Author
Competence for taking decisions on the cessation of international protection lies with the Ministry of Home Affairs on the basis of a proposal put forward by the national director of SEF.[1] The representative of UNHCR or CPR shall be informed of the declaration of loss of the right to international protection.[2]
The Asylum Act establishes the grounds for cessation of international protection.[3]
Regarding refugee status, the right to asylum ceases when the foreign national or stateless person:[4]
- Decides to voluntarily accept the protection of the country of their nationality;[5]
- Voluntarily reacquires their nationality after having lost it;[6]
- Acquires a new nationality and enjoys the protection of the country of the newly acquired nationality;[7]
- Returns voluntarily to the country they left or outside which they had remained for fear of persecution;[8]
- Cannot continue to refuse the protection of the country of nationality or habitual residence, since the circumstances due to which they were recognised as a refugee no longer exist;[9] or
- Expressly renounces to the right to asylum.[10]
Regarding subsidiary protection, the right ceases when the circumstances resulting in said protection no longer exist or have changed to such an extent that the protection is no longer necessary.[11]
The grounds relating to a change in circumstances justifying the cessation of refugee status or subsidiary protection can only be applied if SEF concludes that the change in circumstances in the country of origin or habitual residence is significant and durable to exclude a well-founded fear of persecution or a risk of serious harm.[12] Furthermore, this cessation ground is without prejudice to the principle of non-refoulement,[13] and is not applicable to refugees who are able to invoke imperative reasons related to prior persecution to refuse to avail themselves of the protection of the country of their nationality or habitual residence.[14] The latter safeguard is only explicitly provided in the Asylum Act for refugees, failing to adequately transpose Article 16(3) of the Qualification Directive.
SEF is required to notify the beneficiary of protection of the intended cessation in order to allow them to exercise the right to an adversarial hearing in writing within 8 days.[15] A decision on cessation is subject to a judicial appeal with suspensive effect.[16] In the absence of specific provisions, it should be understood that beneficiaries of international protection are entitled to apply for free legal aid at appeal stage under the same conditions as nationals as legal aid is an integral part of the social security system (see Regular Procedure: Legal Assistance).[17]
Cessation of international protection results in the applicability of the Immigration Act to former beneficiaries,[18] according to which an individual whose refugee status has ceased is entitled to a temporary residence permit without the need to present a residence visa,[19] even though other requirements such as a travel document, accommodation, and income still apply.
Cessation of subsidiary protection has become increasingly relevant in recent years. According to the information provided by SEF, cessation of refugee status also occurred in 2021 and 2022 (while extremely rare). CPR was not aware of prior cessation decisions concerning refugee status.
According to statistics provided by SEF, in 2016 there were 14 cessations of the subsidiary protection status of beneficiaries from Guinea. No cessation decisions were adopted in 2017 and 2018. In 2019, a total of 98 decisions ceasing subsidiary protection were adopted, of which 75 concerned beneficiaries from Ukraine. In 2020, 262 decisions ceasing subsidiary protection were adopted (of which 176 concerned beneficiaries from Ukraine, 25 beneficiaries from Guinea, and 20 beneficiaries from Pakistan). In 2021, a total of 36 cessation of subsidiary protection decisions were adopted by the national authorities, mostly concerning Ukrainian citizens (13).
According to the information provided by SEF for 2022, a total of 33 decisions of cessation of subsidiary protection were issued by the Portuguese authorities, mostly concerning nationals of Ukraine (19) and DRC (7).
In the framework of the legal assistance provided to some of those concerned in 2016, CPR identified several shortcomings in the cessation proceedings including the lack of renewal of the residence permits while the cessation process was pending and the poor quality of the assessment conducted into the change in circumstances in the country of nationality. Indeed, the assessments conducted did not take into consideration the specific/individual circumstances of each person concerned as the same information was used for all persons meaning that it lacked an actual assessment of whether there was a significant and durable change in circumstances for each individual. Similar shortcomings were subsequently observed.
According to the information provided by SEF on CPR’s request following the invasion of Ukraine, cessation procedures concerning Ukrainian where a final decision was not adopted by the time of the invasion were to be reviewed. CPR does not have further information on the implementation of this measure.
National jurisprudence on cessation is limited. The existing decisions available at the time of writing concern subsidiary protection cessation due to a change of circumstances, and offer limited guidance. Two main general points are reinforced by such decisions:
- The burden of proof of a change in the circumstances lies with the national authorities;[20]
- A double test – sufficiency and durability – is applicable to cessation due to a change of circumstances.[21]
With regard to the sufficiency criterion, in one of the cases, the holding of an election in DRC, with a subsequent change of president was deemed as representative of a change of regime and, therefore, as sufficient within the cessation context.[22] In the other case analysed, the court concluded that the armed conflict in Ukraine, even if (at the time) limited to certain regions, its indiscriminate and long lasting impact in the civilian population, and the risk of military conscription observed when the applicant was granted subsidiary protection (2016) persisted. As such, the changes in the country of origin were deemed as insufficient to trigger cessation of subsidiary protection.[23]
With regard to durability of the change, TAF Braga considered that there has to be stability in the change, allowing the authorities to predict that it will last. The court further stated that the analysis cannot be based on a fixed timeframe, and that durability must be determined on a case-by-case basis. In the case analysed, the court concluded that the change observed in DRC two years after the presidential election and change was not yet consolidated, given the information available regarding the country’s political setting. Furthermore, the court noted that the information to be considered in the analysis must be broad and go beyond the political context (for instance, information regarding the legal and judicial system must be analysed as well).[24]
The Statistical Report of Asylum 2022 (covering 2021) bears no reference to cessation procedures despite the relevance of the issue.[25]
[1] Article 43(1) Asylum Act.
[2] Article 43(3) Asylum Act.
[3] Article 41 (1)-(4) Asylum Act.
[4] Article 41(1) Asylum Act.
[5] Article 41(1) (a) Asylum Act.
[6] Article 41(1) (b) Asylum Act.
[7] Article 41(1) (c) Asylum Act.
[8] Article 41(1) (d) Asylum Act.
[9] Article 41(1) (e) and (f) Asylum Act.
[10] Article 41(1) (g) Asylum Act.
[11] Article 41(2) Asylum Act.
[12] Article 41(3) Asylum Act.
[13] Article 47 Asylum Act.
[14] Article 41(4) Asylum Act.
[15] Article 41(6) Asylum Act.
[16] Article 44 Asylum Act.
[17] Article 72 Asylum Act.
[18] Article 42(2) Asylum Act.
[19] Article 122(1)(f) Immigration Act. According to CPR’s experience, persons in this situation are granted a residence permit valid for 2 years, that may be renewed for periods of 3 years, under article 77 Immigration Act.
[20] TAC Lisbon, Decision 1837/21.2BELSB, 23 December 2021, not publicly available.
[21] TAF Braga, Decision 1294/21.3BEBRG, 7 October 2021, not publicly available.
[22] TAF Braga, Decision 1294/21.3BEBRG, 7 October 2021, not publicly available.
[23] TAC Lisbon, Decision 1837/21.2BELSB, 23 December 2021, not publicly available.
[24] TAF Braga, Decision 1294/21.3BEBRG, 7 October 2021, not publicly available.
[25] Observatory for Migration, Entrada, Acolhimento e Integração de Requerentes e Beneficiários de Protecção Internacional em Portugal – Relatório Estatístico do Asilo 2020, May 2020, available in Portuguese at: https://bit.ly/2MGYtB9.