Following the hearing of an asylum seeker, the Asylum Office shall render a decision on the asylum application, either upholding the application and recognising the asylum seeker’s right to refuge or subsidiary protection or rejecting the application in the event it finds that the application is ill-founded or that there are reasons for denying the right to asylum.1 The Asylum Office is also entitled to dismiss an asylum application without ruling on its merits.2
The Asylum Act does not specify the deadline within which the Asylum Office is to rule on an asylum application, but Article 208(2) of the General Administrative Procedure Act sets a general 60-day deadline for rulings on administrative matters. This is apparently insufficient for ruling on asylum applications because it often takes the Asylum Office far longer to issue a ruling concerning an asylum application.3 No official data exists concerning the average length of the asylum procedure in practice, however experience shows that it took the Asylum Office between 4 and 6 months on average to issue a first-instance decision, and occasionally much longer.4
The Asylum Act does not specify the burden of proof required for being granted asylum, nor does it foresee that the Asylum Office should render a decision in favour of the asylum-seeker in case of doubt, provided that their account is coherent and plausible.5
The Asylum Office shall reject asylum applications based on false grounds or data, as well as forged identity papers or other documents, unless the asylum seeker presents justified reasons for having provided them. The Asylum Office shall also reject asylum applications in the event that the asylum seeker’s allegations are incoherent or in contravention of other evidence presented during the procedure; in the event that it is established during the procedure that the asylum applications were submitted merely to postpone deportation; or in the event that the asylum seekers came to Serbia for purely economic reasons.6
In 2016, the Asylum Office rendered 28 decisions granting asylum to 42 persons, 17 decisions rejecting the application (40 persons), 53 decisions dismissing the applications (65 persons) and 268 conclusions discontinuing the procedure because the asylum seekers had left the asylum centre or another place of residence after they had applied for asylum. Refugee status was granted to citizens of: Libya (5), Cuba (4), Sudan (4), Cameron (2), Syria (1), Iran (1), Kazakhstan (1) and Afghanistan (1). Subsidiary protection was granted to citizens of: Libya (6), Afghanistan (5), Ukraine (5), Syria (2), Somalia (2) and Iraq (1).
It can be concluded from the above that the vast majority of asylum seekers abandon the asylum procedure before a first-instance decision is rendered (268). On the other hand, if we analyse procedures where the Asylum Office has actually issued a decision on the asylum application, we can conclude that 54% of all cases (53 decisions) involve the Asylum Office dismissing the application because it had found that procedural requirements for ruling on merits of a claim had not been met.7
In 46% of the cases (45 decisions), the Asylum Office did decide on the merits. Of those cases, 62% ended in a positive decision (28 decisions), while the application was rejected in 38% of cases. If we analyse nationalities of the asylum seekers whose asylum applications had been rejected, it can be concluded that in the vast majority of cases they could not have been considered as prima facie refugees: Russia (4), FYROM (3), Pakistan (3), Senegal (1), Montenegro (1), Congo (1), South Africa (1) and Ghana (1). However, in 2016, the Asylum Office – as well as the Asylum Commission and the Administrative Court – likewise rejected the applications of 16 Libyan nationals, claiming that they would not be persecuted and treated contrary to Article 3 ECHR in case of being returned to Libya.8 In one of these cases BCHR was forced to submit a request for interim measures under Rule 39 of the Rules of Court to the ECtHR in order to prevent the applicants’ expulsion to Libya.9 The case is currently pending before the Constitutional Court of Serbia and the ECtHR.
No caseloads are prioritised as a matter of law or practice.
The Asylum Office is obliged to schedule a hearing of the asylum seeker in casu following the submission of an application and within the two-month deadline. The hearing is to be held in the presence of the asylum-seeker’s legal representatives (unless they choose otherwise) and an interpreter for a language they understand; a UNHCR representative may also be present.
The Asylum Act requires the official conducting the hearing to establish all of the relevant facts necessary for ruling on an asylum application, in particular: the identity of the asylum-seeker; the grounds on which their asylum application is based; their movement after leaving the country of origin; and whether they have previously sought asylum in any other country.10
At the end of the hearing, the records are signed by the asylum seeker, their legal representative, the interpreters and the official leading the interview. The asylum seekers’ legal representatives are entitled to ask additional questions to ensure comprehensive establishment of the facts of the case.
More than one hearing may be held concerning an individual asylum seeker, but this happens rarely in practice due to the general desire of the Asylum Office to establish all of the relevant facts in a single interview. This usually leads to hearings lasting for many hours without a single break.
The Asylum Office conducted 160 interviews in 2016. In practice, asylum seekers often wait from several weeks to up to a month following the submission of their application for a hearing to be scheduled.
Appeals against Asylum Office decisions are reviewed by the Asylum Commission, a body comprising nine members appointed to four-year terms in office by the Government.11 The Asylum Act does not lay down precise criteria for the appointment of the Commission members and only requires that they are versed in human rights regulations.12
Should the Asylum Office fail to rule on an application within two months of its submission, the asylum seeker may appeal against administrative silence to the Asylum Commission.13 The appeal, however, is not an entirely effective legal remedy given that the Asylum Commission merely orders the Asylum Office to render its ruling within an additional 30-day deadline.
The Asylum Act does not regulate the appeals procedure and the General Administrative Procedure Act applies in a subsidiary manner to the second-instance procedure. Appeals of first-instance decisions are submitted to the Asylum Commission within 15 days of the day of serving of the first-instance decision to the parties or their legal representatives.14 The Commission renders its decisions by a majority of votes.
Under Article 221(1) of the General Administrative Procedure Act, appeals against administrative decisions shall be of a suspensive nature. Appeals are submitted to the first-instance authority, which examines whether the procedural prerequisites for their review by the second-instance authority have been fulfilled. When the first-instance authority receives the appeal, it may render a different decision on the matter and substitute the impugned ruling with a new one, should it find the appeal well-founded and that it is unnecessary to conduct the procedure again. Should the Asylum Office find that the procedure it had implemented was incomplete, it may perform the requisite supplementary actions and render a new decision, which is also subject to appeals by the asylum applicant. In the event it does not reject the appeal, the Asylum Commission may itself decide on the administrative matter. It may also set aside the impugned ruling and order the first-instance authority to re-examine the matter, when it finds that the shortcomings of the first-instance procedure will be eliminated more rapidly and economically by the Asylum Office.15
The Asylum Act does not specify the duration of the second-instance procedure. Under the Administrative Disputes Act, a claim may be filed with the Administrative Court in the event the Asylum Commission fails to render a decision on the appeal within 60 days of the day of its receipt, upon the expiry of 8 days from the day a reminder was sent to the second-instance authority.16 In other words, the time limit for the second-instance decision is 2 months after the appeal was lodged. In practice, however, it takes at least 3 months for the Asylum Commission to render and deliver the second-instance decision, although, in case the Asylum Commission fails to decide on the appeal within 2 months, it is possible to lodge an appeal against administrative silence with the Administrative Court.
Since the establishment of the Asylum Commission in 2008, this body has decided in the merits in but a single case. For this reason, an appeal to the Commission only prolongs the asylum procedure since, in the vast majority of cases, the first-instance decision is annulled and returned to the Asylum Office. The same practice is present in case of an appeal lodged against administrative silence, when the Asylum Commission, after adopting the appeal, orders the first-instance body to render the decision in the time-limit of one month, which further prolongs the procedure.
In September 2016, the mandate of Asylum Commission members expired, and as of the day this report was concluded, new members have not yet been appointed by the Government of Serbia. For this reason, the BCHR has started addressing appeals directly at the Administrative Court for the time being.
In the first six months of 2016, 33 appeals were lodged to the Asylum Commission (51 persons). In the same period, the Asylum Commission rendered 17 decisions (29 persons): 11 decisions rejecting the appeal (15 persons) and 6 decisions upholding it and returning the case to the first-instance body. The Asylum Commission decided on the merits of only one case, granting subsidiary protection to 2 Libyan citizens.
Asylum seekers may initiate an administrative dispute before the Administrative Court in order to challenge the final decisions of the Asylum Commission, or in case it fails to render a decision on the appeal within the legal deadline.17
The Administrative Court does not have a department or panel specialised in reviewing asylum cases and it rules on the lawfulness of a final administrative act in three-member judicial panels.
The lawfulness of an administrative act may be challenged by a claim in an administrative dispute:
- In the event it was adopted by an authority lacking jurisdiction;
- At the authority’s discretion, in the event the authority had exceeded its legal powers or the decision had not been adopted in accordance with the goal it had been granted specific powers;
- In the event the law or another general act had not been enforced properly;
- In the event the procedural rules have been violated during the procedure;
- In the event the facts were established in a manner that was incomplete or inaccurate, or an incorrect conclusion was drawn from the facts.
The initiation of an administrative dispute does not ipso facto suspend the enforcement of the impugned administrative act.18 The Administrative Court may, however, stay the enforcement of a final administrative act on the motion of the claimant, until it rules on the administrative dispute in the event such enforcement would cause the claimant damage difficult to reverse and the stay is not in contravention of public interests and would not cause major or irreparable damage to the opposing party, i.e. interested party.19 Exceptionally, the stayed enforcement of the enactment may be sought in an emergency, i.e. when an appeal without suspensive effect under the law has been lodged and the appeals procedure has not been completed. In such cases, the Administrative Court rules on the motions to stay enforcement within 5 days from the day they are filed.
In practice, the Administrative Court has not itself held any hearings on asylum claims to date. Its decisions so far have merely confirmed the lawfulness of the asylum authorities’ practice of automatically applying the concept of safe third country in spite of the fact that it had not first been established whether the third countries were actually safe for the asylum-seekers in casu. Also, to this date, the Administrative Court has never decided on a complaint in the merits.
A case of an administrative dispute initiated by the BCHR is illustrative in this regard, having lasted from 14 April to 29 June 2016; in other words, it took the Administrative Court almost three months to deliver its judgment.
In 2016, 22 complaints were lodged to the Administrative Court. In the same period, this body decided on 7 complaints: 5 decisions rejecting the complaint, 1 decision dismissing it and 1 upholding it.
The state does not provide free legal aid to asylum seekers in Serbia for the purposes of the asylum procedure. However, the right to free legal aid is guaranteed by the Asylum Act, as well as the right to receive information concerning asylum.20
The Act further provides that an asylum seeker shall have access to free legal aid and representation by UNHCR and NGOs whose objectives and activities are aimed at providing free legal aid to refugees. In practice, the vast majority of persons who submit an asylum application in Serbia use the services of NGO lawyers.
- 1. Articles 28-29 Asylum Act.
- 2. Article 33 Asylum Act.
- 3. The Asylum Office clearly lacks human resources. During 2016, 11 asylum officers were conducting the asylum procedure. However, in the second part of 2016, two asylum officers left the Asylum Office; 2 of them went on maternity leave, while in October 2016 four asylum officers were sent to two months of police training. In other words, during November and December 2016, only 3 asylum officers were conducting official activities.
- 4. For example, the asylum seeker in case 26-93/16 submitted an asylum application on 22 January 2016, while the decision dismissing the application was rendered on 12 August 2016; the asylum seeker in case 26-286/17 submitted an application on 22 January, while a decision was rendered on 31 October 2016; in case 26-11/16, the application was submitted on 3 March 2016, while the Asylum Office only rendered a decision on 9 August 2016; in case 26-1414/16, the asylum seeker submited an application on 20 June 2016, and the case is still pending.
- 5. As advised by UNHCR, International standards relating to refugee law: Checklist to review draft legislation, March 2009, 19.
- 6. Article 30 of the Asylum Act.
- 7. In 95% of all cases, the asylum applicaiton was dissmised on the basis of Article 33(1)(6) Asylum Act – safe third country concept in relation to FYROM and Bulgaria. See Safe Third Country.
- 8. The asylum application of one Somali national was also rejected in 2016. However, since the Belgrade Centre for Human Rights was not the legal representative in this case, we are not able to provide an analysis of the decision-making process.
- 9. ECtHR, Ben Rfad v.Serbia, Application No 37478/16.
- 10. Article 26(4) Asylum Act.
- 11. Article 20 Asylum Act.
- 12. Such lax provisions have led, for example, to the appointment of the Director of the General Affairs Department of the telecommunications company Telekom to the Commission, in spite of the fact that he had never previously worked in the human rights field.
- 13. Article 236 General Administrative Procedure Act.
- 14. Article 35 Asylum Act.
- 15. Article 232 General Administrative Procedure Act.
- 16. Article 19 Administrative Disputes Act, Official Gazette of the Republic of Serbia, no. 111/2009.
- 17. Article 15 General Administrative Procedure Act.
- 18. Article 23 Administrative Disputes Act.
- 19. Article 23 General Administrative Procedure Act.
- 20. Article 10 Asylum Act.