Subsequent applications

Portugal

Country Report: Subsequent applications Last updated: 30/11/20

Author

Portuguese Refugee Council Visit Website

The law provides for specific features in the Admissibility Procedure regarding subsequent applications. This includes (i) a time limit of 10 days for the adoption of an admissibility decision at first instance i.e. preliminary assessment;[1] (ii) the absence of automatic consequences in case of non-compliance with the time limit for deciding on admissibility; (iii) reduced guarantees regarding the right to a personal interview and to seek revision of the narrative of the personal interview;[2] (iv) specific criteria for assessing the admissibility of the claim;[3] and (v) partially different time limits and effects of (onward) appeals.[4]

The Asylum Act does not provide, however, for specific rules regarding the right to remain on the territory pending the examination of the application,[5] or the suspension of a removal order,[6] nor does it provide specific time limits or limitations on the number of subsequent applications a person can lodge.[7] However, an “unjustified” subsequent application can lead to the Reduction or Withdrawal of Reception Conditions.[8]

The National Director of SEF remains the competent authority to take a decision on the admissibility of subsequent applications.[9]

The criteria for assessing the admissibility of the subsequent claim are enshrined in the Asylum Act and consist in whether new elements of proof have been submitted or if the reasons that led to the rejection of the application have ceased to exist.[10] The law does not provide further clarifications on what is to be considered as a new element of proof or the cessation of the rejection motives but clarifies that the preliminary admissibility assessment also encompasses cases where the applicant has explicitly withdrawn his or her application and cases where SEF has rejected an application following its implicit withdrawal.[11]

A first instance decision on the admissibility of a subsequent application from 2016 makes reference to a “substantial and fundamental” difference as criteria for assessing the admissibility of the subsequent application whereas several first instance decisions from 2018 refer to “any event occurred since prior decisions at first instance and appeal stages”, “new elements of proof regarding the alleged facts” and that the “absence of new facts is also enhanced by the fact that according to his statement the applicant did not return to his country of origin or left European soil since his last application”. According to the available information, decisions from 2019 do not offer further guidance with regards to the interpretation of the relevant concepts.

Recent case law has failed to provide guidance in this regard.[12] However, it has ruled that facts that were not presented during the initial application without reason cannot be considered as new facts. At the same time, the Court also conducted an assessment – echoing SEF’s own first instance assessment – of whether the new facts stated by the applicant constitute relevant grounds for a well-founded risk of persecution, which seems to be at odds with the admissibility assessment at hand.[13]

The limited number of subsequent applications registered – only 8 lodged in 2019, compared to 13 in 2018 and 9 in 2017 – does not allow for a general assessment of existing obstacles in lodging a subsequent application. Nevertheless, the information available to CPR in 2019 shows that out of 7 subsequent asylum applications, 3 were deemed inadmissible, 1 was rejected in accelerated procedures, and 1 was admitted to the regular procedure (information is not available on the outcome of the two remaining subsequent applications communicated to CPR).[14]

According to information collected by CPR in 2019, 5 out of the 7 subsequent applications communicated to CPR[15] underwent a preliminary interview to assess whether new elements were submitted, as laid down in law.[16] The preliminary interview to assess the admissibility of the application differed from a personal interview conducted in the admissibility/regular procedure insofar as it mainly sought to ascertain new facts, evidence or changes in circumstances related to persecution since the presentation of the initial asylum application. The reasoning of the corresponding inadmissibility decisions included an assessment of the existence, credibility and relevance of new facts and changes in circumstances since the presentation of the initial asylum application. The evidentiary value of documents and other elements of proof submitted, as well as the inconsistencies between the information provided and the facts described in the context of the original application, were also analysed.

The Asylum Act provides for an appeal against the decision to reject a subsequent application (see Admissibility Procedure: Appeal). The time limit for lodging the appeal is 4 days.[17] The initial appeal before the Administrative Court has automatic suspensive effect,[18] as opposed to onward appeals that have no automatic suspensive effect.[19]

With regard to access to free legal assistance for asylum seekers during the preliminary admissibility assessment (mutatis mutandis given the specific changes in the procedure e.g. the possible absence of a personal interview) and at appeal stage, the general rules and practice of the regular procedure apply (see Regular Procedure: Legal Assistance).

In practice, CPR is not aware of systemic or relevant obstacles faced by asylum seekers to appealing a first instance decision on the admissibility of a subsequent application.

Only 8 subsequent applications were lodged in 2019.

 


[1] Article 33(4) Asylum Act.

[2] Article 33(2), (4) and (6) Asylum Act.

[3] Article 33(1) and (6) Asylum Act.

[4] Article 33(6) Asylum Act.

[5] Articles 13(1) and 33(9) Asylum Act.

[6] In this case it should be understood that the general rule providing for the suspension of a removal order until a final decision is reached in the asylum application applies: Article 12(1) Asylum Act.

[7] Article 33(1) Asylum Act, according to which the asylum seeker is entitled to present a new application whenever there are new elements in light of the first asylum procedure.

[8] Article 60(3)(f) Asylum Act.

[9] Article 33(6) Asylum Act.

[10] Article 33(1) Asylum Act.

[11] Article 2(1)(t) Asylum Act.

[12] TAC Lisbon, Decision 1748/18.9BELSB, 26 November 2018, unpublished.

[13] A similar approach was followed in a 2019 judgement of TAF Porto that noted that a subsequent application should only go beyond the preliminary evaluation if there are new facts, circumstances or evidence that by themselves show that it is likely that the applicant is eligible for international protection. TAF Porto, Decision649/18.5BELSB, 17 January 2019, unpublished.

[14]According to information provided by SEF, 8 subsequent applications were registered in 2019.

[15]Information is not available regarding one subsequent application and a personal interview did not occur in the remaining case.

[16] Article 33 Asylum Act states that subsequent applications are submitted to the SEF with all available supporting evidence and that the SEF may, following the application, provide the applicant with a reasonable time limit to present new facts, information or evidence.

[17] Article 33(6) Asylum Act.

[18] Ibid.

[19] Article 33(8) Asylum Act.

 

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