Regular procedure

Author

Nikola Kovačević

General (scope, time limits)

The asylum procedure in Serbia is governed by the Asylum Act as lex specialis to GAPA which is applied in relation to questions that are not regulated by the Asylum Act.^[1] The provisions of the Asylum Act shall be interpreted in accordance with the Convention and Protocol relating to the Status of Refugees and the generally recognised rules of international law.^[2] Additionally, the third instance procedure before the Administrative Court is also governed by the Administrative Disputes Act (ADA).

The Asylum Act provides that a decision on asylum applications in the regular procedure must be taken within a maximum period of 3 months from the date of the lodging of the asylum application or the admissible subsequent application.^[3]

In 2022, there was only 1 case in which the first instance asylum procedure which resulted in a positive decisions was concluded within the 3-month and is related to a Ukrainian family.^[4] Also, manifestly unfounded cases can be rejected within a month, but the question that remains open is why the highly credible cases, or the most vulnerable cases, have to wait for more than a year for a positive decision. The best example from 2021 is related to the comparison between the prima facie not credible application of a Pakistani national, and that of a torture victim from Iran.^[5] The first one was rejected in exactly 1 month, while the torture victim received international protection after 20 months.^[6] On the other hand, in 2022, there were several examples of good practice in which a sexual and gender based violence survivor from Burundi was granted refugee status within 106 days (3 month and 14 days),^[7] UASC from Afghanistan within 4 months,^[8] LGBTQI+ and AIDS applicant from Cuba within 175 days (almost 6 months).^[9] On the other hand, SGBV survivor from Afghanistan had to wait for exactly a year,^[10] as well as Syrian mother with two children who waited for 10 months.^[11] On the other hand, an UASC from Afghanistan had to wait for 14 months to receive subsidiary protection,^[12] a Congolese woman with a child for 14 months^[13] and another UASC from Afghanistan for 13 months.^[14]

In 2023, there were only two instances in which the Asylum Office rendered the first instance decision within the prescribed deadline and in relation to prima facie non-credible cases of a German (1 month)^[15] and Bosnian nationals (2 months).^[16] On the other hand, there were cases in which the Asylum Office rendered the 1st instance decision after 22,^[17] 21,^[18] 20,^[19] 19^[20] and 17^[21] months, which is significantly longer then maximum prescribed period of 12 months which can be applied only in exceptional circumstances. Moreover, out of 42 decisions which were rendered in merits and excluding the additional two messages in which asylum was granted to newborn babies of parents whose parents had already had their refugee status and subsidiary protection recognized, a total of 19 first instance decisions were rendered after 12+ months, which represents 47% of all asylum procedures decided for the first time in the first instance.

It is possible to extend the time limit for the first instance decision by 3 months in case the application includes complex factual or legal issues or in case of a large number of foreigners lodging asylum applications at the same time.^[22] Exceptionally, beyond these reasons, the time limit for deciding on an asylum application may be extended by a further 3 months if necessary to ensure a proper and complete assessment thereof.^[23] The applicant shall be informed of the extension. There were no instances in which this deadline was extended which are known to the author of this Report in 2022, but in 2023, there was one case in which the deadline was extended officially for additional 3 months, even though the decision on the extension was only taken after 13 months from the start of the procedure.^[24]

The Asylum Act also envisages a situation where a decision on asylum application cannot be made within 9 months due to temporary insecurity in the country of origin of the applicant which needs to be verified every 3 months.^[25] Nevertheless, the decision must be taken no later than 12 months from the date of the application.^[26]

Thus, the Asylum Office has a discretionary power to decide on the extension of the time limit for the decision. Still, in 2023, all asylum procedures lasted for lengthy periods of time without any formal notification on the extension accompanied with the proper reasoning, as it can be seen from the above-outlined examples.

In other words, the first instance procedure still lasts unreasonably long (on average 11.5 months) which is one of the reasons discouraging asylum seekers from considering Serbia a country of destination.

In 2022, CSOs in Serbia did not lodge appeals complaining about the lack of response by the administration to the Asylum Commission and excessive length of first instance procedures, as it was the case in 2020 when APC and BCHR submitted more than 10 appeals. The situation remained unchanged in 2023.

In March 2022, the UN Committee on Economic, Social and Cultural Rights (CESCR) recommended that Serbia ensures compliance with the statutory deadlines of the asylum procedure.^[27]

The first instance procedure before the Asylum Office may be completed by: (a) a decision to uphold the application and grant refugee status or subsidiary protection;^[28] (b) a decision to reject the asylum application;^[29] (c) a decision to discontinue the procedure;^[30] or (d) a decision to dismiss the application as inadmissible.^[31]

The Asylum Act contains detailed provisions regarding the grounds for persecution,^[32] sur place refugees,^[33] acts of persecution,^[34] actors of persecution,^[35] actors of protection in the country of origin,^[36] the internal flight alternative,^[37] and grounds for exclusion.^[38] This clearly indicates that the legislature was guided by the Common European Asylum System framework, namely the recast Qualification Directive. Still, there is plenty more room for improvement, especially with regard to the exclusion clause which lacks the clear procedural rules which would be in line with UNHCR Guidelines.^[39]

Even though the new Asylum Act does not explicitly set out the burden of proof required for being granted asylum, Article 32 provides that the applicant is obliged to cooperate with the Asylum Office, to deliver all available documentation and present true and accurate information regarding the reasons for lodging an asylum application. If an applicant fails to do so, the asylum officer has the possibility to issue a decision in an accelerated procedure.^[40] It is further prescribed that, in examining the substance of the asylum application, the Asylum Office shall collect and consider all the relevant facts and circumstances, particularly taking into consideration:

1. the relevant facts and evidence presented by the Applicant, including the information about whether he or she has been or could be exposed to persecution or a risk of suffering serious harm;
2. current reports about the situation in the Applicant’s country of origin or habitual residence, and, if necessary, the countries of transit, including the laws and regulations of these countries, and the manner in which they are applied – as contained in various sources provided by international organisations including UNHCR and the European Union Asylum Agency (EUAA), and other human rights organisations;
3. the position and personal circumstances of the Applicant, including his or her sex and age, in order to assess on those bases whether the procedures and acts to which he or she has been or could be exposed would amount to persecution or serious harm;
4. whether the Applicant’s activities since leaving the country of origin were engaged in for the sole purpose of creating the necessary conditions to be granted the right to asylum, so as to assess whether those activities would expose the Applicant to persecution or a risk of serious harm if returned to that country…’^[41]

In addition, the benefit of the doubt principle (in dubio pro reo) has not been explicitly defined as such, but it is prescribed that the applicant’s statements shall be considered credible where a certain fact or circumstance is not supported by evidence if:

1. the applicant has made a genuine effort to substantiate his or her statements with evidence;
2. all relevant elements at his or her disposal have been submitted, and a satisfactory explanation have been given regarding any lack of other relevant facts;
3. the applicant’s statements are found to be consistent and acceptable, and that they are not in contradiction with the specific and general information relevant to the decision on the asylum application;
4. the applicant has expressed intention to seek asylum at the earliest possible time, unless he or she can demonstrate good reason for not having done so;
5. the general credibility of the Applicant’s statement has been established

Overview of the practice of the Asylum Office for the period 2008-2023

In the period from 1 April 2008 to 31 December 2023, the asylum authorities in Serbia rendered 165 decisions granting asylum (refugee status or subsidiary protection) to 236 persons from 27 different countries.^[42] A total of 74 decisions was rendered in relation to 118 applicants who received subsidiary protection, while 91 decisions were rendered in relation to 118 applicants who were granted refugee status.

The highest number of decisions was rendered in 2019 (26), and then in the following order: 2015 (25), 2016 (21), 2022 (20), 2020 (19), 2018 (16), 2021 (12), 2017 (7), 2023 (6), 2014 (4), 2009 (4), 2012 (3), 2013 (1) and 2010 (1). In 2008 and 2011, not a single positive decision was rendered. Top 5 nationalities which received international protection in Serbia are: Libya (47), Syria (38), Afghanistan (33), Iran (22) and Iraq (16).

Libya

The highest number of applicants who were granted international protection in Serbia originate from Libya – 47 persons through 19 decisions. A total of 4 decisions were issued granting refugee status to 8 Libyans. On the other hand, 15 decisions granting subsidiary protection were issued in relation to 39 applicants. Decisions on subsidiary protection were based on the state of general insecurity and widespread violence which implied the risk of suffering serious harm. The main source, in terms of the CoI, were different updates of UNHCR position papers on returns to Libya and a moratorium on returns which remains valid as of March 2022.^[43] The remaining 4 decisions referred to the risk of persecution on ethnic and political grounds for applicants belonging to the same tribe as Muammar Gaddafi^[44] or a 5-member family belonging to the ethnic group of Berbers which was particularly targeted during the civil war and in post-conflict period in Libya.^[45]

In the history of the Serbian asylum system, a total of 66 Libyans applied for asylum, even though 663 were issued a registration certificate, as most of them never applied for asylum. There were no instances in which the applicant from Libya was rejected up to the final decision of the Administrative Court, except in one case where a 5-member family then addressed the ECtHR and was later on granted subsidiary protection.^[46] This case, as well as another which was positively resolved in 2022, were initially rejected on the basis of negative security assessment from BIA.^[47] Still, it can be safely assumed that, if provided with adequate legal support, applicants from Libya had decent chances to obtain international protection in Serbia during the peak of the civil war.

Syria

A total of 39 Syrians were granted international protection in Serbia through 32 decisions. Eight were granted refugee status via 8 decisions while 32 were granted subsidiary protection through 24 decisions. However, a total of 320,764 Syrians was registered in Serbia since 2008, while only 562 lodged asylum application.

The vast majority of Syrians absconded before the first instance decision was issued, while at least several dozens were subjected to the automatic application of the safe third country concept (STCC), which plagued the Serbian asylum system in the period 2008-2018.^[48] The vast majority of the applicants whose asylum application was dismissed absconded the asylum procedure, while only 1 remained and his case is currently pending before the ECtHR.^[49]

There were no instances in which a Syrian asylum application was rejected on the merits with the final decision, except in 2 cases which were rejected as such in the first instance, in 2021 and 2022. Still, it is safe to assume that Syrians have strong prospects to receive international protection in Serbia at the end of 2022. The author of this report was not able to obtain data of these two cases, but the practice of the Administrative Court and Asylum Commission from 2022 does not indicate that these decisions became final. So, the potential outcome in these cases is either that applicants absconded or their cases were referred back to the Asylum Office after which they received subsidiary protection.

Decisions in which Syrians were granted subsidiary protection in Serbia were based on the state of general insecurity and widespread violence which implied the risk of suffering serious harm. The main sources in terms of CoI which were cited in such decisions were UNHCR position papers on returns to Syria^[50] and EUAA reports on Syria.^[51] Decisions granting refugee status were mainly based on the risk of persecution due to political opinion or draft evasion.^[52] When it comes to draft evasion, the practice has been contradictory, meaning that some applicants were granted refugee status, others subsidiary protection. This practice continued in 2022. In 2023, the applications of 2 Syrian nationals were rejected, one of them on the basis of being considered as the national security risk.^[53]

Afghanistan

Persons in need of international protection from Afghanistan are the second biggest group of persons registered in Serbia (189,925) and the largest group that actually lodged asylum application (969). However, only 33 Afghans were granted asylum through 22 decisions. The vast majority of Afghan applicants absconded the asylum procedure, as it has been the case with Syrians and Iraqis.

The Asylum Office issued 16 decisions granting refugee status to 22 Afghanis on the basis of the risk of persecution which they faced as: interpreters,^[54] artists,^[55] members of police and other security forces,^[56] persons who worked for US companies,^[57] SGBV survivors who were subjected to harmful traditional practices (honour killing, consequences of having children out of wedlock)^[58] or persons who faced risks of Taliban recruitment.^[59]

Also, a total of 6 decisions granting subsidiary protection was issued in relation to 10 applicants. Subsidiary protection was granted to individuals who belonged to vulnerable categories such as UASC or families with young children who faced the state of general insecurity and arbitrary violence from Taliban.^[60]

The recognition rate of Afghan applicants varied throughout the years, but it is yet to be seen how the Taliban rule will affect the practice of asylum authorities in the future.^[61] There was only 1 decision in 2021 in which the Taliban rule and general situation in Afghanistan was declared as grounds for subsidiary protection.^[62] In 2022, there were 3 such decisions issued in relation 3 three UASC (2 subsidiary protections and 1 refugee status), as well as two decisions granting refugee status to a three-member family from Afghanistan due to SGBV grounds and further risk of SGBV, but in which the Taliban rule was also taken into account.^[63] However, in 2023, three asylum applications were rejected in merits and no positive decisions were taken.^[64] The first applicant was rejected on the national security grounds, while the other two were rejected in merits.

Iraq

A total of 11 decisions granting international protection was rendered in relation to 16 Iraqi nationals. Through 5 decisions 8 persons were granted subsidiary protection as Sunni Muslims who faced arbitrary violence in post US invasion Iraq,^[65] during the Islamic State of Iraq and Syria (ISIS) control of area around Mosul^[66] and in post-ISIS period.^[67] Iraqis granted refugee status faced risk of forcible military recruitment,^[68] were directly targeted as Sunni Muslims^[69] or were victims of sexual and gender-based violence (SGBV).^[70]

It is noteworthy to say that 82,828 Iraqi were registered in Serbia since 2008 and that only 295 lodged an asylum application. As it was the case with Syrians, the vast majority of them absconded before the first instance decision was issued, or afterwards, after they were subjected to the practice of the STCC. In one instance, the STCC was applied through a final decision of the Administrative Court, and this person was later on granted humanitarian residency due to his integration into Serbian society. In this particular case, the legal representatives failed to challenge the automatic application of the STCC before the ECtHR which would potentially have provided a durable solution for the applicant.^[71] There were probably several more instances in which the STCC was confirmed with the final decision in relation to Iraqi applicants. The author of this Report is not aware of any decisions in which an Iraqi asylum application was rejected on the merits with the final decision.

Iran 

Iranian asylum seekers were granted asylum through 16 decisions encompassing 22 persons. A total of 20 applicants received refugee status through 13 decisions and the grounds were mainly of religious nature – conversion from Islam to Christianity.^[72] There were instances in which victims of torture who opposed the Iranian political system received refugee status,^[73] as well as LGBTQI+ persons^[74] and social activists.^[75] One human rights activist^[76] and 1 UASC received subsidiary protection.^[77] Since 2008, a total of 14,748 Iranians were registered, while only 353 lodged an asylum application.

The vast majority of asylum applications based on religious reasons (conversion) were rejected on the merits and became final and executive. These decisions represent a shift in practice which from the outset was in almost all instances positive, but due to the increased number of applicants who converted from Islam to Christianity, the Asylum Office raised the bar of credibility which produced an inconsistent practice.

Ukraine

Only 22 Ukrainians were registered in the period 2014-2023 and all of them lodged an asylum application and 15 were granted asylum. Eight Ukrainian applicants received subsidiary protection through 4 decisions, and 7 were granted refugee status through the same number of decisions. All of their claims were based on their Russian ethnicity or pro-Russian orientation, or they had previous family or other connections with Serbia.

In March 2022, 4 Ukrainian applicants lodged asylum applications with the Asylum Office (1 family of 3 and 1 journalist) and were all granted asylum – subsidiary protection to the family due to the state of general insecurity^[78] and 1 refugee status to the journalist who reported on war crimes allegedly committed by Ukrainian authorities.^[79] In 2023, only 1 Ukrainian national applied for asylum and he was rejected on the basis of the national security grounds.^[80]

Burundi  

A total of 1,207 Burundians were registered in line with the Asylum Act, and 293 of them lodged an asylum application in the period 2017-2023. The increase in the number of Burundian applicants can be connected with the free visa regime that Serbia has introduced for Burundian citizens, and which was cancelled in December 2022 after pressure from the EU.

Still, only 10 Burundians were granted protection through 8 decisions. A total of 9 Burundians were granted refugee status through 7 decisions and 1 Burundian was granted subsidiary protection. Refugee status was granted to women victims of SGBV, torture victims and political opponents. All of them are ethnic Tutsi.

Cuba  

A total of 291 Cubans were registered in line with the Asylum Act, while 124 of them lodged an asylum application since the onset of the Serbian asylum system. Only 12 of them received refugee status through 7 decisions and on the basis of the political persecution which they faced as political activists opposed to the Government, while 1 Cuban LGBTQI+ applicant with serious medical condition received subsidiary protection in 2022.^[81] In 2023, two high profile political activists from Cuba, involved in the protests in the period November 2021 – 11 July 2022, were granted refugee status, one of them with the rest of his family.^[82]

Somalia

A total of 66,481 Somalis were registered in line with the Asylum Act, while only 338 of them lodged asylum applications. Subsidiary protection was granted to 5 individuals, on the basis of the state of general insecurity in Somaliland.

Other nationalities

A total of 5 Sudanese from Darfur were granted refugee status in the period 2015-2016 (5 decisions), 4 Pakistanis were granted asylum out of which 3 subsidiary protection and 1 UASC refugee status and as a survivor of human trafficking. A total of 3 athletes from Ethiopia were granted subsidiary protection in 2009 due to political reasons, as well as 3 women from Chechnya-Russia, who had LGBT claims. An LGBT couple from Türkiye received refugee status in 2013. A woman from Cameroon and her daughter were granted refugee status as survivors of SGBV, as well as Cameroonian persons with a disability,^[83] while one underage girl from Nigeria was granted refugee status as a survivor of human trafficking. Another Nigerian man with sever disability received subsidiary protection. Two Palestinians were recognized as refugees and victims of forced military recruitment in Syria. One applicant from Bangladesh who is quadriplegic was granted subsidiary protection. The same protection was granted to an applicant from Mali in 2020.^[84] Refugee status was granted to a Coptic Christians from Egypt on the basis of religious persecution, as well as to Chinese Uyghurs, Kazakh Christians and Tunisian Christians on the same grounds. A man from Lebanon escaped political persecution from Hezbollah and received refugee status, as well as a South Sudanese who belonged to the opposition. In 2022, a boy from Niger was granted subsidiary protection after he fled the state of general insecurity caused by the Boko Haram movement,^[85] as well as a mother and her daughter from DR Congo, who escaped the situation of arbitrary violence in her village and whose later born daughter (in Serbia), was also granted refugee status.^[86] In 2023, a survivor of trafficking in human beings belonging to the specific social groups Hijras in India, was granted refugee status in the decision, which also outlines her vulnerability as transgender woman and survivor of SGBV and this decision should be considered as landmark.^[87]

Breakdown of positive decisions, nationalities of applicants and type of protection for the period 2008-2023

Particular grounds for international protection, contradicting practices and different trends

On other hand, among 165 decisions, excellent examples of good practice can be observed. In the history of the Serbian asylum system, asylum authorities have granted asylum on almost all grounds envisaged in Article 1 of the 1951 Refugee Convention. However, there are numerous examples in which the practice of the Asylum Office has been inconsistent and especially in the following type of cases:

• LGBTQI+ applicants
• SGBV survivors
• UASCs
• draft evaders
• converts from Islam to Christianity

LGBTQI+

When it comes to LGBTQI+ applicants, the first ever-positive decision was granted to a Turkish gay couple in 2013.^[88] Several other decisions, which represent an example of good practice, ensued in the following years. Among those are decisions granting refugee status to two gay men from Iran^[89] and 3 lesbians from Chechnya.^[90]

However, in the same period, several contentious decisions highlight the inconsistency in assessing LGBTQI+ claims by asylum authorities in Serbia. One decision referred to a transgender man from Bosnia whose asylum application was also rejected in the Netherlands.^[91] In two other separate decisions, which related to a gay couple from Tunisia, the first instance authority outlined that the state of human rights of LGBTQI+ in Tunisia has been significantly improving throughout the years, highlighting the fact that even one of the presidential candidates openly declared to be gay. However, the Asylum Office disregarded the fact that the Tunisian legal framework still stipulates ‘forced anal examination’ of people ‘suspected to be gay’ and criminalises homosexuality in its Criminal Code, prescribing a prison sentence of up to 5 years.^[92] Another contentious decision referred to a transgender woman from Iran who was rejected even though the UNHCR office in Serbia eventually granted her the mandate status and resettled her to another country.^[93] In 2021, there were two decisions in which application from a gay men, respectively from Iran^[94] and Bangladesh,^[95]  were rejected as unfounded. The threshold set in these two cases represents a dangerous precedent when it comes to LGBTQI+ claims.^[96] In both decisions, the Asylum Office considered that the applicants would not have been subjected to persecution if they had acted discretely with regards to their sexual orientation. Also, the acts of violence and threats to which both applicants were subjected were not of sufficient level of seriousness according to the Asylum Office. In 2022, there were several more decisions rejecting LGBTQI+-related asylum claims applicants, whose cases continued from 2021 (applicants from Tunisia, Bangladesh and Iran) and1 case in 2022 of an applicant from Morocco.^[97]

One Cuban citizen was granted subsidiary protection as an LGBTQI+ applicant in 2022, but the positive outcome was not solely based on the discrimination which he had encountered in Cuba, but also on the basis of his serious illness.^[98] In 2023, the Asylum Office rendered the landmark decision on LGBTQI+, SGBV and survivor of trafficking in human beings on the member of the hijra movement from India.^[99]

Victims of SGBV

The practice of the asylum authorities when it comes to the survivors of SGBV, but also persons at risk of SGBV has also been inconsistent. The first notable case goes back to 2016, when a woman from Chechnya was rejected on the merits. Namely, during the hearing, M.G. unequivocally expressed her well-founded fear of persecution by Chechens (including her family members), who threatened her because she ‘lost her virginity out of wedlock’ and because she was pregnant at the time of leaving Russia. In addition, the mere fact that the asylum seeker had left Russia and her family may be a reason for retaliation by her father and other Chechens. She specifically stated that she received threats from her father that he would kill her if she had sexual relations before marriage, and described how Chechens treat girls in such cases, i.e., that those girls are often victims of honour killing. The applicant stated that her mother once told her about a case where a brother killed a sister who had sex before marriage, then killing her mother because she did not take good care of her daughter.^[100]

Another contentious case was recorded in December 2017, when an application by a woman who was a victim of SGBV in Afghanistan was dismissed on the basis that Bulgaria was a safe third country. The Asylum Office disregarded the fact that Z.F. was also raped in Bulgaria, manifesting in that way the Office’s lack of capacity to establish a gender-sensitive approach in the admissibility procedure.^[101] The Asylum Office’s decision was also confirmed by the Asylum Commission and the woman eventually was resettled by UNHCR office in Serbia and received refugee status in France.^[102]

A case which represents an example of good practice is that of N., a woman with a young child from Cameroon who escaped an arranged marriage and whose asylum application was assessed as credible through individual circumstances which she put forward and relevant CoI.^[103] This was the first ever case in which an applicant was qualified as a member of a particular social group – persons at risk of SGBV, which manifested though the risk of forced marriage. On the contrary, a case of another women from Cameroon was not examined with the same rigorous scrutiny as the case of N., even though it referred to the practice of forced marriage when she was underage. Her case was dismissed even though she never had the opportunity to apply for asylum at one of the airports in Italy which Serbia considered as the safe third country.^[104]

A very high burden of proof for the risk of gender-based violence was established in the case of Ms. Y from Iran,^[105] and Ms. Z from Burundi in 2021.^[106] Ms. Y is a women rights activist whose asylum application was rejected on multiple occasions on the grounds that she allegedly failed to provide evidence that the threats that she has received would materialize. Even the 2022 events in Iran were disregarded by asylum authorities. On the other hand, a high quality decision was issued in relation to an Iraqi woman and her daughter who received refugee status as a SGBV survivor who was forcibly married to her cousin when she was only 15 years old.^[107] A very good decision was issued in 2022 to a survivor of SGBV from Burundi, in which the Asylum Office for the first time took into consideration the Istanbul Protocol Report lodged by legal representatives with the findings of the multidisciplinary team comprised of a forensic medical expert, a psychiatrist and a gynaecologist.^[108]

In 2023, the practice with regards to SGBV survivors deteriorated to the extent that all female applicants who claimed sexual violence and provided medical documentation, forensic medical opinions drafted in line with the Istanbul protocol and other evidence which imply automatic application of the in dubio pro reo principle were rejected. All applicants were from Burundi.^[109]

What can be concluded when it comes to the burden of proof in SGBV applications, but also many other types of cases, is that the Asylum Office has shifted its practice in 2023 and refuses to grant international protection to those individuals who had already survived acts of persecution (attacks, rape, detention, judicial persecution), which was not the case in the past. Where applicants were forced to leave their countries of origin due to risks of persecution which had not materialized, the requirements are set insurmountably high. In other words, it appears that the asylum authorities have raised the burden of proof to such a level that applicants who to experienced and survived the act of persecution in order to cannot prove the credibility of their claims even with medical and psychosocial evidence. What is also typical for these kinds of decisions is selective citations of the relevant CoI in which only parts of these sources which indicate positive developments (with for example gay people in Iran or women’s rights in other country) are outlined in the negative decision, while those sources which corroborate alleged risks are neglected. This also reflects the lack of capacity of the asylum authorities to apply the standard of in dubio pro reo.

UASC

Since the establishment of the Serbian asylum system, only 16 UASC received international protection in Serbia. The first child was a girl from Nigeria who was also recognised as a survivor of human trafficking which occurred in her country of origin and which was assessed as an act of persecution.^[110] The second UASC who received subsidiary protection was a boy from Afghanistan who fled forced recruitment by the Taliban.^[111] The same decision was issued in relation to a Kurdish boy who fled forcible military recruitment by Peshmergas in Iraq and who was granted refugee status in the same year (2019).^[112] In both of these cases the Asylum Office applied the standard of a ‘buffer age period,’ which is a remarkable example of good practice and which is related to children who turned 18 during the course of the asylum procedure.^[113]

An identical case of forced recruitment of UASC by Taliban forces was positively resolved at the end of 2019 in the case of an Afghan boy who was granted refugee status.^[114] A child soldier from Palestine (proclaimed as stateless), received refugee status after it was determined that he had been forcibly recruited in the conflict in Syria.^[115] A similar case was resolved for an UASC from Afghanistan who fled Taliban recruitment as well.^[116] A boy from Iran who converted from Islam to Christianity was granted subsidiary protection, even though all other Iranian converts were granted refugee status.^[117]

Another boy from Afghanistan who fled customary family disputes and revenge killing was granted subsidiary protection in 2020.^[118] An Afghan boy who suffered severe injuries in a car accident in Serbia and remained in an induced coma was granted subsidiary protection in 2021.^[119] And finally, the last UASC from 2021 who was granted a refugee status was a boy from Pakistan who was recognised as a victim of human trafficking and who was granted refugee status in 2021 on the basis of labour and sexual exploitation.^[120]

In 2022, 2 boys from Afghanistan were granted subsidiary protection^[121] due to the risks of arbitrary violence originating from the acts of the Taliban, while 1 boy from Afghanistan received refugee status for the same reasons.^[122] Siblings from Syria (brother and sister) were also granted subsidiary protection,^[123] as well as a boy from Niger who fled the situation of arbitrary violence connected to the operations conducted by the Boko Haram group.^[124]

Apart from these positive decisions, there have been a handful of cases in which UASC’s applications were rejected on the merits even though their asylum claims were similar or identical to the above-described. In all these cases, the boys, mainly from Afghanistan, had a positive best interest assessment decision issued by CSW which contained a recommendation for protection in Serbia. This indicates that practice in the field of UASC also varies, which can be also seen in the past AIDA reports.^[125]

In 2023, there were no decisions related to UASC applicants.

Draft evaders and forcible recruitment

 A significant number of male Syrian applicants who received international protection outlined in their applications that one of the main reasons why they had to flee their country was the risk of being recruited by either fighting sides. The reasoning of the Asylum Office decisions always outlined such individual circumstances, but in the end granted different forms of international protection – mainly subsidiary protection and rarely refugee status. Moreover, draft evasions and rejection in general to take part in the armed conflict, was outlined by the UNHCR in its position papers as a reason for protection arising from 1951 Refugee Convention.^[126] Thus, there were instances in which draft evaders were granted refugee status^[127] and instances in which the same category received subsidiary protection.^[128] The same examples can be seen in the practice towards UASC who fled Taliban recruitments described above.

In 2023, there were two decisions^[129] related to Russian citizens whose claim was based on the risk of forcible recruitment and who were rejected in merits and through decisions which have completely failed to take into account relevant COI such as the one published by the EUAA.^[130]

Converts from Islam to Christianity

The vast majority of Iranian claims were based on the alleged risk of religious persecution, frequently due to a conversion from Islam to Christianity. However, even before the mass arrival of Iranian citizens in 2017-2018,^[131] the fist refugee status was granted in 2015 to a man from Kazakhstan, who converted to Christianity.^[132] The second person was a man from Iran who was granted refugee status in 2016 for the same reasons.^[133] In the period 2018-2020, the Asylum Office granted refugee status on said ground on at least 7 occasions.^[134] There were no decisions related to Iranian converts in 2023.

However, in the same period, dozens of other Iranian applicants who put forward the same claims with identical or similar evidence, were rejected on the merits. The number of persons who received international protection on these grounds slowly decreased and, in 2021 and 2022, not a single Iranian was granted refugee status on religious grounds. Thus, it is clear that the threshold for Iranian converts has significantly increased and that it is not reasonable to expect that in the future these claims will have prospect of success.^[135]

Since 2017, the Asylum Office has issued the following decisions:^[136]

Asylum Office practice in 2023

Protection was granted to citizens of the following countries in 2023:

Source: Asylum Office and UNCHR office in Serbia.

In 2023, the Asylum Office delivered 111 decisions regarding 154 asylum seekers. Out of that number, 36 decisions regarding 50/55^[138] asylum seekers were rejected in merits, while 6 decisions granting asylum to 9 asylum seekers were delivered in the same period. The asylum procedure was discontinued in 67 cases regarding 94 applicants, due to their absconding, while in 2 instances subsequent asylum applications were declined in relation to 2 applicants. There were no inadmissibility decisions or other decisions which are appropriate for the analysis of the effectiveness of the work of the first instance authority.

The first conclusion that can be drawn from these figures is that the total number of decisions has decreased significantly in comparison to previous years. The total number of decisions decreased by 223% in comparison to 2023 and is the lowest in 5 years. Still, the trend from previous years has continued and the vast majority of applicants decided to abscond from the asylum procedure before the decision in the first instance was issued. This represents a total of 60% of all decisions rendered in 2023. Around 2% of decisions concerned rejections of subsequent applications, while there were no inadmissibility decisions.

In 2023, it can be said that 42 merits decisions, issued in relation to 59 asylum seekers can be considered as relevant for analysis and better understanding of the quality and effectiveness of the asylum procedure, the practice with regards to certain nationalities, the grounds for persecution and the origin of the applicants. These 42 decisions were rendered in relation to asylum seekers from: Burundi (22),^[139] Russia (10), Cuba (8), Syria (3), Afghanistan (3), Congo (2), and 1 from Iraq, Tunisia, Algeria, Bangladesh, Kazakhstan, Türkiye, India, Brazil, BiH, Ukraine and Germany.

When it comes to decisions issued on the merits, it can be concluded that the rejection rate in 2023 was 85%, while the recognition rate was 15%. This represents a 14% decrease in recognition in comparison to 2022.^[140] In total, international protection was granted through 6 decisions (15%) encompassing 9 persons. Of these, refugee status was granted through 4 decisions and to citizens of Cuba (5), India (1) and Burundi (1). The remaining 2 decisions were related to subsidiary protection granted to citizens of Syria (1) and Congo (1).

Most of the decisions were issued in 2023 in relation to citizens of Burundi – 14 regarding 22 applicants. Only 1 of those decisions was positive, granting refugee status to a baby boy born in the family in which father was granted refugee status,^[141] but whose mother was rejected in merits in the same year.^[142] whereas all other were rejected on the merits, including several SGBV survivors with medical and psychosocial evidence of rape and other forms of sexual violence.^[143] Having in mind that the boy was granted refugee status only because of his father, it is fair to claim that recognition rate for Burundian nationals is 0%.

The second highest number of decisions was issued in relation to 10 citizens of Russia who were all rejected in merits through 5 decisions. The third highest number of decisions was related to citizens of Cuba – 4 decisions rendered in relation to 8 applicants. In two decisions, Asylum Office granted asylum to high profile political activists and the rest of the family of one of the applicants, while the other three applicants (2 decision), also claimed political persecution but those claims were assessed as non-credible. Still, recognition rate for applicants from Cuba is 50%, while for applicants from Russia 0%.

What is common for almost all Burundian and Cuban applications is that they were all based on allegations on the risks due to political turmoil in their respective States. The vast majority of Cubans have based their claims on the opposition to the Cuban Government and to the 2021 protests, while the vast majority of Burundians claimed ethnic persecution as Tutsi minority and affiliation with opposition parties.

All Afghan applicants were rejected in merits – 3 persons through three decisions, out of which one of them was considered as a national security risk, while out of three Syrian applicants, one was granted subsidiary protection while two of them were rejected as a national security risk as well. Thus, recognition rate for Afghans was 0% in 2023, while for Syrians was 33%. This kind of practice is one of the reasons why the recognition rate in general dropped in 2023.

As for other nationalities, all of them were rejected except for the newborn baby girl from Congo whose mother has already enjoyed subsidiary protection and transgender female applicants from India. Thus, asylum application was rejected in relation to prima facie non credible applicants from Bangladesh, Germany, Bosnia and Hercegovina and Algeria, but also in relation to citizens of Iraq and Tunisia who had outlined more concrete problems in their countries of origin but which were not considered credible. One citizen of Ukraine, woman from Kazakhstan and Citizen of Brazil were also rejected as national security risks, being in extradition procedure in parallel. This means that a total of 6 negative decisions were rendered on the basis of negative security assessment of BiA. The negative practice with regards to citizens of Türkiye who claim political persecution continued and 1 applicant was rejected in merits, claiming to be the member of HDP-the strongest opposition party in Türkiye.

Overview of the Asylum Office decisions in 2023

The quality of the decision-making process in 2023 can be considered to have significantly deteriorated compared to 2022.^[144] The Asylum Office rendered only 6 decisions in relation to 9 applicants, granting them asylum, and two out of six decisions were related to new-born babies whose parents already enjoyed international protection in Serbia.  Still, in those cases where the Asylum Office granted refugee status or subsidiary protection, the following can be observed:

• The Asylum Office was, in the reasoning of its decisions, clearly taking into consideration the fact that legal representatives were submitting written submissions indicating individual and general risks of persecution or other serious harm in countries of origin or third countries. These submissions contained data on individual circumstances and facts, but also findings compiled in credible reports published by UNHCR, EUAA, UN Treaty bodies, UN Special Procedures, Amnesty International and others (CoI);
• The reasoning of decisions contains the citations of credible reports taken into consideration by the Asylum Office proprio motu and occasional reliance on the general principles of the ECtHR, and in some cases even more concrete cases which correspond to individual circumstances of the applicant;
• In several cases the Asylum Office adequately took into consideration the psychological assessment provided by CSO PIN and CSO IAN when examining the credibility of an applicant’s statement;
• In 5 cases, the Asylum Office adequately took into consideration the best interest of a child assessment (BID) provided by the Social Welfare Centre (SWC) and rendered well-reasoned decisions containing child specific considerations and invoking Articles 10 and 17 which provides for special procedural guarantees for vulnerable applicants such as UASC and the principle of the best interest of a child;
• The safe third country concept was not applied in any of these decisions and the reasoning of each decision sometimes contains a paragraph on why the country in which the applicant resided before coming to Serbia cannot be considered as a safe third country.
• The Istanbul Protocol containing medical, psychiatric, and other expert findings were taken into consideration, as well as medical documentation of seriously ill persons. These submissions were taken on board during the assessment of the acts of persecution which have already taken place, as well as risks which might arise due to lack of medical treatment and care of seriously ill or persons who suffer from serious forms of disabilities.
• It also took into account the decision of the Centre for the Protection of the Survivors of Trafficking in human beings on granting refugee status to a human trafficking survivor.

The Asylum Office issued 2 decisions granting refugee status to 5 Cubans – 1 individual who – as a member of Archipelago, organized 11 July protests; and 1 family in which the father is well known political activist from the political party UMPACO.^[145] Both applicants provided extensive individual evidence which was taken on board and both decisions should be considered as examples of good practice.

In 2023, two out of 3 Syrians whose cases were decided in merits were rejected, both on the national security grounds. None of the decisions, in their reasoning, contained a description of the facts leading to such a decision which would allow the applicants to dispute this assessment.^[146] Until 2021, all Syrian applicants examined on the merits were recognised protection, but the practice stopped since then. There are now four instances in which Syrians were rejected on the merits. All their cases are still pending before higher instances. In all of the decisions granting subsidiary protection, it can be seen that the practice of the Asylum Office still largely reflects, for instance, UNHCR moratorium on returns to Syria,^[147] or the current stance of the ECtHR when it comes to the risks of treatment contrary to Article 2 and 3 of ECHR in case of removal to Syria.^[148] This remained unchanged in the January 2023 decision in which 1 national of Syria was granted subsidiary protection.^[149] Nevertheless, the number of Syrian applicants in Serbia remains low, but the practice positive. It is important to note that one of the decisions related to a brother and sister from Syria, who were granted subsidiary protection as UASCs and benefitted from a BID report from the Centre for Social Work (CSW).^[150] What is common for all of the decisions is the fact that Syria is still considered as a country in which acts of arbitrary violence occur and where general insecurity in the post-conflict society prevails.

In July 2022, the Asylum Office granted subsidiary protection to a new born baby whose mother (DR Congo) already enjoyed such protection.^[151] The same was done in relation to a new-born baby boy who was granted refugee status in in the same month and on the basis of his father’s refugee status.^[152] However, and what is hard to explain is that his mother, who separately applied for asylum, was not granted refugee status on the grounds of family unity but was rejected two weeks after.^[153]

A positive decision was issued in relation to an SGBV and human trafficking survivor who is also a transgender woman who belonged to the Hijra community where she was subjected to sexual and labour exploitation.^[154] The applicant was subjected to years of exploitation and before the final decision on her application, she was also granted the status of survivor of human trafficking by the CHTV which was also submitted as an evidence of persecution. This decision represents an example of extraordinary practice and indicates the capacity of the Asylum Office to decide upon more complex cases. Unfortunately, this kind of practice was not reflected in other SGBV cases.

What is common for most of the cases in which the Asylum Office granted refugee or subsidiary protection to the applicants is the fact that first instance procedure lasted on average for more than 1 year on average. This is completely unacceptable for the most vulnerable applicants such as UASC, SGBV survivors and survivors of human trafficking. At the same time, the excessive length of asylum procedure for applicants coming from Syria or Afghanistan also lacks proper justification, taking into consideration the clarity of the situation in these countries as well as the position of UNHCR on returns to these countries, or EUAA Guidelines.

Regardless of the above stated examples of good practice, the 2023 practice indicates that the quality of the credibility assessment deteriorated significantly and there are many serious concerns which indicate that the Serbian asylum procedure should not be considered as fair and efficient, and in most of the cases from 2023 it was unpredictable. The concerns are the following:

• the contradicting practice in similar or identical cases;
• reluctance to grant refugee status (but rather granting subsidiary protection status), even though from the reasoning of the decision it is clear that the first instance authority has acknowledged and accepted the facts which indicate the existence of one of the 5 grounds for persecution;
• extensive length of the first instance asylum procedure which has a discouraging effect on applicant’s will to remain in Serbia;
• the inconsistent quality of the decision-making process between different asylum officers;
• not all the facts and evidence (individual or general) submitted by the applicant and the legal representative are taken into consideration, and the substance of the decision lacks an explanation as why these arguments are not deemed as credible, especially in decisions on rejection.
• the burden of proof for certain applicants, especially those coming from Burundi and Cuba, has been established too high, undermining the principle of in dubio pro reo and especially in relation to SGBV survivors.
• disregarding psychosocial reports, medical evidence but also Istanbul Protocol reports drafted in some of the cases.

In 2023, the Asylum Office issued 36 decisions rejecting 50 persons on the merits. First of all, it is important to outline that each year the Asylum Office delivers decisions in relation to applicants whose claims are prima facie not founded. The first instance authority has rejected in the regular procedure citizens of Russia,^[155] Cuba,^[156] Germany,^[157] DR Congo,^[158] Kazakhstan,^[159] Bosnia and Hercegovina,^[160] Algeria,^[161] and Bangladesh.^[162] Lack of credibility can be determined also in the case of an Iraqi applicant who claimed risks of ISIS and PKK in Iraqi part of Kurdistan,^[163] without providing sufficient evidence, as well as Tunisian applicant who claimed political persecution but also failing to deliver individual evidence.^[164]

Thus, it should be outlined that in 13 out of 36 decisions Asylum Office rightfully concluded that the above-mentioned applicants did not meet the requirements to be granted international protection.

In 2022, the Asylum Office rejected 3 Turkish applicants on the merits, confirming that it is basically impossible to obtain international protection for nationals fleeing this country. However, a decision issued in February related to a person who wanted to avoid extradition for a petty crime, as opposed to a political offence or other reasons which could indicate the risk of persecution. Thus, it is safe to say that one of these three decisions is justified and that the conclusion of the Asylum Office was correct – avoiding or procrastinating extradition.^[165] One of the cases was related to the member of the Gulenist movement, while the other one on the case of Ecevit Piroglu. Both cases resulted in procedures before CAT and both applicants are facing extradition to Türkiye.^[166] In 2023, Asylum Office rejected the asylum application of a member of HDP party, contributing further to the practice which indicates that Turkish nationals who claim political persecution cannot obtain international protection in Serbia.^[167]

The practice with regards to Burundian applicants who were the majority in the past year both in terms of asylum applications and decisions rendered on the merits also presented elements of concern. It should be mentioned that the free-visa regime has triggered mixed migration influx of Burundians, coming directly to Belgrade airport. This also means that a significant number of Burundian applicants made unfounded claims which were aimed at legalising their stay in Serbia. However, Burundi is a country which has an extremely poor human rights record and in which the Tutsi ethnic minority has been persecuted in numerous ways, including through enforced disappearances, torture and other forms of ill-treatments, arbitrary detentions, incommunicado, killings, different acts of sexual violence, etc.^[168] One of the vulnerable groups are also members of opposition parties, but also their family members, journalists, NGO workers, etc. The existence of risks of these categories has been determined in many positive decisions, first one dating back to 2017.^[169] The reasoning and evidence taken as credible in these decisions serves as an example of good practice, but in many other cases that was not the case and there was an almost completely contradictory interpretation of risks.

In January 2022, a family composed of five people (mother and 4 children) who did not have a legal representative was rejected on the merits. The claim was based on the mother’s risk of political persecution linked to the alleged disappearance of her husband. Her claims were assessed as not credible.^[170] In June 2022, Mr. E.X. was rejected one the merits even though he had provided an entire set of individual evidence to the Asylum Office which testified to his political and ethnic persecution (member of the opposition party and ethnic Tutsi). He submitted his opposition party membership card, letters from his former employer, letter from several members of political party to which he belonged, as well as a witness letter from his neighbour on problems that he has faced with the paramilitary group Imbonerakure and official authorities. Without trying to question any of the witnesses, and without providing substantive reasoning why this individual evidence was not declared as credible, the Asylum Office rejected E.X. on the merits.^[171] A similar case was reported in September 2022, when the Asylum Office rejected to take into consideration the possibility of testimony of distinguished human rights activist from Burundi who offered to corroborate allegations made by the applicants on the risks of persecution which arose from his actions as journalist.^[172] In both of these decisions the Asylum Office selectively cited CoI which outline positive developments in Burundi, while CoI lodged by legal representatives was summarily disregarded without any detailed reasoning. In other words, these two decisions are typical examples of the unacceptably high burden of proof set out by the Asylum Office, selective citation of relevant CoI and attitude which implies that asylum seekers from certain country will be assessed as credible only if they have suffered and survived serious act of persecution, while the genuine and substantiated risk of such act will be declared non-credible. These two decisions, as well as several others, represent an example of cases in which asylum officers have not correctly applied the principle of in-dubio pro reo.

 A similar decision was issued in relation to a young woman from Burundi who was diagnosed with several psychological disorders which, according to her testimony, were results of serious forms of ill-treatment (including sexual) which prompted her fleeing her country of origin. The psychologist following her case did not exclude that the symptoms displayed could have arisen from such treatment. However, and due to unclear claims during the course of asylum hearing, her application was rejected. Despite the lack of individual evidence to substantiate her claim, the applicant repeatedly provided specific details of the alleged ill-treatment. In other words, there was no physical evidence which could either prove or rebut the alleged ill-treatment, except for a psychological report indicating that such possibility was quite high. The described acts of ill-treatment correspond to numerous COI reports, but once again, the opportunity to grant international protection in cases where there is doubt was missed again.^[173] This also means that lack of in dubio pro reo application is dangerous and could have irreparable consequences on applicants who, due to circumstances of their case, cannot offer individual evidence.

If we compare the above-described decisions with several others, in which the Asylum Office granted asylum to citizens of Burundi, it can be easily seen that the practice has shifted. . In other instances, the Asylum Office granted refugee status to nationals from Burundi who had faced serious human rights violations or recognised there was a risk of persecution even if it had not materialised through concrete acts, based on available COI and on an assessment regarding the personal characteristics of the asylum seeker, even when evidence was lacking. This is not the case anymore.

In 2023, 14 decisions rejecting asylum applications concerning 22 applicants originating from Burundi were delivered. What is important to note is that credibility assessment in these decisions was conducted to a very limited extent. All these decisions cited identical COI such as UNHCR factsheets on repatriation to Burundi which are not CoI. This kind of approach indicates the clear pattern of complete disregarding of the responsibility to individually assess each and every asylum claim. Namely, out of 14 decisions, the following cases were beyond any doubt rejected unfoundedly, and especially taking into account the principle in dubio pro reo: 1) a rape survivor who arrived with her family to Serbia and who was rejected twice even though she provided medical evidence from Burundi;^[174] 2) a rape survivor who provided medical documentation from her country of origin, together with a psychological and Istanbul Protocol report which corroborated her claim (she was later on granted refugee status in Belgium);^[175] 3) a rape survivor who provided medical documentation from Burundi and whose lawyers also provided psychiatric and psychological reports which also corroborated her claim.^[176] Another woman from Burundi also claimed SGBV and provided evidence of imprisonment. The most striking circumstance in this case was the fact that she gave a birth to a baby boy who was granted refugee status on the basis of his father’s status, but she was not included in this decision. This represents the flagrant violation of the principle of family unity.^[177] Regardless, by citing the above-outlined UNHCR factsheets, Asylum Office resorted to unusual practice which implies citation of the Home Office Guidance which is related to UK travellers to Burundi and instruction what they should do if they become victims of rape or sexual assault.^[178] This source describes the legal framework of Burundi but does not provide any information on its effectiveness, which is the fact that must be taken into account in line with Article 30 and 32 of the Asylum Act. This source cannot be considered as CoI and the fact that Asylum Office simply cites this source indicate the aspiration of this body to reject Burundian applicants at any cost. On the other hand, the latest CoI on Burundi contained in three credible UN sources published in 2023 are simply disregarded – Human Rights Committee,^[179] Committee against Torture^[180] and the Special Rapporteur on the Human Rights situation in Burundi.^[181] Thus, these 5 decisions represent extremely bad examples of practice which clearly indicates the poor credibility assessment of the Asylum Office and poor work of the CoI department within this body.

While discussing the evaluation of cases of SGBV survivors, it is important to also mention relevant cases from previous years. In April 2022, for the second time, the Asylum Office rejected a social activist for women rights from Iran.^[182] In her application, she explained, inter alia, that she refused to wear the hijab, that she wanted to work in the modelling business and that she was arrested on several occasions. Even if the 2021 decisions can be taken as justified due to the insufficient lack of individual evidence, although highly unlikely in this case, the recent events which took place in Iran undoubtedly qualify these kind of applications as founded.^[183] This decision represents a negative continuation of the practice regarding SGBV cases from Iran. In January 2020, the Asylum Office rejected an application on the merits concerning a mother and daughter from Iran, who were obvious victims of gender-based violence and whose serious psychological state, confirmed in PIN’s report, accompanied by other evidence compiled in CoI submissions created a strong and credible asylum claim.^[184] Before this decision, the Asylum Office applied on two occasions the safe third country concept in relation to Türkiye. After both decisions were overturned by the Asylum Commission, the Asylum Office decided to reject application on the merits. The mother and daughter eventually decided to leave Serbia. This case lasted for more than two years, several hearings took place, and several lawyers changed. Without any doubt, this case was permeated with acts which caused secondary traumatisation. Even though the mother had visible injuries and scars from the alleged violence, forensic medical examination was never conducted by either the Asylum Office or one of several legal representatives.

One decision from the end of 2020 which concerned an SGBV survivor and her two children from Türkiye also goes in favour of the general assessment that practice with regards to SGBV applicants varies and is unpredictable.^[185] BCHR also observed the negative practice of the Asylum Office as regards a victim of genital mutilation from Somalia.^[186] What represents an additional aggravating circumstance is the fact that the lawyer in the case of Somali applicant failed to lodge a complaint within the 15-day deadline. This has led to the dismissal of the lawyer’s appeal by the Asylum Commission and the applicant is now facing potentially several years of procedural struggle to have her case re-examined in merits.^[187]

Several more decisions related to applicants from Burundi deserve special attention. In one of the cases, the applicant provided clear and individual evidence on his involvement in the CSO Focode who started the campaign Ndondenza dealing with enforced disappearances, several witness statements and relevant reports, but was rejected alongside the rest of his family and despite CoI which went into his favour.^[188] Similar cases were recorded with regards to the members of opposition parties CNL and MSD, but also activists and journalists.^[189]

Of course, from the case files of several other Burundian applicants, it can be seen that their credibility lacked, but the assessment implied the same pattern as the one observed in the above-described.^[190] To conclude, in 8 out 14 negative decision the Asylum Office did not grant international protection to applicants from Burundi even though the combined assessment of the CoI and individual circumstances and evidence provided such opportunity in the opinion of the author.

When it comes nationals of Russia, two cases deserve special attention and not necessarily because the applicants have highly credible claims, but mainly due to the fact that the CoI assessment has been inadequate. Namely, in both cases, applicants claimed risk of military recruitment. The most credible CoI report was published by the EUAA, but the Asylum Office failed to even mention the report in its reasoning, citing only several media reports which do not even discuss the legal framework, but also the practice of military recruitment.^[191]

In 2022, apart from one LGBTQI+ applicant from Cuba who received subsidiary protection, but who also has a serious medical condition, all other LGBTQI+ applicants were rejected on the merits. Thus, and even though the Asylum Office rendered positive decisions in relation to LGBTQI applicants in the past, the past five years have shown that LGBTQI+ asylum seekers fleeing from a country in which they are criminalised or discriminated against have no prospect of success, unless they survived serious acts of persecution. In other words, the risk of persecution is solely assessed from the perspective of past experience which, if it is not based on actual physical attack, arrest, detention or any other harmful practice, would most likely lead to negative decisions.

The case of Mr. X. from Bangladesh, who left his country of origin because of his sexual orientation, but also religious beliefs (atheist) was rejected again in February 2022.^[192] The case was referred back from the Administrative Court to the first instance authority. The applicant was targeted by an extremist student organisation, which further led to him being forced to quit his studies. He was not able to address the Bangladeshi authorities for protection due to a discriminatory legal framework which penalizes LGBTQI+ people. He was also raped, and his boyfriend committed suicide,^[193] but it is not clear from the available sources if he was subjected to expert assessments for the purpose of the asylum procedure. Another decision is related to another long-lasting case of a gay man from Burundi, whose asylum claim was initially dismissed on the basis that Uganda was the first asylum country.^[194] After his case was referred back to the first instance, his asylum application was rejected in merits.^[195] It is important to note that Burundi also criminalises same sex partnerships.^[196] And finally, in December 2022, a Moroccan gay man was rejected on the merits, but since the author of the report did not have access to a copy of the decision, it is not possible to elaborate more on its reasoning. What can be safely said is that same-sex sexual activity is prohibited under the Moroccan Penal Code of 1962, which criminalises ‘lewd or unnatural acts’.^[197]

It is also worth mentioning again the case of the gay man from Congo who escaped his former partner’s family who wanted to kill him, but also abuse from his own family. His boyfriend was killed, and his mother provided a letter of testimony confirming said incidents.^[198] This, as well as numerous CoI reports were declined as relevant evidence by the Asylum Office. The case of a gay man from Iran who was raped, abused and who was questioned by the police as a suspect for committing a criminal offence which implies sexual acts between men is also noteworthy, especially because his asylum claim was rejected with a final decision of the Administrative Court in 2023.^[199] The applicant, in his procedure, provided an entire set of evidence, including the court summon which ensued after the arrest during which he was questioned about his sexual orientation. The reasoning of the Asylum Office from 2021 gives serious reasons for concern taking into consideration the Criminal Code of Iran, individual problems that the applicants faced and relevant CoI. This decision is still a perfect example of how the first instance authority in some cases can cite CoI which goes in favour of negative decisions, but completely disregards CoI which clearly indicates the risks of persecution of LGBTQI+ applicants from Iran. Moreover, even though the Asylum Office failed to take relevant CoI into consideration proprio motu, the applicant’s legal representatives provided an entire set of relevant reports which confirm the existence of the events and incidents which were experienced by the applicant.^[200]

In two other, separate decisions from 2020,^[201] which concerned a gay couple from Tunisia, the first instance authority rejected their applications as unfounded, considering that the state of human rights of LGBTQI+ in Tunisia has been significantly improving throughout the years, emphasizing the fact that even one of the presidential candidates openly declared to be gay. However, the Asylum Office disregarded the fact that the Tunisian legal framework still allows ‘forced anal examination’ of people ‘suspected to be gay’ and criminalises homosexuality in its Criminal Code, prescribing a prison sentence of up to 5 years. The fact that both applicants were detained by the Tunisian police on several occasions on suspicion that they were gay was not disputed by the Asylum Office but was assessed as ‘not serious enough’ since both applicants avoided anal examination and were afforded lawyers. This interpretation gives serious reasons for concern since the threshold for persecution was set too high, and the Asylum Office failed to acknowledge that the very fact that someone who is suspected to be a gay can be taken in police custody, in combination with the risk of anal examination and criminal charges, undoubtedly amounts to persecution. Both of these cases were taken to the Strasbourg Court by applicant’s legal representatives and they are yet to be communicated.^[202]

Thus, the decisions issued in 2020, 2021, 2022 and 2023 indicated that the Asylum Office has been departing from a very decent practice with regards to LGBTIQI+ applicants established back in 2013, when a Turkish gay couple was granted refugee status due to systemic discrimination and violence faced in different places of residency.^[203] The Turkish legal framework is far more favourable than the Tunisian, Iranian or Bangladeshi, but the interpretation of the Asylum Office from 8 years ago appears to be much more progressive than in several more recent decisions. In combination with another contentious decision regarding a transgender applicant from Iran rendered in 2019,^[204] the practice of the first instance authority regarding LGBTQI+ claims appear to have seriously deteriorated in the past few years. Thus, the recognition rate of LGBTQI+ applicants in 2022 was 25%, and one positive decision is primarily based on medical grounds (serious illness) and then on LGBTQI+ part of the claim which was taken into consideration.

It is also important to note that rejection rate of Afghan nationals who claimed that they were working or were affiliated with family members who used to work for State authorities before Taliban return to power was of 100% in 2023. Two applications were rejected due to lack of credibility indicating that Asylum Office deterred from previous practice but also from the UNHCR moratorium on returns to Afghanistan.^[205]

In 2023, national security grounds were invoked in the cases of 2 Syrian nationals,^[206] 1 Afghan applicant^[207] and applicant from Ukraine,^[208] as well as applicants from Brazil.^[209] The common feature of all decisions is that reasoning of such decisions does not contain any elements of facts which could potentially indicate reasons why the BIA declared the applicants to be a national security threat. When it comes to applicants from Ukraine and Brazil, they were both in extradition procedure as well. This practice is concerning, as it undermines the possibility to access an effective remedy for applicants who receive a negative security assessment, while the number of decisions (5) in comparison to previous years has increased.

Prioritised examination and fast-track processing

No caseloads are prioritised as a matter of law or practice.

Personal interview

The interview in the regular procedure is regulated by Article 37 of the Asylum Act. The interview should take place at the earliest time possible. More specifically, the interview must be conducted within the period of 3 months during which the Asylum Office has to issue and deliver to the applicant and their legal representatives the first instance decision. The applicant is interviewed about all the facts and circumstances relevant to deciding on their application and particularly to establish their identity, the grounds for their asylum application, and their travel routes after leaving the country of origin or habitual residence, and whether the asylum seeker had previously sought asylum in any other country.^[210]

An authorised officer of the Asylum Office may interview the applicant on more than one occasion in order to establish the facts.^[211] In the situation where a large number of asylum applications has been lodged to the extent that the authorised officers of the Asylum Office are not able to interview all the applicants in due time, the Asylum Act provides that the Government may, at the request of the competent authority, decide on temporary involvement in the interviewing process of officers from other departments of the competent authority or officers from other authorities.^[212] However, although prescribed that they must undergo the necessary training before engaging in the process, it remains unclear whether this training can provide such officers with the sufficient level of knowledge as required for interviewing applicants given the specific characteristics of the asylum procedure. This possibility has never been applied in practice.

All interviews are conducted individually (especially in cases of families) by a person of same the gender as the applicant, and excluding young children who are formally included in their parents’ applications. During the interviews with UASC, social workers or temporary guardians are always present.

In practice, asylum officers are rarely prepared for the interviews, including in relation to relevant CoI (which is later on displayed in the reasoning of decisions), failing first of all to properly identify and address vulnerabilities. This means that legal representation at first instance is still crucial, as lawyers usually inform asylum officers of existing vulnerabilities and of potential traumatic reactions during the interview are announced. There were also instances in which asylum hearings were postponed due to poor mental health state affecting some of the most vulnerable applicants.^[213]

The Asylum Act also specifies three situations in which the asylum interview may be omitted:^[214]

1. A decision may be adopted upholding the application and granting the right to asylum on the basis of the available evidence;
2. The applicant is unable to give a statement due to circumstances of non-temporary nature beyond their control. In this case, it is possible for the applicant or a member of their family to adduce evidence and give statements relevant to deciding on their asylum application.^[215] This option was applied for the first time in 2021 in relation to an Afghan UASC who was not able to take part in the hearing procedure due to his health condition which implies that he is immobile and not able to talk.^[216] He was granted subsidiary protection;
3. The admissibility of a Subsequent Application is being

As previously mentioned, an applicant is entitled to request that an interview be conducted by a person of a specific gender. The same rule applies to interpreters.^[217] In practice, asylum seekers often wait from several weeks to several months following the lodging of their application for an interview to be scheduled. Due to COVID-19 circumstances, this period was extended for several months in 2020, and remained very long in 2021 and 2022. A 4-member Afghan family who lodged their asylum applications on 30 August 2021 had their asylum interview in 7 July 2022. A single mother with two children from Syria lodged their asylum application in August 2021, and were interviewed in February 2022. There were also examples of good practice in which Burundian SGBV survivor lodged an asylum application on 15 March, was interviewed on 27 April and was granted refugee status 29 June 2022.^[218] In 2023, asylum interviews rarely took place before the expiry of three-months deadline, unless it is clear that asylum application is prima facie not credible (see the Table above on the overview of the Asylum Office practice in 2023).

The Asylum Office conducted 106 interviews in 2022, which is significantly higher than the number of interviews in 2020 (84) and 2021 (85), but is still lower than the number of interviews from 2019 (178). In 2023, a total of 88 interviews were conducted. The reason for the low number in 2020 can be attributed to COVID-19 which suspended this stage of the asylum procedure from second half of March until June 2020. However, no similar reason could justify the low number of interviews conducted in 2021. Positively, an increase was observed in 2022, but in 2023 the number of asylum hearings dropped once more. It is also important to note that 1 witness was questioned, while a request to question another witness was declined in June 2022. In 2023, even though some of the applicants provided witness statements in writing, offering also for the witnesses to be questioned in person or online, the Asylum Office did not avail itself of this possibility, and disregarded the credibility of witness statements in the reasoning of negative decision.^[219] In general, it is clear that the Asylum Office tends not to question witnesses proposed by the applicants and their legal representatives.

There were no instances in which asylum interviews were conducted through video conferencing, including during the COVID-19 preventive measures in 2020. There were at least two instances in which witnesses of applicants in the asylum procedure were interviewed via the Skype application, in line with Article 111 of GAPA which provides for such a possibility. One case has been concluded due to the applicant’s absconding,^[220] while the other one resulted in a positive decision regarding a UASC from Iran.^[221] No major problems were recorded with regards to video conferencing, but it is clear that this practice is rarely applied and it is yet to be seen whether problems will arise in the future.

The total number of asylum hearings in the period 2019-2022

Interpretation

An applicant who does not understand the official language of the asylum procedure shall be provided free interpretation services into their native language, or a language that they can understand, including the use of sign language and Braille materials.^[222]

The costs of interpretation are covered by UNHCR, and the interpreters are hired from their list. The list underwent a thorough review in 2022 and it remained almost unchanged in 2023. The review was based on feedback received from both CSOs and the Asylum Office. The interpreters are available for the following languages: English (1), Farsi (10), Arabic (9), Russian (7), French (7), Turkish (5), Kurdish (3),  Bulgarian (2),Spanish (2), Chinese (2), Urdu (2), German (2), Greek (2), Georgian (2), Bulgarian (2) and Kirundi (2)  and Ukrainian(2). One interpreter is also available for each of the following languages: Armenian, Chinese, Hindu, Hungarian, Italian, Macedonian Portuguese, Pashto, Polish, Romanian and Swahili.

When it comes to the practice, there were several instances in which CSO lawyers decided to halt the interview because of the interpreters’ incompetence and inability to establish effective communication with the applicants. Afterwards, the CSO requested their removal from the list, which was done by the UNHCR. There were several other instances in which lawyers failed to react and which had damaging consequences for the applicant. Such was the case of an Afghan boy who, according to his testimony given to his legal guardian, did not understand an interpreter for Farsi. His asylum application was rejected in the first instance,^[223] and the decision was upheld by the Asylum Commission.^[224] It remains to be seen if flaws in interpretation will be taken into consideration by the Administrative Court. One interpreter for Kirundi was removed from the list because of his affiliation with the Burundian Government. In 2022, an incompetent interpreter for Spanish was removed after a series of inadequate and imprecise interpretations in Cuban applications.^[225] There were no instances in which interpreters were removed from the list in 2023.

Recording and report

At the end of the interview, the records are signed by the asylum seeker, their legal representative, the interpreter and the official leading the interview.^[226] The asylum seekers’ legal representatives are entitled to ask additional questions to ensure comprehensive establishment of the facts of the case.

The minutes are read by the legal representative and asylum seeker before they are printed out and signed jointly with the acting asylum officer. It is also possible to make clarifications and corrections, but also to raise issues of disagreement and complaint on the acting asylum officer.

The original copies of the minutes are surrendered to the applicant and their legal representative upon conclusion of the hearing. There were no instances in which it was reported that minutes from the asylum hearing were inconsistent with the content of the hearing.

The interview is not electronically recorded by either audio or video means.

Appeal

Appeal before the Asylum Commission

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.^[227] Asylum Commission members must be a citizen of the Republic of Serbia, have a university degree in law, a minimum of five years of work experience, and must have an ‘understanding’ of human rights law.^[228] The last requirement gives a lot of reasons for concern, since none of the members fulfil this criterion. The only person who met this criterion was a professor of International Human Rights Law at the Faculty of Law of the University of Belgrade who resigned in 2019, and was later replaced by the professor of Constitutional Law from the Criminal-Police Academy for whom it can be assumed that he possesses knowledge on human rights. Still, it is clear, and the practice of this body since the beginning of the asylum system in Serbia has shown, that members of the Asylum Commission are simply not qualified to apply international refugee law and international human rights law and that their knowledge mainly lies in the field of Administrative Law. Although the asylum procedure is administrative by nature, it requires the capacity of decision makers to conduct assessments of the risks of refoulement ex nunc, proprio motu and with rigorous scrutiny, to conduct interviews with vulnerable applicants and to apply the principle of in dubio pro reo. None of these features have been reflected in the 15 year-practice of the Asylum Commission.

An appeal to the Asylum Commission automatically suspends the enforcement of the first instance decision and it must be submitted within 15 days from the delivery of the decision.^[229] The first instance decision may be challenged for the following reasons which are relevant for the asylum procedure:

• lack or flawed application of the Law, other regulation or general act in the first instance decision;
• incompetent authority in charge of the first instance decision;
• incorrectly or incompletely established factual grounds;
• flawed conclusion derived from the established factual grounds;
• violation of the rules of the administrative procedure.^[230]

New facts and evidence may be presented in the appeal, but the appellant is obliged to explain why they did not present them in the first instance procedure.^[231] This provision is often relied on in second instance decisions when applicants, mainly due to poor quality work by their legal representatives, invoke or provide new evidence which they had failed to provide in the course of the first instance procedure. The Asylum Commission appears to be very rigorous in examining new facts and evidence in the appeal stage and limits the scope of its work to the framework established in the asylum application and during the asylum hearing before the Asylum Office. This is especially unfavourable for legally incompetent applicants who initiate the asylum procedure by themselves. However, it is important to note that many evidence and facts should be gathered by the asylum authorities proprio motu, especially CoI reports and other general circumstances, and regardless of the efforts of legal representatives and the quality of their work. The practice has shown that this is rarely the case.

The appeal must be submitted to the Asylum Office in a sufficient number of copies for the Asylum Commission and the opposing party.^[232] The Asylum Office then examines if an appeal is timely, allowed in accordance with the GAPA rules of procedure and if it is lodged by an authorised person. If the Asylum Office determines any of the above-enlisted deficiencies, an appeal will be dismissed.^[233] Against such decision, appeal is also possible, but the practice has shown little prospect of success.

According to the author’s knowledge, there were two instances in which appeal against the first instance decisions were not timely lodged, which was the reason why the appeal was dismissed by the Asylum Office. Later on, legal representatives tried to justify their untimely lodging of the appeal before the Asylum Commission,^[234] and also Administrative Court,^[235] but without a success. Both decisions became final and the SGBV survivor from Somalia and the applicant from Burundi were denied the possibility to have their cases examined on the merits.

Also, the GAPA envisages that the Asylum Office might uphold the appeal without referring the case to the Asylum Commission if it determines that arguments from the appeal are founded^[236] and issue a new decision which annuls the initial decisions and contains a new one. It is also possible that the Asylum Office supplements the procedure with additional asylum interviews or other evidentiary activity which it deems necessary.^[237] However, there was not a single case in the practice of the Asylum Office in which this legal avenue has been used.

If an appeal is not dismissed, the Asylum Office will refer the case files to the second instance body within 15 days from the receipt of the appeal and will also provide its response to the arguments, facts and evidence outlined in the appeal.^[238] What is important to note is that the response of the Asylum Office is not delivered to the applicant and/or his legal representatives, but the summary of response is only outlined in the reasoning of the Asylum Commission. In this way, the applicant is not able to provide additional views and arguments vis-à-vis the Asylum Office’s response.

The Asylum Act does not specify the duration of the second instance procedure. However, the GAPA stipulates that the second instance decision must be issued within 60 days.^[239] Under the Administrative Disputes Act, a claim against “administrative silence” may be filed with the Administrative Court in the event the Asylum Commission fails to issue 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.^[240] In other words, the time limit for the second instance decision and its delivery to the applicant is two months after the appeal was lodged. In practice, however, it takes at least three to four months for the Asylum Commission to issue and deliver the second instance decision. During the state of emergency in 2020, the Asylum Commission delivered more decisions than in 2019. The main reason for this is because the Asylum Commission did not hold hearings in order to directly determine the facts during this period.^[241] However, it is welcome that, in the vast majority of cases, the Commission issued its decisions within two to three months in 2021 and 2022. This is definitely a positive development and should be praised. It is not possible to make an accurate assessment of the length of the procedure before the Commission due to the anonymization of delivered decisions, but in many cases in which IDEAS lawyers acted as legal representatives the decision was rendered within 2 to 3 months.

When the Asylum Commission receives the appeal, it may issue 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.^[242] 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 appeal by the asylum applicant.^[243] In the event it does not reject the appeal,^[244] the Asylum Commission may itself decide on the administrative matter.^[245] 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.^[246] The last possibility is the usual scenario, and since the establishment of the Serbian asylum system, the second instance body has rendered only three decisions granting asylum to applicants from Somalia,^[247] Libya,^[248] and Iran.^[249]

Statistical Overview of Asylum Commission practice 2009-2023

Asylum Commission Practice in 2023

In 2022 the Asylum Commission took 36 decisions regarding 43 persons, which is a decrease in comparison to 2022 when 44 decisions were rendered regarding 59 persons. This can be attributed to the lower number of lodged appeals. Of these, first instance decisions dismissing, discontinuing or rejecting asylum applications were upheld in 31 cases, while in only 1 case the appeal was upheld, and the case was referred back to the Asylum Office for the purpose of preservation of family unity. Also, an additional 3 decisions quashing the first instance decision after the judgment of the Administrative Court in which the onward appeals were upheld. Two additional decisions were rendered discontinuing asylum procedure. As was the case in 2021 and 2022, in 2023 the Asylum Commission did not render any positive decisions, i.e. it did not grant international protection.

One of the major concerns regarding the Asylum Commission’s practice relates to the failure to individually and separately assess all allegations included in the applicant’s appeal. In many of the analysed decisions, the Commission summarily rejected the applicant’s arguments, but also failed to examine the applicants’ cases in line with the Asylum Office’s positions which were taken in previous cases of identical or similar nature.^[250] There are no traces of CoI assessment in second instance decisions. Instead, the Asylum Commission relies on the CoI assessment of the Asylum Office, which has proved to be contentious in many cases, especially in relation to nationals of Burundi. Moreover, reasonings of Asylum Commission decisions do not contain clear reflection of each and every argument and grounds outlined in the appeal, but simple reference in bullet points and then summary and cumulative rejection of all arguments. This means that the Commission does not have any corrective influence on the practice of the Asylum Office.

In 2023, the Asylum Commission shared the copies of all of the decisions rendered in 2023. However, the level of anonymisation prevented the author of this report from determining many crucial facts related to the length of the second instance procedure, case file number, date of decision but also in some of the cases nationality of the applicants. The anonymisation also covered important facts related to the credibility of claims and the manner in which they were assessed through reasoning. Nationalities in many decisions were determined on the basis of careful reading of decisions and connections made with Asylum Office decisions described above. Still, even this was not possible in several instances. The following nationalities were the subject of the Asylum Commission practice in 2023: Burundi (15),^[251] Cuba (6), Unknown (4), Afghanistan (3), Iraq (2), Iran (2), Syria (2), Russia (1), Morocco (1), Tunisia (1), Germany (1), North Macedonia (1), Pakistan (1), Bosnia and Herzegovina (1), Bangladesh (1) and Ukraine (1).

Thus, and on the basis of the available data, it can be concluded that in the following decisions of the Asylum Commission in 2023 confirmed founded decisions of the Asylum Office which were either mentioned in the above chapter on the practice of this body as adequate, or can be safely assumed (due to country of origin and basic facts outlined in the decision), that such decisions were justified:

• 3 decisions related to 4 applicants from Cuba;
• 7 decisions rendered in relation to 7 persons who are citizens of Russia,^[252] Tunisia,^[253] Germany,^[254] North Macedonia, Bosnia and Herzegovina^[255] and Bangladesh.^[256]

As for the rest of decisions, it is important to note that 3 appeals were upheld after the Administrative Court upheld the complaints of citizens of Syria and Pakistan (related to discontinuation of asylum procedure) and person of unknown nationality in relation to who the Administrative Court has ordered the Asylum Commission to apply the new Asylum Act. It is not possible to outline case file numbers as well as date of the appeals, and it is also not possible to assess the facts relevant for the credibility because the legal issues were of procedural nature.

Also, 4 appeals which were related to discontinuation of asylum procedure were rejected and in relation to two citizens of Cuba and two persons of unknown nationality.

Out of the remaining 19 decisions, two which are worth mentioning are related to a Burundian family which based their asylum claim on an act of SGBV to which the mother was subjected, and provided evidence to the Asylum Office, but the reason why the appeal was upheld was because another child was born in Serbia after the family lodged asylum application. After the newborn child was included in another but identical decision of the Asylum Office, Asylum Commission rejected the appeal.^[257] This means that there was no appeal upheld in 2023 by the Asylum Commission in which the credibility assessment of the Asylum Office was scrutinized. This further means that the practice of the Asylum Office in relation to Burundian citizens, and which was described above as inadequate and lacking individualized assessment, has been supported by the Asylum Commission, including in highly credible cases of political activists, CSO workers and members of the opposition parties.^[258]

Another LGBTQI+ applicant’s appeal was rejected in 2023 and with regards to the risk of persecution in Morocco. This represents a continuation of the practice from previous years. On 8 March 2021, the Asylum Commission rejected the appeal of gay man from Congo whose case was rejected in merits by the Asylum Office which took a standing that applicant failed to prove the risk of persecution as a member of a particular social group. A letter from the applicant’s mother, as well as relevant CoI were not found to be sufficient for granting of asylum.^[259] This represents a continuation of the practice from 2020, and with regards to LGBT applicants. In 2021, the Commission rejected the appeal of the transgender applicant from Iran, whose asylum application was rejected in November 2019,^[260] and confirmed the stance of the first instance authority that the fact that Iranian state authorities formally acknowledged her gender transition implies that she would be safe in Iran.^[261] However, the Asylum Commission, in the same manner as the Asylum Office, disregarded the threats and attacks she received from her family, but also from members of Iranian society and her former employer. The applicant was granted mandate status by the UNHCR and was resettled to another country.

In 2023, the Asylum Commission rejected appeal of another Iranian convert from Islam to Christianity, as happened in similar cases in previous years. This is also a continuation of the practice from the previous years. On 17 March 2021, Asylum Commission rejected appeal of Iranian converts from Islam to Christianity, confirming in that manner that this kind of asylum claims are no longer considered as credible in Serbian asylum system.^[262] Another decision from July 2021 refers to the subsequent asylum application of Iranian converts from Islam to Christianity who also attempted to provide additional evidence in their subsequent application, but without success. Their appeal against the decision dismissing their subsequent asylum application was rejected as unfounded.^[263]

In September 2021, the Asylum Commission upheld an appeal of Libyan citizen whose asylum procedure had been pending since 2018 and who was declared to be a security risk due to his connections with the former Ghaddafi regime.^[264] An appeal was upheld after the Commission obtained from BIA a positive security assessment, even though this assessment was different in January 2021 when asylum application was rejected.^[265] This case perfectly illustrates that BIA conducts security assessment of each and every applicant and prior to the first instance decision. This case irresistibly resembles on the case of family A. whose asylum application was rejected on the same grounds in 2016. They were granted subsidiary protection after their case was communicated to the ECtHR. Mr. G. from Libya was finally granted subsidiary protection in February 2022. In October 2021, the Asylum Commission rejected the appeal of the four member family from Jordan as unfounded.^[266] However, in 2023, the Asylum Commission rejected an appeal related to national of Afghanistan whose asylum application had been rejected on national security grounds.^[267] Similar decision was rendered in 2022 when, the Asylum Commission rejected the appeal of a Ukrainian national whose request for temporary protection was rejected on the basis of the negative security assessment of BIA which was not delivered to his legal representatives. This case is examined in details in the separate part of the 2022 AIDA report dedicated to Ukrainian refugees.^[268]

In June 2022, the Asylum Commission issued one of its most contentious decisions in the case, already mentioned above, of woman from Iran who opposes strict Sharia rules on hijab and in general on practices which severely undermine women’s rights.^[269] This decision further corroborates the existence of a negative practice towards SGBV applicants claiming asylum in Serbia and clearly indicates that lack of the second instance authority to establish the corrective influence of the Asylum Office.^[270] The case was referred back to the Asylum Commission due to procedural reasons by the Administrative Court, but the Asylum Commission rejected applicant’s appeal again.

Asylum Commission also rejected the appeals of Afghan nationals who claimed to be persecuted by Taliban’s and due to their affiliation with former state authorities of Afghanistan.^[271] It further rejected appeals of Iraqi nationals, but due to extensive anonymization it is not possible to provide additional details on the cases.

Onward appeal (“complaint”) before the Administrative Court

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. Moreover, only a few judges are tasked to decide upon asylum complaints, but the case files have shown that all judges of the Administrative Court can find themselves seized of asylum cases.

At several conferences and roundtables that took place in in the past several years, judges from the Administrative Court have been highlighting the problem of understaffing, lack of knowledge of international refugee law and international human rights law (mainly the relevant jurisprudence of the ECtHR) and have repeatedly outlined the need for relevant national and international organisations (NGOs and UNHCR) to facilitate more training and workshops regarding asylum and migration law.^[272] The first training was facilitated by the UNHCR in 2019, but the training planned for 2020 was postponed due to COVID-19. In December 2021, the UNHCR facilitated a training on credibility assessment which included judges from the Administrative Court, while in 2022 judges were taken for study visits to Italy. It is also reasonable to assume that judges are also invited to take part in trainings organised under the auspices of the EU accession.

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 objective for which the authority 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.

According to the Asylum Act, the initiation of an administrative dispute has an automatic suspensive effect.^[273]

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 safe third country concept despite the fact that it had not first been established that 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 on the merits.

It can be concluded with certainty that the corrective role of the Administrative Court in relation to the first and second instance authorities is basically non-existing. In 2023, as it was the case in 2022, and 2021, the Court failed to deliver a judgment which could have positively affected the practice of lower instances (see below).

Usually, it takes approximately at least 8 months for the Administrative Court to deliver its judgment, but there were instances in which the judgment was pending for a year or even several years.^[274]

Statistical Overview of the Administrative Court Practice 2009-2023

Administrative Court Practice in 2023

In 2023, the Administrative Court delivered 22 decisions regarding 26 persons from the following nationalities: Burundi (7), Afghanistan (5), Unknown (4), Iran (4), Pakistan (2) and 1 from Türkiye, Mali, Ghana and Tunisia. Out of the total, 18 complaints regarding 22 persons were rejected, while 3 complaints regarding 3 persons were upheld and 1 case was discontinued.

Most of the complaints filed by Burundian applicants (4 judgments in relation to 7 persons) were rejected. It should be recalled that there are several issues regarding the decisions of the Asylum Office and Commission (see prior). Yet, it seems there is no corrective influence of the Administrative Court in relation to the poor credibility assessment conducted by the Asylum Office and in relation to the applicants from Burundi who are subjected to the similar patterns of rejections regardless of the differences in their individual circumstances. All the judgments rendered in relation to Burundian national were delivered in relation to complaints lodged in 2020 and 2021, except one,^[275] meaning that the procedure before the Court lasted between two and three years which is excessively long.

Similar conclusion can be drawn in relation to Afghan nationals. In all the judgments it can be seen that UNHCR position paper on returns to Afghanistan which contains moratorium has been completely ignored, but also that new circumstances which arose after August 2021 and return of Taliban were not taken into account proprio motu and ex nunc and in 3 procedures in which Afghan nationals applied for asylum before that. In the remaining two procedures, Administrative Court acted more effectively, deciding upon the appeals within 6 months, but confirming second instance decisions of the Asylum Commission, including in relation to an Afghan national who was declared as a national security threat.^[276] In the later judgment, the Administrative Court confirmed the flawed practice of lower instance authorities which is based on the simple invocation of the national security grounds without outlining a single fact which would allow the applicant to challenge such assessment.^[277]

In January 2022, a Turkish citizen who belongs to Gulenist movement was rejected in merits. In other words, the Administrative Court has once again confirmed the practice in which political dissidents from Türkiye, members of the Gulenist movement, journalists and other persons perceived as opponents to the Government and labelled as terrorists, do not stand a chance to obtain international protection in Serbia.^[278] In. 2021, another Turkish applicant was rejected with the final judgment of the Administrative Court.^[279] The case referred to a man who was also in extradition proceedings. He claimed that he would face persecution in Türkiye because of his Kurdish ethnic origin. There are several other cases pending before the Administrative Court which are related to Turkish applicants who are also facing extradition to their country of origin. Another Turkish citizen was rejected in December 2022, but his case cannot be considered as credible, but as an attempt to avoid extradition to Türkiye for charges which cannot be considered as politically motivated or staged.^[280]

In January 2022, the Administrative Court rejected the complaint related to the subsequent application of Iranian converts from Islam to Christianity, confirming that these types of application have had limited prospect of success in the past several years.^[281] Identical outcome occurred in January 2021.^[282]  There were no decisions on subsequent asylum applications in 2023.

In 2021, the Administrative Court rendered a judgment rejecting an alleged SGBV survivor from Ghana, who, according to the legal representative, might also have been the victim of human trafficking.^[283] From the reasoning of the judgment, which is insufficiently motivated on the matter, it is impossible to conclude whether the asylum authorities and the applicant provided all the necessary evidence based on the multidisciplinary approach. Thus, there are no expert opinions of the Centre for Social Work, or assessment of the Centre for Human Trafficking Victims’ Protection (CHTV). The Court only shallowly states that such assessments were not provided but fails to see its responsibility to obtain such expert opinions. Thus, regardless of the credibility of the claim, it is clear that all three instances and legal representative have failed to undertake all the necessary assessments in order to thoroughly examine risks of persecution and the existence of the SGBV and human trafficking component. In other words, this case clearly shows how this applicant was failed by asylum system as whole. In 2023, there were no major decisions related to SGBV survivors.

The practice with regards to LGBTQI+ applicants remained unchanged, and the Administrative Court rejected the complaints of gay man from Iran^[284] and Ghana,^[285] confirming the negative practice from previous years, including the case of a gay man from Congo which was rejected with the final judgment of the Court, confirming a 100% rejection rate of LGBTQI applicants in 2021.^[286] This trend continued in 2022, when the cases of two gay men from Tunisia were rejected with final decisions of the Administrative Court. Both of them invoked risks of persecution on the basis of their well-known sexual orientation which had already caused them problems with authorities (they were arrested and ill-treated by the police) which can also be manifested through criminal persecution due to incrimination of the same sex-partnerships.^[287] The outcome of these two cases can also be attributed to the lack of coordination between legal representatives who have failed to outline that both applicants arrived together to Serbia as a couple.^[288] Both cases also resulted in applications to the ECtHR.^[289]

What perfectly depicts a complete lack of the capacity of the Administrative Court to be considered as an effective legal avenue which can uphold safeguards against refoulement and impose corrective guidelines on the lower instances are several judgments in which the automatic application of the STCC, which had plagued Serbian asylum system in the past, was confirmed.^[290] All of these complaints were lodged several years ago, such as the complaint of an Afghan national who initiated third instance procedure in January 2018 claiming that Bulgaria cannot be considered as safe in his particular case. The Administrative Court rejected the complaint as unfounded, reviving the automatic application of the STCC, but also procrastinating third instance asylum procedure of the applicant to 4 years.^[291] Identical judgment was rendered in February 2022 in relation to 4 member Iranian family.^[292] An identical outcome was provided in the judgment rendered in the same month and in relation to Syrian applicant who had also been the victim of the automatic application of the STCC, but in relation to North Macedonia. His case also lasted for almost 4 years before the Administrative Court.^[293] And finally, automatic application of the STCC occurred in relation to Libyan applicant who spent some time in Egypt before applying for asylum in Serbia.^[294] In none of these cases the Administrative Court has determined that there was complete lack of assurances that applicants would, after spending years in Serbia, be allowed to access territory of countries proclaimed as safe, their asylum systems, adequate reception conditions and other necessary requirements. In 2023, additional two judgments confirming the flawed and automatic application of the safe third country were delivered and in relation to a person of unknown nationality (excessive anonymization)^[295] and national of Pakistan.^[296] Both procedures lasted for almost 4 years.

The only three judgments which uphold complaints of the applicants from Iran, Türkiye and unknown country were related to procedural, but not substantive issues – application of the new Asylum Act from 2018.^[297]

In 2022, the Administrative Court also rejected as unfounded complaints of applicants who claimed persecution on the basis of their Arab ethnicity in Iran. So far, members of Arab minority have never managed to obtain international protection in Serbia, as it can be seen from previous AIDA reports.^[298] The same can be said with regards to Azeri minority in Iran whose claim was also rejected with the final decision of the Administrative Court,^[299] Another Iranian who claimed political persecution due to his criticism of Iranian system, but also his religion (atheist), was rejected with the final judgment of the Court.^[300] The same outcome occurred in the case of a 4 member Iranian family who claimed problems with Sepah, but failed to produce credible evidence.^[301]

Legal assistance

On 1 October 2019, the Free Legal Aid Act (FLA) came into force. The right to free legal aid is explicitly guaranteed to asylum seekers,^[302] refugees and persons granted subsidiary protection.^[303] However, the Free Legal Aid Fee Schedule Regulation (FLA Regulation)^[304] envisages free legal aid only for administrative dispute procedures conducted before the Administrative Court. This means that asylum seekers could apply for the State funded free legal aid only if they reach the third instance authority. So far, not a single asylum seeker has used State funded free legal aid,^[305] but in the course of 2022 and 2023, several attorneys at law provided legal representation to asylum seekers who had their own financial means.

The fact that free legal aid is only guaranteed in the third instance can be considered as an extremely bad solution, taking into consideration the level of development of the Serbian asylum system in general, but also the quality of the decision-making process of the first and the second instance authority. In more than 90% of the cases which reached the Administrative Court, the negative decision will most likely be confirmed. Additionally, the quality of legal aid provided by CSOs is also highly questionable, taking in consideration the fluctuation of lawyers in different CSOs, lack of clear recruitment criteria, lack of experience and necessary training. However, it is fair to say that asylum seekers who enjoy CSO’s legal support from the beginning of the asylum procedure have more chance for a positive outcome, than those who do not have such support. Still, it is clear that a migration lawyer profile does not exist in Serbia as it is the case in EU countries in which asylum systems have been established several decades ago. This means that most of the expertise comes from persons who act as legal representatives on behalf of CSOs, while attorneys at law are rarely interested to provide legal assistance in asylum procedure. Unfortunately, there are no signs that such profile will be established in the near future taking in consideration that practising other branches of law is more lucrative and attractive to attorneys at law.

The right to free legal aid is also guaranteed by the Asylum Act, as well as the right to receive information concerning asylum.^[306] The Asylum Act further provides that an asylum seeker shall have access to free legal aid and representation by UNHCR and CSO 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 CSO lawyers before both national and international bodies. Their work and assistance is not a public service, but project funded and the main donors are UNHCR, EU and other donors. CSOs represent asylum seekers in all three instances, and in front of the Constitutional Court.

It is important to highlight that not all persons who wish to apply for asylum have the possibility to have effective legal representation. The first reason is that in 2023 only 5 civil society organisations (CSO) were providing legal aid in Serbia: APC, BCHR, and IDEAS, Humanitarian Centre for Tolerance and Integration (HCIT) and KlikAktiv. The total number of active lawyers in these CSOs is between 13 and 15, out of which many are also tasked with other project activities or are hired part-time.^[307] Other, non-CSOs lawyers, occasionally provide legal aid. All of these CSOs are based in Belgrade, except for HCIT which is based in Novi Sad, but ceased to provide legal aid in 2023. Thus, their presence in asylum and reception centres located in the south or east is rare,^[308] and refugees and asylum seekers are not only forced to wait for weeks or months to access asylum procedure and lodge asylum applications, but also to wait for initial legal advice by a competent lawyer.

Given that, in 2022, the approximate number of persons likely in need of international protection was at least 65% of the total migrant population who entered Serbia and received registration certificates (around 4,020), it is clear that current capacities are insufficient. The low number of legal representatives is also the reason why some CSOs sometimes deny legal assistance to applicants whose asylum claim has less prospect of success. Thus, in 2022, at least 50% of asylum seekers either failed to lodge their asylum application or lodged it in writing by themselves, and without legal support. The fact that asylum seekers, mainly from Burundi, decided to lodge asylum applications by themselves is the reason why there was an increase in the total number of asylum applications in writing.

The second reason is the fact that most legal representatives from respective CSOs have between 1 to 3 years of experience,^[309] which is usually the period after which many of them decide to leave the field of asylum and migration.

As a result, the capacity and quality of legal assistance provided by CSOs remains limited.^[310] While certain CSO lawyers are successful, the large majority of them do not obtain positive outcomes at all, or have one or two positive decisions in 5 years and 90% of decisions in which the outcome is negative.

Several decisions from 2020 and 2021 analysed in this and in previous reports, but also decisions outlined in the 2022 Report, show that applicants who had strong asylum claims were not adequately prepared for their hearing and, for instance, provided more detailed statements to their psychologist than to their lawyer. The contradictory statements in the asylum hearing which ensued was the reason why the Asylum office rejected their claims.^[311] Another example is the lack of coordination in preparation for the asylum hearing of a Tunisian gay couple.^[312] These flaws are mainly due to the lawyers’ lack of experience and knowledge of the asylum field which raises serious concerns. Several applicants decided to abscond during the asylum procedure due to the non-responsiveness of their legal representatives and the lack of certainty about the outcome of their process. One UASC applicant absconded a couple of months before he was granted asylum due to the violence to which he was subjected in the social care home. His legal representative was not aware of the fact that he absconded, even though the violence was reported to him by the boy.^[313] The other UASC had only had a half an hour meeting with two different legal representatives within a year and decided to abscond to Bosnia.^[314] Since he was not able to cross to Croatia, he came back to Serbia and attempted to lodge a subsequent application, but was unsuccessful and eventually decided to abscond from Serbia.^[315] Specific issues in relation to the provision of legal assistance include a lack of assessment of CoI information and individual circumstances, lack of thorough preparations of clients for their personal interview and failure to conduct evidentiary activities such as medical expert opinion.^[316] In 2022, two attorneys at law, who also acted as legal representatives in extradition proceeding failed to prepare one Turkish and one Kyrgyzstan citizen for their asylum hearings, and were not capable to fill out asylum application form. The representative of the applicant from Kyrgyzstan cancelled his power of attorney right before the hearing, while the attorney of the Turkish applicant failed to lodge the complaint to Administrative Court.

Family D. from Iran explained that they signed a power of attorney in November 2018 and only met their lawyer again in December 2018 prior to the submission of their asylum application and for only 1 hour. They stated that they were not prepared for the lodging of the asylum application in person, and that their preparation with the lawyer for the asylum interview lasted several hours and only a few days before the hearing in August 2019. The CoI report attached to this application after the interview outlined more facts than those provided to the Asylum Office orally. In the practice of the Serbian asylum authorities, the impression that an asylum officer gets at the hearing is crucial and usually a determining factor for a positive decision. And vice versa, applicants who are not capable to give sufficient details during the interview face the risk of being rejected at first instance, and chances of remedying such outcome are extremely low. In the same case, the legal representative has failed to gather additional evidence, such as the decision to grant refugee status in the Netherlands of the brother of one of the applicants or his written testimony. The family attempted to lodge a subsequent asylum application submitting additional evidence, but the stance of asylum authorities was that they should have done it in the initial asylum procedure.^[317] Thus, in this particular case, the flaws can be found in the work of both the legal representatives and the asylum authorities. The proof that this case is an example of bad practice in terms of legal representation is the fact that this family of 4 is one of a total of 2 cases where refugees were granted asylum in Hungary since summer 2020. Thus, their claim was strong enough for the deteriorating and basically non-existing asylum system in Hungary, but not good enough for the Serbian asylum authorities. In 2023, the three-member family was granted refugee status after several years of being in the asylum procedure and rejected on the merits on multiple occasions. One of the reasons for such outcome is the fact that the legal representative failed to deliver individual evidence timely in the first instance procedure, which was one of the reasons why their application was rejected. Only after the Administrative Court ordered that this evidence must be taken into consideration, the applicants were granted refugee status. Thus, if the evidence had been delivered at an earlier stage of the first instance procedure, the Iranian family would not have had to go through several years of legal ordeal.^[318]

The following cases from 2018-2023 also contain examples of poor legal representation:

• UASC A.A.’s application was rejected as unfounded even though he explained during the interview that he did not understand the interpreter. His legal officer remained silent. Additionally, the legal officer failed to provide the mother’s written testimony of the persecution that the boy faced by the Taliban.^[319] His case is still pending before the Administrative Court with minimum chances of success.
• Family X. from Iran stated that they have not established any communication with their legal representative and their case files in all three instances indicate the same passive attitude which can be seen in the abovementioned case of family D. granted asylum in Hungary.^[320]
• In 2021, a woman from Cameroon was assessed by one of the CSOs as a non-credible case. It turned out that she was an active case of human trafficking and was later on granted the status of a victim of human trafficking.^[321]
• A similar case was recorded at the end of 2021, when a woman from Cameroon, a suspected victim of human trafficking and a victim of SGBV, was told that she does not have a case.^[322]
• In November 2021, the Asylum Office discontinued the asylum procedure of a woman from Iraq and her underage son who arrived in Serbia in February 2020. She has an identical case as the abovementioned women from Iraq who was granted refugee status on the basis of SGBV in 2021.^[323] Still, she was assessed as a non-credible case after a 1 hour long interview during which she was not ready to outline traumatic events to, at that time, unknown persons. Only after intensive psychosocial support, Ms. M.I. shared her life story which entailed systemic violence committed by her family and her former husband. She lodged her asylum application in May 2021, but absconded after several months because she was frustrated about being forced to stay in legal limbo for more than 18 months. If she had lodged her asylum application in the first half of 2020, she would have been granted refugee status before May 2021.^[324]
• An identical case was recorded in 2021, where a 5-member family from Afghanistan lodged an asylum application after more than 4 years of being in Serbia. Not a single CSO who counselled them in AC Krnjača assessed their case as credible, disregarding the security situation in Herat, girl-specific risks for the 3 daughters (the risk of child marriage for instance) and the fact that their mother was also a victim of SGBV and arranged marriage. After they lodged their asylum application, they absconded. Still, if they had lodged their asylum application, for instance, in 2018, they would have been granted asylum before the COVID-19 pandemic.^[325]
• One most notable example of reckless and unprofessional service provision relates to the case of an alleged victim of genital mutilation from Somalia whose lawyer failed to lodge an appeal against the first instance decision in time. This case clearly demonstrates not only the lack of capacity among providers of free legal aid, but also the need for the establishment of responsibility mechanisms for those legal representatives whose inadequate behaviour has led to a situation in which highly vulnerable and traumatised people were let down by individuals who are not capable to follow statutory deadlines and perform the roles of legal representatives.^[326]
• A similar case occurred in 2022 when the legal representative failed to lodge an appeal against the first instance decision rejecting a Burundian applicant.
• A Cuban LGBTQI+ applicant with a serious medical condition was initially told by one of the legal aid providers that his case is not credible for asylum, but due to his persistence and finding of another representative, he was eventually granted subsidiary protection.^[327]
• In October 2023, in the case of the applicant from Brazil who was in extradition detention, his attorney at law failed to lodge the complaint against the Asylum Office decision rejecting his application on the national security grounds.^[328]
• In November 2023, another attorney at law also failed to lodge a complaint against Asylum Office decision on rejecting of asylum application of woman from Kazakhstan who was also in extradition detention from where she applied for asylum.^[329]

It is reasonable to assume that several more cases of a similar nature might go unreported.^[330] These cases clearly indicate that the number of applicants, but also of positive decisions might have been higher if not for the restrictive and shallow approach some lawyers from different CSOs display during the initial assessment. This would also mean that recognition rates would have been higher. Thus, the low number of applicants and the low recognition rate, in a system such as Serbia’s, can also be attributed to the low quality of legal service provided to the applicants. The role of CSOs at this stage of development of the Serbian asylum system is crucial and a proactive approach is necessary. For that reason, as it is the case with the assessment of decisions of the asylum authorities, it is also important to conduct an analysis of all stages through which beneficiaries rely on legal representatives and to introduce a quality assurance control of free legal aid providers.

The lack of any legal response is evident in cases which concern pushbacks and the risk of violations of the non-refoulement principle. The poor quality of legal assistance is particularly evident in cases where access to the territory and asylum procedure is at stake. Even though thousands of pushbacks to North Macedonia were recorded, there was no attempt to legally challenge such practice. There is only one case litigated by the APC concerning an informal expulsion from Belgrade to North Macedonia.^[331] It appears, however, that most of the CSOs providing legal aid are mainly focused on persons who wish to apply for asylum and who are accommodated in asylum or reception centres after they successfully avoided harmful border practices. This can be explained by lack of capacity, but also lack of funding.

To conclude, it is necessary to improve the quality of the work of legal representatives employed in different CSOs. Furthermore, it is also important to facilitate training on CoE and UN standards regarding International Refugee and International Human Rights Law. The recruitment procedures should be designed, but also volunteer and internship systems should be established so all potential asylum seekers can have at least technical assistance when lodging asylum applications. And finally, the system of free legal aid must be reformed so that it allows attorneys at law to provide legal assistance from the first instance procedure. This would mean that FLA and FLA Regulation have to be amended, and that extensive trainings of attorneys at law should be facilitated so that each person who expresses the wish to apply for asylum is provided with assistance.

^[1] Article 3 (1), Asylum Act.

^[2] Article 3 (3), Asylum Act.

^[3] Article 39(1) Asylum Act.

^[4] Asylum Office, Decision No. 26-462/22, 15 June 2022.

^[5] Asylum Office, Decision No. 26-760/21, 20 May 2021.

^[6] Asylum Office, Decision No. 26-108/20, 27 August 2021.

^[7] Asylum Office, Decision No. 26-2296/2022, 29 June 2022.

^[8] Asylum Office, Decision No. 26-730/22, 31 August 2022.

^[9] Asylum Office, Decision No. 26-688/22, 15 September 2022.

^[10] Asylum Office, Decision No. 26-1635/21, 17 August 2022.

^[11] Asylum Office, Decision No. 26-1569/21, 24 June 2022.

^[12] Asylum Office, Decision No. 26-277/21, 13 July 2022.

^[13] Asylum Office, Decision No. 26-532/21, 15 August 2022.

^[14] Asylum Office Decision No. 26-281/21, 10 November 2021.

^[15] Asylum Office, Decision No. 26-898/23, 9 June 2023.

^[16] Asylum Office, Decision No. 26-311/23, 16 March 2023.

^[17] Asylum Office, Decision No. 26-546/22, 23 February 2023 and 16-1682/21, 2 August 2023.

^[18] Asylum Office, Decision No. 26-1277/21, 11 July 2023.

^[19] Asylum Office, Decision No. 26-545/22, 7 November 2023.

^[20] Asylum Office, Decision No. 26-1602/21, 7 April 2023.

^[21] Asylum Office, Decision No. 26-1654/22, 9 November 2023.

^[22] Article 39(2) Asylum Act.

^[23] Article 39(3) Asylum Act.

^[24] Asylum Office Decision No. 26-2728/22, 22 December 2023.

^[25] Article 39(5) Asylum Act.

^[26] Article 39(6) Asylum Act.

^[27] CESCR, Concluding observations on the third periodic report of Serbia, 4 March 2022, E/C.12/SRB/CO/3, available at: https://bit.ly/47AhcCo, paras. 32-33.

^[28] Article 34(1)(1)-(2) Asylum Act.

^[29] Article 38(1)(3)-(5) Asylum Act.

^[30] Article 47 Asylum Act.

^[31] Article 42 Asylum Act.

^[32] Article 26 Asylum Act.

^[33] Article 27 Asylum Act.

^[34] Article 28 Asylum Act.

^[35] Article 29 Asylum Act.

^[36] Article 30 Asylum Act.

^[37] Article 31 Asylum Act.

^[38] Articles 33 and 34 Asylum Act.

^[39] UNHCR, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, HCR/GIP/03/05, https://bit.ly/3plP7es.

^[40] Article 40 Asylum Act.

^[41] Article 32 Asylum Act.

^[42] The author of this Report has collected 155 out of 165 decisions. The number of decisions and applicants was counted by the author of this Report and on the basis of a unique database which is established in IDEAS. Namely, official number of persons who received international protection in Serbia is 245 or even more according to some CSOs. However, this number includes the cases which were not final in the given year. For instance, there is at least 7 asylum procedures in which legal representatives appealed the decision on subsidiary protection claiming that their clients deserve refugee status. Asylum Commission or Administrative Court upheld appeals and onward appeals respectively and sent the case back to the Asylum Office. However, Asylum Office rendered the same decision (subsidiary protection) with regards to the same person again. The lawyers were then complaining again. There were instances in which 1 person received 3 decisions on subsidiary protection in the period of 7 years and was granted refugee status in the end. However, it is possible that the statistics provided by the author of this Report are not 100% accurate. Still, the author believes that this is the most accurate statistics which can be provided for now and potential variations cannot be higher than maximum 5 decisions regarding 5 applicants. 

^[43] E.g., UNHCR, UNHCR Position on Returns to Libya – Update II, September 2018, available at: http://bit.ly/39VMQNz.

^[44] Asylum Office, Decisions Nos. 26-2324/11, 19 December 2012 and 26-2326/11, 20 December 2012.

^[45] Asylum Office, Decision No. 26-812/16, 29 September 2016.

^[46] Asylum Office, Decision No. 26-222/15, 16 June 2018; ECtHR, A. and Others v. Serbia, Application No 37478/16, Communicated on 12 December 2017.

^[47] Asylum Office, Decision No. 26–1389/17, February 2022.

^[48] AIDA, Country Report Serbia, Update March 2018, 41-53.

^[49] M.H. v. Serbia, Application No 62410/17, Communicated on 26 October 2018.

^[50] E.g., UNHCR, International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update VI, March 2021, HCR/PC/SYR/2021/06, available at: https://bit.ly/3HO7C1B.

^[51] E.g., EASO, EASO Country of Origin Information Report: Syria Security situation (July 2021), available at: https://bit.ly/3HKwasb.

^[52] Asylum Office, Decision No. 26-5413/15, 2 March 2016.

^[53] Asylum Office, Decision No. 1441/17, 20 March 2024.

^[54] Asylum Office, Decision No. 26-77/17, 1 August 2017.

^[55] Asylum Office, Decision No. 26-78/17, 10 January 2018.

^[56] Asylum Office, Decision No. 26-81/17, 16 April 2018.

^[57] Asylum Office, Decision No. 26-1239/17, 10 January 2018.

^[58] Asylum Office, Decision No. 26-1635/21, 17 August 2022.

^[59] Asylum Office Decisions Nos. 26-784/18, 20 November 2019 and 26-1403/19, 11 December 2019.

^[60] Asylum Office Decisions Nos. 26-652/16, 17 June 2016, 26-2643/17, 30 January 2019, 26-2474/19, 15 October 2020,26-1084/20, 7 June 2021, 26-277/21, 13 July 2022,26-730/22, 31 August 2022 and 26-281/11, 10 November 2022.

^[61] AIDA, Country Report Serbia, Update March 2020, pp. 41 and 43.

^[62] Asylum Office, Decision No. 26-1084/20, 7 June 2021.

^[63] Asylum Office, Decisions Nos. 26-277/21, 13 July 2022,26-730/22, 31 August 2022 and 26-281/11, 10 November 2022 and 26-1635/21, 17 August 2022.

^[64] Asylum Office, Decision Nos. 26-2276/21, 27 January 2023, 26–50/22, 3 February 2023 and 26-1922/21, 8 February 2023.

^[65] Asylum Office, Decision No. 26-766/08, 4 February 2009.

^[66] Asylum Office, Decisions Nos. 26-2879/15, 11 September 2015 and 26-2149/16, 26 December 2016.

^[67] Asylum Office, Decision No. 26-2047/17, 21 March 2019.

^[68] Asylum Office, Decision No. 26-2348/17, 28 January 2019.

^[69] Asylum Office, Decision No. 26-5266/15, 26 March 2015.

^[70] Asylum Office, Decision No. 26-1601/20, 30 August 2021.

^[71] Administrative Court, Judgment U 6060/18, 4 October 2018.

^[72] Asylum Office, Decisions Nos. 26-1051/16, 13 September 2016, 26-1083/18, 26 January 2018, 26-430/17, 23 April 2018, 26-1081/17, 4 July 2018, 26-1395/18, 5 February 2019, etc.

^[73] Asylum Office, Decision No. 26-108/20, 27 August 2021.

^[74] Asylum Office, Decisions Nos. 26-1605/18, 15 March 2019 and 26-2467/17, 15 January 2020.

^[75] Asylum Office, Decision No. 26-1607/18, 14 August 2022.

^[76] Asylum Commission, Decision No. AŽ 16/19, 2. September 2019.

^[77] Asylum Office, Decision No. 26-1271/19, 15 October 2020.

^[78] Asylum Office, Decision No. 26-462/22, 15 June 2022.

^[79] Asylum Office, Decision No. 26-463/22, 22 August 2022.

^[80] Asylum Office, Decision No. 26-2736/22, 29 June 2023.

^[81] Asylum Office, Decision No. 26-688/22, 15 September 2022.

^[82] Asylum Office, Decisions Nos. 26-1043/22, 6 February 2023 and 26-132/22, 20 February 2023.

^[83] Asylum Office, Decision No. 26-346/21, 29 June 2022.

^[84] Child-soldier case.

^[85] Asylum Office, Decision No. 26–1437/21, 31 March 2022.

^[86] Asylum Office, Decisions Nos. 26-532/21, 15 August 2022 and 26-532/21, 5 July 2023.

^[87] Asylum Office, Decision No. 26-1562/22, 14 December 2023.

^[88] Asylum Office, Decision No.26-1280/13, 25 December 2013.

^[89] Asylum Office, Decisions No. 26-1605-18, 15 March 2019 and 26-2467/17, 15 January 2020.

^[90] Asylum Office, Decisions Nos. 26-1216/18, 26-1217/18 and 26-1218/18, 12 February 2019.

^[91] Asylum Office, Decision No. 26-2347/19, 8 June 2020.

^[92] Asylum Office, Decision No. 26-2038/19, 30 July 2020 and 26-2039/19, 17 August 2020.

^[93] Asylum Office, Decision No. 26-1592/18, 20 November 2019 and see also, AIDA, Country Report Serbia, Update March 2019, 37.

^[94] Asylum Office, Decision No. 26-1284/20, 1 December 2021.

^[95] Asylum Office, Decision No. 26-404/12, 4 November 2021.

^[96] See more in the Chapter on the 2021 practice of the Asylum Office.

^[97] The author did not manage to see the copy of this decision.

^[98] Asylum Office, Decision No. 26-688/22, 15 September 2022.

^[99] Asylum Office, Decision No. 26-1562/22, 14 December 2023.

^[100] Asylum Office, Decision No. 26-286/16, 26 October 2016.

^[101] Asylum Office, Decision No. 26-1667/17, 25 December 2017.

^[102] Asylum Commission, Decision No. AŽ 2/18, 25 January 2018.

^[103] Asylum Office, Decision No. 26-536/16, 16 December 2016.

^[104] Asylum Office, Decision No. 3109/16, 18 December 2017.

^[105] Asylum Office, Decision No. 26-1672/19, 29 January 2021.

^[106] Asylum Office, Decision No. 26-3136/19, 26 November 2020.

^[107] Asylum Office, Decision No. 26-1601/20, 30 August 2021

^[108] Asylum Office, Decision No. 26-2296/22, 29 June 2022.

^[109] Asylum Office, Decisions Nos. 26-1632/22, 13 April 2023 and 14 July 2024 (rejected twice), 26-1119/22, 10 August 2023, 26-1682/21 2 August 2023 and 26-2985/22, 19 December 2023.

^[110] Asylum Office, Decision No. 26-329/18, 28 December 2018.

^[111] Asylum Office, Decision No. 26-2643/17, 30 January 2019.

^[112] Asylum Office, Decision No. 26- 2348/17, 28 January 2019.

^[113] UNGA, Guidelines for the Alternative Care of Children, 24 February 2010, A/RES/64/142, para. 28.

^[114] Asylum Office, Decision No. 26-784/18, 20 November 2019.

^[115] Asylum Office, Decision No. 26-218/19, 20 February 2020.

^[116] Asylum Office, Decision No. 26-2573/19, 15 October 2020.

^[117] Asylum Office, Decision No. 26-1271/19, 15 October 2020.

^[118] Asylum Office, Decision No. 26-2474/19, 15 October 2020.

^[119] Asylum Office, Decision No. 26-1084/20, 7 June 2021.

^[120] Asylum Office, Decision No. 26–3064/19, 14 September 2019.

^[121] Asylum Office, Decision Nos. 26-277/21, 13 July 2022 and 26-730/22, 31 August 2022.

^[122] Asylum Office, Decision No. 26-281/11, 10 November 2022.

^[123] Asylum Office, Decision No. 26-1177/22, 1 December 2022.

^[124] Asylum Office, Decision No. 26–1437/21, 31 March 2022.

^[125] Asylum Office, Decision No. 26-378/19, 11 February 2020 and 26-1437/18, 13 February 2020, and see also: AIDA, Country Report Serbia, Update March 2020, p.43.

^[126] UNHCR, International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update VI, March 2021, HCR/PC/SYR/2021/06, available at: https://bit.ly/3HO7C1B.

^[127] Asylum Office, Decision No. 26-5413/15, 2 March 2016.

^[128] Asylum Office, Decisions Nos. 26-4062/15, 8 January 2016, 26-2489/17, 1 June 2018 and 26-1731/18, 16 September 2019.

^[129] Asylum Office, Decision Nos. 26-2862/22, 4 December 2023 and 26-2882/22, 28 November 2023.

^[130] EUAA, The Russian Federation-Military Service, December 2022, available at: https://bit.ly/3Y7E7nb.

^[131] See more in AIDA, Country Report Serbia, Update March 2018, p. 18.

^[132] Asylum Office, Decision No. 26-4906/5, 9 December 2015.

^[133] Asylum Office, Decision No. 26-1051/16, 13 September 2016.

^[134] Asylum Office, Decision Nos. 26-1083/18, 26 January 2018, 26-430/17, 23 April 2018, 26-1081/17, 4 July 2018, 26-187/18, 1 November 2018, 26-1395/18, 5 February 2019, 26-1435/18, 16 June 2020.

^[135] See more in AIDA, Country Report Serbia, Update March 2020, p. 44.

^[136] The statistical data in the table reflect the number of people granted international protection, not the number of positive decisions. One decision can cover more than one person. 

^[137] It is important to note that this number is not 100% accurate because of the way in which Asylum Office keeps the statistics. Namely, available data shows that there were 258 decisions discontinuing the asylum procedure of 258 applicants. This is simply not possible because one decision, and especially in relation to Burundian applicants who arrived to Serbia as families, encompasses 2, 3, 4 or even 5 persons. The method that the author of this report applied is the deduction of 30% of the total number of applicants and in relation to decisions. Thus, this number should be observed as the highest possible, even though it is most likely lower.

^[138] The official statistic shows 54 but one family from Burundi was rejected twice; Asylum Office, Decisions Nos. 26-1632/22, 13 April 2023 and 14 July 2024 (rejected twice).

^[139] One 5-member family was rejected twice and the official numbers show 27 Burundian nationals who were rejected.

^[140] AIDA, Country Report Serbia, 2022 Update, pp. 99-100.

^[141] Asylum Office, Decision No. 26-103/21, 24 July 2023.

^[142] Asylum Office, Decision No. 26-1682/21, 2 August 2023.

^[143] Asylum Office, Decisions Nos. Asylum Office, Decisions Nos. 26-1632/22, 13 April 2023 and 14 July 2024 (rejected twice),26-1119/22, 10 August 2023, 26-1682/21 2 August 2023 and 26-2985/22, 19 December 2023.

^[144] AIDA, Country Report Serbia, 2022 Update May, pp. 100-101.

^[145] Asylum Office, Decisions Nos. 26-1043/22, 6 February 2023 and 26-132/22, 20 February 2023.

^[146] Asylum Office, Decision No. 26–1441/17, 20 March 2023 and November 2023 decision which is the only decision which was not delivered to the author of this Report.

^[147] UNHCR, International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update V, 3 November 2017, available at: http://bit.ly/3or74Vq, p. 70.

^[148] ECtHR, L.M. and Others v. Russia, Application Nos. 40081/14 40088/14 40127/14, Judgment of 15 December 2015, EDAL available at: http://bit.ly/3psdOE7 and S.K. v. Russia, Application No. 52722/15, Judgment of 14 February 2017, EDAL, available at: http://bit.ly/3oqsouq.

^[149] Asylum Office, Decision No. 26–1959/21, 5 January 2023.

^[150] Asylum Office, Decision No. 26-1177/22, 1 December 2022.

^[151] Asylum Office, Decision No. 26-532/21, 5 July 2023.

^[152] Asylum Office, Decision No. 26-103/21, 24 July 2023.

^[153] Asylum Office, Decision No. 26-1682/21, 2 August 2023.

^[154] Asylum Office, Decision No. 26-1562/22, 14 December 2023.

^[155] Asylum Office, Decisions Nos. 26-2886/22, 26-1654/22, 9 November 2023 and 26-2728/22, 22 December 2023.

^[156] Asylum Office, Decisions Nos. 26-2443/22, 22 Ma 2023 and 26-2907/22, 30 August 2022.

^[157] Asylum Office, Decision No. 26-898/23, 6 July 2023.

^[158] Asylum Office, Decision No. 26-1888/22, 3 February 2023.

^[159] Asylum Office, Decision No. 26-1425/23, 6 November 2023

^[160] Asylum Office, Decision No. 26-311/23, 22 May 2023.

^[161] Asylum Office, Decision No. 26-1602/21, 7 April 2023.

^[162] Asylum Office, Decision No. 26-1277/21, 11 July 2023.

^[163] Asylum Office, Decision No. 26-1914/22, 18 January 2023.

^[164] Asylum Office, Decision No. 26-1552/22, 26 January 2023.

^[165] Asylum Office, Decision No. 26-1359/21, 4 February 2022.

^[166] See more in the following parts of the Report.

^[167] Asylum Office, Decision No. 26-545/22, 7 November 2023.

^[168] See for example: Human Rights Watch, We Will Beat You to Correct You – Abuses Ahead of Burundi’s Constitutional Referendum, 18 May 2022, available at: https://bit.ly/3yxa4bT or OHCHR, Oral briefing of the Commission of Inquiry on Burundi, 23 September 2021, available at: https://bit.ly/3QLcNUs.

^[169] Asylum Office, Decisions Nos. 26-2434/16, 20 September 2017; 26-218/19, 20 February 2020; 26-1615/19, 18 June 2022 and 26-536/19, 14 May 2022.

^[170] Asylum Office, Decision No. 26-896/21, 14 January 2022.

^[171] Asylum Office, Decision No. 26-1197/2021, 7 June 2022.

^[172] Asylum Office, Decision No. 26–73/22, 29 September 2022.

^[173] Asylum Office, Decision No. 26-75/22, 22 November 2022.

^[174] Asylum Office, Decision No. 26-1632/22, 13 April 2023 and 14 July 2023.

^[175] Asylum Office, Decision No. 26-1119/22, 10 August 2023

^[176] Asylum Office, Decision No. 26-2985/22, 19 December 2023.

^[177] Asylum Office, Decision No. 1682/21, 2 August 2023.

^[178] UK Home Office, Burundi: information for victims of rape and sexual assault, 23 November 2022, available at: https://bit.ly/3zLdrOQ.

^[179] HRC, Concluding observations on the third periodic report of Burundi*, CCPR/C/BDI/CO/3, 29 August 2023, available at: https://bit.ly/46hLFpC.

^[180] CAT, Concluding observations on the third periodic report of Burundi*, CAT/C/BDI/CO/3, 11 December 2023, available at: https://bit.ly/3LwYtPa.

^[181] Special Rapporteur on the situation of human rights in Burundi, Situation of human rights in Burundi – Report of the Special Rapporteur on the situation of human rights in Burundi, Fortuné Gaetan Zongo, A/HRC/54/56, 11 August 2023, avaialble at: https://bit.ly/4d76bv9.

^[182] Asylum Office, Decision No. 1672/19, 1 April 2023.

^[183] Olga Korobova, Žene u Iranu-Kada marama postane oružije, available at: http://bit.ly/40kSGSx.

^[184] Asylum Office, Decision No. 26-148/18, 27 December 2019.

^[185] Asylum Office, Decision No. 26-1073/20, 1 December 2020.

^[186] Asylum Office, Decision No. 26-1599/19, 13 October 2020, see also: BCHR, Right to Asylum in the Republic of Serbia 2021, available at: https://bit.ly/3R6evTB, p.114.

^[187] Asylum Commission, Decision No. AŽ 51/20, 24 December 2020.

^[188] Asylum Office, Decision No. 26-1245/22, 17 February 2023.

^[189] Asylum Office, Decisions Nos. 26-1245/22, 17 February 2023; 26-546/22, 8 December 2023 and 26-2165/22, 13 December 2023.

^[190] Asylum Office, Decisions Nos. 26-2983/22, 7 June 2023; 26-2970/22, 13 April 2023; 26-2832/22, 19 October 2023 and 26-3100/22, 5 December 2023.

^[191] Asylum Office, Decisions Nos. 26-2862/22, 4 December 2023 and 26-2882/22, 28 November 2023.

^[192] AIDA, Country Report: Serbia, 2021 Update, p. 82.

^[193] Asylum Office, Decision No. 26- 26–404/21, 4 November 2021, and see also BCHR, Right to Asylum in the Republic of Serbia 2021, 114-115.

^[194] Asylum Office, Decision No. 26–1515/19, 13 August 2020.

^[195] Asylum Office, Decision No. 26–1515/19, 25 May 2022.

^[196] Human Dignity Trust, Burundi, available at: http://bit.ly/40Aydc4.

^[197] Human Dignity Trust, Morocco, available at: http://bit.ly/40oPKUK.

^[198] Asylum Office, Decision No. 26-81/20, 13 January 2021.

^[199] Administrative Court Judgment U 16351/22, 11 May 2023.

^[200] Asylum Office, Decision No. 26-1284/20, 1 December 2021.

^[201] Asylum Office, Decision No. 26-2038/19, 30 July 2020 and 26-2039/19, 17 August 2020.

^[202] BCHR, Right to Asylum in the Republic of Serbia 2022, available at: https://bit.ly/3F4yJXE, pp. 64-66.

^[203] Asylum Office, Decision No. 26-1280/13, 25 December 2013.

^[204] Asylum Office, Decision No. 26-1592/18, 20 November 2019.

^[205] Asylum Office, Decision Nos. 26-1922/21, 8 February 2023 and 26-50/22, 25 January 2023.

^[206] Asylum Office, Decision No. 26-1441/17, 20 March 2023, while the other decision related to Syrian national is the only one which was not delivered.

^[207] Asylum Office, Decision No. 2276/21, 27 January 2023.

^[208] Asylum Office, Decision No. 26-2736/22, 29 June 2023.

^[209] Asylum Office, Decision No. 26-1045/23, 5 October 2023.

^[210] Article 37(1) Asylum Act.

^[211] Article 37(2) Asylum Act.

^[212] Article 37(12) Asylum Act.

^[213] Information provided by IDEAS.

^[214] Article 37(10) Asylum Act.

^[215] Article 37(11) Asylum Act.

^[216] Asylum Office, Decision No. 26-1084-20, 7 June 2021.

^[217] Article 16 (2) Asylum Act.

^[218] Asylum Office, Decision No. 26-246/21, 29 June 2022.

^[219] See for example Asylum Office, Decision No. 26-132/22, 13 April 2023.

^[220] Asylum Office, Case File No. 26-2534/17, 7 May 2021.

^[221] Asylum Office, Decision No. 26-1271/19, 15 October 2020.

^[222] Article 13 Asylum Act.

^[223] Asylum Office, Decision No. 932/19, 30 September 2019.

^[224] Asylum Commission, Decision No. AŽ 38/19, 3 December 2019.

^[225] Asylum hearing in the case 26-688/22, 24 June 2022.

^[226] Article 63 GAPA.

^[227] Article 21(1)-(2) Asylum Act.

^[228] Article 21(3) Asylum Act.

^[229] Article 95 Asylum Act and Articles 151 and 153 GAPA.

^[230] Article 158 GAPA.

^[231] Article 159 (2).

^[232] Article 160 GAPA.

^[233] This was the case with the application of an alleged SGBV survivor from Somalia who claimed that she had been subjected to the practice of genital mutilation. The legal representative in this case failed to lodge an appeal in time. Asylum Office, Decision No. 26-1599/19, 13 October 2020.

^[234] Asylum Commission, Decisions Nos. AŽ 51/20, 24 December 2020 and AŽ 32/21, 7 February 2022.

^[235] Administrative Court, Judgments Nos. U 3775/21, 3 March 2022 and U 19541/22, 14 October 2022.

^[236] Article 165 (1) GAPA.

^[237] Article 165 (2) GAPA.

^[238] Article 166 GAPA.

^[239] Article 174 GAPA.

[240] Article 19 Administrative Disputes Act.

^[241] IDEAS, Hod po žici – uticaj epidemije zarazne bolesti COVID-19 na sistem azila u Republici Srbiji – U susret „drugom talasu“ –  preliminiarni nalazi, March 2020, available in Serbian at: https://bit.ly/46kqDF3, p. 53.

^[242] Article 165 GAPA.

^[243] Article 165(2)-(3) GAPA.

^[244] Article 170 GAPA.

^[245] Article 171(5) GAPA.

^[246] Article 173(3) GAPA.

^[247] Asylum Commission, Decision AŽ 25/09, 23 April 2010.

^[248] Asylum Commission, Decision AŽ 06/16, 12 April 2016.

^[249] Asylum Commission, Decision AŽ X, 2 September 2019.

^[250] Article 5 (3) GAPA.

^[251] Officially, the number of persons from Burundi whose case was decided in 2023 is 20, but Asylum Commission decided twice in relation to a 5-members family (AŽ 15/23, upheld on 10 July 2023, and then rejected on 17 November 2023).

^[252] Asylum Commission, Decision No. AŽ 21/23, 10 August 2023.

^[253] Linked to: Asylum Office, Decision No. 26- 1552/22, 26 January 2023.

^[254] Linked to: Asylum Office, Decision No. 26- 898/23, 6 July 2023.

^[255] Linked to: Asylum Office, Decision No. 26-311/23, 22 May 2023.

^[256] Asylum Commission, Decision No. AŽ 20/23, 23 October 2023.

^[257] Asylum Commission, Decisions Nos AŽ 15/23, upheld on 10 July 2023, and then rejected on 17 November 2023.

^[258] Asylum Commission, Decision Nos. AŽ 11/23, 5 May 2023 and AŽ 11/23, 5 May 2023.

^[259] Asylum Commission, Decision No. AŽ 04/21, 8 March 2021.

^[260] Asylum Office, Decision No. 26-1592/18, 20 November 2019.

^[261] Asylum Commission, Decision No. AŽ 44/19, 30 January 2020. 

^[262] Asylum Commission, Decision No. AŽ 02/21, 17 March 2021.

^[263] Asylum Commission, Decision No. AŽ 19/20, 5 July 2021.

^[264] Asylum Commission, AŽ-29/19, 23 September 2021.

^[265] Asylum Office, Decision No. 26–1389/17, 19 January 2021, see also BCHR, Right to Asylum in the Republic of Serbia 2021, p. 55.

^[266] Asylum Commission, Decision No. AŽ 24/21, 11 October 2021.

^[267] Linked to: Asylum Office, Decision No. 26-2276/21, 27 January 2023.

^[268] Asylum Commission, Decision No. AŽ 20/22, 12 August 2022.

^[269] Asylum Commission, Decision No. AŽ 8/21, 27 June 2022.

^[270] The case was described in details in the part where the practice of the Asylum Office is analysed.

^[271] Linked to: Asylum Office, Decisions Nos. 26-50/22, 3 February 2023 and 26-1922/21, 8 February 2023.

^[272] Roundtables were organised through the project “Novelties in the Asylum and Migration System in the Republic of Serbia and Challenges in their Application”, implemented by the AIRE Centre, IOM and the British Embassy in Serbia.

^[273] Article 96 Asylum Act.

^[274] Administrative Court, Judgments U 10233/19, 13 May 2020, U 1803/18, 6 January 2022 and U 3950/18, 24 January 2022.

^[275] Administrative Court, Judgment U 1709/23, 4 April 2023.

^[276] Administrative Court, Judgments U 15156/18, 16 November 2023; U 3268/20, 26 July 2023 and U 14095/20, 13 June 2023.

^[277] Administrative Court, Judgment U U 7828/23, 16 November 2023.

^[278] Administrative Court, Judgment U 20811/11, 21 January 2022.

^[279] Administrative Court, U 21427/21, 26 October 2021.

^[280] Administrative Court, U 31740/22, 20 December 2022.

^[281] Administrative Court, Judgment U U 19000/21, 5 January 2022.

^[282] Administrative Court, Judgment, U 11006/20, 28 January 2021.

^[283] Administrative Court, Judgment U 22906/18, 25 November 2021.

^[284] Administrative Court, Judgment U 16351/22, 11 May 2023.

^[285] Administrative Court, Judgment U 1775/20, 20 March 2023.

^[286] Administrative Court, Judgment U 8080/21, 7 December 2021.

^[287] Administrative Court, Judgments U U 20811/21, 31 January 2022 and U 24542/20, 27 May 2022.

^[288] See also, AIDA, Country Report Serbia, 2021 Update, p. 81.

^[289] See more in Right to Asylum 2022, pp. 59-61.

^[290] See more in Country Report Serbia, Update 2018, pp. 41-52.

^[291] Administrative Court, Judgment U 1803/18, 6 January 2022.

^[292] Administrative Court, Judgment U –U 8549/20, 2 February 2022.

^[293] Administrative Court, Judgment U 3950/18, 24 January 2022.

^[294] Administrative Court, Judgment U 11333/22, 17 November 2022.

^[295] Administrative Court, Judgment U 12907/19, 21 September 2023.

^[296] Administrative Court, Judgment U U 8234/19, 12 April 2023.

^[297] See the Table above.

^[298] Administrative Court, Judgments U 2113/20, 12 January 2022 and U 20256/19, 16 September 2022.

^[299] Administrative Court, Judgment U 4758/20, 8 June 2022.

^[300] Administrative Court, Judgment U 15562/20, 29 September 2022.

^[301] Administrative Court, Judgment U 3975/20, 24 February 2022.

^[302] Article 4 (2-6) FLA.

^[303] Article 4 (2-7) FLA.

^[304] Free Legal Aid Fee Schedule Regulation (Uredba o tarifi za pružanje besplatne pravne pomoći), Official Gazette of the RS No. 74/2019.

^[305] This conclusion is drawn from the fact that legal representatives in all Administrative Court judgments were CSOs.

[306] Article 56(3)-(4) Asylum Act.

^[307] BCHR had 5 lawyers who were solely providing legal aid to asylum seekers, HCIT 2, IDEAS 1, and APC does not have more than 3.

^[308] Once to two times per month.

^[309] Some of them less than a year and without previous training and experience in the field of asylum and migration.

^[310] The author of this Report was a legal coordinator at BCHR, but also acts as a strategic litigation officer at BCHR. He has been providing legal aid to asylum seekers since 2012.

^[311] Asylum Office, Decision No. 26-378/19, 11 February 2020.

^[312] Asylum Office, Decision No. 26-2038/19, 30 July 2020 and 26-2039/19, 17 August 2020.

^[313] Asylum Office, Decision No. 26-2573/19, 15 October 2020. This boy fled to Bosnia where he got in touch with his former legal representative who changed jobs.

^[314] The boy decided to return to Serbia and, with the help of IDEAS lawyers, submitted a subsequent application.

^[315] Asylum Office, Decision No. 26-3229/19.

^[316] Asylum Office, Decision No. 26-2177/19, 20 August 2020.

^[317] Ibid.

^[318] Asylum Office, Decision No. 26-1607/18, 14 October 2022.

^[319] Asylum Office, Decision No. 26-932/19, 30 September 2019.

^[320] Asylum Office, Decision No. 26-1831/18, 30 July 2020.

^[321] The applicant lodged her asylum application in March 2022.

^[322] The applicant lodged her asylum application in March 2022.

^[323] Asylum Office, Decision No. 26-1601/20, 30 August 2021

^[324] Asylum Office, Decision No. 26-876/21, 10 November 2021.

^[325] Asylum Office, Decision No. 26-1791/21, 9 March 2021.

^[326] Asylum Office, Decision No. 26-1599/19, 22 November 2019 and AŽ 51/20, 24 December 2020.

^[327] Asylum Office, Decision No. 26-688/22, 15 September 2022.

^[328] Asylum Office, Decision No. 26-1045/23, 5 October 2023.

^[329] Asylum Office, Decision No. 26-1425/23, 6 November 2023.

^[330] The author of this Report only analysed cases in which he had an opportunity to assess in details personal circumstances of the applicants with regards to their asylum claims, but also their experience with regards to the Serbian asylum system.

^[331] ECtHR, A.H. v. Serbia and North Macedonia, and A.H. v. Serbia, Application Nos. 60417/16 79749/16, 19 October and 27 December 2016 respectively, available at: https://bit.ly/3oVp8dz