Author
The law sets out the right of asylum applicants to free legal aid under the same conditions as nationals,[1] which thus includes proceedings in front of the Criminal Court regarding detention at the border. Access to legal aid is processed under the same conditions as nationals, which include a ‘means test’.[2] In the context of legal aid for the purposes of appealing the rejection of the asylum application, this test is generally applied in a flexible manner. CPR has no experience with legal aid applications for the purposes of detention review.
While the law provides for an accelerated free legal aid procedure at the border on the basis of a MoU between the Ministry of Home Affairs and the Bar Association,[3] such procedures are only for purposes of the application and remain to be implemented to date. The relevance of broader legal support within the context of detention and the possibility of implementing specific MoUs with the Bar Association for that purpose have also been repeatedly underlined by the Ombudsperson.[4]
In practice, detained asylum applicants benefit from legal information and assistance from CPR. This includes free legal information regarding detention and assistance for the purposes of detention review, albeit the latter is limited to vulnerable asylum applicants due to capacity constraints.
In November 2020, the Ministry of Home Affairs, the Ministry of Justice, and the Bar Association signed a protocol to ensure the provision of legal counselling and assistance to foreigners to whom entry into national territory was refused (Lisbon, Porto, Faro, Funchal and Ponta Delgada airports).[5] This protocol was made within the framework of Article 40(2) of the Immigration Act and is not intended to cover the application for international protection (see: Border Procedure: Legal Assistance).
In its report covering 2023, the National Preventive Mechanism highlighted the fact that the protocol also did not cover persons with a removal order, noting that they should also have access to legal assistance.[6] In its report covering 2024, it highlighted the fact that there continued to be shortcomings in ensuring access to an interpreter at various stages of the proceedings, notably when notifying citizens of the refusal of entry and of their right to challenge that decision, when informing them of their right to legal assistance, and when informing them of the rights and obligations of applicants for international protection,[7] impacting the awareness on their legal status and rights.
[1] Article 49(1)(f) Asylum Act.
[2] Act 34/2004, of 29 July relating to access to justice and the courts.
[3] Article 25(4) Asylum Act.
[4] Ombudsperson, Mecanismo Nacional de Prevenção – Relatório à Assembleia da República 2023, July 2024, available here, 49-50.
[5] Ministry of Home Affairs, Estrangeiros impedidos de entrar em Portugal vão ter direito a advogado, 4 November 2020, available in Portuguese here. According to the National Preventive Mechanism, the practical implementation of the Protocol was only ensured from March 2021. See: Ombudsperson, Mecanismo Nacional de Prevenção, Relatório à Assembleia da República, 24 June 2021, available here.
[6] Ombudsperson, Mecanismo Nacional de Prevenção – Relatório à Assembleia da República 2023, July 2024, available here, 49-50.
[7] Ombudsperson, Mecanismo Nacional de Prevenção – Relatório à Assembleia da República 2024, July 2025, available here, 59.