Judicial review of the detention order

Portugal

Country Report: Judicial review of the detention order Last updated: 21/05/21

Author

Portuguese Refugee Council Visit Website

The law provides for the right of asylum seekers to receive information in writing regarding the grounds for their detention, access to free legal aid and legal challenges against detention in a language they either understand or are reasonably expected to understand.[1]

In practice, the declaration issued by SEF to asylum seekers at the border for the purposes of certifying the registration of the asylum application contained a brief reference to the norm of the Asylum Act that provides for the systematic detention of asylum seekers at the border.[2] CPR is unaware of the provision of information in writing regarding the grounds of detention, the right to access free legal aid and the right to judicial review of the detention order.[3] That being said, asylum seekers benefit from legal information and assistance from CPR at the border, which also included free legal assistance for the purpose of judicial review of the detention order. However, this has been limited to vulnerable asylum seekers due to capacity constraints.

The competent authority to impose and review the detention of an asylum seeker in a CIT,[4] or in detention facilities at the border,[5] is the Criminal Court which has territorial jurisdiction over the place where detention occurs. In the case of detention at the border, SEF is required to inform the Criminal Court of the detention within 48 hours upon arrival at the border for purposes of maintaining the asylum seeker in detention beyond that period.[6] The review of detention can be made ex officio by the Criminal Court or upon request of the detained asylum seeker at all times on the basis of new circumstances or information that have a bearing on the lawfulness of the detention.[7]

In the case of asylum seekers at the border, the Criminal Court usually requires SEF to provide information on developments of the asylum application within 7 days after their initial request for confirmation of the detention. This procedure should allow the Criminal Court to reassess the lawfulness of the detention on the basis of the decision from SEF regarding the admissibility of the asylum application.

To CPR’s understanding, once SEF informs the Criminal Court that the asylum application at the border was rejected, there are no additional ex officio reviews prior to release even in cases where the court invited SEF to consider the release of vulnerable applicants (see Alternatives to Detention). Where the applicant appeals the rejection of the asylum application and is therefore not removed from the border, release usually takes place at the end of the maximum detention time limit of 60 days (see Duration of Detention).

While asylum seekers have not been subject to detention within the border procedure since March 2020, this continued to be the practice until that date.

In a hearing at the Parliament in December 2020, the Ombudsman noted that there is a need for dialogue with judicial bodies to ensure that judicial actors are aware of the need for effective judicial control in these cases.[8]

 

[1] Article 35-B(2) Asylum Act.

[2] Article 26 Asylum Act.

[3] Even though the declaration issued by the SEF to asylum seekers at the border for the purposes of certifying the registration of the asylum application contains a brief reference to their right to legal aid, it does not specify that such legal aid also encompasses Criminal Court procedures pertaining to their detention at the border.

[4] Article 35-A(5) Asylum Act.

[5] Article 35-A(6) Asylum Act.

[6] Ibid.

[7] Article 35-A(6) Asylum Act.

[8] Video recording available at: https://bit.ly/3fZgcAd.

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