The law defines an applicant in need of special procedural guarantees as an applicant whose ability to benefit from the rights and fulfil his or her 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. This clause may be interpreted as a non-exhaustive list of persons which 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 specialists of IGI, 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.
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. 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.
Depending on the specific needs of each asylum seeker identified as a vulnerable person, IGI-DAI notifies and cooperates with authorities and specialised agencies in order to provide necessary assistance. IGI-DAI may collaborate with NGOs to assist asylum seekers identified as vulnerable.
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.
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 when the asylum application is registered; one filled at the preliminary interview; and one filled at the personal interview. The other three annexes may be filled in, if necessary, by the medical, integration or legal department.
The director of the Regional Centre of Timișoara mentioned that in 2019 they identified pregnant women as vulnerable. He also stated that when the psychologist of ICAR Foundation identified asylum seekers suffering from trauma, IGI-DAI did not identify them as such, as there were cases in which there were differences in the statements made by the asylum seeker at ICAR Foundation and the ones made at the personal interview.
The majority of the stakeholders interviewed by the author in Bucharest, Şomcuta Mare and Rădăuţi said that they are 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 4 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.
In Timișoara, the JRS representative did not see the identification mechanism; what they know is that ICAR Foundation identifies the vulnerable person and this information is further communicated to IGI-DAI. IGI-DAI and the NGOs agreed to inform each other of cases of vulnerability. Until now, IGI-DAI has not referred any vulnerable asylum seeker to the NGOs. The NGO representatives are bringing 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, 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. ICAR Foundation also has an interpreter when the assessment is made.
In Bucharest, according to the medical doctor of the centre, the doctor identifies the vulnerable persons and the psychologist of ICAR Foundation identifies the asylum seekers with psychological problems. The NGOs are informed by IGI-DAI if vulnerable persons are identified. The JRS representative from Bucharest mentioned that the mechanism consists of medical and psychological examination. It was also reported that the screening of vulnerability is made by IGI-DAI and NGOs present in the centre (JRS, CNRR, Save the Children and ICAR Foundation). As regards the methods used, the JRS representative mentioned direct counselling and the EASO Tool for Identification of Persons with Special Needs.
The JRS representative in Timișoara stated that vulnerable persons are identified by the NGOs who then immediately inform IGI-DAI. According to the director of the Regional Centre of Timișoara, all the asylum seekers are screened for vulnerability, nevertheless he stated that the screening of vulnerability is done in detail by ICAR Foundation, with an interpreter. If IGI-DAI observes something, the case is referred to the medical staff, which is also informing ICAR Foundation.
The legal counsellor in Giurgiu stated that the identification mechanism is a multidisciplinary mechanism involving both IGI-DAI staff (case officers, doctor, officers who are collaborating with the NGOs) and NGOs’ representatives. The mechanism is applied from the asylum seeker’s arrival in the centre, when the doctor examines him or her. Vulnerability may also be identified during the following stages of the procedure.
On the other hand, the legal counsellor in Şomcuta Mare said that she had to inform IGI-DAI only once about a vulnerable person, as the rest were already identified by IGI-DAI. The case concerned an asylum seeker who informed the JRS representative that he was under medicated treatment prescribed in Greece. The JRS representative referred him to the medical staff of the centre and the next day he was taken to a specialised physician. The vulnerabilities of the asylum seekers identified as such by IGI-DAI were visible: pregnant women, elderly, single parent families. The asylum seekers transferred from Timișoara are already screened; their medical situation is only confirmed upon their arrival Şomcuta Mare Regional Centre. According to JRS representative, IGI-DAI identifies 95% of the vulnerable asylum seekers; they even identified a person suffering from sleeping disorders, as the asylum seeker requested medication from the medical staff. The NGOs may also identify vulnerable asylum seekers during their counselling sessions.
According to the legal counsellor in Galaţi, all asylum seekers are screened, as the annexes to which the legal counsellor and the director of the Regional Centre of Timișoara referred to are filled in for every person lodging an asylum application. According to the legal counsellor in Galaţi there were no asylum seekers with psychological problems in the centre in 2019. Nonetheless, there were several asylum seekers who stated during the personal interview that they were victims of sexual violence. The psychologist was subsequently informed about these cases.
According to the legal counsellor in Şomcuta Mare, 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 in Rădăuţi said that theoretically asylum seekers are screened but has no knowledge as to whether this is done in practice. According to the JRS representative, the psychologist of ICAR Foundation identifies vulnerable asylum seekers and not IGI-DAI. It is worth mentioning that, since November-December 2019, IGI-DAI has signed a contract with a psychologist. At the time of the author’s interview with the stakeholders, December 2019, the psychologist did not start to work yet. Nonetheless, there were several victims of FGM asylum seekers from Somalia, who reported this to the medical staff of the centre and they were all identified as vulnerable asylum seekers.
Article 12^1 of the Asylum Act prescribes that staff training programmes shall include, inter alia, methodology on assessment of asylum applications made by vulnerable persons and identification mechanisms and assistance for vulnerable persons.
Between 1 January 2019 and 31 September 2019, IGI-DAI identified 213 asylum seekers as vulnerable according to article 5^1(2) of the Asylum Act. Out of the total number of vulnerable asylum seekers, 63 were minors, 96 unaccompanied minors, 5 persons with disabilities, 1 pregnant woman, 36 single parent families and 4 persons experienced torture, rape or other serious forms of psychological, physical or sexual violence.
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 his or her age. 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 his or her legal representative.
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. The person shall be deemed to have reached the age of 18 at the time of lodging the asylum application. 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.
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.
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.
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. 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 allowing, as far as possible, a reliable result.
The Asylum Act does not, however, prescribe for a method on how the age assessment should be carried out. When 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.
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. 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.
According to the stakeholders interviewed by the author, the method used by IML to assess age in all cases is bone measurement.
According to the legal counsellor in Galaţi, in case an age assessment is requested by IGI-DAI, in most of the cases, the results of the examinations carried out by IML state that the age of the asylum seeker is between 17-19 years. In these cases, IGI-DAI always affords the benefit of the doubt to the asylum seeker and he or she is registered with the lowest age. The legal counsellor also mentioned that in one case the court considered an asylum seeker to be a minor based on his statements regarding the issuance of an Afghan identity card called “tazkiras” [taskera], even though the age assessment decision of IML stated that he was 20-22 years old.
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.
Galaţi: 2 asylum seekers from Bangladesh claimed to be underaged. Although there were doubts about their age, no age assessment was requested in their case as they left before the preliminary interview. For the other children no age assessment was ordered, as it was beyond any doubt that they were underaged.
Rădăuţi: 1 asylum seeker from Algeria claimed to be underaged and no age assessment was ordered in his case, even though he looked more mature.
In 2019, IGI-DAI requested no age assessments for children. However, IGI-DAI requested 1 age assessment for an asylum seeker.
According to available information, no requests for age assessments were made in 2019 in Timișoara, Rădăuţi, Galaţi, Şomcuta Mare, Bucharest and Giurgiu.
 Article 2(1)(b^1) Asylum Act.
 Article 5^1(3) Asylum Act.
 Article 5(1) Asylum Decree.
 Article 5(2) Asylum Decree.
 Article 5(3) Asylum Decree.
 Article 5(4) Asylum Decree.
 Information provided by IGI-DAI, 20 February 2020.
 Article 41(2) Asylum Act.
 Article 41(3) Asylum Act.
 Article 41(4) Asylum Act.
 Article 41(5) Asylum Act.
 Article 41(6) Asylum Act.
 Article 41(7) Asylum Act.
 Article 16(4)(c) Asylum Act, in conjunction with Article 22 Asylum Decree.
 Article 16(4^1) Asylum Act.
 Article 26(a) Procedural Rules of 25 May 2000 on expert assessments and findings and other forensic work.
 Article 14(2) Procedural Rules of 25 May 2000 on expert assessments and findings and other forensic work.
 Information provided by IGI-DAI, 20 February 2020.