Under the Asylum Act, a foreigner may express the intention to seek asylum in Serbia orally or in writing to competent officials of the Ministry of the Interior at a border checkpoint or within its territory,1 including prisons, the Shelter for Foreigners2 in Padinska skela, airport transit zones and during court proceedings. The foreigner shall be ‘recorded’, following which he or she is obliged to report to authorised officials of the Asylum Office or one of the asylum centres within the following 72 hours.3 The police officer also collects personal and biometric data from the individual, takes their photo and enters them in electronical data bases: the Specific Category of Foreigners (OKS)4 and Afis.5
‘Recording’ an asylum seeker – which, under Serbian law, is not the same as ‘registering’ them – entails issuing them a certificate of the expressed intention to seek asylum,6 the content of which is specified in the Rulebook on the Content and Design of the Asylum Application Form and Documents Issued to Asylum Seekers or People Granted Asylum or Temporary Protection.7 The Rulebook foresees that three copies of the certificate be issued – one is given to the asylum seeker, another is forwarded to the Asylum Office and the last one is filed in the Ministry of the Interior unit that issued it.
The certificate of having expressed the intention to seek asylum in Serbia is not considered an asylum application; therefore, expressing the intention to seek asylum does not constitute the initiation of the asylum procedure.
It is possible for the same person to express the intention to seek asylum more than once, as long as his or her asylum application has not been rejected, in which case he or she may lodge a subsequent application. This includes people whose certificate has expired, or has been stolen or lost, persons returned under a readmission agreement from neighbouring countries who had previously been recorded as asylum seekers etc.8
Unaccompanied minors cannot express the intention to seek asylum before a social welfare centre appoints a temporary legal guardian.
Over the course of 2016, the Ministry of Interior issued a total of 12,821 certificates of having expressed the intention to seek asylum in Serbia. However, this data does not adequately reflect the real number of persons who were genuinely interested in seeking asylum in Serbia. Certificates are mainly requested in order to be admitted to the asylum or reception centres, where asylum seekers may enjoy such basic rights as accommodation, food, healthcare, psycho-social support, etc.9 Under the circumstances, the Ministry of Interior does not adequately assess an individual’s aspirations – whether or not they genuinely want to remain in Serbia. Conversely, it is common practice that genuine asylum seekers be referred to reception centres10 instead of asylum centres, thereby preventing them from entering the asylum procedure, forcing NGOs providing legal assistance to asylum seekers to advocate for their transfer to an asylum centre. This process can sometimes last for more than several weeks, which further delays access to the asylum procedure.
Particularly disturbing is the situation of asylum seekers who had been hoping to continue towards Western and Central Europe but got ‘trapped’ in Serbia as a result of neighbouring countries shutting down their borders.11 Because they had already spent weeks or even months in Serbia by the time they apply for asylum, they are often treated as simple irregular migrants and face action under the Foreigners Act, such as being issued an order to leave the country or face forced return proceedings. If the foreigner had previously applied for asylum but then tried to leave the country, the Ministry of Interior considers it an abuse of the asylum procedure and often denies them the possibility of submitting an application. Under such circumstances, police officers tasked with issuing certificates of having expressed the intention to seek asylum will often refuse to do so, in spite of the fact that they are not entitled to make such a decision under the Asylum Act.
Another issue that was present throughout 2016 involved persons who refused to go to particular reception centres, such as the one in Preševo, because they were afraid of being deprived of their liberty and informally expelled to FYROM. Reintroducing these people into the asylum procedure after 72 hours have expired since they had been issued a certificate represents real hardship due to a flawed interpretation of Articles 22 and 23 of the Asylum Act.
Apart from problems related to the interpretation of Articles 22 and 23 of the Asylum Act, the Belgrade Centre for Human Rights and other NGOs received several complaints of unprofessional and abusive behaviour of police officers in Belgrade’s Savski Venac Police Station. This included yelling, threats of deportation to FYROM or Turkey, or imprisonment. One asylum seeker from Syria stated during the asylum procedure interview that one of the police officers offended him on religious grounds and told him to go back to Turkey.12
As had been the case in previous years, refugees expelled / returned from Hungary are still facing difficulties in accessing the asylum procedure in 2016. It is not clear what the official stance of Serbian authorities vis-à-vis such cases is, but in light of several incidents wherein the Belgrade Centre’s intervention was required, asylum seekers, who possessed case files from accelerated asylum proceedings that had been conducted in transit zones Tompa or Röszke in Hungary or who had been readmitted to Serbia, were denied the possibility of expressing the intention to seek asylum. In a case involving 3 Syrian refugees whose asylum applications had been dismissed in Hungary, persistent advocacy on the part of the Belgrade Centre’s lawyers was required before the Serbian authorities agreed to allow them into the asylum procedure.
Foreigners issued certificates of having expressed the intention to seek asylum in Serbia are obliged to report to their assigned asylum centre within 72 hours of being issued the certificate; alternatively, they may contact the Asylum Office to ask for consent to reside at a private place of residence.13
The Asylum Office registers asylum seekers once they are admitted to an asylum centre or receive approval to reside at a private address. Registration entails establishing the asylum seeker’s identity, taking his or her photo and fingerprints and seizing all relevant personal identity documents; the foreigners are issued receipts for the seized documents, which are held for the duration of the asylum procedure and are to be returned regardless of its outcome.14 Asylum seekers possessing such documents are obliged to relinquish them by the time of their hearing at the latest.15 Although there is no specific deadline for an asylum seeker to be registered, it should be done as soon as possible, in line with the principles of legal certainty and efficiency.16
In 2016, the Asylum Office only registered 830 asylum seekers.
Registered asylum seekers are issued a personal identity document confirming their status, which is valid for 6 months and is to be extended until the end of the asylum procedure.17 Although the Asylum Act does not specify the deadline by which the asylum seekers are to be issued these documents, the wording of the relevant provision of this law leads to the conclusion that they are to be issued immediately upon registration. In practice, however, asylum seekers are forced to wait a long time in order to receive them. This is problematic given the fact that, in spite of having the right to freedom of movement, they are at risk of getting into trouble with the authorities should they be required to provide proof of their identity.18 The Asylum Office issued a mere 177 personal identity documents in 2016, which indicates that many registered asylum seekers were not provided with one.
The General Administrative Procedure Act, which acts as lex generalis to the Asylum Act, an administrative procedure may be initiated ex officio or at the motion of a party.19 The Asylum Act foresees that the asylum procedure shall be initiated by submitting an asylum application to an authorised officer of the Asylum Office on a prescribed form, within 15 days of registration.20
It should be borne in mind that, in spite of the fact that the Asylum Act foresees the above-mentioned deadline for submitting an asylum application, doing so in practice depends entirely on Asylum Office staff, seeing as how the application must be submitted in their presence, meaning that the asylum procedure is de facto initiated ex officio.
The submission of the asylum application involves the Asylum Office representative asking the asylum seeker questions related to their country of origin, the grounds for seeking asylum, the manner in which they reached Serbia, and others, as foreseen by the application form.
The Asylum Office received only 574 asylum applications in 2016.
- 1. Article 22(1) Asylum Act.
- 2. The Foreigners Act defines the Shelter for Foreigners as ‘a building for the accommodation of foreigners who are not allowed to enter the country or who are to be expelled or deported from the country but cannot be expelled and who, in conformity with the law, are determined to stay under enhanced police supervision.’ Article 3(11) Foreigners Act.
- 3. Article 22(2) Asylum Act.
- 4. Specific Category of Foreigners (Određena kategorija stranaca): is a database which records all legal measures undertaken with regard to a foreigner during his or her stay in Serbia, such as the approval and basis upon which the foreigner was approved temporary residency, any decisions cancelling temporary residence (Article 35 Foreigners Act), decisions regarding illegal residence (Article 43 Foreigners Act), requests for the initiation of misdemeanour proceedings and misdemeanour sanctions that were imposed, decisions on placement in the Shelter for Foreigners in Padinska Skela (Article 49 Foreigners Act), etc.
- 5. Afis is the Ministry of Interior’s database containing information on criminal and misdemeanour offenders, but which is also used by the Ministry for refugees and asylum seekers since it includes rubrics for biometrical data and photography. Afis is more reliable for identity checks because OKS contains only data that can easily be forged, e.g. name, place and date of birth, etc.
- 6. Article 23(2) Asylum Act.
- 7. The certificate includes personal data such as the asylum-seeker’s name, surname, place and date of birth and country of origin.
- 8. This is the Belgrade Centre’s experience in working with Asylum Office staff when representing asylum seekers in the procedure.
- 9. The Government of Serbia attempted to resolve this issue by adopting the Decision on Issuing a Certificate of Having Entered the Territory of Serbia for Migrants Coming from Countries Where Their Lives are in Danger. However, due to the fact that the so-called ‘transit certificate’ (that had been issued in line with the Decision) was valid for the same amount of time as the certificate for asylum (72 hours), the problem of unregulated status of people who are in need of international protection, but do not perceive Serbia as a country of destination, continued to exist in 2016, since 72 hours was not long enough for an individual to leave Serbia. Besides, the implementation of the aforementioned decision was halted in the first half of 2016, and the authorities continued with the practice of issuing certificates of having expressed the intention to seek asylum to people who did not want to seek protection in Serbia.
- 10. E.g. to the reception centre in Preševo.
- 11. In September 2015, Hungary established a fence along its border with Serbia, criminalised damaging it, introduced an accelerated asylum procedure in the detention centres Tompa and Röszke which is based on the automatic application of a safe third country concept in relation to Serbia, etc. Nonetheless, the Belgrade Centre and other NGOs operating in the border areas with Croatia and Hungary received dozens of complaints related to pushback and ill-treatment that had preceded it at the hands of Hungarian and Croatian border police. See more at: AIDA Country Report Hungary: 2016 Update, February 2017, available at: http://bit.ly/2k3zGE9.
- 12. Minutes of the hearing from the case file no. 26-1395/16.
- 13. Articles 22 and 39 Asylum Act.
- 14. Article 24(2) Asylum Act.
- 15. Article 24(3) Asylum Act.
- 16. Starting in September 2014, the Asylum Unit (the predecessor of the Asylum Office) introduced the practice of registering asylum seekers at the time they submit their asylum applications, which is not in line with the spirit of the law or the Ombudsman’s recommendation that they be registered upon being admitted to a centre.
- 17. Article 7 Rulebook on the Content and Design of the Asylum Application Form and Documents Issued to Asylum Seekers or People Granted Asylum or Temporary Protection, Official Gazette of the Republic of Serbia, no. 53/2008.
- 18. Information obtained by providing legal aid to asylum seekers in Serbia.
- 19. Article 113 General Administrative Procedure Act.
- 20. Article 25 Asylum Act.