Author
The law defines an applicant in need of special procedural guarantees as an applicant whose ability to benefit from the rights and fulfil their obligations is limited as a result of individual circumstances that may be due, inter alia, to age, sex, sexual orientation, gender identity, disability, serious illness, mental illness or disorder, or torture, rape or other serious forms of psychological, physical or sexual violence etc.[1] This clause may be interpreted as a non-exhaustive list of persons who may be considered in need of special procedural guarantees.
Article 5^1(2) of the Asylum Act lists the following categories of vulnerable persons: minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons suffering from serious illnesses, people with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, or persons in other special circumstances.
Screening of vulnerability
Romanian law provides that the assessment of who belongs to a category of vulnerable people is done after an asylum application has been lodged, as soon as possible, by IGI specialists, based on an individual assessment. In order to carry out the individual assessment and take appropriate measures to ensure the rights and guarantees provided by this law, the competent authorities shall provide special support at the request of IGI.[2]
The Asylum Decree completes this provision by stating that the specialised personnel of IGI cooperates with UNHCR and relevant NGOs to identify asylum seekers who may be included in the category of vulnerable persons referred to in Article 5^1(2) of the Act.[3] In order to assess the vulnerability of asylum seekers, specialists within IGI, in cooperation, where appropriate, with experts from other institutions and authorities competent in the field, make an assessment of the special needs of foreigners.[4]
Depending on the specific needs of each asylum seeker identified as a vulnerable person, IGI-DAI notifies and cooperates with authorities and specialised agencies to provide necessary assistance.[5] IGI-DAI may collaborate with NGOs to assist asylum seekers identified as vulnerable.[6]
There are no further explanations in the law on how the individual assessment is carried out in practice or who are the specialists conducting the assessments. The law also does not include guidelines on how the cooperation between the IGI-DAI and UNHCR, on the one hand, and IGI-DAI and NGOs on the other hand, should work in practice in order to adequately identify such persons.
In practice, there is a special form that is filled in from the moment an application is lodged, while the preliminary interview and personal interview also have questions related to vulnerabilities. IGI-DAI has internal guidelines on early identification, but these guidelines are only for internal use and are not publicly available. According to the Director of Regional Centre of Timișoara, the identification mechanism has been developed together with UNHCR Romania. UNHCR Romania confirmed that in 2013 it worked together with IGI-DAI in developing a pilot mechanism to identify, refer and assist vulnerable asylum seekers, defined as such by the recast Reception Conditions and Asylum Procedures Directives. At that time, all staff of IGI-DAI dealing with reception and procedures were trained by UNHCR and other agencies. Further information was not provided by UNHCR or IGI-DAI in 2023.
The director of the Regional Centre of Timișoara stated that the identification mechanism in place to systematically identify vulnerable asylum seekers consists of six annexes, of which three are mandatory: one filled out when the asylum application is registered; one filled out at the preliminary interview; and one filled at the personal interview. The other three annexes may be filled out, if necessary, by the medical, integration or legal department. The director of the Regional Centre of Timișoara mentioned that in 2022 they identified single women as vulnerable, victims of traffic accidents (asylum seekers who tried to cross the Hungarian border). No victims of human trafficking nor asylum seekers with psychological problems were identified.
As of 2022, the majority of the stakeholders interviewed by the author in Bucharest, Şomcuta Mare Timișoara and Rădăuţi said that they are still not aware of the content of the IGI-DAI identification mechanism in place to systematically identify vulnerable asylum seekers. The legal counsellor in Galaţi mentioned that there are standardised forms, which are filled in at the first four stages of the asylum procedure: registration of the asylum application; photographing and fingerprinting; preliminary interview and personal interview. The forms are also filled in by the medical staff and psychologist and the integration department.
In Timișoara, NGO representatives bring up the issues or the existence of vulnerable persons accommodated in the centre during the monthly coordination meetings with IGI-DAI. According to the JRS representative, the ICAR Foundation has a mechanism in place to identify victims of torture, i.e. specialised personnel drafts medical reports which are attached to the applicant’s case file. The ICAR Foundation also has a cultural mediator, who helps with the interpretation when the assessment is made. The Timișoara centre had a psychologist from January 2020 until November 2021. By November 2022, a new psychologist was hired. According to the director of Timișoara the psychologist conducted psychological assessment interviews but not with all the asylum seekers. The interviews were conducted only with the persons she considered more vulnerable. The interviews were conducted with an interpreter. It was reported by the director that if the psychologist identifies a person as vulnerable, the person is not identified as such by IGI-DAI. Still, this is mentioned in the file and special attention is afforded to the respective asylum seeker. It is up to the case officer to mention this fact in the decision. While the case officer does not contest the vulnerability of the asylum seeker, he/she makes their own assessment of the vulnerability, according to the director. If the psychologist of ICAR Foundation identified a vulnerable person, the report was presented to the psychologist of IGI-DAI. In case the IGI-DAI psychologist identified a vulnerable person the psychologist of ICAR Foundation was notified. In 2022 no reports were lodged with IGI-DAI by the ICAR Foundation and according to the director of the centre they are mentioned in the decision.
In Bucharest, in 2022 there was no psychologist. The screening of vulnerability was carried by filling out the forms by IGI staff in order to determine the individual needs regarding vulnerable cases. The centre has three medical assistants and a doctor. In 2022, according to the director of the centre in Vasile Stolnicu, unaccompanied minors and single women were identified.
The director of Giurgiu centre reported in 2022 that after the asylum seekers are accommodated in the centre the medical assistant conducts the medical check-up. The nurse asks the asylum seekers if they take any medication without an interpreter. Vulnerability may also be identified during the following stages of the procedure. A person suffering from depression was identified as such during the preliminary interview.
The director of Şomcuta Mare centre said that specific forms were filled in when the asylum claim was made. The vulnerabilities of the asylum seekers identified by IGI-DAI were all visible: pregnant women, single parent families, elderly and unaccompanied children. IGI-DAI had no psychologist in the centre in 2021. The position was filled on 1 April 2022.
According to the director of Galaţi centre, as of 2022 all asylum seekers are screened by the medical assistant. The Psychologist returned from maternity leave in July 2022. She saw all asylum seekers within five days of their arrival at the centre and a follow-up interview is conducted if the asylum seeker consents to it. The evaluation is done with the help of an interpreter or with another asylum seeker who speaks English.
According to the director in Şomcuta Mare, as of 2022 the screening of vulnerability is done by the medical department of IGI-DAI, where the asylum seekers are also asked about their medical history.
The legal counsellor, as of 2022, in Rădăuţi said that theoretically asylum seekers are screened but has no knowledge as to whether this is done in practice. Vulnerable asylum seekers are identified by NGOs. In 2022 a person with HIV was identified by an NGO representative. As of March 2022, the centre had no psychologist. According to the director of the centre vulnerable asylum seekers may be identified at any stage of the procedure by filling in forms.
The director of Giurgiu stated in 2022 that the screening for vulnerability is done by the nurse of IGI-DAI. As of January-February 2021 the centre had no medical doctor. During 2022 no medical doctor was hired. Furthermore, vulnerable asylum seekers are identified as such during the preliminary and personal interview.
Article 12^1of the Asylum Act prescribes that staff training programmes shall include, inter alia, methodology on the assessment of asylum applications made by vulnerable persons and identification mechanisms and assistance for vulnerable persons.
In 2022, IGI-DAI reported 2,586 minors, of whom 268 unaccompanied minors, seven persons with disabilities, 509 elderly persons, five pregnant women, 506 single parent families, one victim of human trafficking, six persons with mental disabilities, and eight persons who had experienced torture, rape or other serious forms of psychological, physical or sexual violence were identified.[7]
In 2023, IGI-DAI reported 939 vulnerable persons: 579 minors, of whom 284 unaccompanied minors, 7 elderly persons, 13 pregnant women, 41 single parent families, 8 persons subjected to a form of violence (the type of violence was not specified), 7 persons in other vulnerable situations (no further details were provided on what these other situations of vulnerability consisted of)[8] IGI-DAI mentioned that during 2023 in the case of vulnerable persons there were no situations of asylum applications examined under the accelerated procedure.
Age assessment of unaccompanied children
The Asylum Act foresees that an age assessment can be carried out in case there are doubts as to the alleged age of the applicant or if the unaccompanied minor cannot prove their age.[9] In these cases, before a decision is delivered at first instance, IGI-DAI requests forensic expertise to assess the applicant’s age, with the prior written consent of the minor and their legal representative.[10]
If the asylum seeker and/or the legal representative refuse to carry out the age assessment examination and no conclusive evidence regarding age is provided, the applicant shall be considered adult.[11] The person shall be deemed to have reached the age of 18 at the time of lodging the asylum application.[12] However, if a psychologist of IGI-DAI determines, after an evaluation, that the grounds for refusal to carry out the age assessments examination are well-founded, the asylum seeker will not be considered an adult.[13]
The law provides that the interpretation of the examination results shall be carried out taking into account the principle of the best interests of the child.[14]
The asylum application cannot be refused on the sole ground that the person did not consent to the age assessment and cannot prevent IGI-DAI from granting international protection to the respective asylum seeker.[15]
According to the law, IGI-DAI informs the legal representative and the asylum seeker unaccompanied minor in writing, in a language that the latter understands or is reasonably supposed to understand, about the possibility of carrying out an age assessment. This information should also include details of the medical examination methods, the possible consequences of the outcome of the examination and the effects of any refusal to undergo medical examination.[16] The law also prescribes that the medical examination shall be carried out in full respect of the minor’s dignity, using the least invasive methods to obtain, as far as possible, a reliable result.[17]
The Asylum Act does not, however, prescribe for a method on how the age assessment should be carried out. When an age assessment is ordered by IGI-DAI, this is carried out by the National Network of Legal Medicine, which comprises of the National Institute of Legal Medicine “Mina Minovici” in Bucharest (NIML), 5 Institutes of Legal Medicine (IML) in Iași, Cluj-Napoca, Craiova, Târgu Mureș and Timișoara, 36 County Legal Medicine Services and 11 Forensic Offices.[18]
According to the Procedural Rules on expert assessments and findings and other forensic work for establishing the age of a person, the forensic findings and forensic expertise related to living persons, at the request of the judicial bodies, consist of clinical and complementary radiological, haematological, serological, bacteriological, anthropological, dermatological, genetic exams and other.[19] The Procedural Rules also prescribe that minors are examined in the presence of one of the parents, or their legal representative or, in their absence, in the presence of an adult family member of the same sex.[20]
According to the stakeholders interviewed by the author, the method used by IML to assess age in all cases is bone measurement.
The law does not prescribe the possibility to challenge the age assessment decision. However, it is possible to request a new expert opinion, which will be also conducted by IML and the cost should be covered by the person requesting it. There has been no such case in practice.
According to available information, no requests for age assessments were made in 2022 in Timișoara, Şomcuta Mare, Bucharest Rădăuţi and Giurgiu. In Galati, eight age assessments were requested, of whom two left the centre and six were declared minors, according to the director. The director also mentioned that they try to do as many assessments as possible and that assessment is made at IML the county hospital, free of cost; the minor is accompanied by the medical assistant, who also informs him/her about the assessment.
In 2022, IGI-DAI reported that six age assessments were requested.[21]
In 2023, IGI-DAI reported that 5 age assessments were made at IML Galati country hospital[22]. No further details and explanations were provided on why such a low number of age assessments were performed in 2023.
[1] Article 2(1)(b^1) Asylum Act.
[2] Article 5^1(3) Asylum Act.
[3] Article 5(1) Asylum Decree.
[4] Article 5(2) Asylum Decree.
[5] Article 5(3) Asylum Decree.
[6] Article 5(4) Asylum Decree.
[7] Information provided by IGI-DAI, 22 February 2023.
[8] Information provided by IGI-DAI, 18 January 2024.
[9] Article 41(2) Asylum Act.
[10] Ibid.
[11] Article 41(3) Asylum Act.
[12] Article 41(4) Asylum Act.
[13] Article 41(5) Asylum Act.
[14] Article 41(6) Asylum Act.
[15] Article 41(7) Asylum Act.
[16] Article 16(4)(c) Asylum Act, in conjunction with Article 22 Asylum Decree.
[17] Article 16(4^1) Asylum Act.
[18] National Network of Legal Medicine, Tipuri de expertize medico-legale, available in Romanian at: http://bit.ly/2ETRT4A.
[19] Article 26(a) Procedural Rules of 25 May 2000 on expert assessments and findings and other forensic work.
[20] Article 14(2) Procedural Rules of 25 May 2000 on expert assessments and findings and other forensic work.
[21] Information provided by IGI-DAI, 11 March 2022.
[22] Information provided by IGI-DAI, 18 January 2024.