Legal assistance for review of detention

Portugal

Country Report: Legal assistance for review of detention Last updated: 21/05/21

Author

Portuguese Refugee Council Visit Website

The law sets out the right of asylum seekers 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, however.

Up to 2018 legal aid procedures tended to exceed 60 days, rendering assistance inefficient in the context of detention review, as the asylum seekers would usually be released from detention before the free legal aid lawyer was appointed by the Portuguese Bar Association (Ordem dos Advogados). While these procedures have been reduced to 1-2 weeks, since then, they were not used in practice for purposes of detention review to the extent of CPR’s knowledge. 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 Ombudsman.[4]

In practice, asylum seekers benefit from legal information and assistance from CPR at the border, which also includes free legal assistance for the purposes of detention review, albeit limited to vulnerable asylum seekers due to capacity constraints. Since March 2020, asylum seekers have not been detained within the context of border procedures.

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] According to the information available at the time of writing, this protocol was made within the framework of Article 40(2) of the Immigration Act and is not intended to cover applicants for international protection.

 

[1]  Article 49(1)(f) Asylum Act.

[2]  Act 34/2004.

[3]  Article 25(4) Asylum Act.

[4] Ombudsman, ‘Mecanismo Nacional de Prevenção, Relatório à Assembleia da República’, June 2020, p.64, available at: https://bit.ly/2Pz1ZiN.

[5] Ministry of Home Affairs, Estrangeiros impedidos de entrar em Portugal vão ter direito a advogado , 4 November 2020, available in Portuguese at: https://bit.ly/3oCd8L3.

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