Grounds for detention

Portugal

Country Report: Grounds for detention Last updated: 30/11/20

Author

Portuguese Refugee Council Visit Website

Under the Asylum Act, the placement of asylum seekers in detention cannot be based on the application for international protection alone,[1] and can only occur on the following grounds:

  • National security, public order, public health; or
  • Risk of absconding;

based on an individual assessment and if the effective application of less severe alternative measures is not possible.[2]

The possible grounds for detention of asylum seekers also include:

  • Applying for asylum at the border;
  • Applying for asylum following a decision of removal from national territory; or
  • During Dublin procedures,

if it is not possible to effectively implement less severe alternative measures.[3]

Moreover, article 26(1) of the Asylum Act determines that asylum seekers that applied for asylum at the border remain in the international area of the (air)port while waiting for the decision.[4]

Systematic detention of asylum seekers in Portugal is limited to border procedures in which asylum seekers are detained until their application is 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] Asylum seekers who apply for asylum in detention at a CIT due to a removal procedure will also usually remain in detention during the asylum procedure until their application is admitted to the procedure (10 days)[7] or for a maximum of 60 days in case of an appeal against the rejection of the asylum application.[8] 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 –[9] detention at a CIT due to a removal procedure will rarely, if ever, be suspended ex officio by the Criminal Courts on that basis.

CPR is unaware of the judicial interpretation 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.

[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 seekers 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] Article 33-A(5) Asylum Act.

[8] Article 35-B(1) Asylum Act.

[9] Article 12(1) and (3) Asylum Act.

 

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