24 January 2014

This month the Portuguese Parliament backed a new asylum law transposing the Qualifications Directive, Asylum Procedures Directive and Receptions Conditions Directive.

The Portuguese Refugee Council (CPR) has expressed concern that the draft asylum law is a setback for the protection of the rights of persons seeking protection in Portugal. “It seems that [the Government] used the transposition of European directives as an opportunity to reduce safeguards for refugees and make the law more restrictive”, stated Teresa Tito de Morais, CPR’s President.

If the draft law is adopted, second appeals against negative asylum decisions will no longer have a suspensive effect in certain cases and therefore persons may be subject to removal pending their appeal proceedings. In the proposed law, the situations according to which asylum seekers can be detained for up to 60 days have also been expanded. Furthermore, according to the draft law, the CPR will no longer have mandatory advisory and supervisory role during the asylum procedure as it is clearly stated in the current and previous law.

In particular, the second appeal against a negative asylum decision will not have suspensive effect for asylum seekers who claim asylum at the border and for asylum seekers who appeal against a decision of being sent back to another Member State under the Dublin Regulation.

Opposing the proposal, the CPR has argued that sending asylum seekers back to their country of origin while they appeal against a negative decision on their case may cause irreversible damages and risks violating the principle of non-refoulement, which protects refugees from being returned to countries where they risk persecution.

“Asylum seekers who apply at the border had already less safeguards because their applications are examined under an accelerated procedure. This proposal is leaving them in an even more vulnerable position by not suspending their deportation in case of appeal”, explained Mónica Farinha, CPR’s Legal Office Coordinator, to the ECRE Weekly Bulletin.

Regarding the provisions on detention, currently in Portugal only asylum seekers who seek asylum at the border can be placed in closed centres at the international areas of airports for a maximum of five days while an initial decision is made on their admissibility. If the draft law is adopted, asylum seekers may be detained with the purpose of determining their identity and nationality or if the authorities consider that there is risk of the applicant absconding.

Furthermore, under the proposed law, applicants may also be placed in detention while the authorities determine which Member State is responsible for examining their application under the Dublin Regulation.

“According to the current law, asylum seekers can be detained at the border, but the authorities would always assess their vulnerability and would not keep any minors, families or pregnant women detained. This proposal is opening Pandora’s box and nearly all asylum seekers could be detained if terms such as “risk of absconding” are not well defined. Also, asylum seekers arriving in the country often do not bring their documentation, but that should not be a reason to detain them”, stressed Mónica Farinha.

According to CPR, the trend of increasingly detaining asylum seekers “promotes regrettable stereotypes and prejudices associating seeking refuge to committing a crime and asylum seekers to criminals”.

Regarding CPR’s role in Portugal’s asylum system, the new law no longer expressively states that the CPR is UNHCR’s implementing partner in Portugal. Under the proposed law, the intervention of the CPR in asylum cases will now depend on the will of the asylum seeker. According to the CPR, asylum seekers are in a vulnerable situation upon their arrival and in a natural state of distrust and might not want to accept the help of an unknown organisation.

The National Commission for Data Protection has also pointed out “that all the EU directives being transposed foresee the possibility of maintaining more favourable provisions, as long as there are compatible [with EU law]”. The Commission stresses that the law should not be modified as it is a “good example of legislative practice”.

Before becoming law, the draft will be discussed by the Parliament’s Commission on Constitutional Affairs, Rights and Liberties and may still be modified. The CPR and Amnesty International Portugal have this week been heard by the Commission and presented their disappointment and concern regarding this proposal. 


This article originally appeared in the ECRE Weekly Bulletin of 24 January 2014
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