Number of staff and nature of the determining authority

Author

Nikola Kovačević

Source: Asylum Office.

Asylum Office – first Instance

The Asylum Office is responsible for examining applications for international protection and competent to take decisions at first instance.^[1] In its response to the request for he information of public importance, the MoI outlined that the Asylum Office has 28 positions envisaged, and that the current number of employees is 26. In its response, the MoI has failed to deliver the breakdown of positions within the Asylum Office, which is why the table below does not contain clear data was the case in previous reports.

Source: MoI, Response to the request for information of public importance of the MoI no. 07-34/24 of 15 April 2024.

In 2023, for almost the entire year, 4 asylum officers were in charge of the asylum procedure and deciding on applications for international protection. In the last quarter, one asylum officer returned from the maternity leave, while 1 more asylum officer started to facilitate asylum interviews. According to the information received by IDEAS through direct communication with UNHCR and the Asylum Office, a total of 9 asylum officers are currently tasked with facilitating asylum procedure as of June 2024.

Asylum officers are in charge of facilitating the lodging of asylum applications in person, asylum interviews and rendering decisions at first instance. In the decision-making process, they are assisted by the CoI Department, which provides information on specific issues in countries of origin and third countries which were raised during the asylum interview. The Head of the Asylum Office must further confirm the decision of asylum officers, and the BIA needs to provide positive ‘security assessment’ as outlined above (see List of authorities that intervene in each stage of the procedure).

Still, for most of 2023, the capacities of the Asylum Office were low, which was also reflected in the low number of asylum interviews conducted mostly in AC Krnjača in Belgrade. The main consequence of this understaffing was a low number of first instance decisions and asylum interviews in 2023 (44 decisions and 88 hearings) in comparison to 2022 (70 decisions and 107 hearings), despite the number of applicants dropping from 320 in 2022 to 196 in 2023.

In the 2023 update to this report, because the Asylum Office produced copies of all decisions taken in merits in 2023, it is possible to calculate exactly the length of procedures: for decisions taken in 2023, the first instance asylum procedure lasted 11.6 months on average. This is almost 4 times more than it is prescribed in Article 39 (1) of the Asylum Act. For 2023 decisions, the length of the first instance asylum procedures ranged from 5 to 7 months in most cases,[2] but up to 17, 18 and even 20 and 22 months.[3]

The low capacity of the Asylum Office is also reflected in the fact that the Asylum Office rarely undertakes evidentiary activities proprio motu (expert opinions, witness statements, etc,); this is mainly done by legal representatives. Thus, it is reasonable to repeat the assessment that the current capacities are unsustainable, especially after the influx of Ukrainian refugees who applied for temporary protection.

Thus, if Serbia were to be considered a safe third country to send asylum seekers to for them to receive international protection there, if just a few hundreds of persons in need of international protection were to be returned on a yearly basis based on guarantees that they would be allowed to lodge asylum application, the Asylum Office would collapse due to lack of capacity, even with the 2023/2024 increase in case workers (from 17 in 2022 to 26 as of early 2024, as mentioned above).

Another concerning element is the frequent turnover and unrest within the Asylum Office, which has experienced many changes in high-level staff and directors. In September 2020, the Head of the Asylum Office was transferred to another position, and a new Head, without any prior experience, was appointed. Moreover, the Deputy Head of the Asylum Office was transferred to another Department of the MoI. In December 2020, the newly appointed Head of the Asylum Office was transferred again, leaving the Country-of-Origin Information Officer as acting Head and acting Deputy Head of the Asylum Office. At the beginning of 2021, the former Head of the Asylum Office (removed in September 2020) was reinstated, a positive development given the person’s experience in the asylum field and her status was confirmed in December 2022. However, at the beginning of 2023, she was replaced again, with a person with lengthy experience in the Border Police Administration and who served on several occasion as Asylum Commission member. However, this person will retire by the end of 2024 and a new Head of the Asylum Office will be appointed again by the end of 2024. These kind of changes undoubtably contribute to poor efficiency of the first instance authority.

In contrast to its assessment in the 2022 Progress Report, in 2023 the European Commission provided more realistic picture of the capacities of the Asylum Office,[4] stating that “it needs to increase its capacity for actual handling of asylum applications”.[5] It also stated that quality of asylum decisions needs to be further improved through sustainable quality assurance mechanisms and harmonisation of the decision-making process.[6] These findings remain valid as of June 2024.

Thus, it is important to reiterate that a significant increase in operational asylum officers is necessary to at least 20 officers to cope in an appropriate and timely manner with the current numbers of applicants. However, a quantitative increase in staff does not improve access to and quality of procedures without proper training and capacity building, which takes time. For that reason, if the capacities of the Asylum Office are to be increased in the near future, it will take several years to train newly-hired asylum officers to deal with several hundred asylum applications per year. To deal with several thousand asylum applications per year would require a complete shift of State policy towards the asylum issue which has never been the case until now, an assessment further corroborated by the fact that the first instance asylum procedure could not currently be conducted without the assistance of international Organisations and civil society.

Asylum Commission – second Instance

The Asylum Commission decides on appeals against decisions of the Asylum Office as the second instance body. It is comprised of a Chairperson and eight members, appointed by the Government for a four-year term. To be appointed Chairperson or member of the Asylum Commission a person must be a citizen of Serbia, have a university degree in law and minimum five years of working experience and must have an ‘understanding’ of the human rights legislation. The Asylum Commission shall operate independently and shall pass decisions with a majority of the entire membership votes.[7]

The specialisation and knowledge of the 9-member Asylum Commission can still be considered inadequate for their role, since none of the current members has a strong background in refugee and international human rights law. The fact that not a single applicant was granted asylum in 2022 and 2023 by the Asylum Commission confirms this statement. In the history of the Serbian asylum procedure, since 2008, this body has rendered only 3 decisions granting asylum to 4 persons. Moreover, all the members of the Asylum Commission are selected from different ministries and have regular full-time paid jobs. For their work in the Asylum Commission, they receive 25,000 dinars – 213 EUR (the president of the Commission) and 18,000 dinars – 153 EUR (members of the Commission). Renumeration and mostly the bureaucratic, but also security background of members of the Commission, clearly indicates that this body cannot exercise its corrective role but can only contribute to the lack of effectiveness of the Serbian international protection status assessment procedure. The 2023 practice corroborates this claim.

In April 2024, the Government elected members of the Commission from the following parts of State apparatus:

1. The Head of Commission holds a managerial position within the MoI
2. The Head of the Department for Readmission from the MoI
3. The Officer for Systemic and Legal matters from the MoI
4. A State Secretary from the Ministry of Justice (political position)
5. A Coordinator from the Department of Consular Matters from the Ministry of Foreign Affairs
6. The Head of the Department for General Matters and Management of Human Resources form the Ministry of Health
7. The Head of the Department for Legal Matters from the Commissariat for Refugees and Migration (CRM)
8. The Manager of the Department for Legal and Analytical Matters in the field of Employment and Economical migration from the Ministry of Labour, Employment, Veteran and Social Affairs (MoLEVSA)
9. A Professor from the Police Academy[8]

The Asylum Commission does not have an office,[9] administration, country of origin department nor any other logistical support. Members of the Commission meet several times per year and vote on the proposals made by the rapporteurs designated for every appeal case. They do that outside their regular working hours within their respected ministries, sitting in an office located on the same floor as the Asylum Office within the Ministry of Justice.

In its 2021 Concluding Observations, the UN Committee against Torture (CAT) recommended that Serbia abolish the Asylum Commission and introduce a judicial review by the Administrative Court at second instance.[10] As outlined, this assessment of the CAT proved its continued validity in 2023, given the lack of corrective influence of this body towards the Asylum Office in 2023.

The Asylum Commission, in most cases, renders decisions in a timely manner, within maximum 3 months (the deadline being 2 months). Still, there are instances in which appeals take much longer.

Administrative Court – third Instance

The final decisions of the Asylum Commission may be challenged before the Administrative Court.[11] The Administrative Court judges still lack adequate resources to assess complaints lodged by asylum seekers and their legal representatives and none of the judges are specialised in asylum and migration issues despite occasional trainings and study trips.[12]

There is no specially designated department comprised of judges with relevant and necessary knowledge and supporting infrastructure such as a CoI department. The difficulty which the judges of the Administrative Court face is also related to the fact that, in their everyday work, they have to be familiar and apply several dozen laws and bylaws which are governing the field of administrative measures (taxes, election disputes, local municipality matters, issuance of permissions and licences, education, medical administrative disputes and others).

There are 59 administrative judges in total, covering the entire territory of Serbia.[13] As of 31 December 2023, there were 181,220 administrative proceedings pending,[14] which clearly shows that the backlog and variety of administrative disputes, together with administrative judges’ lack of experience dealing with asylum and migration issues, makes this body ineffective, theoretical and illusory for asylum seekers.

The length of the procedure before the Administrative Court can sometimes be counted in years, which has led, in some instances, to asylum procedures that have lasted more than 4 years.[15] In 2023, such cases were also reported, and the length in itself indicates the lack of capacity of this body to deal with complaints of asylum applicants.[16]

Quality assurance, transparency and cooperation with the UNHCR, EU, CSOs and other entities

The Asylum Act explicitly envisages that the asylum authorities should cooperate with UNHCR when undertaking activities related to its mandate and the UNHCR should have free access to all persons who might be in need of international protection.[17]

At the request of UNHCR, the competent authorities shall provide:

1. General information concerning the applicants, refugees or persons who have been granted subsidiary or temporary protection in Serbia, including statistical data, and specific information on individual cases, provided that the person to whom the asylum procedure refers has given their consent in the manner and under the conditions prescribed by the law governing the protection of personal data;
2. Information regarding the interpretation of the 1951 Convention and other international instruments relating to refugee protection and their application in the context of this Law.[18]

Apart from human, professional and infrastructural lack of capacities, the lack of effective quality assurance control and comprehensive analysis of the asylum case law can be considered as one of the main reasons for contradicting decisions in the practice of the Asylum Office, Asylum Commission and Administrative Court. This can also explain the lack of corrective influence of the second and third instance authorities on the quality of the decision-making process in general.[19]

There is no State quality assurance control in place and the practice of the Asylum Office, Asylum Commission and Administrative Court cannot be adequately assessed by professionals acting externally. Thus, there are no personal records of asylum officers or judges available to the public or upon explicit request which can provide information on the decision-making process such as the number and type of decisions rendered, the length of the asylum procedure and the overall quality of the decision-making process. The same can be said for the members of the Asylum Commission.

In 2022, the MoI agreed with UNHCR to gradually introduce external control mechanisms, which implies the occasional presence of UNHCR officers at asylum interviews.[20]  This was the first step in establishing quality assurance control in partnership with UNHCR. In April 2022, the UNCHR office in Serbia hired a Quality Assurance Officer who has regular meetings with the Administration for Border Police and the Asylum Office and who occasionally attends asylum interviews. Moreover, in 2021, a group of State officials from the asylum authorities, CRM and other relevant institutions, took part in a study visit to Italian asylum authorities facilitated by the UNHCR office in Serbia.[21] The practice of occasional presence of UNHCR officers during asylum interviews continued in 2023.

EUAA (European Union Asylum Agency) – former EASO, has also been providing support in Serbia since 2016. The support was provided under the second roadmap for cooperation between Serbia and EASO/EUAA 2020-2022, established by the MoI and CRM.[22] One of the main focuses with regards to the refugee status determination procedure was on country-of-origin information (CoI).[23] EUAA representatives held a meeting with relevant CSOs recognised as main providers of free legal aid in Serbia in October 2021.[24] In addition, representatives of the asylum authorities have attended numerous seminars and trainings outside Serbia. However, the support of the EUAA has failed to produce results: inadequate CoI assessments continued to be observed in the Asylum Office’s practice in 2023, by way of copy-pasting selectively chosen parts of CoI reports, which are then taken out of context and not in line with the meaning of such reports, with the sole aim to reject asylum applications[25] (for further information, see Regular procedure – General)

The third phase of the project Protection sensitive Migration Management is a regional IPA project which started in 2022 and will end in 2025, based on 4 pillars – identification and registrations, access to protection, return management and contingency plan. It is conducted by the UNHCR, IOM, FRONTEX, EU and EUAA.[26]

Regarding the transparency of asylum authorities’ work, it is important to outline that the MoI did not provide data to CSOs regarding asylum issues between 2018 and 2021, and the only available data was obtained from legal representatives in asylum procedures and publicly available reports published by other State institutions such as the Ombudsperson or the CRM. However, in 2023 all decisions rendered by the Asylum Office and Asylum Commission were communicated to the author of this report, accompanied with relevant statistical data on border practices, readmission, refusals of entry and immigration detention.[27] This data can shed more light on issues related to the access to territory and asylum procedure, but also on practices which imply deprivation of liberty of foreign nationals under the immigration legal framework. Most importantly, it provided the author for the first time with the possibility for comprehensive analysis and the overview of the first instance practice in relation to asylum applications decided in merits.

The Administrative Court continued to be the most transparent and all the judgments rendered in 2023 were also communicated to the author of this Report.[28] Still, the Asylum Commission, but also the Asylum Office, maintain their opinion that sharing copies of decisions with legal practitioners and researchers would violate the privacy of applicants, meaning that many of the communicated decisions were excessively anonymised.[29] Nevertheless, it remains progress compared to previous years.

The Asylum Office still provides regular statistical data to UNHCR, but the statistical overview could be significantly improved. For instance, there is no gender or age breakdown when it comes to asylum applicants, nor is there a breakdown by particular vulnerabilities or the basis of the claim. In system in which several hundred applications are made per year and are addressed to one centralised body– the Asylum Office, this should not be considered a burden.

[1] Article 20 Asylum Act.

[2] Asylum Office, Decisions Nos. 26–1888/22 of 3 February 2023 or 26-1552/22 of 26 January 2023.

[3] Asylum Office, Decisions Nos. 26- 1562/22 of 14 December 2023 or 26-1682/21 of 2 August 2023.

[4] See more in AIDA, Country Report: Serbia – Update on the year 2022, May 2023, available here, 25.

[5] European Commission, Serbia: Progress Report, SWD (2023) 695 final, 8 November 2023, available at: https://bit.ly/4bRUaJU, 68.

[6] Ibid.

[7] Article 21 Asylum Act.

[8] Government Decision No. 119-3053/2024 of 11 April 2024.

[9] They meet at the Ministry of Interior and on the same floor where Asylum Office is based.

[10] CAT, Concluding observations on the third periodic report of Serbia, 20 December 2021, CAT/C/SRB/CO/3, available at: https://bit.ly/3MLqTGh, para. 34 (b).

[11] Article 22 Asylum Act.

[12] This conclusion is based on the author’s assessment of the quality of the decision-making process for 2023; practice-informed observation of IDEAS; European Commission, Serbia: Progress Report, SWD (2023) 695 final, 8 November 2023, available at: https://bit.ly/4bRUaJU, 67 and 68 and poor practice analysed in previous AIDA Country Reports on Serbia, available here.

[13] The list of judges can be found at the following link: http://www.up.sud.rs/cirilica/sudije.

[14] Annual Report of the Administrative Court, 9 January 2024, available at: https://bit.ly/4bhck6J, 1-2.

[15] Administrative Court, Judgment U 12638/18, 20 July 2021; this judgment was rendered with regards to an Iraqi applicant who lodged his asylum application in 2017.

[16] Average length of the procedure before the Administrative Court will be outlined in the chapter which covers the practice of this body.

[17] Article 5 (1) and (2) Asylum Act.

[18] Article 5 (3) Asylum Act.

[19] AIDA,, Country Report: Serbia – Update on the year 2021, May 2022, available here, 87 and 90.

[20] Practice-informed observation of IDEAS, January 2024.

[21] UNHCR, UNHCR: Authorities of Italy and Serbia exchange experiences related to refugee protection, 26 November 2021, available at: https://bit.ly/3HXnuzD.

[22] EASO and Serbia, Roadmap for Cooperation EASO – Serbia (2020-2022): Strengthening the asylum and reception systems in line with the Common European Asylum System and EU Standards, 2020, available here.

[23] EASO and Serbia, Roadmap for Cooperation EASO – Serbia (2020-2022): Strengthening the asylum and reception systems in line with the Common European Asylum System and EU Standards, 2020, available here, 15ff.

[24] The author of this report attended the meeting.

[25] Practice-informed observation of IDEAS, January 2024.

[26] Information provided by the IOM office in Serbia.

[27] Response of the MoI, Border Police Administration on the freedom of information request no. 072/1-32/23-3 of 26 February 2023.

[28] Administrative Court response to the freedom of information request no.  Cu-II-17a 94/22 od 26 February 2023.

[29] See for example the response on the freedom of information request of the Asylum Commission No. no. 27-A-128-9/22-KA of 8 February 2023.