Author
Under the Asylum Act, detention of asylum applicants cannot be based on the application for international protection alone,[1] and can only occur on grounds of:
- National security, public order, public health; or
- Risk of absconding; and
Must be based on an individual assessment and occur only if the effective application of less severe alternative measures is not possible.[2]
The possible grounds for the detention of asylum applicants also include: [3]
- Applying for asylum at the border;
- Applying for asylum following a decision of removal from national territory; or
- The application of the Dublin procedure.
According to the law, detention may only be applied if it is not possible to effectively implement less severe alternative measures.
Moreover, Article 26(1) of the Asylum Act also determines that asylum applicants who applied for asylum at the border remain in the international area of the (air)port while waiting for the decision.[4]
As mentioned in General, systematic detention of asylum applicants in Portugal within the context of border procedures resumed by the end of November 2023. Accordingly, asylum applicants were detained until their application was admitted to the procedure (7 days),[5] or for a maximum of 60 days in case of an appeal against the rejection of the application.[6] This is the most relevant context of detention of asylum applicants at national level. As per CPR’s observation and analysis, detention within this context is applied systematically without an individual assessment of its necessity or proportionality.[7]
In December 2025, following public reports,[8] MPs raised concerns about courts systematically ordering the detention of asylum applicants contrary to PSP assessments and without considering alternatives to detention, and questioned the Government on the operationalisation of a dedicated hearing room at Lisbon airport, similar structures at other airports, and measures to ensure compliance with national and international law.[9] In response, the Minister of the Presidency made reference to plans to expand alternatives to detention, and the Minister of Justice clarified that a hearing room at Lisbon airport is expected to open in 2026, with no equivalent structures planned for other airports.[10] According to the Minister, dialogue with the Judicial High Council on alternatives to detention is ongoing, with training for courts on asylum matters planned.
Asylum applicants who apply for asylum in detention at a CIT due to a removal procedure remain in detention during the asylum procedure until their application is admitted to the procedure (10 days)[11] or for a maximum of 60 days in case of an appeal against the rejection of the asylum application.[12] While the Asylum Act provides for the suspension of all administrative and/or criminal procedures related to the irregular entry of the asylum applicant on the national territory – and thus requires that the competent authorities are informed of the asylum application within 5 days for that purpose – [13] detention at a CIT due to a removal procedure will rarely, if ever, be suspended ex officio by the Criminal Courts on that basis. Detention within this context continues to be systematically applied.
According to the information provided by PSP, during 2025, a total of 449 asylum applicants were subject to administrative detention, of which 382 at the border and 67 at CIT-UHSA: 330 due to refusal of entry and asylum application made at the border and 119 within the context of a removal procedure or judicial expulsion.
In 2025 and early 2026, CPR became aware of at least two cases where asylum applicants under an accelerated procedure were detained by PSP on the grounds of irregular stay and subjected to a removal procedure, despite their legal status. In both cases, the impasse was only resolved through direct intervention with the Criminal Court, notwithstanding referrals by CPR and IOM to both PSP and AIMA. These incidents raise concerns about coordination between PSP and AIMA regarding the legal status of third-country nationals, and application and validation of detention orders.
CPR is unaware of case law relating to or judicial interpretations of detention grounds such as the application of a Dublin procedure, threat to national security, public order, public health, or risk of absconding.
[1] Article 35-A(1) Asylum Act.
[2] Article 35-A(2) Asylum Act. A draft law proposing that entry and irregular stay in national territory be added as a ground for 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] Article 35-A(3) Asylum Act.
[4] It is our understanding that while this article seems to provide for the general detention of asylum applicants within the context of border procedures, it must be applied with due regard for the rules established in Art.35-A of the Asylum Act.
[5] Article 26(4) Asylum Act.
[6] Article 35-B(1) Asylum Act.
[7] Público, Conselho Português para Refugiados diz que estrangeiros que pedem asilo estão a ser detidos contra a lei, 29 September 2025, available here.
[8] Público, Tribunais ignoram pareceres da PSP e ordenam detenção sistemática de requerentes de asilo, 19 November 2025, available here.
[9] Parliament, Questions 725/XVII/1 and 726/XVII/1, December 2025, available here and here.
[10] Parliament, Answers to Questions 725/XVII/1 and 726/XVII/1, December 2025, available here and here.
[11] Article 33-A(5) Asylum Act.
[12] Article 35-B(1) Asylum Act.
[13] Article 12(1) and (3) Asylum Act.