Author
The Asylum Act defines an ‘applicant in need of special procedural guarantees’ in terms of reduced ability to benefit from the rights and comply with the obligations stemming from the Asylum Act due to their individual circumstances.[1] Even though it does not include an exhaustive list of asylum applicants presumed to be in need of special procedural guarantees, it refers to age, gender, gender identity, sexual orientation, disability, serious illness, mental disorders, torture, rape or other serious forms of psychological, physical or sexual violence as possible factors underlying individual circumstances that could lead to the need of special procedural guarantees.[2]
Within these applicants, the Asylum Act identifies a sub-category of individuals whose special procedural needs result from torture, rape, or other serious forms of psychological, physical or sexual violence that may be exempted from border procedures and hence detention.[3] Furthermore, it clearly determines that placement of unaccompanied and separated children in detention facilities at the border must comply with applicable international recommendations such as those by UNHCR, UNICEF, and the International Committee of the Red Cross (ICRC).[4]
PSP confirms there is no formal and systematic mechanism of identification of vulnerabilities at border points. Therefore, response to cases continued to happen mostly on an ad hoc basis, with no clear general guidance, leading to uncertainty.
In addition, despite the fact that responsibility for promoting special procedural guarantees that could lead to the release from detention lies with AIMA, it seems that the Agency has no decision-making power on the conditions and maintenance of detention of asylum applicants at the border.
According to the data provided by PSP in the course of 2024, 48 children were detained in EECIT Lisbon, out of which 16 were unaccompanied children and 32 were children accompanied by family members. PSP states the average period of detention of unaccompanied children was 6 days, and 13 days for accompanied children.
Information collected by CPR on the basis of communications from the authorities and the legal assistance provided indicates the systematic detention of children accompanied by family members and for longer detention periods. In order for privacy and family unity to be respected to a minimum, the conditions in EECIT Lisbon do not allow for more than one family to be detained. CPR is aware of several households with minor children simultaneously subject to detention at EECIT Lisbon for almost a month in the end of 2024. As a result, families were divided into wards according to gender.
According to PSP, accompanied children remain with their adult family members in detention and the length of detention is tied to the asylum procedure.
As for unaccompanied children, PSP reports prompt referral for accommodation in child-reception facilities, following referral to the Family and Juvenile Court. PSP notes that detention periods might be prolonged in case of a delay in response from the Court.
Information regarding other vulnerabilities is not collected, as per PSP.
During 2024, CPR observed that particularly vulnerable persons, such as pregnant women, sick people, victims of torture/violence and others, were held in detention, with no apparent adjustments implemented to respond to individual special needs. Despite CPR’s efforts, most cases remained in detention for considerable periods of time.
The UN Human Rights Committee, in its Concluding Observations published in 2020, stated that Portugal ‘should ensure that children and unaccompanied minors are not detained, except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests as a primary consideration with regard to the duration and conditions of detention and their special need for care’. The Committee further noted that it should be guaranteed that child asylum applicants should have ‘access to adequate education, health, social and psychological services, and legal aid, and that they are provided with a legal representative and/or guardian without delay’.[5]
[1] Article 17-A(1) Asylum Act.
[2] Ibid.
[3] Article 17-A(4) Asylum Act.
[4] Article 26(2) Asylum Act. For detailed information on the practices concerning detention of children in previous years, please refer to the corresponding AIDA reports.
[5] Human Rights Committee, Concluding Observations on the fifth periodic report of Portugal, CCPR/C/PRT/CO/5. 28 April 2020, par 37, available here.