Author
National forms of protection
Romania does not have national forms of protection. However, there is a special status, called toleration for staying on the territory of Romania, which is an alternative to detention. The tolerated stay refers to a temporary (exceptional) legal status granted to a foreign national (non-EU) who , for objective reasons, cannot be removed/returned from Romanian territory, although they do not have a legal right of stay.[1] This status is not equivalent to a residence right.
The objective reasons include:[2]
- Exit from Romania is not allowed under Art. 15(1) and no other legal stay applies;
- The foreigner’s public custody ended, but removal was not possible;
- The foreigner’s temporary presence is required for significant public interest;
- Return is forbidden under Art. 82(1) (non-refoulement), yet residence conditions are unmet;
- Return is suspended under Art. 96(1);
- Escort removal is not feasible within 24 hours, and detention is not necessary;
- Other unforeseeable, independent, and unavoidable circumstances prevent departure.
If there are serious grounds to believe that a foreigner is a victim of human trafficking or if the presence is necessary for a criminal investigation or trial, tolerated stay must be granted by a prosecutor (by ordinance) or court (by ruling).[3]
Tolerated stay in Romania is granted for an initial period of up to six months and may be renewed for successive six-month intervals for as long as the underlying objective reasons for toleration persist.[4] In cases involving victims of human trafficking, the duration of tolerated stay is extended by the competent prosecutor (through an ordinance) or by the court (through a judicial ruling), and remains in effect until the conclusion of the relevant criminal proceedings.[5]
Foreign nationals granted tolerated stay in Romania, are permitted to access the labor market under the same legal conditions applicable to Romanian citizens.[6] This right is contingent upon the validity of the tolerated stay and ceases automatically upon the termination of such status.[7] During the period of toleration, the individual is subject to specific obligations and territorial limitations, these include the duty to report in person to the territorial office of the General Inspectorate for Immigration at two-month intervals or whenever summoned, to notify any change of residence, and to remain within the jurisdictional area of the IGI unit that issued the toleration certificate.[8] Any travel outside this area is permissible only with prior approval from the competent immigration authority.[9]
Tolerated stay in Romania ceases in any of the following situations: the granting or extension of a right of residence under national immigration legislation; the granting of permission to remain on Romanian territory; or the voluntary return of the foreign national from Romanian territory.[10] Furthermore, the General Inspectorate for Immigration may withdraw tolerated stay through a justified decision if it finds that the individual has, by their own fault, breached the legal obligations associated with this status, including failing to report as required or violating the territorial limitations imposed.[11] Importantly, the granting of tolerated stay does not extinguish the foreigner’s obligation to leave the country. Upon the cessation of the circumstances that justified toleration, the period for voluntary departure or, where applicable, the enforcement of removal under escort resumes from the date on which the immigration authority, prosecutor, or court confirms the termination of such grounds and duly notifies the individual.
A refusal by IGI to grant tolerated stay may be appealed before the territorial Court of Appeal within five days of receiving the notification. The court is required to issue a decision within thirty days, and this judgment is final and binding.[12]
According to JRS Romania, approximately 120 individuals were granted tolerated status in 2024.
Return procedure
Since May 2023, Romania has implemented a legislative amendment establishing that a return decision is issued at the same time as a negative decision in the asylum procedure. If an asylum seeker wishes to challenge the rejection decision, they must also request the suspension of the return decision.[13]
This amendment was mainly introduce to align national legislation with European priorities regarding return procedures. As part of the EU Action Plan on the Western Balkans, Romania was identified as a suitable country to test new practices, including issuing return decisions alongside negative asylum decisions. The European Commission assessed that this approach has contributed to a more efficient return process and has helped limit absconding and secondary movement.[14] Between 18 May 2023 and 30 September 2023, 1,162 joint decisions were issued, while the common current standard is to issue both decisions in case of rejected asylum-seekers in the administrative procedure.
At the moment of adoption, the authorities mentioned that the decision was taken following the assessments carried out at the level of the General Inspectorate for Immigration under the Ministry of Internal Affairs, as it was deemed necessary to amend the legislation in order to issue the return decision from the moment the asylum application is rejected in the administrative phase, for compliance with the Schengen acquis[15]. In this sense, issuing the return decision, at the time of rejection of the asylum application in the administrative phase, correlated with the application of Regulation (EU) 2018/1860, will lead to achieving the European objective of effectively ensuring the Area of Freedom, Security and Justice from the perspective of combating illegal migration on European territory. The reasoning also mentioned the CJEU decision C181/16.[16]
However, civil society organizations, including CNRR, have raised concerns about the impact of these changes on fundamental rights. The simultaneous issuance of asylum rejection and return decisions has led to procedural complexities, particularly due to the fact that this leads to different court jurisdictions and separate judicial proceedings being conducted in parallel.[17] The European Commission Recommendation (EU) 2023/682 of 16 March 2023 suggested that appeals against return decisions and asylum rejections should be lodged before the same court or, at a minimum, within the same timeframe.[18] Since Mai 2023, the Romania’s system was aligned to the recommendation, and the procedure of issuing both decision, rejection of the asylum application and return at the same time is in place.[19]
Under the current legal framework, asylum seekers whose international protection requests are rejected at the first-instance administrative level receive a return decision. The deadline to appeal any type of return decision, whether for voluntary departure or removal under escort, is 10 days.[20] While the return decision’s effects are suspended pending a final ruling on the asylum claim, the obligation to separately contest the return decision remains. Jurisdiction over return decisions lies with the Court of Appeal, whereas appeals against asylum rejections are handled by the Courts of First Instance, each operating under distinct procedural rules.[21]
In practice, this dual-track system requires rejected asylum seekers to manage two concurrent legal processes before different courts, often located in separate jurisdictions, with identical appeal deadlines but differing schedules and procedures. This situation creates significant difficulties, especially for individuals lacking legal expertise or representation. Additional barriers, such as language difficulties, cultural differences, and the absence of legal assistance, further complicate their access to justice. CNRR has highlighted that these procedural burdens undermine the effectiveness of legal remedies available to asylum seekers. A fundamental aspect of an effective remedy is accessibility, ensuring that individuals can exercise their rights without undue hardship. [22]
Moreover, the new procedure has resulted in inconsistencies in judicial practice, and led to overburdening the Courts of Appeal, the competent court to rule on the complaints against the return decision. In practice, so far, CNRR has observed that some courts prefer to suspend the proceedings on the complaints against return decisions until the end of the judicial phase of the asylum procedure (pursuant to article 413 of the Code of Civil Procedure),[23] which leads instead to a longer return procedure than before the amendments. At the same time, there are national Courts that reject the complaints against the return decision before the final decision on the asylum request. In these cases, if the asylum request was to be admitted by the court, a paradoxical situation in which the person will have a form of protection but also a final return decision would generate.
Given these challenges, CNRR has observed that ensuring asylum seekers fully understand their legal options is key. Many individuals do not initially realize they must manage two separate legal cases, each requiring appeals to different courts. Therefore, timely and clear legal counselling is essential to help asylum seekers navigate the complex procedural requirements and comply with deadlines. Ultimately, while the legislative amendment was intended to enhance the efficiency of Romania’s return system, it has introduced new legal and procedural difficulties. The divergence between Romania’s approach and EU recommendations underscores the need for further legislative adjustments to ensure fair and accessible legal remedies for asylum seekers. [24]
For those who failed in obtaining a legal status in Romania in 2024, IGI issued 2,894 voluntary return decisions, 1,599 escorted return decisions, and carried out the escorted removal of 1,095 people in an irregular situation in the country.[25]
From the practice encountered in 2024, JRS Romania observed that asylum seekers do not understand from the beginning that they will have two separate files for both decisions and two different Courts who will decide over their complaints. The return decision is issued jointly with the asylum rejection, but does not impact the opportunity to file a complaint in the asylum procedure.[26]
According to JRS Romania in 2024, the counsellors must assure that the asylum seekers understood exactly where they have to submit the appeal against the return decision and the complaint against the IGI decision, in order to respect the deadlines. Counselling offered immediately after the communication of decisions is very important, to emphasize the fact that the effects of the return decision will only occur upon completion of the asylum procedure and to explain to them all the steps they have to take in both procedures.[27]
[1] Art. 106^1 Aliens Ordinance.
[2] Article 106^1 (2) Aliens Ordinance.
[3] ibid. Article 106^1 (4).
[4] ibid. Article 106^2 (1).
[5] ibid. Article 106^1 (4).
[6] ibid. Article 106^2 (3).
[7] ibid. Article 106^2 (4).
[8] ibid. Article 106^2 (5) -(6).
[9] ibid. Article 106^2 (6).
[10] ibid. Article 106^2 (9).
[11] ibid. Article 106^2 (10).
[12] ibid. Article 106^1 (3).
[13] OUG 35/2023, available here.
[14] European Commission, Joint Pilot Project in Romania annex, Ref. Ares(2023)2001138-20/03/2023, March 2023, available here.
[15] Explanatory note to Government Emergency Ordinance No. 35/2023 amending and supplementing certain normative acts regarding the field of foreigners and asylum in Romania, available here.
[16] CJEU decision C181/16 available here.
[17] CNRR, Input by civil society organisations to the Asylum Report 2024, 2023, available here. Information provided by CNRR February 2025.
[18] EC Recommendation 2023/682 of 16 March 2023, available here.
[19] Since May 2023, when a rejection decision is issued by the GII, a return decision is also issued. If the person wants to file a complaint against the rejection decision, they must also request the suspension of the return decision. In this sense, an appeal is filed against the return decision, the jurisdiction being the Court of Appeals within the territorial scope of the Regional Reception Centre that issued the decision.
[20] Article 85 Aliens Ordinance Appealing the return decision
(1) The return decision provided for in art. 83 paragraph (1) may be appealed within 10 days from the date of notification to the court of appeal within whose territorial jurisdiction the structure of the General Inspectorate for Immigration that issued the return decision is located. The court shall resolve the appeal within 30 days from the date of receipt thereof. The court’s decision shall be final.
(2) The return decision provided for in art. 83 paragraph (2) may be appealed within 10 days from the date of notification to the court provided for in par. (1), if the alien is not taken into public custody, or to the court of appeal within whose territorial jurisdiction the accommodation center is located, if the alien is taken into public custody. The court shall resolve the appeal within 5 days from the date of receipt thereof. The court’s decision shall be final.
[21] ibid. and Article 67 Asylum Act
[22] CNRR, Input by civil society organisations to the Asylum Report 2024, 2023, available here.
[23] Article 413 Code of Civil Procedure: (1) The court can suspend the trial:1. when the solution of the case depends, in whole or in part, on the existence or non-existence of a right that is the object of another judicial proceeding; […] (2) The suspension will last until the decision adopted in the case that caused the suspension becomes definitive.
[24] Information provided by CNRR February 2025.
[25] General Inspectorate for Immigration, “2.800 de decizii de returnare voluntară și aproximativ 1.600 de decizii de returnare sub escortă emise în anul 2024”, 20 march 2025, available available here.
[26] Information from JRS Romania in March 2025.
[27] ibid.