General (scope, time limits)
According to the law, the border procedure applies to asylum applications and subsequent applications made at a border-crossing point. The asylum application made at the territorial border offices of the Romanian Border Police at a border crossing point is immediately submitted or forwarded to the competent structure of IGI-DAI, which examines it and issues a decision within 3 days.[1]In addition, foreigners are also subject to the border procedure when after a first asylum procedure in Romania, they have made a subsequent application at a border crossing point.[2]
The substance of the application is assessed during the border procedure, if the case officer decides to do so, based on the statements of the asylum seeker during the interview. According to the law, after the interview and the assessment of the reasons invoked for granting international protection and country of origin information, IGI-DAI may: (a) grant a form of protection; (b) grant access to the territory and the regular procedure if the application is not manifestly unfounded or if there are indications that Dublin or Admissibility grounds apply; or (c) reject the application as manifestly unfounded and not grant access to the territory.[3]
According to Article 87 of the Asylum Act, an asylum seeker shall remain in the transit area of the border-crossing point until a decision granting access to the territory or a final decision rejecting the asylum application is issued. This period cannot exceed 20 days.[4]However, if the asylum application is still pending after the 20-day deadline, the asylum seeker is granted access to the territory.[5]
The asylum seeker may be accommodated in special reception and accommodation centres near the border-crossing points, established by order of the Minister of Internal Affairs and having the legal status of a transit area.[6]Asylum seekers accommodated in these centres receive 3 meals a day free of charge, under conditions established by a Government Decision.[7] The asylum seeker subject to border procedure is not entitled to receive the material reception conditions for meals.[8]
The asylum seeker shall be immediately informed in writing, in a language that he or she understands or is reasonably supposed to understand, on the border procedure, granting or not granting access to the territory, his or her rights and obligations during the procedure, the possibility to challenge the decision issued by the case officer, as well as the possibility to request legal aid according to the law.[9] Leaflets will be updated by CNRR in 2023.
In practice, asylum seekers subject to the border procedure are accommodated in specially designed places, which officially should exist at every border crossing point:
- Moraviţa: There are two rooms specially designed for the border procedure. There is no courtyard where asylum seekers may go out.
- Timișoara“TraianVuia” Airport: There is a separate building designed for the border procedure. The building has three rooms, each of the rooms have 4 or 5 beds, 2 toilets, 4 showers and a kitchen. The building has a courtyard where people may go out, but only under supervision, as they are under a closed regime.
- Bucharest Henri Coandă Airport / Otopeni: There are three rooms in the basement; two are communal and the third one is separated. Women are accommodated in the separate room. There is no possibility to go outside.
According to the director of the Regional Centre of Timișoara, there was one asylum application made in 2022 at the border-crossing Moravita and it was rejected.
The director of Vasile Stolnicu centre reported 10 cases of applications assessed under the border procedure in Otopeni airport.
Şomcuta Mare: 156 applications were made by Ukrainian nationals; they were granted acces to the territory.
Galati: 219 applications were made by Ukrainian nationals and were granted access to territory.
Rădăuţi: Eight applications were reported by the director of the centre.
In 2022 there were 551 asylum applications processed under the border procedure, according to IGI-DAI. The main countries of origin of the applicants were Ukraine, Afghanistan, Syria, Russia and Cuba.[10]
According to the Border Police, 6392[11] asylum applications were made at Border Police structures, this does not mean that they were necessarily assessed under the border procedure.
Personal interview
As a general rule, a decision is taken by the case officer of IGI-DAI after an interview and assessment of the reasons invoked by the asylum seeker against the country of origin information.[12] However, the law also establishes the possibility to deliver a decision without conducting an interview, if it is possible to issue a decision to grant access to the regular procedure on the basis of the personal file.[13] In case of subsequent applications, there is no interview. The decision is issued on the basis of a written application.
The interview is conducted at the border by a case officer of the territorially competent branch of IGI-DAI, under the same rules as the personal interview in the regular procedure. The only difference relatesto the place where the interview is conducted and to the swiftness of the procedure. According to the Director of the Regional Centre of Timișoara, the personal interview in case of border procedure is the same as the personal interview in the regular procedure. The asylum seeker is asked about problems and reasons for fleeing. The case officers decide whether to go into details on the merits.
Access to legal representation by a lawyer or UNHCR during the interview in the border procedure is difficult given the 3-day time limit for issuing a decision. NGOs are only aware of the cases subjected to the border procedure if IGI-DAI informs them directly or through UNHCR.
Appeal
The asylum seeker has the possibility to challenge the decision issued by IGI-DAI within 7 days from the day the decision was communicated.[14]The competent court to decide on the appeal is the territorially competent Regional Court.[15] The provisions on submission of the appeal in the regular procedure apply accordingly.[16]
The court shall take a decision on the appeal within 5 days.[17] The decision has to be motivated and it is irrevocable. The court may decide: (a) to grant access to the territory and the regular procedure; or (b) to uphold the decision of IGI-DAI.[18]
If the court rejects the appeal, the General Inspectorate of the Romanian Border Police (IGPF) will take the necessary measures to remove the foreigner from the territory,[19] as the foreigner subject to the border procedure must leave Romania as soon as the asylum procedure has finished.[20] The border procedure is considered completed on the date when the decision of the court is delivered.
According to the legal counsellor of JRS, asylum seekers do not face problems lodging an appeal. Asylum seekers subject to the border procedure were assisted by the NGOs and UNHCR.
Legal assistance
According to the law, asylum seekers subject to border procedure have the same rights to free legal assistance as the asylum seekers subject to the Regular Procedure: Legal Assistance.
What is particularly problematic for asylum seekers in the border procedure is the swiftness of the procedure and access to legal counselling. As the deadline for delivering a decision is only 3 days, it is hard to get access to legal assistance; it depends on the willingness of IGI-DAI and the Border Police to inform the NGOs about these cases. Also, an examination of applications cannot be effectively conducted within such a short time limit.
[1] Article 82 Asylum Act.
[2] Article 83(3) Asylum Act.
[3] Article 83(1)(a), (b) and (c) Asylum Act.
[4] Article 87(1) Asylum Act.
[5] Article 87(5) Asylum Act.
[6] Article 87(2) Asylum Act.
[7] Article 87(3) Asylum Act.
[8] Article 87(4) Asylum Act.
[9] Article 87(7) Asylum Act.
[10] Information provided by IGI-DAI, 22 February 2023.
[11] Information provided by Border Police, 2 March 2022.
[12] Article 83(1) Asylum Act.
[13] Article 83(4) Asylum Act.
[14] Article 85(1) Asylum Act.
[15] Article 85(2) Asylum Act.
[16] Ibid.
[17] Article 86(1) Asylum Act.
[18] Ibid.
[19] Article 86(3) Asylum Act.
[20] Article 17(1)(a) Asylum Act.