Author
Unaccompanied minors are subject to different kind of guardianship regimes based on their legal status in Slovenia. Upon arrival in Slovenia, they are appointed a legal guardian for a special case according to the provisions of the Family Code.[1] After the border procedure is completed, the minor is accompanied to the Foreigners Centre or another institution. This means that a new legal guardian for a special case is appointed based on the new geographical location. In both cases, the legal guardian for a special case is normally the Centre for social services. If the unaccompanied minor applies for international protection, then a new legal guardian (for asylum-seeking unaccompanied minor) is appointed in line with the provisions of the International Protection Act.[2] The responsibility of the legal guardian ends when the child becomes of age or when the international procedure is completed. After the international procedure is completed and the minor either obtained international protection or is in the return procedure, a legal guardian for a special case is again appointed in accordance with the Family Code.[3] This means that, in practice; unaccompanied children can be appointed at least three legal guardians throughout their stay in Slovenia.
Under Article 16(1) IPA, each unaccompanied child is assigned a legal guardian before the procedure for international protection starts. This means that they have to have a first contact with the child right before they lodge their application for international protection. Therefore, legal guardians are not familiar with the child’s needs, prior procedures, vulnerability, reasons for seeking asylum or any other relevant information before lodging the application. In addition, they are only provided with the help of an interpreter if they can prove that they require it for reasons connected to one of their fields of work. In practice, guardians are often unable to obtain the services of interpreters when communicating with the child.
A legal guardian is not appointed if the child is married and older than 15 years old.[4]
The legal guardian must accompany the unaccompanied child from the beginning of the application and throughout the entire procedure. They are responsible for representing the minor in relation to the asylum procedure, health care, education, protection of property rights and rights related to reception.[5] The legal guardian is present during the child’s asylum application and all subsequent personal interviews and can ask additional questions beside those asked by the official and legal representative.[6] The legal guardian also has to consent, together with the applicant, to the age assessment procedure.[7]
The child can also be assisted by a PIC lawyer, as is the case for any other asylum applicant (see Regular Procedure: Legal Assistance). Because legal help and representation is not automatically provided to all asylum seekers, legal guardians may be the only representatives of the child, responsible for their international protection claim. This means that they have to ask relevant questions during the lodging of the application and subsequent personal interviews, prepare COI and perform other relevant acts during the procedure, although they have not been trained to do so. Legal guardians therefore rely heavily on the help of NGOs. In 2022, the PIC assisted 102 children in the procedure out of which 56 were unaccompanied minors.
Candidates for legal guardians of unaccompanied children are appointed to the list of legal guardians upon applying to a public tender. One cannot be appointed as legal guardian if they have been deprived of parental rights, if they do not have capacity to contract, if their interests are in conflict with the interests of the child or if, due to their personal characteristics or relationship with the child or their parents, it cannot be expected that they will correctly perform their duties as legal guardians.[8] In practice, the fitness of guardians to perform their duties with a view to a positive involvement in the child’s procedure and care has raised questions in some cases. In one case, the social services removed a legal guardian from the list. In 2020, the UOIM sent negative reports about three legal guardians to social services, which prompted the social services to initiate the procedure of objection to the work of the three guardians. The procedures were completed in 2021 and no legal guardian was suspended from the list. No such procedures were initiated in 2022 and 2023.
According to the 2021 amended IPA, legal guardians can be removed from the list in case they do not inform the Ministry of the Interior about the real identity of the child, do not submit the child’s documents into the procedure, do not disclose the real age of the child that claims to be a minor or do not disclose any other information that can be relevant to the status determination procedure.[9] The relevant amendment was submitted to the Advocate for the Principle of Equality, who found that the provision was discriminatory and recommended that the provision be removed. The Advocate concluded that the provision is in contradiction with the main purpose of legal guardianship, which is the establishment of a confidential relationship between the child and the legal guardian.[10] No legislative changes were made by the end of the year. However, the provision was submitted to the Constitutional Court for review by parliamentarians.[11] The decision was not made by the end of the year.
Legal guardians are compensated for their work if it relates to the asylum procedure, health care, education, protection of property rights and rights related to reception.[12] They are not compensated for visiting the child or performing any other activity, irrespective of their necessity. Although legal guardians are compensated for their work, legal guardianship is not a regular form of employment, which means that legal guardians can only perform their duties outside of their regular employment, if they are self-employed or retired. In practice, most of the duties of legal guardians have to be performed during working hours. As a result, only a few legal guardians are actually able to perform their duties and are willing to represent children. Thus, the fluctuation in legal guardians is high and the authorities have trouble finding persons eligible and willing to become legal guardians.[13]
Before being appointed as legal guardians, candidates also have to attend a special training organised by the Faculty of Social Work of the University of Ljubljana, which includes family law, social work, psychology, protection of children’s rights, protection of human rights and asylum law.[14] They receive 40 hours of training (16 hours of theory and 24 hours of practice). The training does not include an in-depth training on international protection and the procedure in Slovenia. In practice, this means that they face difficulties when representing children in the international procedure. In addition, legal guardians have to attend training every 3 years.[15]
The absconding rate of unaccompanied children in Slovenia is very high, which seems to be mostly due to children having family in other Member States or, more generally, Slovenia not being their destination country. In 2023, the number of unaccompanied minors lodging the application was extremely low with only 46 unaccompanied minors lodging the application. The majority of unaccompanied minors were not identified as such or absconded before lodging the application. The statistics on the number of unaccompanied minors expressing the intent for international protection is not available. Lack of statistics on the number of unaccompanied children who are processed by the Police but abscond before lodging the application hinders the possibility to thoroughly assess the scope of the issue. (see: Screening for vulnerability) Out of 46 unaccompanied minors that lodged the application, 37 absconded before the first instance decision. The absconding rate was therefore 80% in 2023. Unaccompanied minors represented 0,5% of asylum seekers in 2023.[16]
[1] Article 267 of the Family Code.
[2] Article 6(1) IPA.
[3] Article 261(1) Family Code.
[4] Article 16(9) IPA.
[5] Article 16(1) and (3) IPA.
[6] Article 14 Rules on the procedure for aliens who wish to apply for international protection in the Republic of Slovenia and on the procedure for accepting applications for international protection.
[7] Article 17(4) IPA.
[8] Article 18(2) IPA and article 181 Marriage and Family Relations Act, Official Gazette of RS, No. 69/04 and subsequent amendments.
[9] Article 18(8) IPA.
[10] Advocate for the Principle of Equality, Mladoletni prosilci za mednarodno zaščito brez spremstva potencialno obravnavani diskriminatorno, 6 July 2022, available at: https://bit.ly/3nDaYR6.
[11] 24.ur, Določbe zakona o tujcih in mednarodni zaščiti v ustavno presojo, 10 February 2022, available at: https://bit.ly/3Pv1Yq7.
[12] Article 2(2) Rules on the remuneration and reimbursement of the expenses of statutory representatives of unaccompanied minors.
[13] Observation by the PIC.
[14] Article 18(3) IPA.
[15] Article 6(2) Decree on the implementation of the statutory representation of unaccompanied minors and the method of ensuring adequate accommodation, care and treatment of unaccompanied minors.
[16] Official statistics provided by the Migration directorate, March 2024.