Dublin statistics: 2020
|Outgoing procedure||Incoming procedure|
|Take charge||Take back||Total||Take charge||Take back||Total|
|Outgoing Dublin requests by criterion: 2020|
|Dublin III Regulation criterion||Requests sent|
|“Take charge”: Articles 8-15:||38|
|Article 8 (minors)||–|
|Article 9 (family members granted protection)||–|
|Article 10 (family members pending determination)||1|
|Article 11 (family procedure)||–|
|Article 12 (visas and residence permits)||16|
|Article 13 (entry and/or remain)||21|
|Article 14 (visa free entry)||–|
|“Take charge”: Article 16||–|
|“Take charge” humanitarian clause: Article 17(2)||–|
|“Take back”: Article 18||448|
|Article 18 (1) (b)||168|
|Article 18 (1) (c)||2|
|Article 18 (1) (d)||278|
|Rejected outgoing requests: 2020|
|Incoming Dublin requests by criterion: 2020|
|Dublin III Regulation criterion||Requests received|
|“Take charge”: Articles 8-15||721|
|Article 8 (minors)||6|
|Article 9 (family members granted protection)||–|
|Article 10 (family members pending determination)||–|
|Article 11 (family procedure)||3|
|Article 12 (visas and residence permits)||701|
|Article 13 (entry and/or remain)||9|
|Article 14 (visa free entry)||–|
|“Take charge”: Article 16||–|
|“Take charge” humanitarian clause: Article 17(2)||2|
|“Take back”: Articles 18 and 20(5)||216|
|Article 18 (1) (b)||124|
|Article 18 (1) (c)||1|
|Article 18 (1) (d)||88|
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. According to the information available, no additional formal guidelines regarding the practical implementation of those criteria are in place.
Empirical evidence of the implementation of the Dublin criteria pertaining to family unity is scarce given the usually highly 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 2020, there was 1 outgoing request and 9 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. 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. According to the information provided by SEF, the best interests of the child and the conditions of the family to receive the child are considered when applying Article 8 of the Dublin Regulation.
In 2018, SEF issued multiple transfer decisions regarding unaccompanied asylum seekers claiming to be under 18-years-old who have been previously registered as adults in other Member States. These decisions made no reference to the applicant’s claim of minority in Portugal. 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). CPR is not aware of similar decisions in 2020. Instead, in some cases, SEF suspended the deadlines applicable to the asylum procedure on the grounds that such a decision required the adjudication of the age assessment requested by the competent Family Court). In at least some instances, however, SEF eventually admitted the cases to the regular procedure before the age assessment was finalised (which could be linked to significant delays in the age assessment).
In 2017, the TAC Lisbon offered clear guidance 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.
Two similar situations were analysed by the TAC 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 by SEF, 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 had been 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. The decision was later confirmed by the TCA South which considered that there was no evidence that the applicant was not an adult and it was clear that the information provided to the Portuguese and Italian authorities was inconsistent. The Court also considered that it was not justified to request expert examinations for age assessment. Notably, an age assessment conducted in the meantime within the Family Court procedures confirmed that the applicant was indeed under 18 years old at the time of the application in Portugal and SEF subsequently reversed the transfer decision and admitted the case to the regular procedure.
In the other 2019 case, however, the TAC Lisbon 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 by the Court on the grounds that the best interests of the child had not been taken into account by the national asylum authority.
CPR is aware not aware of relevant recent indications regarding the application of the remaining family unit criteria.
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 remain unclear and no specific statistics are usually available on their use, except for the number of outgoing and incoming take charge requests under these clauses.
While according to the data provided by SEF to AIDA, there were 3 incoming requests based on the “humanitarian clause” in 2019, SEF’s 2019 statistical report indicates that the provision was applied to 100 persons relocated to Portugal following rescue operations in the Mediterranean Sea.
According to the data shared by SEF for 2020, there were 2 incoming requests based on the “humanitarian clause” in 2020.
According to SEF, the “sovereignty clause” was not applied in 2018, 2019 and in 2020. In CPR’s experience, the underlying criteria in the application of the clause remain unclear.
No transfer decisions to Greece have been adopted 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. Since 2018, no transfer decisions to Bulgaria or Hungary were communicated to CPR, unlike those communicated in 2016 and 2017. According to the data provided by SEF, in 2020, 5 take back requests were submitted to the Hungarian authorities but no transfer was carried out.
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. 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 asylum 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.
The 2020 Statistical Report of Asylum, states it is foreseen that 80% of the transferred persons will be beneficiaries of international protection, and that the remaining 20% will be applicants for international protection (to be transferred according to Article 17(2) of the Dublin Regulation). The report further mentions that selection missions will be conducted by SEF with the support of ACM, and pre-departure orientation to be provided by IOM.
On 21 December 2020, the Minister of the Presidency informed the Parliament that a family arrived in Portugal in December 2020 under this agreement. The Minister further informed that 30 people were to be transferred upon completion of relevant bureaucracies.
In 2020, Portugal committed to receive 500 unaccompanied children from Greece. According to the information provided by the Minister of the Presidency to the Parliament on 21 December 2020, 72 unaccompanied children from 14 countries of origin, were transferred from Greece to Portugal during the year. According to the Minister, at the time of the statement, the arrival of a group of 6 unaccompanied children was being prepared.
In September 2020, following the tragic events in Moria, Portugal announced that it communicated to the European Commission its availability to participate in the common effort for the reception of persons that were at the camp, within the framework of its two bilateral agreements with Greece.
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. The Dublin procedure 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.
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, the consequences of an asylum seeker’s refusal to comply with the obligation to be fingerprinted are limited to the application of an Accelerated Procedure. 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. According to CPR’s observation, accelerated procedures triggered by a refusal to be fingerprinted are a very rare 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 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.
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.
The full extent and implications of the right to be heard in Dublin procedures continued to be discussed in in the national courts in 2020 (see Dublin: Personal interview).
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. CPR has no indication on whether this obligation is systematically implemented in practice as, to the extent of its knowledge, the leaflets distributed contain 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. According to observations of CPR, the information contained in the documents that are systematically distributed to asylum seekers by SEF do not include all the relevant information included on the Annex X (Parts A and B) of the corresponding Implementing Regulation. Notwithstanding this, SEF reported that such information is provided to the applicants.
As per the available information, while Dublin procedures were not formally interrupted due to the coronavirus pandemic, restrictions to freedom of movement led to a halt of Dublin transfers. Furthermore, SEF reported that the reduced number of flights and testing requirements by the responsible Member States, along with instances of absconding, further restricted the execution of Dublin transfers in 2020.
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.
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 is aware that, at least in some instances in 2020, transfer decisions to Italy included information on the situation in the Member State, and references to relevant national jurisprudence, concluding that there was no risk of “extreme material poverty” constituting a risk of inhuman or degrading treatment in case of transfer. According to CPR’s observations, this was not a systematic practice.
CPR has no indication that individualised 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), CPR is not aware of judicial decisions focusing specifically on individualised guarantees.
While the law provides for the detention of asylum seekers subject to the Dublin procedure, this provision is not implemented in practice and CPR is unaware of detention cases 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. However, given the high rate of appeals, such a document is usually not issued at this point. 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, it is not possible to estimate the average duration of the Dublin procedure (neither from the moment an outgoing request is issued until the transfer takes place, nor from the moment another Member State accepts responsibility until the transfer takes place) due to the frequency of appeals and the risk of absconding.
Practical experience in this regard remained limited as, only 23 transfers were implemented out of the total of 486 outgoing requests. The transfer rate was thus as low as 4.7% in 2020.
As per the available information, while Dublin procedures were not formally interrupted due to the coronavirus pandemic, restrictions to freedom of movement led to a halt of Dublin transfers. Furthermore, SEF reported that the reduced number of flights and testing requirements by the responsible Member States, along with cases of absconding, further restricted the execution of Dublin transfers in 2020.
CPR is aware of decisions from TAC Lisbon determining that the coronavirus pandemic did not impact the legality of Dublin transfers (to Italy and Spain) but only the moment of its execution. At least in two cases, while confirming transfer decisions to Italy, TCA South referred that the transfer should be executed upon cessation of the measures implemented to respond to the coronavirus pandemic and provided that mobility and living conditions in Italy are ensured.
The Asylum Act provides for the systematic personal interview of all asylum seekers, including of those in a Dublin procedure. 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.
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 2020, it did confirm 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 it was not clear to CPR whether asylum seekers in a Dublin procedure were systematically offered a personal interview, according to CPR’s observation in 2020, applicants in a Dublin procedure seem to be systematically interviewed. 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. This jurisprudence followed a decision from the Supreme Administrative Court from 2017 which 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.
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. The transcripts/interviews therefore include an explanation of the aims and criteria of the Dublin Regulation and questions focusing 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. Furthermore, it 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.
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 pursuant to the general administrative rules. However, despite the general rule determining that the deadline 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 noting that such documents are not communicated to CPR by the authorities on a systematic basis.
This change in practice is likely connected to the judicial developments regarding the right to be heard in Dublin procedures in 2019. While it is undisputed that applicants are entitled to the right to be heard in such procedures, three major interpretations were adopted by TCA South and the Supreme Administrative Court (STA) in 2019:
- Article 17 of the Asylum Act is applicable to Dublin procedures. As such, it is required that, following the personal interview, the applicant is notified of the statements provided and of a report containing all information underlying the decision and the likely outcome of the procedure. Following the general regime established in Article 17 of the Asylum Act, the applicant has 5 days to submit comments to the report.
- 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 is furthermore given the opportunity to specifically respond to that possibility.
- 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. As such, the adjudicating entity has to inform the applicant of the probable decision and of all the elements underlying such a 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.
Different interpretations of the right to be heard continued to be registered in the national upper courts throughout 2020, along the main lines described above. In a number of decisions, STA and TCA South considered that the applicant must be informed of the likely outcome of the procedure (inadmissibility and Member State likely responsible for the application) and provided a report with all the relevant elements of the case and a five-day deadline to respond as provided in Article 17 Asylum Act. Currently, this seems to be the predominant understanding within the STA.
Nevertheless, the interpretation that Article 5 of the Dublin Regulation is the relevant framework within this context continued to be applied as well. In one decision, STA noted that the right of the applicant to participate in the procedure is respected if the report identifies the responsible Member State and the interviewer asks the applicant if he/she has statements to make regarding that information.
This understanding has also been followed by TCA South. In some cases, the Court further detailed that the right to be heard can be fully exercised within the context of the interview as long as the applicant receives the information mentioned in Article 4 of the Dublin Regulation and is provided with the opportunity to fully present the arguments and facts regarding the possible transfer. Interestingly, in such cases, TCA South also emphasised that the lower formal requirements for the exercise of the right to be heard, entail a need for reinforced control of its substance. As such, the interviewer must give the applicant a meaningful opportunity to provide the relevant information and cannot remain passive in light of the statements provided by him/her.
Furthermore, in at least one case, TCA South confirmed the practice followed by SEF according to which the applicant is provided a report containing the likely outcome of the Dublin procedure and given a 5-day deadline to respond in writing according to Article 121 of the Administrative Procedure Code.
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. The asylum seeker has 5 days to lodge the appeal. As in the regular procedure, the initial and onward appeals are automatically suspensive, 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.
The available case law indicates that the asylum seeker can challenge the correct application of the Dublin criteria, as per the ruling of the Court of Justice of the European Union (CJEU) in Ghezelbash. The court also verifies if all formalities have been respected by the SEF, including applicable deadlines set forth in the Dublin Regulation.
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.
The information provided by the CSTAF for 2020 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 2020 to reject asylum applications at first instance in the case of nationals of Guinea-Bissau, Senegal, Gambia, and Guinea (four of the five most represented nationalities at appeals stage). Moreover, according to CSTAF, out of the 446 appeals decided by the TAC Lisbon in 2020, 217 concerned Dublin cases.
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 Regular Procedure: Legal Assistance).
With regard to access to legal aid for appeals, as mentioned in Regular Procedure: Legal Assistance, applicants within the Dublin procedure were among the most affected by the practice of the Portuguese Bar Association according to which, following a refusal by the appointed lawyer to provide free legal aid on the grounds that the chances of success were limited, a replacement was not appointed.
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 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 February 2018, 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).
While CPR is not aware of any transfer decision to Hungary adopted in 2020, according to the information shared by SEF, there were 5 outgoing requests thereto during the year, but no transfer was carried out.
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.
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. In another case, 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 an obligation for 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.
In a 2020 judgement, concerning a transfer decision to Spain, TCA South considered, inter alia, that the strong migratory pressure and poor reception conditions, were not sufficient to consider that there would be a serious risk of inhuman or degrading treatment.
Within the context of the appeal of a judgement of TAC Lisbon that confirmed a transfer decision to Germany, 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.
Denmark: TCA South analysed the case of an Iraqi national (from Mosul) whose application for international protection in Denmark was previously rejected and who was subject to a transfer decision from Portugal to Denmark.
While considering that the reception conditions in Denmark (including vis-à-vis detention) are not of such severity to fulfil the threshold of Jawo, the Court considered that it must also analyse if the return decision may imply a risk of indirect refoulement due to the likely removal from Denmark to Iraq, therefore violating Article 33 of the Geneva Convention and Articles 4 and 19(2) of the Charter of Fundamental Rights of the European Union. Within that context, the Court concluded, inter alia, that, in light of the available information on the human rights, humanitarian and security situation in the applicant’s region of origin and relevant recommendations of international organisations, return may imply a serious risk of torture, inhuman or degrading treatment or a threat to his life and physical integrity.
Given that the information available on the individual case did not allow for an assessment of such risks, TCA South determined that the administrative authority must complete the analysis of the case namely by obtaining all the relevant information on the applicant’s profile and individual situation and on the current situation in Iraq.
Italy: The 2019 jurisprudence regarding transfers to Italy revealed divergence as 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 were 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 widely known that the asylum system faces disfunctions which may 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.
- 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.
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.
In September 2019, STA decided that it would examine an appeal concerning the issue of systemic flaws in Italy and the duties of national authorities within this context. According to the judgment on the merits from January 2020, the Court considered that the statements provided by the applicant within the administrative procedure and the information collected by lower instance courts on the situation in Italy were not detailed/severe enough to create a duty on the requesting Member State to further investigate the situation in the requested Member State. The STA affirmed that the requesting Member State is only obliged to collect up-to-date information on the risk of inhuman or degrading treatment in the receiving Member State where there are valid reasons to consider that there are systemic flaws in the asylum procedure/reception conditions of such Member State and where such flaws amount to a risk of inhuman or degrading treatment. The Court further noted that the information collected/considered by lower instance courts regarding Italy revealed an anomalous situation but that such situation is one of an abnormal influx of “illegal migration”. According to the Court, such situation (that includes “potential refugees” but also other persons) does not create a risk of torture, inhuman or degrading treatment in Italy.
The STA broadly reaffirmed this understanding in a number of judgements issued throughout the year. Overall, an analysis of the 2020 jurisprudence of STA in this regard, seems to indicate that the Court considers that:
- The determining authority is not bound to a general duty to inquire the situation in the responsible Member State. It remains unclear if there are situations where the Court would consider that such an obligation exists regardless of the applicant’s allegations (e.g., notorious deficiencies that cannot be ignored by the determining authority).
- The applicant bears a burden of allegation and demonstration of the risk in case of return (see infra).
- The flaws in the asylum system of the responsible Member State must be extremely severe. The situation in Italy does not amount to one of generalised risk of torture, inhuman or degrading treatment.
With regard to the burden imposed on the applicant, in particular, the following main features can be inferred from the decisions of STA:
- It is insufficient for the applicant to invoke “generic and abstract deficiencies”;
- The allegation of systemic flaws by itself is not sufficient neither to invalidate a transfer decision, nor to require SEF to examine the conditions in Italy;
- The applicant must invoke “concrete facts allowing to conclude that there is an effective risk that he/she could be subject to inhuman treatment in Italy”;
- The applicant must invoke and demonstrate “exceptional personal circumstances and not only a common and generalised knowledge of the reception difficulties in Italy”;
- The personal circumstances of the applicant must not be described “in an overly generic manner and with lack of detail”;
- The absence of references in the applicant’s statements/allegations to prior inhuman or degrading treatment in Italy is detrimental to his/her claim (especially if he/she was present in the relevant Member State for a long period of time);
- The applicant’s statements must allow the conclusion that “there is a concrete situation in which the applicant was affected in a manner beyond acceptable by the deficient reception conditions”;
- Among the allegations deemed to be insufficient are claims regarding the excessive length of procedures, lack of access to employment, security concerns and challenges in accessing medical assistance.
These features seem to indicate that there is a significant focus on the applicant’s statements as well as in past treatment and events directly experienced in the responsible Member State. Furthermore, apparently, the applicant is required to do so proprio motu, as the authorities are not specifically required to ask follow-up questions regarding potential risks in the responsible Member State.
While according to CPR’s analysis, the jurisprudence of TCA South predominantly adopted similar positions, it is worth mentioning that some diverging decisions were identified.
In three cases, the TCA South considered, inter alia, that there were “clear, obvious and proven indications of the existence of systemic flaws” in the Italian system and that its malfunctioning was “endemic and deliberate” and reached the severity threshold required by the relevant European jurisprudence. Such conclusions were based on information from specialised NGOs and international organisations. The Court further considered that the applicant is not bound to a duty of allegation of systemic flaws. According to this understanding, the applicant is only required to provide information on his/her personal circumstances that can be relevant for the application of the safeguard clause. At least two of these judgements were later overturned by the STA.
In another case, the Court stated that Article 3(2) of the Dublin Regulation contains “a legal duty for the Member States to consider the possible existence of systemic flaws in the asylum procedure and reception conditions”. While the applicant was not vulnerable, the existence of such deficiencies has been reported and was raised by the applicant during the interview (the applicant stated that he lived on the street for nine months before coming to Portugal and that he would have to do so again in case of return). The Court concluded that SEF should have added reliable and up-to-date information on the situation in Italy to the process.
CPR is aware that, at least in some instances in 2020, transfer decisions to Italy included information on the situation in the Member State, and references to relevant national jurisprudence, concluding that there was no risk of “extreme material poverty” constituting a risk of inhuman or degrading in case of transfer. According to CPR’s observation, this was not a systematic practice.
The 2019 report of the Ombudsman notes that the institution received complaints due to the lack of examination of the existence of systemic flaws in the asylum procedure and reception conditions of another Member State. The follow-up to the case involved contacts with a counterpart in the relevant Member State. While conclusions in this regard had not yet been issued by the end of the year, the Portuguese Ombudsman requested the cooperation of the European Ombudsman so that the European Commission is heard regarding this matter. No further information is available.
There were also multiple judgements from TCA South determining that the safeguard clause of Article 3(2) of the Dublin Regulation is not applicable to take back procedures under Article 18(1)(d) of the Dublin Regulation. The Court considered that, in such cases, compliance with the principle of non-refoulement should be verified. This did not seem to be the predominant interpretation of the scope of application of Article 3(2) of the Dublin Regulation in national courts.
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. In practice, asylum seekers do not face relevant or systematic obstacles in accessing the asylum procedure and reception conditions following a 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 referred to CPR’s Refugee Reception Centre (CAR) in Bobadela or to other facilities or institutions (ISS/SCML), 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. 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.
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.
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.
According to the observation of CPR, applicants have been returned similarly to other Dublin cases.
According to the available information, in the case of relocation, asylum seekers who have absconded and were transferred back to Portugal in accordance with the Dublin Regulation were systematically provided reception conditions upon arrival either by the initial reception service provider, or by a different service provider.
 Article 37(1) Asylum Act.
 TAC Lisbon, Decision 2334/17.5BELSB, 24 November 2017, unpublished.
 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.
 TAC Lisbon, Decision 1516/19.0BELSB, 16 October 2019, unpublished.
 According to the SEF, there were 4 outgoing and 3 incoming take charge requests pursuant to Article 17(2) of the Regulation in 2019, and 0 outgoing and 2 incoming such requests in 2020.
 The latest available at the time of writing.
 Transfer decisions to such countries adopted in 2016 and 2017 did mention possible risks of refoulement, indicating that detention and reception conditions, guarantees in the asylum procedure and access to an effective remedy in the responsible Member State are not consistently taken into consideration when deciding whether or not to apply the “sovereignty clause”.
 The report highlights that these applicants will have to explicitly accept the transfer to Portugal. Observatory for Migration, Entrada, Acolhimento e Integração de Requerentes e Beneficiários de Protecção Internacional em Portugal – Relatório Estatístico do Asilo 2020, May 2020, p.132, available in Portuguese at: https://bit.ly/2MGYtB9.
According to the information provided by IOM, the provision of material reception conditions to applicants for/beneficiaries of international protection transferred within this protocol will be ensured by a host entity for a period of 18 months (a model similar to those adopted within the context of the EU relocation mechanism and resettlement, for instance).
 Articles 36 and 37(1) Asylum Act.
 Article 39 Asylum Act. A recent decision from TCA South clarified that the suspension of the 30-day deadline provided for in article 20 is operated by the internal order determining that a case will be processed under the Dublin procedure following the identification of a Eurodac hit. TCA South, Decision 1167/20.7BELSB, 17 December 2020, available at: https://bit.ly/3tMrfAn.
 Article 35-A(3)(c) Asylum Act.
 Article 15(1)(e) Asylum Act.
 Article 19(1)(j) Asylum Act.
 Article 49(1)(b) Asylum Act.
 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.
 ECtHR, Tarakhel v. Switzerland, Application No 29217/12, 4 November 2014.
 CJEU, Jawo, Case C-163/17, 19 March 2019.
 For example: 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.
 Article 35-A(3)(c) Asylum Act.
 Article 37(3) Asylum Act.
 In 2019, SEF indicated that, 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 was 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, was of 15 to 20 days.
 Article 16(1)-(3) Asylum Act.
 Article 16(5) Asylum Act.
 According to information shared by SEF for 2018, there were no cases where a decision was taken without a personal interview.
 TAC Lisbon, Decision 275/18.9BELSB, 12 April 2018.
 Article 121 Administrative Procedure Code.
 Article 122 Administrative Procedure Code.
 A practice observed at least since the third trimester of 2019.
 This interpretation, which was already adopted in previous jurisprudence, was reaffirmed by the Supreme Administrative Court in at least two rulings in 2019: 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.
 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 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 must adjust the questions to the concrete situation at stake.
 Articles 121 et seq Administrative Procedure Code.
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.
 STA, Decision 0688/19.9BESNT, 2 April 2020, available at: https://bit.ly/3rmUg3Z; STA, Decision 0780/19.0BELSB, 20 February 2020, available at: DGSI: https://bit.ly/31gSNSr; TCA South, Decision 2221/19.3BELSB, 18 June 2020, available at: https://bit.ly/3fbGONR. The latter summarises a number of decisions from the Supreme Court. The judges explain that, while they formerly followed the understanding that Article 5 of the Dublin Regulation was the relevant legal framework, their position changed given that STA predominantly considers that Articles 16 and 17 of the Asylum Act apply to Dublin procedures and that provides additional guarantees to the applicant.
 The Court links the right to participation of article 5 Dublin Regulation to article 267 of the Constitution and article 121 of the Administrative Procedure Code. STA, Decision 0645/19.5BELSB, 21 May 2020, available at: https://bit.ly/3vToAqB.
 TCA South, Decision 1932/19.8BELSB, 16 April 2020, available at: https://bit.ly/2PtuY7h; TCA South, Decision 670/19.6BELSB, 14 May 2020, available at: https://bit.ly/3lKifc5; TCA South, Decision 2364/18.0BELSB, 14 May 2020, available at: https://bit.ly/3d3LrqC; TCA South, Decision 1301/19.0BELSB, 14 May 2020, available at: https://bit.ly/3177qYm; TCA South, Decision 2317/19.1BELSB, 14 May 2020, available at: https://bit.ly/3cdcctC.
 TCA South, Decision 670/19.6BELSB, 14 May 2020, available at: https://bit.ly/3lKifc5; TCA South, Decision 2364/18.0BELSB, 14 May 2020, available at: https://bit.ly/3d3LrqC; TCA South, Decision 1301/19.0BELSB, 14 May 2020, available at: https://bit.ly/3177qYm; TCA South, Decision 2317/19.1BELSB, 14 May 2020, available at: https://bit.ly/3cdcctC.
 TCA South, Decision 613/20.4BELSB, 15 October 2020, unpublished.
 Article 37(4) Asylum Act; Article 95(3) Administrative Court Procedure Code.
 Article 37(4) and (6) Asylum Act.
 Article 37(5) Asylum Act.
 TAC 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.
 CJEU, Case C-63/15 Ghezelbash, Judgment of 7 June 2016.
 TAC Lisbon, Decision 1235/16.0BESLB, 14 September 2016, unpublished.
 TAF Sintra, Decision 555/17.0BESNT, 15 February 2018, unpublished.
 In 2018, CPR was not aware of transfer decisions to Hungary, but the data from SEF indicated 3 outgoing requests.
 TAC Lisbon, Decision 461/18.1BELSB, 10 April 2018, unpublished; TAC Lisbon, Decision 741/18.6BELSB, 8 August 2018, unpublished.
 The applicant described having been accommodated in containers shared with other people (increasing the risk of coronavírus infection) and unable to find a job in Spain.
 The Court further noted that SEF is only exceptionally required to analyse the existence of systemic flaws per the jurisprudence of the STA regarding Italy (see infra). TCA South, Decision 938/20.9BELSB, 15 October 2020, available at: https://bit.ly/3vUViYC.
 TCA South, Decision 775/19.3BELSB, 10 September 2020, available at: https://bit.ly/34FHYM0. One of the three judges dissented on the grounds that a transfer to Denmark would not violate the principle of non-refoulement as the country is also bound to the relevant rules of EU and International Law and is therefore obliged to take them into account in any return procedure. The dissent also notes that the applicant may appeal of any such decision.
 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.
 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.
 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.
 STA, Decision 01108/19.4BELSB, 11 May 2020, available at: https://bit.ly/3lXMxZ9; STA, Decision 01322/19.2BELSB, 4 June 2020, available at: https://bit.ly/3feFnOY; STA, Decision 01088/19.6BELSB, 2 July 2020, available at: https://bit.ly/3riiCN1; STA, Decision 01786/19.4BELSB, 2 July 2020, available at: https://bit.ly/3rlpk4h; STA, Decision 01419/19BELSB, 9 July 2020, available at: https://bit.ly/3fdz51X; STA, Decision 03421/19.1BEPRT, 10 September 2020, available at: https://bit.ly/3d3nmjT; STA, Decision 01705/19.8BELSB, 10 September 2020, available at: https://bit.ly/39dVSXH; STA, Decision 02364/18.0BELSB, 5 November 2020, available at: https://bit.ly/3tUOI2i; STA, Decision 01932/19.8BELSB, 5 November 2020, available at: https://bit.ly/3w1B67x; STA, Decision 01301/19.0BELSB, 19 November 2020, available at: https://bit.ly/39fas0S; STA, Decision 02212/19.4BELSB, 10 December 2020, available at: https://bit.ly/3d5ncbB.
 Unofficial translations.
 It is thus unclear how the assessment would be conducted in cases of take charge procedure where the applicant was not physically present in the relevant Member State before but claims that there are systemic deficiencies or that he/she would be subject to a risk of torture, inhuman or degrading treatment in such Member State.
 E.g. TCA South, Decision 2329/19.5BELSB, 30 April 2020, available at: https://bit.ly/3rfQ0TO (referring to the relevance of mutual trust); TCA South, Decision 2323/19.6BELSB, 02 July 2020, available at: https://bit.ly/3vQVo3m (referring to the relevance of mutual trust and the need to prevent asylum shopping); TCA South, Decision 695/20.9BELSB, 24 September 2020, available at: https://bit.ly/3vUzs7q (highlighting the inexistence a general ex officio duty of analysis of the situation in the relevant Member State that the applicant’s statements did not point towards the applicability of article 3(2) Dublin Regulation and the notorious facts do not require an ex officio evaluation); TCA South, Decision 1052/20.2BELSB, 15 October 2020, available at: https://bit.ly/3sfK6Uc; TCA South, Decision 357/20.7BELSB, 29 October 2020, available at: https://bit.ly/3setb4t; TCA South, Decision 1117/20.0BELSB, 12 November 2020, available at: https://bit.ly/318BJxV; TCA South, Decision 1122/20.7BELSB, 26 November 2020, available at: https://bit.ly/3tMPXAO.
 TCA South, Decision 2364/18.0BELSB, 14 May 2020, available at: https://bit.ly/3d3LrqC (an English EDAL case summary is available at https://bit.ly/3t1EJZ5). This decision was later reversed by the STA. TCA South, Decision 1301/19.0BELSB, 14 May 2020, available at: https://bit.ly/3177qYm). This decision was later reversed by the STA. TCA South, Decision 2317/19.1BELSB, 14 May 2020, available at: https://bit.ly/3cdcctC.
 CJEU, Jawo, Case C-163/17, 19 March 2019.
 TCA South, Decision 1889/19.5BELSB, 14 May 2020, available at: https://bit.ly/3rfSscW; (referring both to the risk of direct and indirect refoulement); TCA South, Decision 61/20.6BELSB, 2 July 2020, available at: https://bit.ly/3f9Od0a (referring only to the absence of risks in the relevant Member State, one of the judges dissented on the grounds that the transfer to Italy would amount to a violation of the principle of non-refoulement and that risk of refoulement in case of return to the country of origin should have also been assessed; an English EDAL case summary is available at https://bit.ly/3cVM0E8); TCA South, Decision 65/20.9BELSB, 24 September 2020, available at: https://bit.ly/3cV2IlK (referring only to the absence of risks in the relevant Member State); TCA South, Decision 988/20.5BELSB, 1 October 2020, available at: https://bit.ly/3tMexSj; TCA South, Decision 1050/20.6BELSB, 29 October 2020, available at: https://bit.ly/3sb5dXE.
 Article 40(1) Asylum Act.
 Article 32(1)(c) and (2) Asylum Act.
 Article 32(3) of the Asylum Act.
 European Commission, Ares (2018) 4489201, 31 August 2018.