The fundamental right to asylum in Portugal; two-speed or dual-source protection?
Madalena Simões[1]
Abstract
The present post attempts to discuss the fundamental right to asylum as enshrined in the Portuguese Constitution, aiming to identify which exact asylum grounds it entails and what is extent of the protection it actually offers. Beginning with a brief analysis of Art. 33, its ratio and historical foundations, it is argued that a literal and therefore narrow interpretation could lead to the insufficient constitutional protection of asylum seekers in Portugal. This brief analysis aims to overcome the restrictive conception of the right to asylum that results from the written constitutional law, by reviewing key judicial decisions and doctrine, claiming that a broader interpretation of the asylum protection in the Portuguese Constitution could lead to an enhancement of the protection of aliens in Portugal.
Key Words: 1951 UN Convention; Portuguese Constitution; Right to Asylum
1. Constitutional vs Conventional Asylum in Context
Portugal is one of the very few states on the European Union (alongside France, Germany, Spain, and few others) that has included asylum as a fundamental right in the Constitution. For some states, refugees are just a group of those granted asylum[1] while asylum is a right of the state inherent to its national sovereignty, and as such, there is no legal obligation for a state to restrict it only to those categories stated in the Refugee Convention.[2] It is argued, that, in Portugal, though a double protection approach is followed, asylum and refugee status are treated as having a cause-consequence relationship between them, with the recognition of the former determining the access to the latter[3].
Portugal ratified the Refugee Convention in 1960, though it was only in 1975 when the Optional Protocol was adopted. Until then, the asylum was granted only to those fleeing the events of WWII. The Portuguese Constitution was adopted one year later. Instead of granting asylum to the same beneficiaries as those of the Convention, the Portuguese Constitution seems to have focused on what is called political asylum.
The first paragraph of article 3 of the Portuguese asylum law[4] is identical to Article 33(8) of the Portuguese Constitution bestowing the right to asylum, whilst the second refers to beneficiaries of refugee status pursuant to the Geneva Convention of 1951 on the Status of Refugees.
Article 33(8) of the Portuguese Constitution nowadays states the following: ‘the right of asylum is guaranteed to foreigners and stateless persons who are the object, or are under grave threat, of persecution as a result of their activities in favour of democracy, social and national liberation, peace among people, freedom or the rights of the human person.
In the meantime, paragraph 9 of the same article states that ‘ordinary law shall define the status of the political refugee’. This means that the status of the beneficiary of the right to asylum on the grounds of article 33 is specified in ordinary law, thus creating a special status.[5] The question arises of whether this status is different from that of the beneficiaries of asylum on convention grounds. Arguably, Article 3 of Law 27/2008 establishes that there are two “routes”[6] in the Portuguese legal system for the recognition of the fundamental and constitutional right that is the right to asylum: the constitutional route (par.1) and the convention route (par.2).
Seen in its historical context, the right to asylum was included in the Portuguese Constitution that was drafted after the 25 of April Democratic Revolution and came into effect on 10 April 1976. The right to asylum was included in Title I under the section “fundamental rights and duties”. The Portuguese Constitutional Court in its jurisprudence affirms too, that the right to asylum of article 33 is indeed a constitutional and fundamental right.[7]
Case law from the Supreme Administrative Court holds that when the grounds are those defined in article 33(8)[8] then the right to asylum is constitutional. Simultaneously, Conselheiro Cruz Rodrigues[9] states that when the asylum application fulfils all the criteria established in article 33(8), there is a legal obligation to grant asylum relying on the Portuguese State, this being ‘a legal imperative and not favour or goodwill offered to the applicant’. Judge Ana Celeste Carvalho also supports this position, stating that from article 33(8) of the Portuguese Constitution results that the right to asylum is a “fundamental right enforceable and invokable before the Portuguese State, with administrative and judicial review, before public authorities and the administrative courts”.[10]
According to the Diaries of the Constituent Assembly, there was no discussion about the inclusion itself of a right to asylum in the Portuguese Constitution. As such, all drafters knew that such right should be included and incorporated in the Constitution, and it was only its content that remained for discussion. The main issue of this debate was, more specifically, who should be the beneficiaries of such a right[11].
All but one draft proposals for article 33(8), had a common inclination to recognise the right to asylum to foreigners who participated in certain political causes (‘in favour of democracy, social and national liberation, peace among people, freedom or the rights of the human person). Though the reason behind this predisposition is not completely clear, it is true that many of the deputies who were part of the Constituent Assembly had been political refugees themselves in the past because of their activities in favour of democracy in Portugal during the dictatorship.
As such, they wished to offer the protection that was offered previously to them by other States, to foreigners who have fought for the same causes. This is reflected in the intervention of the deputy José Augusto Seabra[12] during the Constituent Assembly discussions on the draft of the article on the right to asylum, who mentioned his personal experience as a political refugee. In the discussions is also referred the long tradition of Portugal as being a ‘land of political asylum’[13] apart from the years of dictatorship rule. Additionally, since the right to asylum is historically linked with the fight for civil liberties, namely freedom of expression and of political opinion, it is evident that the drafters of the constitution sought to enforce a pro-democratic and pro-activist legal system.
Neither in ordinary law, namely the Portuguese Asylum Law (Lei n. º 27/2008), nor in case law, is it explained what each of the asylum grounds established in article 33(8) of the Portuguese Constitution entail and their specific requisites. Political asylum traditionally refers to an activity, meaning that, literally, a mere expression of political opinion (or perception of the persecutor of such an expression as political) as stated in the Geneva Convention should not reach the threshold of constitutional protection. Arguably, however, this would create a two-speed right of asylum, one fundamental and of the constitutional level of protection and one established in ordinary law. Views on this at first glance creation of hierarchically unequal asylum rights in Portugal are to be explored further on.
2. Constitutional protection for beneficiaries other than political activists? Issues of interpretation
Defence and protection of a fundamental and constitutional right is much stronger and greater in extent than that recognised to a right established in ordinary law. For example, a constitutional right always prevails when colliding with other rights merely recognised at an ordinary law level[14]. Simultaneously, a fundamental right is inalienable, meaning that it cannot be taken away or restricted only in very exceptional circumstances. Therefore, a question arises on whether, the right enshrined in the Refugee Convention, is a mere right of ordinary law, and therefore, in comparison to the right of political asylum of the Constitution, susceptible to changes of governmental policies and political turbulences.
Important authors such as Constitutionalist and Professor, Vital Moreira, former judge of the Portuguese Constitutional Court and deputy at the Portuguese Constituent Assembly, argue that only the right to political asylum shall be recognised as a constitutional right.[15]
Professor Vital Moreira argues that the right to asylum has three dimensions: (a) an international dimension, being a State’s right to provide refugee to those who are persecuted or threaten of persecution by another State; (b) a personal dimension, as a subjective right of a person to seek refuge in another country; (c) and finally a ‘constitutional objective dimension’, being an instrument of protection of constitutional values (democracy, social and national liberation, peace among people, freedom or the rights of the human person).
According to the author, there is only a constitutional right to the asylum when such values are at stake. Thus, only when there is in fact political activity in favour of such causes is there a constitutional right to asylum. Nonetheless, Professor Vital Moreira points out that this does not jeopardize the possibility of the concession of asylum on different grounds by ordinary law.
Underlying Professor Vital Moreira’s position seems to be the idea that the ratio and aim of article 33 is the protection of constitutional values. However, if we consider that the ratio of this norm is the protection of those who are victims of persecution or the threat thereof, prevailing the right to asylum’s personal dimension – and not its ‘constitutional objective dimension’ – then an expansive interpretation of article 33 might be preferable. Still, even assuming that the ratio of article 33 is indeed the protection of constitutional values, then the respect for the dignity of the human person and other constitutional values – such as the right to personal integrity (Article 27 of the Portuguese Constitution), the right to freedom and safety (article 27 of the Portuguese Constitution), freedom of conscience, religion and cult (article 41 of the Portuguese Constitution) – should lead to the recognition of a constitutional right to asylum even when its grounds are those defined in ordinary law[16].
Professor Oliveira proposes another approach on the matter. Commenting relevant jurisprudence of the Supreme Administrative Court – according to which, when the cause of prosecution or the threat of thereof is because of race, religion, nationality, membership in a particular social group or political opinion, even though these reasons are not stated in the Portuguese Constitution but in Ordinary Law, the right to asylum shall still be recognised as a fundamental right [17] – she claims that we can safely presume that the right to asylum for refugees of the Geneva Convention is to be considered as fundamental and therefore constitutional in its essence – or ‘materially’ constitutional. Furthermore, she cites article 16(1) of the Portuguese Constitution “the fundamental rights enshrined in the Constitution shall not exclude any others set out in applicable international laws and legal rules”.[18]
Moreover, the fact that the right to asylum is materially constitutional also when the cause of persecution or the threat of prosecution is because of race, religion, nationality, membership in a particular social group or political opinion, can simultaneously be legally based on Article 16 (2), which states that “the constitutional norms concerning fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights”. Considering that the Universal Declaration of Human Rights (UDHR), on article 14(1), establishes that “everyone has the right to seek and to enjoy in other countries asylum from persecution”[19] a literal and isolated interpretation of article 33(8) could fail to guarantee the respect completely and materially for the fundamental right to asylum, as safeguarded both in UDHR and Article 16(2) of the Portuguese Constitution.
Case law and Professor Oliveira’s writings arguably overcome the restrictive conception of the right to asylum that results from written constitutional law, which literally and solely interpreted would undermine the otherwise – at least theoretically – vigorous protection of asylum seekers in Portugal.
What remains to be seen
is how administrative authorities and the Portuguese
Immigration and Borders Service (SEF) apply these provisions in practice. The
constitutional protection argued in this post serves the purpose of not being
vulnerable to both national and international political services. SEF does not provide
reports on the grounds of asylum requests in Portugal. As such, the question of
whether this robust theoretical legal regime is indeed effective, should, in
our opinion, be the matter of a more extensive, empirical study.
HOW TO CITE:
M. Simões, The fundamental right to asylum in Portugal; two-speed or dual-source protection?, NOVA Refugee Clinic Blog, February 2021, available at <https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=the-fundamental-right-to-asylum-in-portugal-two-speed-or-dual-source-protection&preview_id=982&preview_nonce=ec2a255805&preview=true&_thumbnail_id=983>
[1] María-Teresa Gil-Bazo, Asylum as a General Principle of International Law, International Journal of Refugee Law, Volume 27, Issue 1, March 2015, Pages 3–28, https://doi.org/10.1093/ijrl/eeu062
[2] Convention on the Status of Refugees,
[3] Andreia Sofia Pinto Oliveira, Direito de asilo, in Paulo Otero, Pedro Gonhalves (eds.), Tratado de Direito Administrativo Especial, Volume VII, Almedina Editions, page 21, available at:
https://www.fd.unl.pt/docentes_docs/ma/Jdho_MA_31940.pdf
[4] Act 27/2008 of June 30 amended by Act 26/2014 of May 5.
[5] Gomes Canotilho e Vital Moreira, Constituição da República Portuguesa Anotada, 3rd edition, Coimbra, Coimbra Editora, 1993.
[6] Ibid, Oliveira in Otero and Gohnalves, pp. 36-38.
[7] Acórdãos 219/04 and 587/05 of the Portuguese Constitutional Court.
[8] Cases 42.452 of 9th of July 1998, 44.331 of 7th of October 1999 and of 44.667 of 31st of October 2000 of the Portuguese Supreme Administrative Court
[9] See respectively cases 37.809 of 9th of November 1999 and 44.667 of 31st of October 2000.
[10] Ana Celeste Carvalho, European asylum law. Reality and challenges in the context of immigration, UNIO – EU Law Jounal. Vol. 2, No. 2, June 2016, pp 123-139, p. 135, available at:
http://www.unio.cedu.direito.uminho.pt/Uploads/UNIO%20-%202%20Eng/Ana_Celeste.pdf
[11] Andreia Sofia Pinto Oliveira , 2009. O direito de asilo na constituição portuguesa. Coimbra: Coimbra Editora, pp 73-75.
[12] DAC n. º 36 (23/08/1975) p. 198.
[13] DAC n. º 130 (01/04/1976) p. 1060.
[14] See, e.g., Acórdão 962/96 of July 11th, of the Constitutional Tribunal on the right to legal aid for asylum seekers.
[15] Op. Cit., Gomes Canotilho Vital Moreira.
[16] Op. Cit., Oliveira, 2009, p.11.
[17] Op. Cit., Supreme Administrative Court, Case 37809
[18] Op. Cit., p. 117-121.
[19] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html