Regular procedure

Portugal

Country Report: Regular procedure Last updated: 30/11/20

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Portuguese Refugee Council Visit Website

General (scope, time limits)

 

The first instance determining authority is required to take a decision on the asylum application within 6 months. This time limit is additional to the duration of the admissibility procedure and can be extended to 9 months in cases of particular complexity.[1] The Asylum Act does not provide for specific consequences in case of failure to meet the time limit and, in practice, asylum seekers are reluctant to act on the delay on the basis of general administrative guarantees, e.g. by requesting Administrative Courts to order SEF to issue a decision on the application within a given time limit.[2]

The significant increase in the number of spontaneously arriving asylum seekers and relocated asylum seekers has led SEF-GAR to recruit additional staff in the recent years. In 2019, there were 1,849 spontaneous asylum applicants in Portugal, up from 1,270 in 2018.[3]

SEF was not able to share an estimation of the average duration of the procedure at first instance for 2019. In 2018, SEF indicated that the average duration of the asylum procedure was of 7 working days, a reference probably related to the average duration of admissibility and accelerated procedures at the border.

CPR was able to gather information on 26 regular procedure decisions issued in the course of 2019, including decisions communicated by SEF in accordance with the law, and decisions that reached CPR’s knowledge by different avenues, i.e. through direct contacts with applicants. In these 26 cases, the duration of the regular procedure[4] ranged from 107 to 1,595 days, with an average duration of 843 days.[5] CPR is uncertain whether the low number of notifications of asylum decisions is related to gaps in communication or indicates further delays in the decision-making process.  

In the context of the provision of legal assistance to asylum seekers, CPR has also at times observed significant delays in the execution of judicial decisions by SEF. According to CPR’s observation, this mostly concerned the execution of judicial decisions that annulled first instance decisions rejecting applications in accelerated procedures and consequently condemned the Administration to channelling them into the regular procedure.

 

Prioritised examination and fast-track processing

 

While no statistics are available,[6] according to SEF, cases of vulnerable applicants (e.g. pregnant women, applicants accompanied by young children, elderly persons, applicants in need of medical care) are fast-tracked. SEF did not share information on the impact of fast-tracking in the average duration of the procedure.

The statistical information collected by CPR for 2019, which is based on the information received from the SEF, does not indicate a clear trend in this regard. The average duration of the first instance procedure for vulnerable asylum seekers such as unaccompanied children in the regular procedure does not seem to clearly differ from that of other caseloads. In 2017, the National Confederation of Solidarity Institutions (Confederação Nacional das Instituições de Solidariedade (CNIS) reported that the examination of the asylum application of the 4 unaccompanied asylum-seeking children transferred to Portugal from Greece in the framework of its pilot project (see Dublin: General) were clearly prioritised (processed under 6 months) in relation to other clients in the framework of the relocation programme. No children were transferred to Portugal under this scheme since then.[7]

 

Personal interview

 

The Asylum Act provides for the systematic personal interview of all asylum seekers in the regular procedure prior to the issuance of a first instance decision.[8] The personal interview can only be waived  where:

  1. The evidence already available allows for a positive decision; or
  2. The applicant lacks legal capacity due to long-lasting reasons beyond his or her control.[9]

In this case, SEF is required to offer the applicant or his or her dependant(s) the opportunity to communicate relevant information by other means.[10]

The asylum seeker is entitled to give his or her statement in his/her preferred language or in any other language that he/she understands and in which he/she is able to communicate clearly.[11] To that end, the asylum seeker is entitled to the assistance of an interpreter when applying for asylum and throughout the asylum procedure, if needed.[12] The asylum seeker can also be assisted by a lawyer but the absence thereof does not preclude the SEF from conducting the interview.[13]

While SEF did not share the number of cases where a decision was adopted in the absence of a personal interview, it affirmed that applicants are guaranteed the right to an interview before any decision regarding their application is adopted, emphasising that interviews can only be waived in the cases listed in the Asylum Act. SEF also noted that interviews are conducted in all types of procedure, including Dublin. According to information shared by SEF for 2018, there were no cases where a decision was taken without a personal interview. However, in the view of CPR, it is not clear whether all asylum seekers were provided a personal interview in the framework of Dublin procedures in 2018 and 2019 (see: Dublin: Personal Interview).

In some instances in 2019, CPR was informed by SEF of the adoption of decisions not to proceed with the analysis of the application due to the impossibility to perform the personal interview (e.g. because the applicant absconded) on the basis of general administrative procedure rules.[14]

The interview is generally conducted by SEF-GAR, although interviews are at times conducted by SEF’s regional representations in cases of asylum applications made in more remote locations. Such interviews are conducted on the basis of a questionnaire prepared by SEF-GAR. According to CPR’s observations, the interviews conducted by the SEF’s regional representations tend to be less technically accurate and sometimes fail to adequately clarify material facts of the claim.

Interpretation

The quality of interpretation services used for interviews remains a serious challenge, as in many cases service providers are not trained interpreters but rather individuals with sufficient command of source languages. While the interpreters are bound by a legal duty of confidentiality, there is no agreed code of conduct used by the SEF. In 2015, CPR conducted training for interpreters in partnership with the Portuguese Association of Conference Interpreters (APIC) focusing on technical aspects of interpretation and on Asylum Law.

In November 2017, the High Commission for Migration (ACM) organised a training for interpreters who work with reception service providers as well as professionals who resort to interpreters in the provision of reception and health services to asylum seekers and beneficiaries of international protection. The training was conducted by experts of the International Rescue Committee in the framework of the European Resettlement and Integration Technical Assistance (EURITA) joint project of the U.S. Department of State and the International Rescue Committee. It consisted of a 2-day training for interpreters and a 1- to 2-hour training for professionals. The training was not focused on interpretation in asylum procedures, however. According to the information shared by ACM, an online training to interpreters and professionals was conducted by EURITA in January 2018.

In the case of rarer languages – e.g. Tigrinya, Pashto, Bambara, Lingala, Tamil, Kurdish and to a lesser extent Arabic and Farsi – securing interpreters with an adequate command of the target language remains very challenging.

Recording and report

The Asylum Act does not provide for the audio and/or video recording of the interview or for conducting interviews and/or interpretation through videoconferencing, and CPR is not aware of its use. For 2019, SEF confirmed that such means were not used.

SEF produces a written report summarising the most important elements raised during the interview. The report is immediately provided to the applicant who has 5 days to submit comments.[15] Upon consent of the applicant, the report must also be communicated to UNHCR and to CPR, and the organisations may submit observations within the same deadline.[16] CPR provides systematic legal assistance to asylum seekers at this stage, with the assistance of interpreters, for the purpose of reviewing and submitting comments / corrections to the report. Given that the written report is drafted during the interview, the case officer is under significant time pressure to complete both the interview and the report and this generally results in the applicant having to make many comments and corrections. Moreover, in many instances, applicants reported to CPR that the document was not read to them in a language they understand before they were asked to sign it. In some instances in 2019, applicants also reported being advised by the interpreter during the interview to renounce to their right to reply to the written report.

CPR has also been made aware that when the interview is conducted following admission to the regular procedure, the applicants are not, at least in some instances, given the corresponding written report. Moreover, such reports are also not communicated to CPR on a systematic basis.[17] This practice is problematic as it curtails the applicant’s right to submit comments and corrections to the report and may also impact the applicant’s ability to fully exercise other procedural rights at later stages of the procedure. Moreover, it seems to be in contradiction both with the domestic legal framework and the recast Asylum Procedures Directive.[18]

 

Appeal

 

First appeal before the Administrative Court

The Asylum Act provides for an appeal against the first instance decision in the regular procedure consisting of judicial review of relevant facts and points of law by the Administrative Court.[19] The asylum seeker has 15 days to lodge the appeal, which has automatic suspensive effect.[20]

A ruling of the Supreme Administrative Court has clarified that appeals against decisions regarding the grant of asylum are free of charge.[21] This is also established by the Asylum Act that provides for the free and urgent nature of procedures regarding the grant or loss of international protection both in the administrative and judicial stages.[22]

Administrative Courts have a review competence which allows them to either:

(1) confirm the negative decision of the first instance decision body;

(2) annul the decision and refer the case back to the first instance decision body with guidance on applicable standards;[23] or

(3) overturn it by granting refugee or subsidiary protection status.[24]

The Asylum Act qualifies the judicial review as urgent,[25] and provides for a simplified judicial process with reduced formalities and time limits with the objective of shortening the duration of the judicial review.[26]

The information provided by the High Council of Administrative and Fiscal Courts (Conselho Superior dos Tribunais Administrativos e Fiscais – CSTAF) for 2019 regarding the duration of judicial reviews of first instance decisions does not make a distinction between the type of asylum procedure. According to these statistics, the average duration of appeals in 2019 was of 2 to 3 months.

While the Asylum Act does not specifically provide for a hearing of the asylum seeker during the appeal procedure, such a guarantee is enshrined in the general procedure that provides for the hearing of the parties.[27] This is rarely used in practice by lawyers and accepted by the Court when requested, as procedures before the Administrative Court tend to be formalistic and essentially written.[28] As a general rule, the hearing of the appeal body is public but the judge may rule for a private audience based on the need to protect the dignity of the individual or the smooth operation of the procedure.[29]

In practice, and without prejudice to issues such as the poor quality of Legal Assistance and language barriers that have an impact on the quality and effectiveness of appeals, CPR is not aware of systemic or relevant obstacles faced by asylum seekers to appealing a first instance decision in the regular procedure.

According to the CSTAF, a total of 552 appeals were lodged against negative asylum decisions in 2019. Out of these, 525 were filled in front of the TAC Lisbon, marking a 40% increase compared to 2018. TAC Lisbon rendered decisions on 446 of the appeals filled in 2019 while 79 were pending at the end of the year.

The information provided by the CSTAF for 2019 regarding the outcome of judicial reviews of first instance decisions indicates a poor success rate at appeal stage (19.3% at TAC Lisbon and 20% at national level). However, as mentioned in Statistics, these figures do not make a distinction between the type of asylum procedure. In this regard, it must be acknowledged that the quality of many appeals submitted is often poor, given that very few lawyers have relevant expertise in the field.

Onward appeal

In case of rejection of the appeal, onward appeals are possible before the Central Administrative Court (Tribunal Central Administrativo – TCA), consisting of a full judicial review of relevant facts and points of law,[30] with automatic suspensive effect.[31] Furthermore, the law provides for an additional appeal with automatic suspensive effect before the Supreme Administrative Court (Supremo Tribunal Administrativo, STA) on points of law but only in exceptional cases of fundamental importance of the appeal for legal and social reasons or to improve the quality of legal reasoning in decision-making more broadly.[32] The STA makes its own assessment and decision on the facts of the case.[33] In both cases the asylum seeker has 15 days to lodge the appeal.[34]

The rulings of second instance Administrative Courts (TCA) and the STA are systematically published.[35] According to information provided by CSTAF, Higher Courts do not collect autonomous data on asylum-related processes.

 

Legal assistance

 

The Portuguese Constitution enshrines the right of every individual to legal information and judicial remedies regardless of their financial condition.[36]

Legal assistance at first instance

The Asylum Act in particular provides for the right of asylum seekers to free legal assistance at all stages of the asylum procedure which is to be understood as including the first instance of the regular procedure.[37] Such legal assistance is to be provided without restrictions by a public entity or by a non-governmental organisation in line with a Memorandum of Understanding (MoU).[38]

Furthermore, under the Asylum Act, UNHCR and CPR as an organisation working on its behalf must be informed of all asylum applications in Portugal and are entitled to personally contact all asylum seekers irrespective of the place of application to provide information regarding the asylum procedure, as well as regarding their intervention in the procedure (dependent on the consent of the applicant).[39] These organisations are also entitled to be informed of key developments in the asylum procedure upon consent of the applicant,[40] and to present their observations at any time during the procedure pursuant to Article 35 of the 1951 Refugee Convention.[41]

In practice, CPR provides free legal assistance to spontaneously arriving asylum seekers during the first instance regular procedure on the basis of MoUs with the Ministry of Home Affairs and UNHCR. The legal assistance provided by CPR at this stage includes:

  • Providing information regarding the asylum procedure, rights and duties of the applicant;
  • Conducting refugee status determination interviews in order to assist the applicants in reviewing and submitting comments / corrections to the report narrating the most important elements of their interview with the determining authority;
  • Providing SEF with observations on applicable legal standards and country of origin information (COI);
  • Providing assistance in accessing free legal aid for appeals; and
  • Assisting lawyers appointed under the free legal aid system in preparing appeals with relevant legal standards and COI.

Regarding particularly vulnerable asylum seekers, CPR provides specific legal assistance to unaccompanied asylum-seeking children. This includes the presence of one of CPR’s legal officers during the personal interview with SEF (see Legal Representation of Unaccompanied Children) as well as the provision of legal information and assistance in the framework of procedures before the Family and Juvenile Court.[42]

CPR also provides legal information and assistance to relocated asylum seekers upon request. This includes, for instance, providing legal information on the asylum procedure, family reunification procedures and other integration-related matters, and submitting observations on applicable legal standards. In 2019, legal assistance by CPR mostly focused on providing support to family reunification and other integration-related issues.

According to SEF, the total number of requests for legal assistance by asylum seekers during the first instance procedure in 2019 was 783, compared to 378 in 2018. However, these statistics are most likely related to legal aid at appeal stage and do not offer a breakdown of the total number of requests by type of procedure concerned.

In 2019, CPR provided legal support to 1,553 spontaneously arriving asylum seekers in all types of asylum procedures lodged throughout the year, which represents around 90.6% of the total number of spontaneous applications communicated to CPR according to the law (1,714) and 84% of the total number of spontaneous applicants (1,849).

However, the continued increase of spontaneous asylum applications since 2017 has further exacerbated the pressure on CPR’s capacity and resulted in gaps in the provision of legal assistance at first instance, particularly regarding asylum seekers placed in detention or private accommodation in more remote locations. Efforts to reduce such gaps focus, for instance, on the remote provision of assistance (e.g. by telephone and/or e-mail communication).

It should be noted that there are other organisations that also provide legal information and assistance to asylum seekers during the first instance of the regular procedure such as the Jesuit Refugee Service (JRS) Portugal, CNIS regarding unaccompanied asylum-seeking children who were transferred to Portugal in accordance with the “humanitarian clause” of the Dublin Regulation under a pilot project in 2017, and to a lesser extent the High Commission for Migration (ACM) through their National Centres for Migrants’ Integration (CNAIM) and 100 Local Support Centres for Migrants Integration (Centro Local de Apoio à Integração de Migrantes, CLAIM) spread throughout the country. According to the available information, these services remain residual and mostly focused on integration.

Legal assistance in appeals

Regarding legal assistance at appeal stage, the Asylum Act provides for the right of asylum seekers to free legal aid in accordance with the law.[43] The legal framework of free legal aid provides for a “means assessment” on the basis of the household income,[44] as only applicants who do not hold sufficient income are entitled to free or more favourable conditions to access legal aid.[45] The application is submitted to the Institute of Social Security (Instituto da Segurança Social, ISS) that conducts the means assessment[46] and refers successful applications to the Portuguese Bar Association (Ordem dos Advogados). The Bar appoints a lawyer,[47] on the basis of a random/automatic selection procedure.[48] The sole responsibility for organising the selection lies with the Portuguese Bar Association but such procedure should ensure the quality of the legal aid provided.[49] While the average duration of this procedure in 2019 was around 1 week, the law provides for the suspension of the time limit for the appeal upon presentation of the free legal aid application and until the free legal aid appointed lawyer submits the judicial appeal.[50]

It should be noted that the national legislation provides for a “merits test” to be conducted by the appointed lawyer according to which free legal assistance can be refused on the basis that the appeal is likely to be unsuccessful. In that case, the free legal aid lawyer can excuse him/herself from the case and the Portuguese Bar Association can choose not to appoint a replacement.[51]

According to the figures provided by the SEF, the likely number of requests for legal assistance by asylum applicants at appeal stage in 2019 was 783. These statistics do not offer a breakdown of the total number of requests by type of procedure concerned.

In general, asylum seekers in the regular procedure enjoy unhindered access to free legal aid at appeal stage as the practical implementation of the “means test” conducted by ISS or the “merits test” conducted by free legal aid appointed lawyers have not resulted in a significant number of refusals so far.

  • In the case of the “means test” conducted by the ISS, the fact that asylum seekers admitted to the regular procedure are issued a provisional residence permit and are therefore entitled to access the labour market (see Access to the Labour Market) has at times resulted in asylum applicants having a level of income that excludes them from free legal aid. In this case, given the usually limited levels of income, they can still be offered more favourable conditions to access legal aid such as instalments.
  • In the case of the “merits test”, as reported in previous years, the practice of the Portuguese Bar Association remained inconsistent. In 2019, CPR witnessed an increasing number of cases where, following a refusal by the appointed lawyer to provide free legal aid on the grounds that the chances of success were limited, the Bar Association chose not to appoint a replacement. In some instances, this happened following the assessment of only one lawyer. While some of these decisions were later reversed following revision requests submitted with the support of CPR, this is a concerning practice that may have an impact on the effective access to legal aid by asylum seekers.

Another concern relates to the overall quality of free legal aid at appeal stage, as the current selection system is based on a random/automatic selection procedure managed by the Portuguese Bar Association. This is done on the basis of preferred areas of legal assistance chosen beforehand by the appointed lawyers.[52] Such areas are general in nature and not specifically related to Asylum Law.  In general, appointed lawyers are not trained in Asylum Law and have limited experience in this specific field.

In cooperation with UNHCR, CPR continued its effort to engage with the Portuguese Bar Association with the aim of providing training to relevant lawyers in 2019. Discussions were also held on other measures which could help to improve the quality of appeals.

In September and October 2017, CPR provided a training module to judges, public prosecutors and lawyers on European and EU asylum case law in the framework of an EU funded training programme.[53] In January 2019, CPR also provided a training session for judges and public prosecutors of the Administrative Courts focusing on evidence and credibility assessment, within the framework of a continuous training on asylum and immigration organised by the Centre for Judicial Studies (Centro de Estudos Judiciários, CEJ). Throughout 2019, CPR continued to deliver trainings on asylum-related matters to diverse audiences, including judges.

Additional persisting challenges in this regard include the absence of an easily accessible interpretation service, which hinders the communication between the lawyer and the client during the preparation of the appeal. Although ACM’s translation hotline can constitute a useful tool in this regard, it is insufficiently used by lawyers according to CPR’s experience.[54] Moreover, the expenses for the preparation of the appeal, including for interpretation and translation of documents, need to be paid in advance by the appointed lawyer who can then ask the court for reimbursement.[55] This is an additional obstacle to effective legal representation at this stage.

 


[1] Article 28(2) Asylum Act.

[2] Article 129 Decree-Law 4/2015; Article 66(1) Administrative Court Procedure Code.

[3] As a comparison, there were 1,750 in 2017 (both spontaneous and relocated asylum seekers); 1,469 in 2016 (spontaneous and relocated); 896 (spontaneous and relocated) in 2015 and 447 (spontaneous) in 2014.

[4] Time comprised between the date of the application and the date of issuance of the first instance decision on the asylum procedure.

[5]  CRESCER also shared the occurrence of significant delays regarding 19 relocated asylum seekers assisted by the organisation

[6] Neither regarding the number of cases to which prioritised analysis was applied, nor the impact of the adoption of fast-track procedures in the duration of the analysis.

[7] However, in March 2020, Portugal was one of the EU Member States that agreed to receive unaccompanied children from the Greek Islands. At the time of writing, information was not publicly available on the details and implementation of this arrangement. See LUSA, ‘Portugal: Country offers to take in unaccompanied minors from Greek Islands’, 9 March 2020, available at: https://bit.ly/2yUZQoG.  

[8] Article 16(1), (2) and (3) Asylum Act.

[9] Article 16(5) Asylum Act.

[10] Article 16(6) Asylum Act.

[11] Article 16(1) Asylum Act.

[12] Article 49(1)(d) Asylum Act.

[13] Article 49(7) Asylum Act.

[14] Article 119(3) Administrative Procedure Code.

[15] Article 17 (1) and (2) Asylum Act.

[16] Article 17(3) Asylum Act.

[17] According to article 17(3) Asylum Act, upon consent of the applicant, the report is to be communicated to UNHCR and to CPR as organisation working on its behalf. Such entities may submit observations.

[18] Article 17(3) Asylum Procedures Directive.

[19] Article 30(1) Asylum Act; Article 95(3) Administrative Court Procedure Code.

[20] Article 30(1) Asylum Act.

[21] Supreme Administrative Court, Decision 408/16, 17 November 2016, available in Portuguese at: https://bit.ly/2W9NY9L.

[22] Article 84 Asylum Act.

[23]Article 71(2) Administrative Court Procedure Code. In practice this is normally the case when the courts find that there are relevant gaps in the assessment of the material facts of the claim, thus requiring the first instance decision body to conduct further investigations.

[24] Article 71(1) Administrative Court Procedure Code.

[25] Article 84 Asylum Act.

[26] Article 30(2) Asylum Act; Article 110 Administrative Court Procedure Code.

[27] Article 90(2) Administrative Court Procedure Code; Article 466 Act 41/2013.

[28] According to the information provided by CSTAF regarding appeals at TAC Lisbon, hearings of the asylum seeker were held in 2 cases in 2019.

[29] Article 91(2) Administrative Court Procedure Code; Article 606 Act 41/2013.

[30] Article 149(1) Administrative Court Procedure Code; Article 31(3) Act 13/2002.

[31] Article 143(1) Administrative Court Procedure Code.

[32] Articles 143(1) and 150(1) Administrative Court Procedure Code.

[33] Article 150(3) Administrative Court Procedure Code.

[34] Article 147 Administrative Court Procedure Code.

[35] Decisions are available at: http://www.dgsi.pt/.

[36] Article 20(1) Constitution.

[37] Article 49(1)(e) Asylum Act.

[38] Ibid.

[39] Article 13(3) Asylum Act. See also Article 24(1) concerning applications at the border, Article 33(3) Asylum Act concerning subsequent applications, Article 33-A(3) concerning applications following a removal procedure.

[40] Article 17(3): document narrating the essential facts of the request; Article 20(1): decision on admissibility and accelerated procedures in national territory; Article 24(5): decision on admissibility and accelerated procedures at the border; Article 29(6) first instance decision in the regular procedure; Article 37(5): Dublin take charge decision.

[41]  Article 28(5) Asylum Act.

[42] These procedures are provided in the General Regime of Civil Guardianship Process, 141/2015, and the Children and Youths at Risk Protection Act, 147/99.

[43] Article 49(1)(f) Asylum Act.

[44] Act 34/2004; Ministerial Order 10/2008.

[45] Article 8-A and Annex Act 34/2004.

[46] Article 22 Act 34/2004.

[47] Article 30 Act 34/2004.

[48]Article 2(1) Ministerial Order 10/2008.

[49] Article 10(2) and (3) Ministerial Order 10/2008.

[50] Article 33(4) Act 34/2004. See e.g. TCA South, Decision 10733/13, 2 April 2014, available in Portuguese at: http://bit.ly/2gyVQOJ.

[51] Article 34(5) Act 34/2004.

[52] Article 3(3)(c) Regulation of the Bar Association 330-A/2008 of 24 June 2008.

[53] The Charter of Fundamental Rights of the EU "in action", available at: https://goo.gl/1G9LBf.

[54] ACM’s interpretation hotline relies on a database of 60 interpreters/translators to enable communication with non-Portuguese speaking citizens. Access is free of charge (cost of a local call) and can be used on working days, between 9:00 and 19:00. It is possible to request the interpretation immediately (upon availability of interpreter) or to schedule a call. Additional information, including the list of languages covered, is available at http://bit.ly/2A4Ekga.

[55] Article 8(3) Ministerial Order 10/2008.

 

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