As mentioned in Grounds for Detention, according to the law, the placement of asylum seekers in detention is dependent on an assessment of the individual circumstances of the applicant and of the possibility to effectively implement less severe alternative measures, thus requiring proof that alternatives to detention cannot be effectively applied before asylum seekers can be detained. The Asylum Act lays down alternatives to detention consisting either of reporting duties before SEF on a regular basis or residential detention with electronic surveillance (house arrest).
Despite the safeguards enshrined in the law to ensure that detention of asylum seekers, including in the case of detention at the border, is used as a last resort and only where necessary, in practice, criminal courts rarely conduct an individual assessment on whether it is possible to effectively implement alternatives to detention. Nevertheless, following repeated requests for the release of vulnerable asylum seekers at the border, namely unaccompanied children and families with children, CPR has witnessed a growing tendency on the part of the Criminal Court of Lisbon to invite SEF to give due consideration to the release of families with children and to their referral to CAR since 2017. However, these decisions fall short of conducting an individual assessment of necessity and proportionality and of issuing an order to SEF.
With the exception of the release of vulnerable asylum seekers without conditions from the border (see Detention of Vulnerable Applicants), CPR is unaware of the application of alternatives to detention in practice. This assessment is corroborated by information provided by SEF in 2019, which indicates that the competent courts never applied alternatives to detention within this context so far.
The report of the European Commission against Racism and Intolerance (ECRI), published in October 2018, referred to the excessive use of detention in the context of asylum.
More recently, the practice was also condemned by the UN Committee Against Torture. It expressed concerns on multiple issues, including the excessive use of detention, the absence of individualised assessments as well as little consideration for alternatives to detention, the lack of adequate detention conditions in the relevant facilities, and entry fees charged to external parties at Lisbon airport. Among other detention-related observations, the Committee recommended that detention is used only “as a measure of last resort and for as short a period as possible, by ensuring individualised assessments, and promote the application of non-custodial measures”.
 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.
 Article 35-A(4)(a) and (b) Asylum Act.
 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.
Ibid. para 40(a).