In accordance to article 79 (1) of Asylum Law 26/2014, 5 May amending Law 27/2008, 30 June,
“Without prejudice to the applicable guardianship measures in pursuance of minor guardianship legislation, minors who seek for or are beneficiaries of international protection must be represented by an organisation or a non-governmental organisation, or by any other legally prescribed form of representation.
it should be underlined that Asylum Law 26/2014, 5 May amending Law 27/2008, 30 June refers to representation (representação) and not to guardianship or legal guardian.
Under Portuguese Civil Law there is the possibility to request the Family and Juvenile Courts for the appointment of a legal guardian to a minor when adequate parental care is not available (article 1921 and following of the Civil Code). This procedure however does not provide the same guarantees as the procedure under special youth protection laws that will be described below (Law 147/99, 1st September on promotion rights and protection of children and youths at risk). Furthermore guardianship can only be upheld until the minor reaches the age of 18 and is not recognized by law as an urgent procedure, which in practice implies that the appointment will take several months. Courts have therefore tended to apply the special law under Law 147/99, 1st September of promotion and protection measures to unaccompanied minors asking for asylum in Portugal. This law provides for several types of protection measures for unaccompanied minors but promotion and protection measures generally issued by the Minor’s Court regarding unaccompanied minors asking for asylum have been their placement in an institution (“acolhimento em instituição” – article 35, paragraph 1.f of Law 147/99) initially on a provisional basis (article 37 of the same law) and reviewed every six months).
This promotion and protection measure consists of “placing the child or youth under the care of an entity that has installations and equipment available to receive them permanently and staff assuring the adequate assistance towards their needs and provide them conditions to allow for their education, well-being and full development“ (article 49 of Law 147/99).
This measure might be consolidated through a “promotion and protection agreement” (article 55 of Law 147/99) signed by all parties involved including the unaccompanied minor. The minor has a set of rights in this framework under article 58 and the implementation of the referred measure is done according to article 59 of the same law, as follows:
Rights of the child and youth in reception in institution
The child and youth at an institution have, especially, the following rights:
- a) Maintain regularly and in private personal contacts with family or persons with whom he/she has a special affective relationship, except in case of limitations imposed by judicial decision or by the protection commission.
- b) Receive an education that assures the full development of his/her personality and potential, guaranteeing health care, school and professional training and the participation in cultural, sports and recreational activities.
- c) Provide with privacy and autonomy environment in his/her personal life adequate to age and situation;
- d) Receive pocket money;
- e) Inviolabilty of correspondence;
- f) Not to be transferred of the institution, except when that decision is of interest;
- g) Contact, with guarantee of confidentiality, the protection commission, the Public Defender Office, the judge and his/her lawyer.
Monitoring of the execution measures
- The Protection Commissions execute the measures in view of the promotion and protection agreement.
- The execution of the measure granted on the judicial process is directed and supervised by the court that decided upon its application.
- In terms of the previous number the court will designate the entity considered to be more adequate to monitor the implementation of the measure
In this framework representation of unaccompanied minors has been systematically attributed by Minor’s Courts to CPR as the only NGO offering differentiated accommodation and assistance to unaccompanied minor asylum seekers and refugees in Portugal.
In this framework, CPR has de facto guardianship, providing all the necessary support for the fulfilment of the needs felt by of the unaccompanied minor, besides the legal assistance throughout asylum procedure (access to education, health, psychological support, family tracing, ….). CPR is responsible for organising a life project for the minor. This project includes psycho-social assistance and counselling, enrolment in the National Health Service, Portuguese language classes and access to the educational system or professional training. As in the case of adults, minors are attributed a weekly monetary support for additional expenses in terms of food, clothing, hygiene, a pass for public transport and support in terms of telecommunications. Within CPR the chosen representative is the Director of the Reception Centre where the unaccompanied minor asylum seeker is lodged.
Advise for guardians
In case a guardian of an unaccompanied minor in another European Member States seeks contact with relevant organizations/ persons in Portugal, the following is advised. The Institute of Social Security coordinates the overall definition and implementation of policies aimed at the social protection of children in the community, families and institutions. They have teams working in courts specialised in insuring follow-up of protection measures/guardianship procedures, etcetera.
Portugese Refugee Council (CPR)
(Portugese: Conselho Potugues Para Os Refugiados)
Quinta do Pombeiro, Casa Senhorial Norte
Azinhaga do Pombeiro, s/n
1900/793 Lisboa, Portugal