Author
General (scope, grounds for accelerated procedures, time limits)
The IPA provides in Article 49(1) that an application for international protection can be rejected as manifestly unfounded in an accelerated procedure if the applicant clearly does not qualify for international protection and the legally defined reasons for such a decision exist. Vulnerable groups are not exempt from the provision. However, the application of an unaccompanied minor can be rejected as manifestly unfounded only in case the safe country of origin concept is used or if the unaccompanied minor poses a threat to public order, public security, national security or has previously been removed from the territory for those reasons.[1]
In line with Article 52 IPA, such reasons exist where:
- During the procedure the applicant only stated facts that are irrelevant for the examination of the claim;
- The applicant comes from a Safe Country of Origin;
- The applicant misled the authorities by presenting false information or documents or by withholding important information or documents about his identity or nationality, which could influence the decision;
- It is likely that the applicant purposely destroyed or disposed of an identity or travel document which could help establish their identity or nationality, especially if the circumstances of the particular case indicate that the applicant could obtain identification documents in their country of origin.
- The applicant’s claims are clearly inconsistent, contradictory, false, implausible and contradict the sufficiently verified country of origin information making their claim that they qualify for international protection clearly unconvincing;
- The applicant applied for international protection only in order to delay or prevent the enforcement of a removal decision;
- The applicant entered the territory of the Republic of Slovenia illegally or unlawfully extended their stay and without good reason failed to come forward to the authorities, or did not apply for international protection as soon as possible given the circumstances of their entry;
- The applicant refuses to comply with the obligation to submit their fingerprints in accordance with the Eurodac Regulation;
- There are reasonable grounds to suspect that the applicant presents a danger to public order, public or national safety, or if they are removed in accordance with national law for valid reasons of public safety or public order.
A provision stating that it is likely the applicant purposely destroyed or disposed their identity documents (especially if the circumstances indicate that he/she could obtain identification documents in the country of origin) was added to the IPA with the amendments. This provision extends beyond the scope of the Asylum Procedures Directive and it is not clear how the assessment of this ground will be conducted in practice.
Pursuant to the case law of the Administrative Court, in order to reject an application as manifestly unfounded, it is not sufficient to establish the applicability of one of these grounds. The authorities must also cumulatively conclude that the applicant clearly does not fulfil the requirements for international protection.[2]
As in the regular procedure, the competent authority in the accelerated procedure is the Migration directorate of the Ministry of the Interior. Under Article 47(1) IPA, the decision in the accelerated procedure has to be taken within two months since the applicant lodged the application. There are no explicit consequences listed in the law if the time limit is not respected in practice.
The accelerated procedure can also be applied at the border, airport or port. In this case, the decision has to be taken as soon as possible, but no later than within 3 weeks. If the decision is not taken in this time limit, the applicant is allowed entry in Slovenia.[3]
In case the application is rejected as manifestly unfounded in the accelerated procedure the decision also contains a return order. Applicants are given 10 days for voluntary return by law,[4] counting from the moment the decision becomes enforceable,[5] and are subjected to a one-year entry ban,[6] that comes into force only if the person does not leave Slovenia within the timeframe for voluntary return.[7] The decision also mentions that, should the applicant not leave Slovenia voluntarily, they will be removed from the territory.
In 2023, 129 applications were processed in the accelerated procedure and rejected as manifestly unfounded. The majority of asylum seekers whose applications were rejected as manifestly unfounded in the accelerated procedure were from Morocco (106), Algeria (16) and Kosovo (3). 5 applications processed in the accelerated procedure and rejected as manifestly unfounded were lodged by unaccompanied minors.[8]
Personal interview
According to the IPA, the Migration directorate conducts a personal interview before making the decision in the accelerated procedure.[9] The law does not stipulate any circumstances in which the personal interview can be omitted. The personal interviews are conducted in the same way as described under Regular Procedure: Personal Interview.
Appeal
The appeal against a decision taken in the accelerated procedure has to be lodged within 3 days of notification.[10] The time limit for judicial review was shortened by the amendments to the IPA from 8 days to 3 days. The suspensive effect of the appeal is automatic,[11] and the Administrative Court has to take a decision within 7 days,[12] although court procedures are usually longer than that in practice.[13]
Due to the short time limits, refugee counsellors have difficulties preparing the judicial review (see Accelerated procedure: Legal assistance). In line with the Constitutional Courts case law, the time limits for judicial review should not be excessively short, as otherwise they may equal to deprivation of rights.[14]
When lodging the judicial reviews, refugee counsellors argued that the time limits for judicial review hinder the right to an effective remedy. In 2022, the Administrative Court referred a preliminary question to the CJEU on whether a 3-day time limit is in line with the Procedures directive.[15] The CJEU found that the short time limit prevents the exercising of the right to free legal assistance, access to information and effective remedy and that such short time limits are not in line with EU law.[16] The time limits set in the IPA have not been changed since the ruling.
Because a negative decision issued in the accelerated procedure also includes a return order the applicant must present arguments regarding asylum and return when lodging the judicial review. As no other separate legal remedy is prescribed for the return decision the applicant does not have another legal remedy after the court decision becomes final.
Legal assistance
The law does not contain any special provisions regarding legal representation of asylum seekers during the accelerated procedure. The same rules and practice as in the Regular Procedure: Legal Assistance apply. Together with the decision, applicants are provided with a list of refugee counsellors and instructions about how to obtain one. In case they are not able to do so on their own, they have to come to the offices of the Migration directorate, where an official will appoint a refugee counsellor to their case. In practice, due to the short 3-day time limit for lodging the judicial review, language barriers and other obstacles (telephone access etc.), applicants have difficulties obtaining the help of refugee counsellors in time and rely heavily on the help of social workers, the PIC and other NGOs in order to do so.
Due to the short time limits refugee counsellors have difficulties in lodging the judicial review. In the 3-day time limit (weekends and holidays included) refugee counsellors have to obtain a power of attorney from the applicant, obtain and review the documentation and prepare the judicial review. In practice refugee counsellors often do not have the time to obtain the help of the translators in order to prepare the judicial review although the law allow for this possibility. The short time limits are not in line with the Slovene Constitution and EU law (see: Accelerated procedure: appeal). This was also confirmed by CJEU preliminary ruling stating that the 3-calendar day time limit constitutes a restriction of the right to legal assistance.[17]
[1] Article 49(2) IPA.
[2] See: Administrative Court, Decision I U 1544/2017, 31 July 2017, available in Slovenian at: http://bit.ly/2oU9EY7 and I U 859/2018, 25 April 2018, available in Slovenian at: http://bit.ly/3Hk50LQ.
[3] Article 43(1) IPA.
[4] Article 49(10) IPA.
[5] Article 49(11) IPA
[6] Article 49(13) IPA.
[7] Article 67(2) Foreigners Act.
[8] Official statistics provided by the Migration directorate, March 2024.
[9] Article 46(1) IPA.
[10] Article 70(1) IPA.
[11] Article 70(3) IPA.
[12] Article 71(1) IPA.
[13] Observation made by the refugee counsellors.
[14] Constitutional Court decision, U I 203/14, 3 December 2015, available in Slovenian at: https://bit.ly/444pf9N.
[15] Administrative Court, 31 January 2023, No I U 47/2023, available in Slovenian at: https://bit.ly/3Ms2UMF.
[16] CJEU, Y.N. v Republika Slovenija (C-58/23), 27 September 2023, available at: https://bit.ly/3IaIWmp.
[17] Ibid.