Access to detention facilities

Portugal

Country Report: Access to detention facilities Last updated: 30/11/20

Author

Portuguese Refugee Council Visit Website

The Asylum Act and the internal regulation of the detention facility at Lisbon Airport provide for the right of detainees to receive visits from legal representatives, embassy representatives, relatives and national and international human rights organisations.[1] In the particular case of legal assistance, asylum seekers in detention are entitled to receive visits from lawyers, UNHCR and CPR.[2] Restrictions in the access to the detention facilities can only be based on grounds of security, public order or operational reasons and only to the extent that they do not restrict access in a significant or absolute manner.[3]

According to available information, while the visiting hours during the morning and afternoon are reasonable, visits must be preapproved by SEF depending on the expected duration of detention.[4] Detainees are entitled to a maximum of three visitors at the same time and the duration of the visit cannot exceed one hour. According to CPR’s experience, access procedures for free legal aid and private lawyers are complex, bureaucratic and involve obtaining access cards in advance. Accredited staff from CPR has unrestricted access to asylum seekers detained at the border or in pre-removal detention centres, but only following the status determination interview conducted by SEF, as opposed to lawyers who have unrestricted access to detainees prior to and during the status determination interview. CPR has not received significant complaints from asylum-seeking detainees regarding refused visits from lawyers or relatives.

CPR is aware of concerns raised by free legal aid lawyers regarding an 11€ fee charged by ANA, S.A., the private company in charge of national airports, for accessing the restricted area of the airports where  the detention facilities are located which can discourage them from visiting their clients.[5] This fee, which is applied to all external visitors that are not accredited, has been criticised by the Ombudsman that qualified it as a restriction to article 35-B(4) of the Asylum Act.[6] The UN Committee Against Torture also expressed concern with the application of this access fee in its recent Concluding Observations on Portugal, thereby recommending the State to “guarantee that retained asylum seekers and irregular migrants have unhindered, prompt and adequate access to counsel, including legal services”.[7]

With regard to other forms of contact with the exterior, detainees in facilities at the border are not allowed to keep their mobile phones but are entitled to use public phones that are freely accessible in each wing of the detention facility using coins, prepaid cards or collect calls. Furthermore, each detainee is entitled to 5 minutes of national and international calls using the telephones of the facility.

These limits on communication have been criticised by the Ombudsman due to the inadequacy of the 5-minute plafond, procedures to request additional calls, and difficulties in accessing public phones due to the inexistence of mechanisms to exchange bills for coins.[8]

At times, CPR receives complaints from detainees regarding the limited time for calls and having to choose between contacting family or lawyers. According to information available to CPR, access to phone calls after exhausting the 5-minute plafond, may vary. In some cases, phone calls to lawyers and organisations such as CPR for the purposes of legal assistance are provided. However, similarly to 2018, CPR received sporadic complaints in 2019 from detainees who were refused a phone call to contact the organisation, and some calls between its legal officers and detainees were abruptly interrupted by staff of the private security company in charge of operational assistance.

The Ombudsman has received reports of detainees that were unaware of the possibility to request further calls for lawyers, organisations or family members as well as of cases where such requests were systematically refused.[9]  While the issue is not mentioned in its latest report, according to previous reports by the Ombudsman, the contacts of relevant support organisations were only available in the administrative support services.[10]  The Ombudsman considers that this framework of insufficient contact with the exterior may amount to inhuman or degrading treatment.[11]

In accordance with the law, UNHCR and CPR have the right to be informed of all asylum claims presented in Portugal and to personally contact asylum seekers irrespective of the place of application in order to provide information on the asylum procedure, as well as regarding their intervention throughout the process.[12] In this context, CPR is regularly present (i.e. generally every week) at the Lisbon Airport detention facility to provide free legal information and assistance,[13] in particular regarding the asylum procedure; access to free legal aid at appeal stage; and the promotion of the release without conditions of particularly vulnerable asylum seekers either by SEF ex officio or by means of review from the Criminal Courts.

In its visits to border detention facilities, the Ombudsman has observed that detainees are not always provided information on their rights and on the internal functioning of facilities. Gaps were also identified in the provision of information on grounds for detention and status of procedures.[14]

Social assistance, leisure or other occupational activities are not provided by any organisation at the Lisbon Airport detention facility.[15] In the case of CIT– UHSA in Porto, the law provides for an MoU with the International Organisation for Migration (IOM) and the Jesuit Refugee Service (JRS) Portugal,[16] that are responsible for training staff and providing ocial, psychological and legal assistance to detainees. According to CPR’s experience regarding asylum seekers who have applied from detention at CIT – UHSA, JRS Portugal has a psychologist and a lawyer in the detention facility that provide in-house assistance while the provision of in-house medical and psychological assistance is performed by volunteer organisations such as MdM. Furthermore, IOM shares information materials at the facility (namely on the rights of detainees, regular migration and risks of irregular migration), organises information sessions and conducts interviews on the circumstances of detention.



[1] Article 35-B(3) Asylum Act.

[2] Article 49(6) Asylum Act.

[3] Article 35-B(4) Asylum Act.

[4] Ombudsman, A instalação temporária de cidadãos estrangeiros não admitidos em Portugal ou em processo de afastamento do território nacional – relatório, March 2011, available at: https://bit.ly/2S10lo1.  

[5] See Público, ‘Taxa cobrada a advogados para ver detidos no aeroporto é “nonsense”, acusa bastonário’, 3 September 2018, available in Portuguese at: https://bit.ly/2NocWka.

[6] Ombudsman, National Preventive Mechanism, Report to the Parliament 2018, 30 May 2019, available in Portuguese at: https://bit.ly/2S7tdcW, 43-44.

[7] Committee Against Torture, Concluding Observations on the seventh periodic report of Portugal, CAR/C/PRT/CO/7, 18 December 2019, par.40(d), available at https://bit.ly/2G1F07z.

[8] Ombudsman, National Preventive Mechanism, Report to the Parliament 2018, 30 May 2019, available in Portuguese at: https://bit.ly/2S7tdcW, 43-44.

[9] Ombudsman, National Preventive Mechanism, Report to the Parliament 2018, 30 May 2019, available in Portuguese at: https://bit.ly/2S7tdcW, 44.

[10] Ombudsman, Tratamento dos cidadãos estrangeiros em situação irregular ou requerentes de asilo nos centros de instalação temporária ou espaços equiparados, September 2017, available at: https://bit.ly/3eLMNX6, 44.

[11] Ombudsman, National Preventive Mechanism, Report to the Parliament 2018, 30 May 2019, available in Portuguese at: https://bit.ly/2S7tdcW, 44.

[12] Article 13(3) Asylum Act.

[13] Article 49(1)(e) and (6) Asylum Act.

[14]Ombudsman, National Preventive Mechanism, Report to the Parliament 2018, 30 May 2019, available in Portuguese at: https://bit.ly/2S7tdcW, 45-46.

[15] Ibid., 48..

[16] Article 3 Decree-Law 44/2006.

 

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