Grounds for detention

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According to the law, asylum seekers can be detained:[1]

1. In order to verify and establish their identity or nationality in case of a clear doubt, especially if the circumstances of the case suggest that the applicant could have obtained identification documents in the country of origin, but left the country of origin without a document; or provided false information, forged documents or withheld important information or documents about their identity or nationality; or if they are likely to have maliciously destroyed or disposed of an identity document or a travel document or other document which could be used to establish their identity or nationality.
2. To establish certain facts on which the application for international protection is based that cannot be obtained without the measure, and there is reasonable possibility that the applicant will abscond;
3. Where they are detained in order to facilitate return or removal and it can be reasonably assumed that they applied for international protection in order to postpone or obstruct the procedure wherein they had the opportunity to apply for international protection;
4. In order to prevent security threats to the country or to the constitutional order of the Republic of Slovenia or if it is necessary to protect personal safety, property and other grounds related to public safety;
5. In accordance with Article 28 of the Dublin Regulation.

The amendments to the IPA, which came into force in November 2021, also added several provisions relating to the detention of asylum seekers. Regarding the grounds for detention, the Migration directorate is now able to determine whether an applicant could have obtained identification documents in the country of origin. In addition, the definition of the risk of absconding was included in the IPA, which means that the Migration directorate no longer uses the definition from the Foreigners Act. (See: Detention of asylum seekers: General)

Asylum seekers can be detained in the regular, accelerated or Dublin procedure. They can only be detained in the Foreigners Centre or the Asylum Home.[2] In practice, most asylum seekers are detained in the Foreigners Centre.

The grounds for detention are normally listed in the detention decision. However, they are often not sufficiently justified, which is one of the main reasons why they are often successfully challenged before the court.

Following a judgment of the Supreme Court,[3] asylum seekers could not be detained on any ground that required to establish the risk of absconding, including in Dublin procedures, because such risk was not defined in the IPA. One could only be detained to prevent security threats to the country or to the constitutional order of the Republic of Slovenia, or if it was necessary to protect personal safety, property and other grounds related to public safety. The definition of risk of absconding was included in the 2021 amendments to the IPA and hence the Migration directorate can again detain on this basis since November 2021.

As defined by the amended provisions of the IPA,[4] the risk of absconding is established if the applicant:

• lodged the application or the subsequent application while in the extradition procedure or the return procedure;
• previously tried to leave the Republic of Slovenia or has left it;
• previously lodged the application in Slovenia or any other EU Member State and subsequently left the country;
• despite the previously issued decision that the application is inadmissible or the previously issued Dublin decision the applicant did not wait for the execution of the decision;
• provided false information in the procedure or did not participate in the procedure and refused to give the biometric data;
• used false or forged identity documents;
• entered the Republic of Slovenia during the entry ban;
• was sanctioned for the offence of illegal residence in the past 3 years;
• did not comply with the return decision issued by another Member State;
• was, in the past 2 years, convicted in the Republic of Slovenia for a criminal offence for which the perpetrator is being prosecuted ex officio;
• was sanctioned at least three times for public order offences or offences relating to border crossings, weapons or drugs in the past 2 years.

In 2023, out of 22 asylum seekers 18 were detained because of public order offences.[5] All asylum seekers detained by the UOIM are detained due to public order offences.[6]

Individuals in return procedures are also detained in the Foreigners Centre, primarily designed for that purpose. If they express the intention to apply for asylum, they can be transferred to the Asylum Home or continue to be detained in the Foreigners Centre on the grounds of a new detention decision, if it is determined that they have expressed an intention to seek asylum only in order to frustrate the procedure of return.[7] 71 asylum seekers expressed their intention to apply for international protection in the Foreigners Centre.[8]

[1] Article 84(1) IPA.

[2] Article 84 IPA.

[3] Supreme Court Decision, X Ips 1/2019 from 13 March 2019, available in Slovenian at: https://bit.ly/3vVIfWH.

[4] Article 84.a IPA.

[5] Official statistics provided by the Migration directorate, March 2024.

[6] According to Article 84(10) IPA the UOIM can only detain asylum seekers due to offences connected to public safety.

[7] Article 84(1) IPA.

[8] Official statistics provided by the Police, March 2024.