota à Comunicação Social’, 23 October 2018, available in Portuguese at: http://bit.ly/2zmmVgC.

 

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