Portugal – Immigration and Asylum

Portugal – Immigration and Asylum

In accordance with the Asylum Act and the internal regulation of the Immigration and Borders Service (SEF), the responsibility for examining applications for international protection and drafting first instance decisions lies with the Asylum and Refugees Department of SEF (SEF-GAR), while decisions granting, refusing (except in accelerated and admissibility procedures), ceasing, and withdrawing international protection are formally adopted by the Ministry of Home Affairs.

Portuguese Refugee Council: Visit Website

The Chapter: Asylum Procedure in Portugal contains sections on:

1. General

Flow chart of the procedure

Types of procedures

The following procedures are applicable in Portugal:

• Regular procedure
• Dublin procedure
• Admissibility procedure
• Border procedure
• Accelerated procedure

List of authorities intervening in each stage of the procedure

Number of staff and nature of the first instance authority

Source: SEF.

In accordance with the Asylum Act and the internal regulation of the Immigration and Borders Service (SEF), the responsibility for examining applications for international protection and drafting first instance decisions lies with the Asylum and Refugees Department of SEF (SEF-GAR), while decisions granting, refusing (except in accelerated and admissibility procedures), ceasing, and withdrawing international protection are formally adopted by the Ministry of Home Affairs.[1] In practice, the latter adopts such decisions based on the assessment and recommendations of the determining authority, which thus remains the main entity responsible for the examination of asylum claims.

SEF-GAR is the specialised determining authority in the field of asylum whose competences are restricted to the following asylum-related tasks:[2]

to organise and process asylum applications;

to organise and process subsidiary protection applications;

to organise and process Dublin procedures and, where necessary, to issue laissez passer;

to issue reasoned opinions on submissions for refugee resettlement;

to issue reasoned opinions on applications for the renewal of refugee travel documents presented before the Portuguese Consulates;

to issue refugee identity cards and travel documents as well as residence permits provided for in the Asylum Act, and to renew and extend the validity of such documents;

to act as contact point of the European Asylum Support Office (EASO); and

to provide for the strategic planning of EASO-related activities.

In 2021, SEF-GAR was composed of 20 officials, of which (i) 12 caseworkers are responsible for the examination of applications for international protection under all the applicable procedures (except the Dublin procedure), including 2 officials responsible for revising files and proposals and one official responsible for the final decision, (ii) 2 caseworkers for Dublin procedures; and (iii) 6 administrative support officers.

According to SEF, caseworkers conduct interviews, COI research, case analysis, and draft decision proposals. Such decisions are revised by supervisors who also investigate suspicions of fraud (cancellation procedures) and draft and supervise the implementation of procedural and eligibility guidelines. Administrative officers ensure the registration of applications and the screening/referral of cases.

Quality assurance

According to the information provided by SEF, quality is ensured through the following mechanisms: (i) the supervisors review each report drafted by the caseworkers; (ii) case law is constantly taken into account; (iii) caseworkers receive regular training within the European training curriculum of the European Union Asylum Agency (EUAA).

As previously reported, in 2020, the Government announced its intention to conduct a structural reform of SEF. The main piece of legislation governing this reform was approved in November 2021.[3] It provides for the reallocation of SEF’s competencies to existing/new entities:

The National Republican Guard (Guarda Nacional Republicana, GNR) will be in charge of the surveillance and control of maritime and land borders, and will be responsible for executing expulsion decisions within its jurisdiction;[4]

The Public Security Police (Polícia de Segurança Pública, PSP) will be in charge of the surveillance and control of air borders, and will be responsible for executing expulsion decisions within its jurisdiction;[5]

The Criminal Police (Polícia Judiciária, PJ) will investigate crimes related to illegal migration and trafficking in human beings; [6]

The administrative competencies of SEF will be allocated to the Institute of Registries and Notary (Instituto dos Registos e Notariado, IRN) and to a new entity to be created, the Portuguese Agency for Migration and Asylum (Agência Portuguesa para as Migrações e Asilo, APMA). The IRN will be responsible for foreigners with a residence permit and for the issuance of travel documents. APMA will be the entity in charge of the implementation of public policies related to migration and asylum and to issue opinions on requests for visas, applications for asylum and resettlement.[7]

Regular training on human rights, migration law and asylum law is to be provided to the officers of PSP, GNR, PJ and IRN.[8]

While the law was initially expected to entry into force in January 2022, it was amended in December and, at the time of writing, was due to enter into force in May 2022.[9] At the time of writing, APMA had not been created yet.

[1] Article 29(1) Asylum Act; Article 17 Decree-Law 252/2000.

[2] Article 17(1) Decree-Law 252/2000.

[3] Act n. 73/2021 of 12 November 2021 approving the restructure of the Portuguese system of border control, reshaping the regime of the forces and services responsible for internal security and establishing other rules for the redistribution of competences and resources of the Immigration and Borders Service, amended by Act n. 89/2021 of 16 December 2021, available at: https://bit.ly/3OitRkJ.

[4] Article 2 Act n. 73/2021 of 12 November 2021.

[5] Article 2 Act n. 73/2021 of 12 November 2021.

[6] Article 2 Act n. 73/2021 of 12 November 2021.

[7] Article 3 Act n. 73/2021 of 12 November 2021.

[8] Article 12 Act n. 73/2021 of 12 November 2021.

[9] Article 15 Act n. 73/2021 of 12 November 2021.

Short overview of the asylum procedure

The Portuguese asylum procedure is a single procedure for both refugee status and subsidiary protection. Different types of procedure are applicable depending on whether the asylum application:

• is submitted to the regular procedure;
• is deemed unfounded (including in the case of applications following a removal procedure) and therefore submitted to an accelerated procedure;
• Is deemed inadmissible, or
• is presented at a national border and processed under the border procedure.

Anyone who irregularly enters or remains on Portuguese territory must present his/her application for international protection to SEF or to any other police authority as soon as possible, orally, or in writing. In the latter case, the police authority has 48 hours to inform SEF of the application.

SEF is required to register the asylum application within 3 working days of presentation and to issue the applicant a certificate of the asylum application within 3 days after registration. The applicant must be informed of his/her rights and duties in a language he/she understands or is expected to understand. Moreover, SEF must immediately inform the United Nations High Commissioner for Refugees (UNHCR) and the Portuguese Refugee Council (CPR), as an organisation working on its behalf, of all asylum applications.

UNHCR and CPR are further entitled to be informed of the most relevant procedural acts (e.g. interview transcripts and decisions) upon consent of the applicant, and to provide their observations to SEF at any time during the procedure. The Asylum Act also determines that UNHCR and CPR are to be informed of decisions determining the loss of international protection, regardless of the consent of the applicant.

Except for special cases, such as applicants lacking legal capacity, all asylum applicants must undergo either a Dublin interview or an interview that addresses the remaining inadmissibility grounds and the merits of the application. This is provided both on the territory and at the border.

According to the law, following the interview on the territory, SEF produces a document narrating the essential facts of the application and in the case of applications on the territory (with the exception of subsequent applications and applications following a removal decision) the applicant has 5 days to seek revision of the narrative. National jurisprudence provides that the applicant must be granted an opportunity to reply to the prospective outcome of the application (admission to the regular procedure, accelerated refusal on the merits or inadmissibility) and not only to the facts adduced during the personal interview, leading to changes in the practice in this regard.

The admissibility of subsequent applications and applications following a removal order is subject to specific rules.

Admissibility procedure

With the exception of Dublin decisions, the National Director of SEF has 30 days to make a decision on the admissibility of applications on the territory (10 days for subsequent applications and applications following a removal order), as opposed to 7 days for applications processed under a border procedure.

If an application on the territory is rejected as inadmissible, the asylum seeker has 8 days to appeal the decision before the Administrative Court, with automatic suspensive effect, with the exception of inadmissible subsequent applications and applications following a removal order (4 days to appeal, with automatic suspensive effect). Failing an appeal, the applicant has 20 days to leave the country. In the case of border procedures, the time limit to appeal is reduced to 4 days.

In the case of Dublin procedures, the deadline for the admissibility decision is suspended pending a reply from the requested Member State. Upon notification of a “take charge”/“take back” decision, the applicant has 5 days to appeal before the Administrative Court with suspensive effect.

Regular procedure

As soon as an asylum application is deemed admissible, it proceeds to an eligibility evaluation. In accordance with the law, this stage lasts up to 6 months but can be extended to 9 months in cases of particular complexity. The asylum seeker receives a provisional residence permit valid for 6 months (renewable) that, inter alia, grants access to education and employment.

During this stage, SEF – acting with due diligence – must evaluate all relevant facts to prepare a reasoned decision. This is generally done on the basis of the personal interview conducted during the admissibility stage of the procedure, given that it also encompasses the merits of the application. As mentioned above, UNHCR and CPR are entitled to present their observations to SEF at any time during the procedure in accordance with Article 35 of the 1951 Refugee Convention.

Upon notification of the proposal for a final decision, the applicant has 10 days to evaluate SEF’s reasoning and to respond to the proposal. SEF then sends the recommendation to its Director, who has 10 days to present it to the Ministry of Home Affairs. In turn, the Ministry of Home Affairs has 8 days to adopt a final decision.

In the event of a negative decision, the applicant may lodge an appeal with automatic suspensive effect before the Administrative Court within 15 days, or voluntarily depart from national territory within 30 days, (after this period, the applicant will be subject to the removal regime).

Accelerated procedure

The law contains a list of grounds that, upon verification, determine that an application is subjected to an accelerated procedure and deemed unfounded. These grounds include, among others, subsequent applications that are not deemed inadmissible and applications following a removal procedure.

While the rules governing accelerated procedures provide for the basic principles and guarantees of the regular procedure, they lay down time limits for the adoption of a first instance decision on the merits of the application that are significantly shorter than those of the regular procedure. In addition, these rules entail reduced procedural guarantees, such as exclusion from the right of the applicant to seek a revision of the narrative of his or her personal interview, or to be notified of and respond to SEF’s reasoning of the proposal for a final decision, as well as shorter appeal deadlines.

As in the regular procedure, the appeal has an automatic suspensive effect. However, the onward appeal in the case of an application following a removal order does not.

Border procedure

The law provides for a special procedure regarding applications made at a national border. While this procedure provides for the basic principles and guarantees of the regular procedure, it lays down a significantly shorter time limit for the adoption of a decision regarding admissibility or merits (if the application is furthermore subject to an accelerated procedure).

Additionally, the border procedure is characterised by reduced procedural guarantees such as the removal of the applicant’s right to seek revision of the narrative of his or her personal interview, and a shorter appeal deadline before the Administrative Court (4 days). Furthermore, asylum seekers are detained during the border procedure.

The border procedure was applied in practice to applications made at border points (in particular airports) until March 2020. Since then, and after the reinstatement of air traffic, asylum seekers that apply for international protection at the border have generally been granted entry into national territory, not subject to detention, and their applications have been processed according to the rules applicable to applications made in the territory.

1. Access to the procedure and registration

Access to the territory and push backs

The Portuguese authorities are bound by the duty to protect asylum seekers and beneficiaries of international protection from refoulement. National case law reaffirmed the protection against refoulement both on national territory and at the border, regardless of the migrant’s status, and in cases of either direct or indirect exposure to refoulement. CPR is unaware of national case law that addresses the extraterritorial dimension of non–refoulement.

There are no published reports by NGOs about cases of actual refoulement at the border of persons wanting to apply for asylum.

CPR does not conduct border monitoring and only has access to applicants after the registration of their asylum claim and, within the context of border procedures, once SEF has conducted the individual interview, which constitutes an additional risk factor. However, it receives at times third party contacts reporting the presence of individuals in need of international protection at the border. With rare exceptions, and even where CPR does not immediately intervene, the registration of the corresponding applications in these cases is normally communicated by SEF to CPR in the following days (see Registration of the asylum application).

In 2014, CPR carried out research on access to protection and the principle of non-refoulement at the borders and in particular at Lisbon Airport. While no cases of actual push backs at the border were identified, the research allowed for the identification of certain shortcomings such as extraterritorial refoulement in the framework of extraterritorial border controls by air carrier personnel in conjunction with SEF in Guinea Bissau.

Regarding persons refused entry at border points, shortcomings with the potential to increase the risk of refoulement identified in 2014 included: (a) challenges in accessing free legal assistance and an effective remedy, compounded by the absence of a clear legal/policy framework for the systematic assessment of the risk of refoulement; and (b) poor information provision to persons and lack of training to immigration staff on non-refoulement obligations. These risk factors were aggravated by the absence of border monitoring by independent organisations. To CPR’s knowledge, no further research on the topic has been conducted on this issue since then.

With regard to access to free legal assistance, 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). According to available information this protocol was made within the framework of Article 40(2) of the Immigration Act and is not intended to cover asylum procedures.

While available information does not substantiate any ongoing instances of extraterritorial refoulement, to the extent of CPR’s knowledge, there are no other significant changes regarding shortcomings for persons refused entry at the border. As such, the situation in relation to refusals of entry and related possible risks of refoulement remains unclear.

The UN Committee Against Torture noted in 2019 that Portugal should “[e]sure that, in practice, no one may be expelled, returned or extradited to another State where there are substantial grounds for believing that he or she would run a personal and foreseeable risk of being subjected to torture and ill-treatment” and that procedural safeguards and effective remedies regarding the prohibition of refoulement are available.

Since 2018, Portugal has systematically participated in ad hoc relocation mechanisms following rescue operations in the Mediterranean and disembarkation in Malta and Italy.

In 2020, Portugal committed to receiving 500 unaccompanied children from Greece. According to ISS, up to the end of 2021, a total of 199 children and young adults were transferred to Portugal within this programme, of which 127 transfers were in the course of 2021. This followed a 2019 agreement with the Greek authorities to implement a pilot relocation process for 100 applicants/beneficiaries of international protection (See Dublin: Procedure). According to the information provided by SEF, the pilot stage of implementation of the bilateral agreement was concluded in 2021. A total of 84 beneficiaries of and 13 applicants for international protection were relocated to Portugal within this context. SEF also stated that the selection process was conducted by the NGO Focus with the support of EASO and IOM.

According to information provided by SEF, 270 applicants were relocated to Portugal in 2021.

While sea arrivals are not common in Portugal, since December 2019, multiple groups of people from Morocco arrived by sea in small boats in the region of Algarve. In November 2021, 37 persons were rescued by the Portuguese authorities in international waters. According to the information provided by SEF, in 2021, 48 persons arrived in the country by sea, the majority of whom applied for international protection.

Registration of the asylum application

While the asylum application can be presented (“made”) either to SEF or to any other police authority, the responsibility to register asylum claims lies solely with SEF. If an asylum application is presented to a different police authority, it must be referred to SEF within 48 hours. In accordance with SEF’s internal organisation, the responsibility for organising asylum files (including registration) lies with its Asylum and Refugees Department (SEF-GAR). SEF-GAR is required to inform CPR, as an organisation working on UNHCR’s behalf, of the registration of individual asylum applications.

In 2021, out of a total of 1,537 applications registered by SEF (including 270 made by persons relocated to Portugal), 1,433 (including 22 made by persons relocated to Portugal) were communicated to CPR. While this reflected a return to pre-pandemic figures (in 2019 there were 1,849 applications registered/1,714 applications communicated to CPR), a significant part of the total refers to persons evacuated from Afghanistan and admitted to Portugal (768) and persons relocated to the country (279). As such, the number of spontaneous applications remained comparatively low which is likely still connected to the restrictions upon international travel linked to the coronavirus pandemic.

In accordance with the law, anyone who irregularly enters Portuguese national territory or is refused entry at the border must present their asylum application to SEF or to any other police authority as soon as possible.

While there are no specific time limits for asylum seekers to lodge their application, the law provides for use of the Accelerated Procedure in case the asylum applicant enters or remains irregularly on national territory and fails to apply for asylum as soon as possible without a valid reason. This provision has rarely been applied in practice and, according to the experience of CPR, when applied, it is usually combined with other grounds for the application of accelerated procedures.

Failure to apply for asylum at the earliest possible time, unless the applicant can demonstrate good reason for not having done so, also constitutes a ground for not granting the benefit of the doubt. According to CPR’s observation, this provision has been applied by SEF in practice.

Additionally, it should be noted that persons refused entry at the border are liable to immediate removal to the point of departure, meaning that, in practice, they are required to present their asylum application immediately.

Upon presentation of the application, the asylum seeker is required to fill out a preliminary form, which includes information on identification, itinerary, grounds of the asylum application, supporting evidence, and witnesses. This preliminary form is available in Portuguese, English, French, Spanish, Arabic, Lingala, Russian and Pashtu. According to CPR’s experience, asylum seekers are not systematically provided with quality interpretation services at this stage of the procedure, which may result in the collection of insufficient and poor quality information.

Since December 2019, following an agreement between SEF and CPR, two CPR liaison officers have been deployed to the premises of SEF-GAR, where the majority of applications are made, to facilitate registration, provision of initial information, and necessary referrals (e.g. for housing). According to CPR’s observation, this measure has facilitated communication between the relevant entities and the provision of support to asylum seekers.

SEF is required to register the asylum application within 3 working days of presentation and to issue the applicant with a certificate of asylum application within 3 days of registration. Despite isolated delays (e.g. related to the registration of asylum applications presented in SEF’s regional representations), CPR has not encountered systemic or serious problems regarding the registration of applications as opposed to occasional instances of delayed issuance and renewal of the certificates of the asylum application. According to CPR’s observation, delays in the renewal of documents have usually been linked to difficulties in making appointments with SEF.

A decision from the Central Administrative Court South (TCA South) issued in 2021, considered that applications for international protection presented remotely may not be altogether disregarded by SEF. In the case analysed, the application had been initially filed by a lawyer representing the applicant via fax, and was not taken into account by SEF, which demanded that it should be made in person in order for the necessary checks to be performed (namely because it was not possible to confirm whether the applicant was indeed in Portugal at the time of application).

The report of the National Preventive Mechanism covering 2019 notes that, during a visit to the detention centre at Lisbon airport, the Mechanism spoke to two women who alleged that they have previously asked SEF to register their applications for international protection, but to no avail. The report further details that SEF denied that such requests have been made before and promptly registered the applications afterwards. The most recent report available at the time of writing (covering 2020) does not contain similar references.

In 2020, the UN Human Rights Committee highlighted that Portugal should “[e]nsure that all applications for international protection at the border and in reception and detention facilities are promptly received, registered and referred to the asylum authorities” and “[c]ontinue its efforts to maintain and strengthen the quality of its refugee status determination procedures, in order to fairly and efficiently identify and recognize those in need of international protection and to afford sufficient guarantees of respect for the principle of non-refoulement under the Covenant”. The Committee further recommended that Portugal strengthens “[…] training for the staff of migration institutions and border personnel on the rights of asylum seekers and refugees under the Covenant and other international standards”.

A study focusing on the situation of asylum-seeking unaccompanied children and ageing out in Portugal published in 2021 revealed that the majority of those questioned stated that they were not aware of the possibility of applying for international protection upon arrival in the country, and that they have been informed of it by the national authorities in light of their situation.

If you want to know the full procedures, go to the following links:

Procedures

1. Regular procedure
2. Dublin
3. Admissibility procedure
4. Border procedure (border and transit zones)
5. Accelerated procedure

Guarantees for vulnerable groups

1. Identification
2. Special procedural guarantees
3. Use of medical reports
4. Legal representation of unaccompanied children

Subsequent applications

The safe country concepts

1. Safe country of origin
2. Safe third country
3. First country of asylum

Information for asylum seekers and access to NGOs and UNHCR

1. Provision of information on the procedure
2. Access to NGOs and UNHCR

Differential treatment of specific nationalities in the procedure

__________

Portugal

Responsible Authoritie for Immigration issues in Portugal

• 2  autonomous regions (Azores and Madeira)
• 308 municipalities
• 3,091 civil parishes (Freguesias)

​Portugal is a republican state and a parliamentary democracy under the 1976 Constitution

Central level

The mission of the Minister of Internal Affairs is to develop, drive, implement and evaluate a comprehensive and coordinated policy in the field of local government, citizenship and equality, as well as monitoring the interministerial character measures for the implementation of the Government Programme.

The Ministry of Internal Affairs is responsible for:

• Developing policy and legislation in the field of citizenship and migration;
• Providing oversight and supervision of the High Commission for Migration,
• formulating, driving, implementing and evaluate the border control actions

The Immigration and Borders Service (security service organised vertically under the Ministry) is responsible for implementing the Portuguese policy for immigration and asylum and for awarding and renewal of residence permits in agreement with the provisions of the Constitution and the Law, and the Government’s guidelines.

Responsible ministries/bodies

• Minister of Internal Affairs
• High Commission for Migration
• Authority for Work Conditions
• Portuguese Immigration and Borders Service

Regional level

The Azores:

• The integration of immigrants;
• The support of the migrant communities;
• The association and dissemination of Portuguese culture and Azorean Diaspora, and
• The reintegration of returning migrants.

Madeira:

• Immigration status of citizens.

Responsible ministries/bodies

Regional Authorities of Azores and Madeira

Local level

The Portuguese Council for Refugees (a NGO) and Central government authorities negotiate with local social services to distribute any received asylum seekers and refugees.

Although local governments have no responsibilities in this area, they can devise and implement migrant integration measures.

Additionally they may help co-ordinate housing and the reception of asylum seekers or refugees.

Responsible ministries/bodies

Municipalities

Sources

Estatuto Político-Administrativo da Região Autónoma da Madeira  (Law 130/99 of 29 August).

Estatuto Político-Administrativo da Região Autónoma dos Açores (Law 2/2009 of 12 January).

Decreto-Lei n.º 240/2012 Third amendment to the Decree-Law n. º 252/2000 of 16 October, approving the Immigration and Borders Service’s Organic Law

Decree-Law No. 251-A / 2015 of December 17 Organic XXI Government Law

Lei n.o 15/98 de 26 de Março Estabelece um novo regime jurídico-legal em matéria de asilo e de refugiados [Law No. 15/98, March 26, Establishes a new legal system in the area of asylum and refugees],

Portugal Migrant Integration Country Factsheet, European Commission, available at https://ec.europa.eu/migrant-integration/country/portugal (Accessed 09 MAR 16)

For respective Acts, see: https://ec.europa.eu/migrant-integration/index.cfm?action=furl.go&go=/librarydoc/decree-law-no-31/2014-27th-february ; https://ec.europa.eu/migrant-integration/index.cfm?action=furl.go&go=/librarydoc/portugal—new-law-on-the-entry-stay-departure-and-expulsion-of-foreigners-law-29/2012 ; https://ec.europa.eu/migrant-integration/index.cfm?action=furl.go&go=/librarydoc/lei-organica-2/2006-da-nacionalidade

UNHCR, Portugal, available at http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e48dcd6&submit=GO

Refugee Advice at http://www.refugiados.net/cid_virtual_bkup/integra/guia_ig.html

Portugal, European Migration Network, Ad Hoc Query Request, Access to the Labour Market, 2015.

Resettlement, EU, Portugal, “New Developments”, available at http://www.resettlement.eu/country/portugal

“Cultural Orientation Leaflet For Resettled Refugees in Portugal”, p.13 Portuguese Refugee Council (CPR), available at http://refugiados.net/_novosite/dossier_reinstalacao/GuiaOrientacaoCulturalParaRefugiadosReinstalados_VersaoInglesa.pdf

Portugal, Migrant Integration Policy Index, available at http://www.mipex.eu/portugal

UNHCR, “Universial Periodic Review: Portugal, September 2013, available at http://www.refworld.org/country,,UNHCR,,PRT,,5283497f4,0.html

Minimum Guaranteed Income and Basic Income in Portugal, Basic Income European Network, 2002, available at http://www.basicincome.org/bien/pdf/2002BrutodaCosta.pdf

“Cultural Orientation Leaflet For Resettled Refugees in Portugal”, p.12 Portuguese Refugee Council (CPR), available at http://refugiados.net/_novosite/dossier_reinstalacao/GuiaOrientacaoCulturalParaRefugiadosReinstalados_VersaoInglesa.pdf