Author
As mentioned in Grounds for Detention, according to the Asylum Act, detention of asylum applicants requires an assessment of the individual circumstances of the applicant and of the possibility to effectively implement less severe alternative measures,[1] thus demanding proof that alternatives to detention cannot be effectively applied. The Asylum Act lays down alternatives to detention consisting either of reporting duties before AIMA on a regular basis or residential detention with electronic surveillance (house arrest).[2]
Despite the safeguards enshrined in the law to ensure that detention of asylum applicants, including at the border, is used as a last resort and only where necessary, in practice, criminal courts rarely, if ever, conduct an individual assessment on whether detention is necessary and proportional and whether it is possible to effectively implement alternatives to detention. In the past, even where the Criminal Court of Lisbon invited SEF to consider the release of families with children and their referral to CAR,[3] the decisions systematically fell short of conducting an individual assessment of necessity and proportionality and of issuing an order to SEF.
Concerns regarding the judicial review of decisions to detain have been repeatedly reaffirmed by the Ombudsperson (see Procedural Safeguards: Judicial review of the detention order).[4
The excessive use of detention of asylum applicants at the border, the absence of individualised assessments, the lack of consideration for alternatives to detention, and inadequate detention conditions have been highlighted by UN institutions for a number of years, including the UN Committee Against Torture in 2019,[5] the UN Human Rights Committee in 2020,[6] and the Committee on the Elimination of Racial Discrimination in 2023.[7] As demonstrated throughout this report, these concerns remained particularly relevant in 2025.
According to the information provided by PSP, the authority is also unaware of the application of alternatives to detention within this context.
[1] Article 35-A(2) and (3) Asylum Act. While the need for an assessment of the individual circumstances of the applicant is only mentioned in the case of detention on the grounds of national security, public order, public health or when there is a flight risk, it is difficult to conceive an assessment of less severe alternative measures for the remaining grounds for detention that is not based on the individual circumstances of the applicant.
[2] Article 35-A(4)(a) and (b) Asylum Act. A draft law proposing that a financial guarantee, surrendering documents, and placement in an open-access regime at a CIT be added as alternatives to detention was put out for public consultation at the end of 2025. See: Public Consultation on the draft law amending Law 34/94 of 14 September, Immigration Act and Asylum Act, available here.
[3] Judicial Court of the Lisbon District, Local Misdemeanour Court of Lisbon – Judge 2, Applications Nos 3881/17.5T8LSB, 13 February 2017; 19736/17.0T8LSB, 11 September 2017; 22330/17.2T8LSB, 16 October 2017; 22779/17.0T8LSB, 20 October 2017; 23770/17.2T8LSB, 3 November 2017; 25058/17.0T8LSB, 20 November 2017; 25060/17.1T8LSB, 20 November 2017; 8909/19.1T8LSB, 29 April 2019.
[4] Ombudsperson, Mecanismo Nacional de Prevenção – Relatório à Assembleia da República 2024, July 2025, available here, 56.
[5] Committee Against Torture, Concluding Observations on the seventh periodic report of Portugal, CAR/C/PRT/CO/7, 18 December 2019, para 39 and 40(a), available here. In the List of Issues published in June 2023, the Committee Against Torture (CAT) requested information regarding, inter alia, the measures taken to ensure that the detention of asylum applicants, including at the border, is only used as a measure of last resort, where justified as reasonable, necessary and proportionate, and for as short a period as possible and to further implement alternatives to detention in practice. See Committee Against Torture (CAT), List of issues prior to submission of the eight periodic report of Portugal, 9 June 2023, para. 19, available here.
[6] Human Rights Committee, Concluding Observations on the fifth periodic report of Portugal, CCPR/C/PRT/CO/5. 28 April 2020, para 34(d)(e) and 35 (d), available here.
[7] Committee on the Elimination of Racial Discrimination, Concluding Observations on the combined eighteenth and nineteenth periodic reports of Portugal, CERD/C/PRT/CO/18-19, 28 April 2023, para 34(c)(d)(e).available here.