Author
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]
The competent authority to impose and review the detention of an asylum seeker in a CIT,[2] or in detention facilities at the border,[3] is the Criminal Court which has territorial jurisdiction over the place where detention occurs. In the case of detention at the border, SEF/PSP 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.[4]
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.[5]
According to CPR’s experience, judicial decisions usually rubber stamp the decision of the border authority to detain without an assessment of the necessity and proportionality of detention and without taking into account the individual characteristics of the applicant(s) involved. In fact, between the last quarter of 2023 and the beginning of 2024, CPR observed judicial decisions that determined that an applicant could be detained in the transit area of the Lisbon airport if the detention centre was full, despite the public nature of the detention conditions in such area (see: Detention Conditions).
On the other hand, detention reviews (either ex officio or upon request) are uncommon in practice. As such, release usually takes place following admission to the regular procedure or at the end/near the end of the maximum detention time limit of 60 days in cases of a negative decision and appeal (see Duration of Detention).
In the beginning of 2024, UNHCR and the Judicial High Council (Conselho Superior de Magistratura, CSM) initiated meetings with multiple actors relevant in the field of asylum and border control in order to, inter alia, discuss the applicable procedures.
[1] Article 35-B(2) Asylum Act.
[2] Article 35-A(5) Asylum Act.
[3] Article 35-A(5) and (6) Asylum Act.
[4] Ibid.
[5] Article 35-B(1) Asylum Act.