Author
National forms of protection
The Asylum Act does not provide for any form of national protection. Although not providing for a specific national protection, the Immigration Act provides for an exceptional regularisation regime that includes a humanitarian clause.[1]
This regime is intended for extraordinary situations to which provisions of a residence permit with exemption of residence visa requirement are not applicable,[2] as well as for cases of residence permits for humanitarian reasons under the Asylum Act. The issuance of these temporary residence permits to foreign citizens who do not comply with other requirements of the Immigration Act is dependent on a proposal from the Board of AIMA or an initiative from the Minister responsible for the field of migration.[3] The decision must be duly substantiated.[4]
This exceptional regularisation procedure may be applicable:
- For reasons of national interest;
- For humanitarian reasons;
- For reasons of public interest arising from the exercise of a relevant activity in the scientific, cultural, sports, economic or social field.
Children under a protective measure in the framework of child protection procedures in the Family and Juvenile Courts are considered to fall within the scope of a humanitarian clause.[5]
In the past, CPR observed that the previous asylum authority referred certain rejected asylum applications to the regularisation procedures through the humanitarian clause of the exceptional regularisation regime of the Immigration Act, including cases of unaccompanied children and young adults (See: Differential treatment of specific nationalities in the procedure).[6] AIMA does not seem to follow this practice.
In the context of providing legal assistance, CPR has observed that access to this regime may be hampered by the lack of documents issued by the country of origin (e.g., passports and criminal record certificates).
There is no publicly statistical data available on the application of this exceptional regularisation regime[7] and AIMA did not provide data for 2024.
Return procedure
The Asylum Act does not provide for a simultaneous decision to refuse the application for international protection and a forced removal from national territory.
Notwithstanding, it establishes that, following notification of a decision to reject an application for international protection, the applicant is subject to the legal regime for the entry, stay, exit and removal of foreign citizens from national territory (Immigration Act), without prejudice to the suspensive effect of an appeal.[8]
Upon notification of a negative decision on an admissibility or accelerated procedure, and on a subsequent application, the applicant is simultaneously notified to voluntarily leave the national territory within 20 days, without prejudice to the suspensive effect of an appeal.[9]
According to AIMA, 303 notifications to voluntarily leave the national territory were issued in 2024.
Also according to AIMA, there were no cases in 2024 where the asylum application was rejected and it was not possible to remove the person from national territory due to political and/or practical obstacles.
Nevertheless, AIMA reports that in 2024 there were cases of Syrian citizens who did not apply for asylum and whose removal from national territory was not possible due to the principle of non-refoulement.
[1] Article 123 Immigration Act.
[2] Article 122 Immigration Act.
[3] Article 123(1) Immigration Act.
[4] Article 123(3) Immigration Act.
[5] Article 123(2) Immigration Act.
[6] Note that this practice was confirmed in the Statistical Report of Asylum (2020) in the case of Venezuelan asylum applicants: Observatory for Migration, Entrada, Acolhimento e Integração de Requerentes e Beneficiários de Protecção Internacional em Portugal – Relatório Estatístico do Asilo 2020, May 2020, available Portuguese here, 62.
[7] AIMA’s ‘Migration and Asylum Report’ for 2023 does not make any reference to residence permits under Article 123 Immigration Act. See AIMA, Relatório de Migrações e Asilo – 2023, September 2024, available here.
[8] Articles 21, 26, 31, 33 and 42 Asylum Act.
[9] Articles 21(2) and 33(9) Asylum Act.