IGAI: migrants must have a lawyer before refusing entry at the airport | Immigration

The General Inspectorate of Internal Administration (IGAI) recommended that the PSP allow legal assistance to foreigners detained at the airport when they are stopped at the border and before the decision to refuse entry to Portugal is made.

The recommendation states that this should happen “whenever it is requested by the person or a lawyer, during the investigation phase of the administrative process”. This is because several lawyers and foreigners reported cases in which they were unable to access legal assistance when they had to answer several questions from the authorities, which, they claim, prevents them from defending their rights before being faced with a refusal. . And, as IGAI emphasizes, “the result is that these citizens may remain for a period, which may be long, unable to enter national territory and prevented from receiving legal assistance from a lawyer.”

The PSP says that it received the recommendation and that it is “analyzing its content and the impacts of the aforementioned document on the operation” of this security force.

The recommendation published by IGAI recalls that the guarantee of legal support only after the administrative decision to refuse entry results from the “procedure established by the PSP and, previously, also by the SEF [Serviço de Estrangeiros e Fronteiras]”.

While foreigners who are refused entry are guaranteed legal assistance by law, anyone who is intercepted and taken to what is called the “second line of control” at the airport has to wait for the investigative procedures designed to determine whether there is a basis for refusing entry. Prohibited. Their statements are also recorded in the record and signed by them, and a proposal for a decision is then presented.

Citing the Portuguese Constitution in which article 20 states that “Everyone has the right, under the terms of the law, to legal information and consultations, to legal representation and to be accompanied by a lawyer before any authority” – and the codes of Administrative Procedure and Criminal Procedure –, the IGAI argues that, until the decision is taken, “evidence production steps may be taken by the instructor, namely the taking of statements by the citizen about the reasons for entry, with the subsequent signing of the record, all without the presence of a lawyer, even in situations where this is required”.

“It is true that there is no obligation to guarantee legal assistance to all citizens during the investigation of the administrative process and prior to the decision to refuse entry into national territory, particularly when the citizen makes statements. However, when statements are made, the hearing of the foreign citizen counts, for all purposes, as the hearing of the interested party. (…) This is, undoubtedly, an administrative procedure that will result in a decision that affects the legal sphere of the foreign citizen”, states IGAI.

A citizen’s request to be accompanied by a lawyer cannot be refused by the PSP, he argues.

This was a position defended for several years by those who follow these processes, and which the president of the Bar Association (OA), Fernanda de Almeida Pinheiro, recalled after visiting the airport in January.

When contacted, the Order “is pleased that, in line with what has already been requested from the airport’s PSP”, IGAI has adopted this recommendation”, as stated by Filipa Santos Costa, member of the general council. However, the person responsible states that the presence of lawyer “must always be ensured independently” of the person’s request, “since citizens in these circumstances are not always able to express their will”.

“Although it is an improvement in relation to the current situation, it seems to us that it is still lacking, and it is now within the PSP’s sphere to act to guarantee access to legal advice provided by qualified professionals.”

The Order argues that a scale must be created that guarantees the monitoring of citizens by lawyers from the moment they are heard by the authorities – and when they make statements that could harm them.

Since March 2021, the Order has had a roster of lawyers who provide support to citizens prevented from entering, but do not provide support in the first interview that serves as the basis for the decision of non-admission. The measure, at the time, was taken after the death of Ukrainian citizen Ihor Homenyuk in the airport’s temporary installation center, after being prevented from entering Portugal on suspicion that he was coming to work.