Regular procedure

Author

JRS Romania

General (scope, time limits)

The law foresees a 30-day deadline to issue a decision, starting from the moment when the file is handed over to the case officer.[1]

The timeframe of 30 days provided in Article 52(1) of the Asylum Act shall be suspended during:

• the Dublin procedure for determining the Member State responsible for examining the asylum application;
• the First Country of Asylum procedure;
• the Safe Third Country procedure; or, where appropriate,
• the European safe third country procedure.
• When the reason for suspension no longer exists, the assessment period cannot be less than 20 days.[2]

The 30-day time limit shall be extended successively with further periods of no more than 30 days, and not exceeding 6 months from the lodging of the asylum application in total[3]: if the assessment of the case requires additional documentation, which makes it impossible to carry out the activities necessary to decide on the asylum application or could lead to the non-observance of the guarantees recognised by the law due to causes not imputable to the applicant.

However, if the maximum timeframe of 6 months is exceeded, the applicant should be informed of the delay and shall receive, upon request, information on the reasons of the delay and the time limit for the decision to be taken on their application.[4]

The term of 6 months may be extended successively for new cumulative periods, not exceeding 9 months, when:[5]

• The asylum procedure involves complex elements of fact and/or law;
• A large number of applications for international protection are lodged, making in practice very difficult to assess the claims within 6 months.

Exceptionally, in duly justified cases, a further extension may be applied for a maximum of 3 months.[6]

In practice, in 2022 in the Regional Centres for Procedures and Accommodation for Asylum Seekers at Rădăuţi, Galaţi, Timișoara, Şomcuta Mare (Maramureș) and Giurgiu the 30-day term was respected. In exceptional cases, the 30-day deadline to issue a decision was extended. According to data provided by IGI-DAI, in 2023, the 30-days deadline to process an application and issue the decision was respected. However, in exceptional cases, the term can be extended, thus resulting a 60-days period of time necessary to process the application and issue a decision[7]. This was still the case in 2023 at least in Galaţi.[8]

IGI-DAI reported that in 2022 the deadline to issue a decision was prolonged in 142 cases. No statistics were provided with regards to the reasons for prolongation or its duration.[9] In 2023 there were situations when the 30-day term had to be extended, as following:

• 14 cases at the Galaţi Regional Centre for Procedures and Accommodation for Asylum Seekers;
• 13 cases at the Rădăuţi centre; 16 cases at the Timișoara centre;
• 19 cases at the Giurgiu centre;
• 9 at the Bucharest centre;
• 21 cases at the Şomcuta Mare

According to IGI-DAI, in 2023, the reasons for the extension were: additional interviews, lack of rare language interpreter, analysis of the documentation submitted by the asylum seekers, the need for additional documentation on the evolution of the situation in the country of origin.[10]

This was the situation in 2022:

• In Galati it was reported that in three cases the deadline was extended for additional verifications in two cases and in one case because there was no interpreter for Somali.
• In Şomcuta Mare, the deadline was respected in 2022. There was only one case where the deadline was extended by 15-20 days due to an additional interview. The director of the centre said the asylum seeker was informed why the deadline for the decision had been extended when he had the second interview.
• In Bucharest, the deadline was prolonged in 76 cases for further information or additional interviews. The director of Vasile Stolnicu centre stated that the time period had been extended for 15-30 days and asylum seekers had been informed.
• In Timișoara, there were no cases where the average duration was extended, according to the director of the centre.
• In Giurgiu the term was extended by 30 days in nine cases due to the case officer’s holiday or when further information was needed, according to the director. The director mentioned that the respective asylum seekers had been informed about the term extension and reasons verbally when temporary documents were extended.
• In Rădăuţi, the deadline was extended in 17 cases. Asylum seekers were informed about the extension when the DTI had to be extended, according to the director of the centre. The reasons for the extension were also communicated.

According to IGI-DAI statistics, in 2022 the average duration was 30-60 days[11] in the regular procedure compared to 45 in 2021,[12] 30-60 days in 2020 and 50 days in 2018.[13] It was 10 days[14] in the case of an accelerated procedure compared to 3 days in 2020. It was 1 day[15] for the border procedure compared to 3 days reported for 2020.[16]

In practice, in 2023, according to IGI-DAI the average length of the asylum procedure from the moment of lodging the application until the first instance decision was taken was exactly the same in all centres, as evidenced by the following table:

Source: IGI-DAI, information provided to the AIDA expert directly, 16 February 2024.

This was the situation reported by centre directors in 2022:

• Rădăuţi: the duration of the procedure depended on the declarations made by the asylum seekers at the interview. The procedure could last 5 weeks according to the legal counsellor.
• Giurgiu: the director reported the transferred asylum seekers had a preliminary interview and personal interview scheduled the day after their arrival. This also depended on the availability of interpreters. For example, because there is only one interpret of Bengali language, IGI-DAI had to organise all the interviews with Bangladeshi nationals before the interpreter’s one-month holiday. This was also reported by the director in Rădăuţi where both interviews for Bangladeshi nationals who arrived from Timișoara on Saturday were conducted on a Sunday.
• Şomcuta Mare : the file was handed over to the case officer within seven to ten days from the day the asylum application was made.

According to CNRR in 2022 the average duration was 30 days in Bucharest, Galati, Timișoara and Giurgiu, 45 days in, between 7-30 days in Rădăuţi, and 3-7 days in some cases even 30 days in Şomcuta Mare.[17]

Prioritised examination and fast-track processing

According to the law, priority is given to asylum applications lodged by unaccompanied children.[18] IGI takes all the necessary measures for the appointment of a legal representative, who will assist the unaccompanied asylum-seeking child in all stages of the asylum procedure, as soon as possible.[19] In practice, IGI-DAI instructs the Directorate-General for Social Assistance and Child Protection in writing to appoint a legal representative for the unaccompanied child, who will assist them during the asylum procedure. The notification is sent the next day or in a maximum of 3 days after the application is registered and the unaccompanied child has been accommodated in one of the Regional Centres.

In case of vulnerable asylum seekers who are placed in specially designated closed spaces in the Regional Centres (see Detention of Asylum Seekers), the identity check and the assessment of their applications should be done with priority.[20] There have been no reported cases of this situation in practice. In 2023, according with IGI-DAI, there were situations when the examination of the asylum application and issuing the decision took less than 30 days, in special cases of vulnerable persons, but no further details were provided.[21]

According to CNRR, in 2023 most of the asylum applications from vulnerable persons were assessed with priority by the authorities. However, at the Regional Centre for Procedures and Accommodation for Asylum Seekers Timisoara, there were cases where applications submitted by unaccompanied minors were not assessed with priority.[22]

This was the situation in 2022:

Şomcuta Mare, the director of the centre mentioned that in general the procedure lasts 30 days for unaccompanied minors.

Rădăuţi: The length of the asylum procedure for an unaccompanied child is the same as the procedure for an adult. The assessment of their application depends on the availability of a legal representative and there is only one legal representative for all asylum-seeking children. The interview was scheduled according to the availability of the legal representative. It was reported that unaccompanied minors often left the centre: before and also after the interview, some even after they were granted a form of protection by the first instance court.

Galaţi: The length of the asylum procedure for an unaccompanied child is the same as the procedure for an adult. This was echoed by the director of the centre. The assessment of their application depended on the availability of a legal representative and interpreter. However, the director stated that the legal representative has two days per week allocated to unaccompanied minors (Tuesday and Thursday). He further mentioned that applications of asylum seekers who presented a risk of illegal migration were assessed as a priority. Applications made by vulnerable asylum seekers were assessed with greater caution. This information could not be confirmed for 2023.

Timișoara: Even though IGI-DAI takes all the necessary measures with priority – in a maximum of three days after the unaccompanied child has been accommodated in the centre – and the legal representative is assigned in two to three weeks, according to the director of the Regional Centre Timișoara, the asylum procedure of unaccompanied children may be delayed due to the bureaucratic procedures carried out by DGASPC. In 2022, the asylum claims of unaccompanied children were assessed in two months due to the lack of legal representatives. Asylum applications of single women and families were processed in 30 days.

Giurgiu: The director of Giurgiu stated that the assessment of applications made by unaccompanied minors lasts longer because it depends on the appointment of a legal representative. However, the procedure did not exceed 30 days.

Bucharest: According to the director of Stolnicu applications made by vulnerable persons and exceptional cases were assessed with priority.

The same was also reported by the director of Timișoara centre. Asylum applications made by asylum seekers from Pakistan, Bangladesh and India were assessed with priority, in an accelerated procedure. This practice was still in place in 2022, until the general inspector ordered all asylum seekers from Timișoara to be transferred to other centres.

CNRR stated that in 2022 asylum applications assessed in accelerated procedure and those made by vulnerable persons (with visible vulnerabilities) were analysed with priority. In the case of the latter, the priority consisted in shortening the procedure by conducting the interview swiftly.[23]

In 2021, IGI-DAI reported that 1,551 asylum applications were prioritised.[24] For 2022, IGI-DAI invoked the legal provision, but did state the number of prioritised applications.[25]

Personal interview

According to the law, an interview is conducted in order to assess the elements of an application for international protection.[26] Although the general rule is that an interview should be held in order to correctly assess the asylum claim, there are two situations where the interview is not mandatory:[27]

• When IGI-DAI may take a decision to grant refugee status on the basis of evidence in the file;
• When there are serious doubts about the capacity of the adult asylum seeker.

All personal interviews, assessments of the reasons invoked by the asylum seeker and decisions are conducted by a designated case officer of IGI-DAI.[28]

In 2022, 3,696 interviews were conducted, of which 329 were through videoconference. IGI-DAI reported that they had no statistics on the number of asylum applications assessed without an interview.[29]

For the year 2023, the situation is as follows according to the data provided by IGI-DAI: all interviews were conducted individually. In the case of children, the parent or legal representative was present at the interview. IGI-DAI uses indicators and guidelines that facilitate the identification of vulnerable persons among asylum seekers, but no details on these indicators and guidelines were provided. In 2023, a total of 260 interviews were conducted via videoconference, as follows:

Source: Information provided by IGI-DAI, 16 January 2024.

In October 2023, the EUAA started support activities to first instance processing in Romania. EUAA caseworkers carried out interviews concerning 191 applicants, of which 97% related to the top 10 citizenships of applicants interviewed by EUAA, mainly concerning nationals from Nepal (62), Pakistan (37), Bangladesh (23) and Syria (23).[30]

The EUAA drafted 285 concluding remarks, of which 95% related to the top 10 citizenships of applicants in concluding remarks drafted by the EUAA, mainly concerning applicants from Nepal (73), Pakistan (43) and Syria (41).[31]

Interpretation

Article 45(2) of the Asylum Act sets out the rules regarding the right to have an interpreter during the personal interview. At the request of the applicant and when deemed necessary for presenting all the reasons for the asylum application, the interview shall be carried out by the case officer, with the support of an interpreter, in the language indicated by the applicant or in a language they understand and can communicate clearly. As far as possible, if the applicant requests it, both the case officer and the interpreter will be of the same gender as the interviewee.[32]

Availability of interpreters and double interpretation

In 2022, in the Regional Centres of Timișoara and Rădăuţi, Giurgiu it has been reported that there are not enough interpreters available for the main nationalities of asylum seekers:

Galaţi: according to the director there was a lack of interpreters. Interpreters of rare languages such as Somali, Tigrigna and other languages from Ethiopia and Eritrea are hard to find, or even non-existent in the country as a whole. There is only one Somali interpreter in Bucharest. Double interpretation (from one language to another and then into Romanian) was not used in 2022. In 2023, there was double interpretation for those who speak Arabic, with one translator from Arabic to English and another from English to Romanian.[33]

Rădăuţi: IGI-DAI frequently uses the same three interpreters – one for Arabic, one for Farsi / Dari / Urdu and Kurdish. In 2021 IGI-DAI also contracted a female Arabic interpreter. The Farsi interpreter is also used in Galaţi by IGI-DAI and the courts. Double interpretation was used in one to two cases, according to the director of the centre. He also reported that they had interpreters of Tigrigna, Arabic, Turkish, Russian and Ukrainian. However, as reported in Galati, there was a lack of interpreters of rare languages.

Timișoara: The director of the Regional Centre Timișoara mentioned that they have interpreters for all languages, except for Somali language, and when they have no interpreter they conduct the interview through videoconference. However, this was not the case in 2022, as there were no Somali asylum seekers. No new interpreters were recruited in 2022. Double interpretation was not used in 2022.

Giurgiu: The director mentioned that there were 15 contracts signed with interpreters of Arabic, Hindi, Urdu, Pashto, Persian, Turkish, Dhari, Russian, Farsi, Tajik, and Ukrainian. There is still a lack of interpreters at national level, especially for Tamil and Sinhala as for Somali there is only one interpreter in Bucharest. According to the director double interpretation was used in 2022 for asylum seekers from Sri Lanka from Tamil/Sinhala to English and English to Romanian.

Bucharest: According to the director of Stolnicu there are interpreters for Arabic, English, Pashto, Dari, Punjabi, Hindi, Urdu, Farsi, Turkish, Spanish, French, Somali, Kurdish, Sorani, Kurmanji, Persian, Russian, Ukrainian, Sinhala, Tigrinya, Tamil, Amharic, Oromo. Double interpretation was used in 2022 for Sinhala – English – Romanian and Amharic – English – Romanian, according to the director of the centre.

Şomcuta Mare: The Regional Centre collaborates with the same interpreters as last year, in the following languages: Farsi, Dari, Arabic, English and French and they also have Somali, Bengali interpreters. Double interpretation was not used during 2022.

Stakeholders interviewed also reported that there is a limited number of female interpreters in the asylum procedure as of 2022. For example, in the Regional Centre of Galaţi, there is a female interpreter for Arabic, English, French, Russian and Ukrainian and Turkish. In Giurgiu, there are female interpreters for Arabic, French, English and Russian, according to the director of the centre. However, the JRS representative stated that there wereno female interpreters. In Rădăuţi there are female interpreters for English/French, Russian and Arabic. In Şomcuta Mare there is a female Bengali, English and French interpreter and in Timișoara there are female interpreters for Arabic (2-3), French, English, Russian. In Bucharest there are 2-3 female interpreters for Arabic and one for English, Tigrinya, French and Russian.

In 2022 the number of female case officers increased in all centres. In Şomcuta Mare, during 2022 there were four case officers, two men and two women; at the end of 2022 one of the female officers was moved to another centre. In Rădăuţi, in 2022, a woman case officer was hired, so there are three male case officers and a woman. In Timișoara there are six case officers of whom 3 are female case officers. In Bucharest, there are six female case officers out of nine, according to the director of Stolnicu centre. In Giurgiu there are four case officers of whom one is a woman and in Galaţi there are two female case officers and four men. However, one woman case officer is on maternal leave. As of 2024, there was only one female decision maker in Galaţi, and two men, so three in total.[34]

All the stakeholders interviewed stated that asylum seekers may request an interpreter or case officer to be of a specific gender, but in practice this is not possible in most of the cases, due to the lack of interpreters and lack of female case officers in some of the centres.

For 2023, the situation was as follows, according to data provided by IGI-DAI:[35]

Translators receive RON 39.91 / hour (approx. EUR 8.14) for interpreting services foreign languages – Romanian and RON 44.82 / page (approx. EUR 9.14) for translation of documents, according to the legal provisions stipulated in Order no.2907/C/2340/2020.[36] These amounts can be increased according to art. 7 of the Law no. 178/1997 for the authorisation and payment of interpreters and translators,[37] as follows:

• by 50% for translations from or into an oriental language (Japanese, Chinese, etc.) or rarely used language;
• by 50% for translations carried out on an urgent basis (24-48 hours);
• by 100% when interpreters and translators are required in the weekend, public holidays or between 10 PM and 6 AM.

In 2023 there were situations in which double interpretation had to be ensured[38]:

• Galaţi centre: 70 cases. No information was provided on the languages used.
• Rădăuţi centre: 11 cases. An Amhara/ Tigrinya interpreter was used to translate into English and then a translation from English into Romanian was ensured.
• Timișoara centre: 42 cases. No information was provided on the languages used.
• Giurgiu centre: 0 cases;
• Bucharest centre: 0 cases;
• Şomcuta Mare – Maramureș: 196 cases, with translations from Nepali into English and then from English into Romanian (76 cases), and translations from Bengali into English and then from English into Romanian (120 cases).

Quality and conduct

Several problems regarding the quality of the interpretation and conduct of interpreters have been reported. Interpreters are not sufficiently trained and, therefore, they are not impartial.
Related problems were also pointed out:

• Some interpreters still have private conversations with the asylum seeker and do not translate the conversation, or they express emotions, however not at the same scale as in previous years;
• Asylum seekers complained that an interpreter selected the documents that the asylum seeker should present at IGI-DAI, and translated only a summary of what is written on the page and not the whole interview (question and answer).
• Asylum seekers complained that the transcript was not read at the end of the interview in most of the centres.

In 2023, there was also an issue related to the role of interpreters in the interview at Galaţi, which affected how interpretation was done and had a clear impact on the quality of the asylum process. In one of those cases, an appeal is pending.[39]

According to CNRR,[40] in 2023 as in previous years, there were cases in which asylum seekers expressed concern regarding interpretation during their interview to determine a form of protection. During CNRR legal counselling sessions with applicants, some of them claimed that the interpreters did not exactly translate their answers, gave another meaning to statements in the interview, or had a biased attitude towards them. According to the procedure, the interview note must be read at the end, however applicants often declare that this step didn’t happen, nor were they given the opportunity to express their will for this to occur. Moreover, there are cases where asylum seekers’ interview (in the administrative phase) or hearing (in the judicial phase) are postponed due to the lack of interpreters, mostly in cases of very rare languages or dialects. Besides that, there are also financial reasons for the lack of interpreters. Some of the interpreters are complaining about the small fees or payment delays and in some cases, they claimed they didn’t receive the money at all.

In 2022, the situation was the following:

In Timișoara, in 2022 no issues were reported with regards to the quality and conduct of interpreters.

Rădăuţi: asylum seekers complained that their declarations were not relayed exactly or coherently, after they received a negative decision. Many asylum seekers declared that the interpreter made a summary of the transcript – not only in Rădăuţi centre, but also in the other centres.

Giurgiu: the CNRR representative reported that asylum seekers have complained after a negative decision. One asylum seeker complained after the interview that he would like to conduct it again as the interpreter was of another religion and did not understand his problems. He was advised to request this with the IGI-DAI, however, the CNRR representative had no information on the outcome of this case.

Galati: Asylum seekers did not complain about the interviews conducted, quality of the interview or conduct of interpreters. According to the director they only complained when they were rejected. The director stated that interviews should be recorded in order to avoid these claims.

The directors of the Regional Centres of Timișoara, Bucharest, Şomcuta Mare, Rădăuţi and Giurgiu said there were no issues reported with the quality and conduct of interpreters.

In relation to problems with the quality of interpretation and conduct of interpreters, CNRR stated that 2022 was like 2021 and there were cases in which asylum seekers expressed concern about the interpretation. They claimed that the interpreters did not translate their answers exactly or gave a different meaning to the statements in the interview.[41]

It was noted that only CNRR and ICAR Foundation had the funds for the services provided by interpreters.

All the stakeholders interviewed by the author declared that they have never heard about a Code of Conduct for interpreters in the asylum procedure, except one legal counsellor who stated that when JRS signs a contract with an interpreter they also have to sign a Code of Conduct.

According to the director of Vasile Stolnicu there is no Code of Conduct for interpreters. After signing a contract with IGI-DAI a meeting is organised with the interpreters where they are explained the rules of collaboration with the institution and how to behave.

In 2023, CNRR[42] made specific efforts to ensure that interpreters received training. In February 2023, CNRR organised a specific training session for the interpreters with which it collaborates in order to respond to the imperative needs of improving language assistance in the asylum procedure. Information materials were also made available on the methods and techniques for interviewing persons undergoing the asylum procedure, the glossary of terminology related to the field and the UNHCR recommendations on communication and interpretation techniques in cases of vulnerable persons, with particular reference to unaccompanied minors.

Recording and report

The law does not prescribe audio/video recording of the personal interview. Personal interviews and preliminary interviews are not audio/video recorded.

Court sessions are recorded according to the Civil Procedure Code.[43] The rules concerning the recording of court hearings are set out in Article 13 of Act 304/2004 on Judicial Organisation, which provides that:

• The court hearings are recorded by video or audio technical means or recorded by stenography. Recordings are immediately transcribed;
• The clerk or the stenographer shall record all the affirmations, questions and submissions of those present, including the president of the court panel;
• Upon request, the parties may receive a copy of the transcript of the Registrars, minutes or notes of the Registrar.

In 2022, 329 interviews were conducted through videoconferencing in total in all the regional centres.[44] In 2023, 260 interviews were conducted through videoconferencing in total in all the regional centres.[45]

In the 2022, the detailed situation was the following:

• Timișoara: all interviews with asylum seekers who made an application in detention were conducted through videoconference, according to the director of Timișoara centre.
• Galaţi: IGI-DAI conducted interviews through videoconferencing with interpreters from other regional centres, in cases of asylum seekers who spoke Somali and Bengali.
• Rădăuţi: In 2022 interviews were conducted through videoconferencing for Somali and Bangladeshi asylum seekers. No complaints were made by asylum seekers with regards to interviews conducted in this manner, apart from interpreters making a summary of the transcript instead of interpreting it word for word.
• Giurgiu: Videoconferencing was also used to conduct interviews with interpreters from Bucharest for asylum seekers from Sri Lanka, Iraq and Pakistan.
• Bucharest: the director of Stolnicu centre mentioned that videoconference was of all asylum application made from detention centres.

Transcript

The case officer conducting the interview transcribes the questions and the answers/statements verbatim. The transcript includes at least the following data: identification data of the applicant, the name of the case officer who performs the interview, the name of the interpreter and, as the case may be, of the legal representative, the counsellor and/or the lawyer assisting the applicant, the language of the interview, the reasons for the request for international protection, as well as the applicant’s statement that all the data and information presented at the interview are correct. Where appropriate, the interview note shall also include the applicant’s explanations of the failure to present elements to be considered when examining the asylum application and/or clarification of inconsistencies or contradictions in their statements.[46]

At the end of the interview, the transcript of the interview is orally translated by the interpreter to the applicant.[47] The applicant has the possibility to formulate observations and/or to offer clarifications relating to any errors of translation or misunderstanding, which will be recorded in the interview transcript.[48] After this, the transcript is signed on every page by all the persons present at the interview.[49] A copy of the transcript is given to the asylum seeker or legal representative, their lawyer or counsellor, as the case may be, which assisted them at the interview, after the document was signed.[50] If the applicant refuses to sign the transcript, the reasons for their refusal will be mentioned on the transcript. The applicant’s refusal to sign the transcript does not prevent IGI-DAI from taking a decision on the asylum application.[51]

In 2022, the situation was as follows:

In Timișoara, Asylum seekers from India and Bangladesh were notified of the date of the interview when the asylum claim was made, according to the director of the centre. In case of asylum claims made in detention the interview was scheduled the next day through videoconference.

In Galati, the director of the centre reported that asylum seekers are informed in writing of the date of interview when they are accommodated in the centre.

In Bucharest According to the director of Vasile Stolnicu centre asylum seekers receive the date of their preliminary interview in writing in their language and at the preliminary interview they receive the schedule of the personal interview.

In Giurgiu, the director of the centre said that asylum seekers are informed verbally at the preliminary interview that they will have the personal interview later that day or the next day. Asylum seekers accommodated outside the centre receive this information in writing. The director also mentioned that in general nine interviews were conducted per day.

According to CNRR, although in the vast majority of cases, the transcript is read at the end of the interview, there were also situations when the asylum seekers declared that this did not happen. Such problems were reported in all six centres.[52]

According to the directors of Timișoara, Giurgiu, Rădăuţi and Vasile Stolnicu centres the transcript is read in full. If necessary, the case officer may conduct another interview with the asylum seeker.[53]

Appeal

The decision taken (admission or rejection) by IGI-DAI is communicated, immediately, to the asylum seeker in writing, through direct communication by the representatives of the IGI-DAI if the asylum seeker lives in the Centre, or by post at the last declared residence of the applicant.[54] The decision may be communicated to the lawyer or NGO representative representing the asylum seeker, if the asylum seeker has expressly requested this.[55]

The decision is accompanied by written information, in Romanian and in a language that the applicant understands or is reasonably supposed to understand, related to the admission or rejection of the asylum application and the conditions under which the decision may be appealed, as the case may be.[56] In practice, the justification of the decision is written in Romanian and is translated by NGO representatives.

The decision taken by IGI-DAI may be challenged in a two-instance judicial review procedure.

According to CNRR,[57] asylum seekers face many challenges in the appeal process: bureaucracy, short deadlines, inaccessible information. This makes them heavily reliant on the guidance provided by NGOs in this phase. There are many situations where asylum seekers don’t receive the court’s notification (due to their own fault or not) and they miss the hearing. An asylum seeker’s absence from the hearing is most of the time interpreted by the court as a lack of responsibility, and it may influence the decision to some extent. Accessing the file in court is also very difficult for asylum seekers due to the language barrier. Moreover, they don’t benefit from legal representation in court, due to the lack of financial means to hire a lawyer or because they are not aware of their right to ask for a legal aid lawyer or the court rejects their legal aid request.

Joint international protection rejection and return decision

Since May 2023, a return decision is issued together with the negative administrative decision in the asylum procedure. If the person wants to file a complaint against the rejection decision, they must also request the suspension of the return decision.

The European Commission, given Romania’s relatively low number of asylum applications in 2022 and the fact that many of those received could be handled under an accelerated procedure, considered Romania a good country to test “innovate practices”, as a direct follow-up to the EU Action Plan on the Western Balkans. One of the measures foreseen [58] was promoting legislative amendments for “the issuance of a return decision at the same time as the negative decision on international protection, and for aligning and streamlining the respective appeals procedures”. Romania adopted modified legislation foreseeing the issuance of return decisions together with negative decisions on international protection in May 2023. The European Commission says “has contributed to a more efficient return process” and “contributes to limiting absconding and secondary movement”. 1,162 joint decisions were issued between 18 May 2023 and 30 September 2023.

However, civil society views on the matter differ from that of the European Commission. CNRR noted[59] that the issuance of the asylum administrative negative decision together with the return decision bring about concerns re. respect of fundamental rights given that it entails  different court competencies with two judicial proceedings simultaneously conducted, different deadlines (in contrast with the Commission Recommendation (EU) 2023/682 of 16 March 2023 which rather foresees appeals lodged at the same time before the same court or tribunal or at minimum the same timeframe for both appeals), the non-suspension of the return procedure de facto launched at the time of initial rejection, and all of this especially given that in most cases asylum seekers are not assisted by a lawyer.

Indeed, as mentioned before, in order to enhance the return procedure, on 18 May 2023 the Government passed a new law[60] that amends the Law no. 122/2006 regarding asylum in Romania. However, according to CNRR,[61]  the law created the opposite effect added significant burdens for asylum seekers. Based on this change, asylum seekers are issued a return decision when their request for international protection is rejected in the administrative phase. Under the Emergency Ordinance of the Government (OUG) no. 194/2002 on the regime of foreigners in Romania, the return decision can be appealed within a period of 10 days (return decision with a time limit for voluntary leave) or 3 days (return decision under escort). Although the effects of the return decision are suspended until a final decision on the asylum request is issued, the procedure to complain against it is not suspended. OUG 194/2002 establishes different timeframes to appeal the return decision depending on the type of return decision (10 days for return decisions with a timeframe for voluntary return, i.e. the same deadline for appeal as for the international protection decision, but only 3 days in case of return decisions for return under escort; however, it is unclear whether the latter are ever issued as outcomes of asylum procedures), and establishes the Court of Appeal as the competent court, unlike complaints against decisions rejecting asylum requests, which fall within the jurisdiction of Courts of First Instance and are submitted within different time frames depending on the asylum procedure (ordinary or accelerated).

Therefore, in practice, rejected asylum seekers have to engage in two judicial proceedings simultaneously, before two different courts, sometimes in two different cities, with different hearing times and different timeframes for lodging appeals. Taking into account the legal complexity of the two proceedings, which can be difficult for any person lacking legal training, alongside socio-cultural differences, culture shock, language barrier, and the fact that in most cases asylum seekers are not assisted by a lawyer, this situation represents a great challenge for them. CNRR considers that all the barriers mentioned above restrict asylum seekers’ access to justice and question the effectiveness of the remedies available to them. The fact that domestic legislation provides for the possibility of appealing a return decision is not sufficient to guarantee this right. One of the conditions of an effective remedy is accessibility, which means that the individual is able to exercise their right in a simple and prompt way, without rendering their personal situation more difficult. Regarding this situation, the Commission Recommendation (EU) 2023/682 of 16 March 2023 on mutual recognition of return decisions and expediting returns when implementing Directive 2008/115/EC of the European Parliament and of the Council (hereinafter “Commission Recommendation”)[62] expressly mentions that when the return decision is issued in the administrative phase of the asylum procedure, Member States should provide asylum seekers with the possibility of submitting appeals against the two administrative acts (the return decision and the decision rejecting the asylum request) at the same time before the same court or tribunal or within the same timeframe.

Moreover, this situation leads to overburdening the Courts of Appeal, the competent court to rule on the complaints against the return decision. In practice, so far, CNRR has observed that some courts prefer to suspend the proceedings on the complaints against return decisions until the end of the judicial phase of the asylum procedure (pursuant to article 413 of the Code of Civil Procedure),[63] which leads instead to a longer return procedure than before the amendments. At the same time, there are national Courts that reject the complaints against the return decision before the final decision on the asylum request. In these cases, if the asylum request were to be admitted by the court, there is this paradoxical situation in which the person will have a form of protection but also a final return decision.

For all these reasons, CNRR considers that the legislative change leads to the opposite effect to the one intended, as the proceedings on the complaints are actually delayed. Moreover, it makes the asylum procedure even more difficult to navigate for the asylum seekers by creating a very confusing system and it overburdens courts with potentially void cases (when the person receives a form of protection). Taking into consideration the Commission recommendation and the new Asylum Procedures Regulation,[64] CNRR considers that the two judicial procedures need to have an interconnected deadline for appeal and the same responsible court to judge the appeals. Furthermore, appeal cases on return decisions are subject to a stamp fee and are not confidential, contrary to cases on the asylum request. Taking into consideration the presumptive vulnerable situation of asylum seekers and that return decisions can also touch upon the personal situation of the asylum seekers, CNRR recommends that the cases against return decisions be exempted from the stamp fee and obey the confidentiality principle.

Appeal before the Regional Court

The Regional Court (Judecătoria Secţia Civilă) has jurisdiction in asylum cases, as the first-instance judicial review. The Regional Court is made up of a single judge. The judges are not specialised in asylum law. At most they will have participated in national level conferences organised by NGOs or UNHCR.

The appeals, as well as the other procedural acts regarding the resolution of the appeal, are exempt from legal taxes and legal expenses cannot be demanded.[65]

In 2022, a total of 678 appeals against IGI-DAI decisions were filed before the Regional Courts.[66] According to the information provided by the Regional Courts the number of appeals in 2022 was 544. This was a significant decrease in comparison with last year, when a total of 1,489 appeals were made.

In 2023, a total of 674 appeals against IGI-DAI decisions were filed before the Regional Courts.

Source: Information provided directly to the AIDA experts by the different regional courts: Court of Bucharest (district 4), 12 January 2024; Court Galaţi, 3 January 2024; Court Giurgiu, 28 December 2023; Court Baia Mare, 8 January 2024; Court Timișoara, 5 February 2024; Court Rădăuţi, 4 January 2024.

• Courts Baia Mare, Galaţi, Giurgiu and Timișoara keep record of the total number of appeals (respectively 69, 89, 71, 66), but do not have disaggregated data (number of appeals in regular procedure, number of appeals in accelerated procedure, etc.).
• Court Rădăuţi keeps disaggregated data concerning the total number of appeals (55), which consisted of 26 appeals under the regular procedure and 29 appeals under the accelerated procedure.
• Court Bucharest Bucharest (district 4) keeps disaggregated data concerning the total number of appeals (324), which consisted of 264 appeals under the regular procedure and 60 appeals under the accelerated procedure.

Time limits

The deadline for lodging an appeal is 10 days from the day the decision was communicated.[67] The appeal has automatic suspensive effect, if it was lodged within the term prescribed by law.[68] Since May 2023, a return decision is issued together with the negative administrative decision in the asylum procedure. If the person wants to file a complaint against the rejection decision, they must also request the suspension of the return decision (see above, Appeal).

The law contains a procedural safeguard in case of appeals lodged after the time limit set out in the law.[69] Therefore, in case of filing the appeal or onward appeal after the deadline, the applicant may request the suspension of the execution of the return decision. The request for suspension shall be settled within 7 days from its registration, by the competent court, which shall pronounce the decision in the council chamber, without the parties being summoned, by an irrevocable decision.[70] While the review is pending, the applicant cannot be removed from the country.[71]

If the court admits the request to suspend the execution of the removal decision, the foreigner has the right to remain in the country pending the outcome of the request for reinstatement of the legal term to appeal.[72] The foreigner will benefit from all the rights provided by Articles 17 and 18 of the Asylum Act from the moment the court admits the request for reinstatement of the legal term to appeal.[73]

The appeal has to be motivated in fact and in law.[74] It may be lodged at IGI-DAI, which has issued the decision or directly to the competent court.[75] The appeal has to be accompanied by a copy of the IGI-DAI decision and other documents or elements on which the appeal is based.[76] The court carries out an assessment of both points of facts and law. The decision of the first instance court incorporates the reasons in fact and law on which it is based.[77]

In general, there are no problems in appealing a decision, if asylum seekers consult the legal counsellor of an NGO.[78] In Bucharest, when communicating the decision, IGI-DAI also provides the asylum seeker with the postal address of the Romanian National Council for Refugees (CNRR) in English. Asylum seekers are told by the representative of IGI-DAI who communicates the decision, that they have to go to CNRR for legal counselling and assistance for lodging an appeal. This practice has been in place since 2017.

In 2022, it was reported by the director of the centre, that in Timișoara, 95% of the appeals are lodged at IGI and the rest directly at the court. For the year 2023 IGI-DAI did not provide information on the percentage of appeals lodged at IGI and the one directly at courts.

Article 62 of the Asylum Act provides that asylum cases should be dealt with priority before other civil matters.[79] The court should take a decision on the appeal within 30 days.[80] The court has to motivate its decision within 5 days of it being pronounced.[81]

In 2020, IGI-DAI statistics refer to 1 to 2 months average duration of the appeal procedure.[82] For 2021, IGI-DAI reported that there are no statistics on the duration of the procedure.[83] The same was stated for 2022.[84] In 2023, IGI-DAI statistics indicate that on average, appeal procedures lasted 60 days.

Source: IGI-DAI, 18 January 2024.

On the other hand, CNRR[85] points out that the average time duration of the case before the court (from the registration of the complaint until the end of the appeal) is in their experience between 6 months and 1 year.

The situation was the following in 2022:

Şomcuta Mare: The Regional Court Baia Mare reported that the decisions were reasoned within one to ten days.[86]

Galaţi: According to the director the procedure in first instance court lasts two to three months. In general, the appeal procedure has two court hearings at two weeks or one month apart.

Rădăuţi: the legal counsellor noted that the appeal procedure has a maximum of two court hearings, if there is an interpreter the procedure is finalised at the first court hearing. Asylum seekers receive subpoenas within one week and one month after the appeal was lodged. According to the director the average duration of the appeal procedure is 30 days.

Timișoara: According to the director of Timișoara centre, the average duration of the appeal procedure in case of a regular procedure was 60 days and in case of accelerated procedure 30-45 days. Judges generally grant short terms of up to 2 weeks. Postponements are often due to the absence of interpreters. On average there are about 2-3 court hearings for a case.

As in 2020 and 2021 in 2022 in Timișoara the majority of cases examined by the court were examined in accelerated procedures.

Bucharest: the average duration of the appeal procedure is around 3-4 months, according to the director of Stolnicu centre. An attorney reported that in 2021 the duration of the appeal proceedings lasted around 3 months. The reasoned decision was issued in 2-3 months, according to the lawyer. The director of Stolnicu centre stated that there were a few delays in reasoning the decision of the first court (1-2 months for communicating the reasoned decision); they also requested the court ensured the communication of the motivated decision was carried out in a timely fashion.

Regional Court District 4 reported that in case of appeals in accelerated procedures the average duration was 83.65 days, in case of subsequent applications 98.71 days.[87]

Giurgiu: according to the director of the centre the appeal procedure lasts around 45 days. The CNRR representative stated that the appeal procedure may be longer because interpreters refuse to go to hearings, because they are only paid at the end of the trial. Some interpreters were paid two years later. There have been cases when there were four to five hearings due to the absence of an interpreter. The Regional Court Giurgiu failed to provide the average duration of the procedure.[88]

CNRR reported the same average duration of the appeal in 2022 as in 2021, as follows: in Timișoara was 60-90 days for the ordinary procedure and 15-20 days for accelerated procedures; in Şomcuta Mare it was 30 days for the ordinary procedure; it was 60 days in Galati; and 30 days in Rădăuţi, District 4 Bucharest and Giurgiu.[89]

Hearing

The law establishes that the court may order the hearing of the asylum seeker when it considers that it is useful to settle the case.[90]

According to the data provided by the courts, in 2023, the number of asylum cases in which hearings took place was the following:

• Court Baia Mare: 54 cases;[91]
• Court Galaţi: 53 cases[92]
• Court Giurgiu: 26 cases[93]
• Court Rădăuţi did not indicate an exact number; it only stated that the practice of this court is to have hearings of the asylum seekers in each case, if they are present in the courtroom and have not illegally left the IGI-DAI reception and accommodation centre or the residence chosen on the territory of Romania.[94]
• Court Bucharest district 4 indicated that it does not keep record of the number of cases with hearings of asylum seekers.[95]
• Court Timișoara: 27 cases.[96]

Regarding the hearings, the courts did not provide any further information for 2023.

The situation was the following in 2022:

The Regional Court in Galaţi hears the asylum seeker ex officio depending on the case or if the lawyer requests it. In some cases, the judge asks the applicant if they have something to add; in others the judge may ask questions. This remained the same in 2023.[97]

In the Regional Court of Baia Mare, according to the director, the court decides whether to hear the asylum seeker.

In Giurgiu it was reported that attorneys request the hearing but judges do not always grant the request. As regards the actual hearing of the applicant, some of the judges ask the applicants if they have anything else to add, others allow the applicants to recount their stories again in a few minutes.

In the Regional Court of Timișoara, the hearing of the asylum seeker is requested by the lawyer. A lawyer reported that there is a judge who always hears the asylum seekers ex officio. A lawyer interviewed by the author always requests a hearing for her clients.

In Rădăuţi, asylum seekers are heard if this is specially requested in the appeal. There is no ex officio hearing. Some of the hearings consist in asking the asylum seeker if he has something to add, while in other cases all the parties ask questions and, only in few cases, asylum seekers have the opportunity to give full statements.

In the Regional Court of Bucharest District 4, the practice witnessed in 2017 of the asylum seekers not been heard in most of the cases, changed in 2018 when some of the judges started hearing the asylum seekers ex officio. However, the hearing consists in asking the asylum seeker if he has something else to add or to clarify contradictory aspects. A lawyer reported that in 2018 some of the judges started to exercise an active role, asking questions to the asylum seeker. This was still the case in 2020. In 2021, according to a lawyer there was one judge who was only prepared to hear the appellant if he/she has something new to add, the other judges ask them questions or let them speak freely.

According to a lawyer, the hearing of the asylum seekers depends on the willingness of the judge to clarify some aspects of the interview or the appeal; some of the judges have additional questions and some of them only ask the applicant if they have something else to declare.

According to a lawyer, as a general rule the court conducts a hearing with the asylum seeker, albeit a very brief one. The hearing of the asylum seeker is usually requested by attorneys with expertise in the asylum field and not by attorneys paid from the legal aid scheme, assisting and representing asylum seekers for the first time and with limited knowledge in asylum law.

Hearings in asylum cases are not public.[98] This is respected in practice in all the courts.

Decision

The Regional Courts took 347 decisions in 2022, according to IGI-DAI.[99]

According to data provided by the Regional Courts, apart from the Giurgiu Regional Court, a total number of 467 decisions were issued in 2022, by five of the Regional Courts.

In 2023, the situation was the following:

Source: Information provided directly to the AIDA experts by the different regional courts: Court of Bucharest (district 4), 12 January 2024; Court Galaţi, 3 January 2024; Court Giurgiu, 28 December 2023; Court Baia Mare, 8 January 2024; Court Timișoara, 5 February 2024; Court Rădăuţi, 4 January 2024.

At the national level, there is a court portal available online,[100] and as of 2022 asylum cases registered at the Regional Court of Giurgiu are no longer published on it.

The practice shows that with no support from NGOs or attorneys, it is impossible for asylum seekers to find out the decision of the appeal courts. In certain instances, even for the NGO representatives and attorneys it is a hurdle. This has a direct effect on their access to onward appeal.

The practice regarding the publication of the decisions of the Regional Court varies. Until 2020, the appeals reviewed by the Regional Court of Rădăuţi and the Administrative Country Court of Suceava were all published on the national portal. In 2020 no information was published on the portal. Thus, in order to learn the decision of the court, the legal counsellor has to go or call the Court’s Registry. This was still the case in 2022. The legal counsellor requested to access the electronic file, but these requests were rejected.

The practice has also changed at the Regional Court and the Administrative Country Court of Giurgiu, where all the appeals were previously published and included full names, file number and a summary of the decision. As of 2022 no information has been published on the portal. The legal counsellor reported that asylum seekers had no access to the electronic files. Requests were made by the legal counsellor but they were rejected. Asylum seekers are not aware of the first instance court decision, unless the legal counsellor calls the court’s registry or if they are aware of the court hearing and inform the asylum seeker to tell their lawyer paid through state legal aid to convey the decision over the phone. Decisions are communicated very late to asylum seekers. Decisions are drafted between two to five months later. It was also reported that subpoenas are communicated very late.

In addition, as of 2022 decisions of the Regional Courts of Rădăuţi and Giurgiu are no longer published on a website funded by the Supreme Council of Judges and the National Union of Public Notaries of Romania. Some of the names of the applicants are anonymised while others are not.[101]

The Regional Court Baia Mare reported in 2022 that the court ordered ex officio the appointment of a lawyer for all asylum seekers. The decision is communicated at the indicated residence. At the same time the court reported 18 cases where the onward appeal was not lodged. According to the director of the centre all asylum seekers are appointed a lawyer paid through state legal aid and they inform them about the decision of the court. The decisions of the first instance court are drafted within one to ten days.[102]

In Timișoara, though the court communicates the password, the case files of asylum seekers were not recorded on the Court of Appeal portal until 2021. As of 2021 the system works, all the documents in the file are uploaded to the e-file, where the decision of the court is also published. The communication of different procedural acts is also carried out through this electronic file; a notification is sent to the lawyer’s email. As for the appellants, they have to submit a request in order to have access to the e-file. The director of Timișoara centre stated that they receive the decision via email or fax from the court and that asylum seekers learn about the decision from NGOs or their lawyers. He was not aware how or if the legal counsellor from CNRR learnt about the decisions. He also stated that the decision of the Regional Court is communicated in 30 days. This was echoed also by the court, which stated that decisions are reasoned in 30 days.[103]

The decisions of the Regional Court and Administrative Country Court of Galaţi are not, as of 2023, published on the national portal. In order to obtain the decisions or to receive other documents from the case file, the interested parties may file a request at the court’s registry and the documents are sent to them via email. The asylum seeker is informed about the decision of the court by the NGO representatives, who are in contact with the legal department of IGI-DAI or who may call the Registry of the Court. Asylum seekers receive a summons with the time of the court hearing. They are also informed that they can access the electronic file. They must inform the court through a standard template that they want to access the e-file. Generally, asylum seekers do not use this system, because it is in Romanian and complicated. For example, the deadlines run from the date the documents are accessed on the system and an asylum seeker accessed a document without realising, the deadline for onward appeal could pass. The decision is reasoned in 3.58 days, according to the court. The director stated that if the asylum seeker is present in the centre the legal counsellor of IGI-DAI informs the CNRR legal counsellor who informs the asylum seeker of the court’s decision.

The decisions of the Regional Court of Bucharest District 4 are as of 2022 neither published on any portal nor written in the registers. The decisions may only be accessed through the court’s archive. According to an attorney, if the asylum seeker is assisted by a paid lawyer, the respective lawyer informs the asylum seeker about the decision of the regional court; the lawyers paid by state legal aid do not keep in touch with them. If the asylum seeker is accommodated in Stolnicu centre he may receive information from NGOs about how to find out about his decision. In order to find out the decision of the court, the attorney has to call the court archive phone line which is always busy. It was noted by a lawyer, that asylum seekers also receive guidance from the community or cultural mediators who work in the centre. However, it was emphasised that they are only aware of the decision in their case if they are being assisted by an NGO.

The Regional Court of Bucharest District 4 mentioned that when the asylum seeker is in public custody, in Otopeni, or accommodated at the Bucharest Regional Centre, the decision is communicated by the court’s clerk to the representatives of the centre by fax/mail/telephone. And when the applicant is not in one of the previously described situations, the decision is made available to him/her through the court registry. As regards the average duration of drafting the reasoned decision the court shared the following information: 113.3 days – for complaints in regular procedure; 98.7 days – for complaints in the subsequent procedure; 83.7 days – for complaints in the accelerated procedure. [104]

According to CNRR, in 2022, apart from the Regional Court Galati, where the average duration of drafting the decision was 10 days, the rest of the courts, including the Bucharest District 4 Regional Court, had an average duration of drafting decisions of 30 days, with delays reported of up to 60 days.[105]

Onward appeal

IGI-DAI reported that, in 2022, there were 303 onward appeals before the Administrative County Courts.[106] According to the information provided by the Administrative County Courts the number of onward appeals was 307. In 2023, according to the information provided by the courts, the number of appeals was 354.

Source: Administrative County Courts. Information provided directly to the AIDA experts by the different courts: Bucharest Tribunal, 10 January 2024; Galaţi Tribunal, 11 January 2024; Maramureș Tribunal, 10 January 2024; Giurgiu Tribunal, 12 January 2024; Suceava Tribunal, 12 January 2024; Timișoara Tribunal, 3 February 2024.

The law prescribes the possibility to appeal the decision of the Regional Court.[107] The competent court is the County Tribunal, Administrative Litigation Section (Administrative County Court), which has jurisdiction over the area of the Regional Court whose decision is appealed.[108] The Administrative County Court is made up of three judges.

The onward appeal has to be lodged within 5 days from the day the Regional Court decision was pronounced and has automatic suspensive effect, if it is lodged in due time.[109]

In 2021 and 2022 IGI-DAI reported that there were no statistics on the average duration of the onward appeal.[110] In 2020 they reported that the procedure was 2-3 months.[111] In 2023, IGI-DAI reported an average duration of 3 months.

* the duration is calculated from the date when the onward appeal was registered by the Administrative County Court and not from the day this was lodged at the first instance court

Source: Information provided by IGI-DAI, 18 January 2024.

The onward appeal does not look at facts but examines if the appealed decision is compliant with the applicable rules.[112] As a consequence, the onward appeal has to include the grounds for illegality on which the appeal is based.[113] The decision has to be motivated within 10 days from the day it is communicated by the Regional Court.

The situation was the following in 2022/

Timișoara: According to the director of the Regional Centre of Timișoara, the average duration of the onward appeal was two months and the reasoned decision was drafted in 45 days.

Giurgiu: The director of the Giurgiu centre stated that the average duration was 120 days.

Şomcuta Mare: The Administrative County Court reported that in general there are 3 hearings that last 3-4 months.

Rădăuţi: The legal counsellor mentioned that at the first or second hearing the case was finalised and the average duration of the onward proceedings was two to three months. At the first hearing, at a maximum at the second hearing the court proceedings are finalised.

Bucharest: According to the JRS representative, the average duration of the onward appeal in 2021 was 180 days; this was echoed by an attorney; the director of Stolnicu mentioned 2-3 months.

Galati: the director reported an average of two to three months for the onward appeal.

CNRR reported that the duration of the onward appeal was 60 days in Galati, 30 days in Rădăuţi, Bucharest and Şomcuta Mare, 60-120 days in Giurgiu and Timișoara.[114]

In Bucharest according to a lawyer who is also the head of the Judicial Assistance Service of the Bucharest Bar Association, since 2018 lawyers have started to lodge onward appeals against the decision of the Regional Court, but they are not aware if they have the mandate to also draft the reasoned appeal in these cases. In 2022, the situation was the same, according to the legal counsellor of IGI-DAI.

On the other hand, CNRR stated that in general, CNRR lodges onward appeals if the asylum seeker presents the decision. In the situation where the complaint of an asylum seeker who was assisted by an ex officio lawyer was rejected, the appeal was drawn up by the CNRR legal advisors and submitted personally by the applicant in question. However, there were also situations in which the ex officio lawyer filed the personal appeal.[115]

According to the Civil Procedure Code, the attorney who has represented or assisted the party during the hearing may, even without a mandate, take any action for the preservation of rights subject to a term and appeal against the judgment, that may be lost by failing to do so on time. In these cases, only the party will handle all the procedural documents. The supporting of the appeal can only be based on a new power of attorney.[116]

Therefore, attorneys can appeal the Regional Court decision even without a mandate in this regard, in order to preserve the rights of their client, which are subject to a term and will otherwise be lost by failure to act in time. The provision emphasises that the attorney may also appeal against a judgment without having a mandate. It also mentions that a new power of attorney is needed for representing/ arguing the appeal in the higher court. Therefore, the law makes a difference between declaring/filing an appeal and representing/arguing it.

Decisions

According to IGI-DAI, in 2022 364 onwards appeals were finalised, of which 283 were favourable for IGI-DAI and 81 for the asylum seekers.[117] However, the Administrative County Courts reported a total of 302 decisions issued.

According to statistics provided by the courts, in 2023, a total of 272 decisions were issued.

Source: Information provided directly to the AIDA experts by the administrative county courts: Bucharest Tribunal, 10 January 2024; Galaţi Tribunal, 11 January 2024; Maramureș Tribunal, 10 January 2024; Giurgiu Tribunal, 12 January 2024; Suceava Tribunal, 12 January 2024; Timișoara Tribunal, 3 February 2024.

Legal assistance

According to Article 17(1)(e) of the Asylum Act, the asylum seeker has the right to counselling and assistance from a representative of a Romanian or foreign NGO, in any phase of the asylum procedure. The asylum seeker has the right to be given, upon request, legal and procedural information, including information on the first instance procedure, in line with the provisions on public judicial assistance in civil matters, taking into account their personal situation.[118]

The law sets out the right of the asylum seeker to be provided, upon request, according to the legislation on public judicial assistance in civil matters and taking into account the personal situation of the foreigner, information on the motivation of the rejection of the asylum application, the procedure for challenging the ordinance through which the measure of placement in a specially closed spaces was taken, as well as the possibility to challenge the decision which granted, reduced or withdraw the material reception conditions.[119]

Legal assistance at first instance

There are no restrictions or conditions for accessing legal counselling at first instance.

In the administrative phase of the procedure, free legal counselling and assistance is provided by NGOs through projects funded by the national Asylum, Migration and Integration Fund (AMIF) scheme and UNHCR Romania. The Romanian National Council for Refugees (CNRR) provides specialised legal counselling and assistance to all asylum seekers upon request in the 6 Regional Centres for Accommodation and Procedures for Asylum Seekers, through a project funded by the national Asylum, Migration and Integration Fund (AMIF) programme. CNRR’s legal counsellors have an office in the regional centres where they are available every weekday for 8 hours per day.

The Ecumenical Association of Churches from Romania (AIDRom), one of the implementing NGOs, provides legal counselling to asylum seekers accommodated in their two Accommodation Centres, one in Timișoara, operated since August 2012 with a capacity of 15 places and one in Bucharest, working since 2015 with 18 places. They accommodated vulnerable persons, especially single mothers with children. The AIDRom centres in these cities were funded both by AMIF and by external donors. In addition, the legal counsellor of AIDRom also provided legal counselling and assistance in the IGI-DAI of Bucharest (Tudor Gociu). As of December 2022, this project, including the accommodation spaces was no longer running.

The legal counsellors provide information with respect to the rights and obligations, the house rules of the Regional Centre, the asylum procedure and steps to be followed. They also prepare asylum seekers for the personal interview and once the decision is communicated to them, they also explain the decision and the possibility to challenge it. Information and counselling are provided on other matters related to the asylum procedure requested by the asylum seeker. The legal counsellor may assist the asylum seeker during their personal interview if they request so.

Through the “Advocacy for access to the territory, information regarding international protection, child protection and refugee integration” project, implemented by CNRR, UNHCR Romania has the possibility to grant lawyers’ fees for asylum seekers and beneficiaries of international protection, based on their vulnerability, complexity or strategic interest for advocacy campaigns. Through this project 14 attorneys’ fees were awarded in 2022.[120] In 2023, CNRR continued with the implementation of this project and provided advice and information to asylum seekers and migrants who met the conditions for submitting a new asylum application. Concerning the procedure, it assisted in the drafting and submission of procedural documents and provided legal assistance in court through specialised lawyers. CNRR also provided legal assistance in court through lawyers to beneficiaries of international protection when their rights were violated. In this respect, CNRR awarded a total of 24 fees to lawyers in this project: specifically, 21 fees on Output I – Access to territory (in the asylum procedure and for access to a new asylum procedure) and 3 fees on Output 3 – Child protection (in the asylum procedure). In 2023, 18 lawyers were remunerated for legal advice/assistance activities.[121]

Legal representation by a lawyer under the Legal Aid Act includes representation in the administrative phase of the procedure.[122] According to Article 35 of the Legal Aid Act, legal aid may also be extra-judicial and consist in consultations, filing of applications, petitions, referrals, initiation of other related legal steps, as well as representation before public authorities or institutions other than judicial or with jurisdictional powers, with a view to achieving the individual’s legitimate rights or interests. This was confirmed by the National Union of Romanian Bar Associations.[123] However, according to the head of the Judicial Assistance Service at the Bucharest Bar Association no legal aid applications for representation in the administrative phase of the procedure had been lodged until now in any of the regional centres.

In all other cases, the asylum seeker has to pay the lawyer’s fee if they wish to be represented by a lawyer during the personal interview.

Legal assistance in appeals

In court proceedings, legal aid may only be provided by CNRR, who have limited funds for legal representation.

As in previous years, in 2023 CNRR collaborated with lawyers to provide legal assistance to asylum seekers. Legal assistance was not provided at the administrative phase of the asylum procedure before the IGI-DAI, instead it was ensured during the legal phase at courts that have competencies in the asylum procedure: 60 lawyers ensured legal assistance in first instance and 40 lawyers in the appeal. According to CNRR, in 2023 there were cases where asylum seekers stated that the legal assistance provided by the ex officio lawyers was superficial, with applicants claiming that the lawyers did not discuss their case with them or did not show a willingness to know their situation thoroughly. Also, in some cases the ex officio lawyers did not perform the necessary procedure to file an appeal within the time limit provided by the law.[124] Other information on legal assistance and lawyers was not provided by organisations and institutions.

The situation in 2022 was the following:

In 2022, CNRR covered 107 attorneys’ fees, from AMIF funds. The conditions for awarding the fee depend on the vulnerability of the cases, their complexity or strategic interest in the context of the advocacy campaigns developed at the level of the NGO.[125] In addition, if the case of the asylum seeker is not eligible for a lawyer contracted through NGOs, legal counsellors may draft a request for state legal aid.

According to information provided by the Regional Court of Giurgiu, out of 155 appeals received by the court in 2022, only 23 cases made an application for legal aid, (of which 22 were submitted by CNRR)[126] and 15 legal aid applications were rejected.[127] The court failed to provide reasons for the dismissal of requests.[128] No reviews of the applications for legal aid were lodged in these rejected cases.[129] According to the CNRR representative the reason for the dismissal of the requests was that the asylum seeker had already benefited from specialised legal assistance from an NGO and it was not considered justified to grant an ex officio lawyer and in addition the applicant’s income exceeded 300RON / €60.[130] In addition, the law does not provide that asylum seekers are beneficiaries of state legal aid as a special category. Therefore, there is no obligation to grant them lawyers paid through state legal aid. As regards the review of rejected decisions, CNRR said that it is impossible to lodge a review because the procedural documents are communicated late, and the asylum seekers receive the court decisions documents after the procedural deadline. Moreover, there are cases when they receive no answer to their application for state legal aid and go to the court hearing without knowing if they have an attorney appointed or not.

The Administrative County Court Timiş reported two applications in 2022.[131] CNRR reported 17 applications submitted.[132]

The Regional Court Baia Mare stated that in all asylum cases a lawyer paid through the state legal aid was appointed ex officio [133] and the Administrative County Court Maramureș reported nine applications, all admitted. The legal counsellor of CNRR submitted 52 applications in 2022.[134]

The Regional court Rădăuţi reported that in the 60 appeals registered in 2022, seven applications for state legal aid were made and all were admitted.[135] CNRR reported 62 applications made in Rădăuţi in 2022.[136]

The Regional Court District 4 Bucharest stated that out of 235 appeals registered in 2022, only seven requests for state legal aid were made, all admitted.[137] CNRR reported only 37 applications made in Bucharest during 2022.[138] On the other hand, in the Regional Court Galaţi as in 2020 and 2021 no such applications were submitted, even though there were 84 appeals lodged throughout the year.[139] In contrast, CNRR reported that 84 applications were made by their legal counsellor in Galati.[140]

As regards the applications for state legal aid at the level of the Administrative Country Courts in 2022, the number is even lower. The Administrative County Court Maramureș reported 9 cases, the Administrative County Court Suceava reported 2, the Administrative County Court Timis 2 and at the Administrative County Court Bucharest one application, which was rejected as unfounded. The court refused to mention the reason, invoking the confidentiality of the asylum procedure. At the same time, the Administrative County Court Galati reported that a lawyer paid through state legal aid is always appointed ex officio.

In most cases, asylum seekers turn to legal counsellors for drafting and lodging the appeal against a negative decision of IGI-DAI. CNRR has funds for attorneys’ fees, who can assist asylum seekers in the court proceedings. Therefore, if a representative of the NGO which assisted the asylum seeker examines the case and considers that they are eligible for a lawyer, they send a request using a standard form to their headquarters in Bucharest for approval and, in case of a positive assessment, the asylum seeker will be assisted by one of the lawyers from the roster of the organisation.

Bucharest: According to a lawyer, who is the head of the Judicial Assistance Service of the Bucharest Bar Association, lawyers paid through the state legal aid scheme are becoming more involved, with some of them requesting guidance from the head of the Judicial Assistance Service. The situation of lawyers paid through state legal aid was the same in 2021. Asylum cases, as with all cases, are electronically distributed to lawyers. There are always new lawyers appointed in asylum cases; some lawyers request advice from others with expertise. However, only a few lawyers have requested an adjournment of the hearing in order to prepare the case. The asylum seeker only meets the state legal aid lawyer at the court hearing and, as a consequence, they cannot prepare and discuss the details of the case.

In 2022, the Bar Associations in Romania did not organise any training on asylum law for the lawyers included in the legal aid register or other interested lawyers.

CNRR reported that they organised two trainings for lawyers in 2022.[141]

In the Regional Centre of Galaţi, legal representation through the state legal aid scheme is ensured, in general, by lawyers who have participated in seminars and conferences organised by NGOs and also new lawyers. The lawyers with more expertise in the field are involved, but the new ones are not. They contact the NGO representatives (CNRR) to discuss the case with the asylum seekers and to obtain all the documents from their file, but just in a few cases. The rest of the attorneys paid by the state legal aid do not show an interest in asylum cases and they only meet with their clients at the court hearing. The onward appeal is filed by legal counsellors from CNRR, when the asylum seeker was represented by a lawyer paid through the state legal aid scheme.

In Timișoara, the director of the Regional Centre of Timișoara believed that lawyers paid through the state legal aid scheme did not prepare for the hearing; but were present because they had to be.

In Rădăuţi, the lawyers paid through the state legal aid scheme are not knowledgeable about asylum law. According to the legal counsellor the attorneys paid through the state legal aid scheme do not contact, discuss the case with the asylum seekers or even read the file. It was also reported that attorneys paid through state legal aid do not make any oral arguments during the court hearing, discuss with their clients or lodge onward appeals. This was still the case in 2022.

CNRR reported that in 2022 as in 2021[142], there were cases in which asylum seekers stated that the legal assistance provided by ex officio lawyers was superficial. Asylum seekers claimed that lawyers had not discussed their case with them, or had not shown willingness to know thoroughly their situation. Also, in some cases, the ex officio lawyers did not take the necessary steps to lodge the onward appeal against the negative decision of the first instance court.[143]

Two different lawyers in Bucharest mentioned that one of the most important aspects that should be considered and addressed by institutions and organisations working with asylum seekers is to ensure continuity of legal assistance through the entire asylum procedure. One of the attorneys stated that there are asylum seekers leaving the Regional Centre and moving into the city who often lose contact with the NGOs that helped them previously. This situation may hinder their asylum procedure since they have no knowledge of the law and, if an attorney paid from the legal aid scheme assists them, there is no certainty that they will file an onward appeal.

This issue still persists in practice. It was reported that the communication between lawyer and client is not facilitated in any way, and no interpreter is involved. There are situations where the lawyers lose contact with the asylum seeker, including due to delays between the lodging of the onward appeal and the communication of the reasoned decision of the Regional Court to the asylum seeker, which can reach two to three months. There are also situations when asylum seekers move out of the Regional Centre and do not know that they have to inform the court of their new address. Hence the decision is communicated at the old address without reaching the asylum seeker and, as a result, the onward appeal is not motivated in the timeframe prescribed by law and ends up being dismissed. Another issue reported by a lawyer is that lawyers do not follow the state of play of the proceedings and as a result they do not keep their clients reasonably informed about their case.

Asylum seekers are not aware that they have to lodge the onward appeal within 5 days from the decision of the court, as they do not know how to find out about the decision taken by the Regional Court on their case. An attorney from the Bucharest Bar reported that many onward appeals are lodged after the deadline and are dismissed as the Administrative County Court of Bucharest rules that the applicants had access to legal counselling from an NGO.

At the same time, CNRR has reported that there were situations where the ex officio lawyer did not file the appeal and the applicant requested CNRR’s assistance for drafting the appeal, but the legal deadline for submission was missed.[144]

The information provided by the domestic courts shows that in a high number of cases an onward appeal was not lodged. Based on the information provided both by the Administrative County Court of Bucharest Regional Court District 4 Bucharest results that out of 98 first instance court decision only 55 were appealed against.[145] In Giurgiu 54 decisions were not appealed against.[146] In Galati out of 82 decisions issued only 59 were not appealed against.[147] In Timișoara 70 decisions were not appealed.[148] In Şomcuta Mare 18 decisions were not appealed[149] and in Suceava 24.[150]

While in 2019[151] IGI-DAI provided statistics with regards to cases in which an onward appeal was not lodged, in 2020, 2021 and 2022 IGI-DAI reported that they have no statistics on this matter.[152]

There are lawyers who are effectively involved in representing their client regardless of the amount of financial compensation, and others who complain about the small amount of their fee. Lawyers working with NGOs are aware of how the funding schemes work in this branch. The low level of remuneration is an obstacle in the sense that it seldom attracts new practitioners to this field. Usually, lawyers with experience in asylum claims are also specialised in a more financially rewarding field (civil or commercial law), allowing them to continue also with asylum cases.

Since the fees available are part of projects, their level cannot be easily raised or decided based on a sustainable plan. The costs are subject to the evaluation of the team deciding on AMIF funding within the government structures. It often reflects an indicator calculus, which may be quite rigid. Any potential changes in the level of remuneration are subject to the “project echo” effect – from the moment an application and the budget are drafted to the final project expenses, a long period of time may pass, in some cases, even 2.5 years.

[1] Article 52(1) Asylum Act.

[2] Article 52(4) Asylum Act.

[3] Article 52(2) Asylum Act.

[4] Article 52(3) Asylum Act.

[5] Article 52(5) Asylum Act.

[6] Article 52(6) Asylum Act.

[7] Information provided by IGI-DAI, 16 January 2024.

[8] Experience of JRS Romania, April 2024.

[9] Information provided by IGI-DAI, 22 February 2023.

[10] Information provided by IGI-DAI, 16 January 2024.

[11] Ibid.

[12] Information provided by IGI-DAI, 11 March 2022.

[13] Information provided by IGI-DAI, 5 March 2019.

[14] Information provided by IGI-DAI, 11 March 2022.

[15] Ibid.

[16] Information provided by IGI-DAI, 16 February 2021.

[17] Information provided by CNRR, 7 February 2023.

[18] Article 16(1) Asylum Act.

[19] Article 16(2) Asylum Act.

[20] Article 19^11 Asylum Act.

[21] Information provided by IGI-DAI, 16 January 2024.

[22] Information provided by CNRR, 16 January 2024.

[23] Information provided by CNRR, 7 February 2023.

[24] Information provided by IGI-DAI, 11 March 2022.

[25] Information provided by IGI-DAI, 22 February 2023.

[26] Article 19^6(2) Asylum Act.

[27] Article 45(3) Asylum Act.

[28] Article 48 Asylum Act.

[29] Information provided by IGI-DAI, 11 March 2022.

[30] Information provided by the EUAA, 26 February 2024.

[31] Information provided by the EUAA, 26 February 2024.

[32] Article 45(2) Asylum Act.

[33] Experience of JRS Romania, April 2024.

[34] Experience of JRS Romania, April 2024.

[35] Information provided by IGI-DAI, 16 January 2024.

[36] Order no.2907/C/2340/2020, available in Romanian at: https://bit.ly/3OLKw1O.

[37] Law no. 178/1997 for the authorisation and payment of interpreters and translators, available in Romanian at: https://bit.ly/3uFXtn2.

[38] Information provided by IGI-DAI, 18 January 2024.

[39] Experience of JRS Romania, May 2024.

[40] CNRR, Input by civil society organisations to the Asylum Report 2024, 2023, available here.       

[41] Information provided by CNRR, 15 February 2022 and 7 February 2023.

[42] Information provided by CNRR, 16 January 2024.

[43] Article 231(4) Civil Procedure Code: The court will record the court hearings. If the parties are challenging the content of the clerk’s notes, it will be verified and, if necessary, supplemented or rectified based on the records of the court hearing.

[44] Information provided by IGI-DAI, 11 March 2022.

[45] Information provided by IGI-DAI, 18 January 2024.

[46] Article 45(5) Asylum Act.

[47] Article 45(7) Asylum Act.

[48] Article 45(6) Asylum Act.

[49] Article 45(8) Asylum Act.

[50] Article 45(9) Asylum Act.

[51] Article 45(10) Asylum Act.

[52] Information provided by CNRR, 7 February 2023.

[53] Article 45(11) Asylum Act.

[54] Article 54(1) Asylum Act.

[55] Article 54(1^1) Asylum Act.

[56] Article 54(1) Asylum Act.

[57] CNRR, Input by civil society organisations to the Asylum Report 2024, 2023, available here.

[58] European Commission, Joint Pilot Project in Romania annex, Ref. Ares(2023)2001138-20/03/2023, March 2023, available here.

[59] CNRR, Input by civil society organisations to the Asylum Report 2024, 2023, available here.

[60] Emergency Ordinance of the Government No. 35/2023 for the amendment and completion of certain normative acts concerning foreigners and asylum in Romania, 31 August 2023, available here.

[61] CNRR, Input by civil society organisations to the Asylum Report 2024, 2023, available here.

[62] European Commission, Commission Recommendation (EU) 2023/682 of 16 March 2023 on mutual recognition of return decisions and expediting returns when implementing Directive 2008/115/EC of the European Parliament and of the Council, 16 March 2023, available here.

[63] Art. 413 Code of Civil Procedure: (1) The court can suspend the trial:1. when the solution of the case depends, in whole or in part, on the existence or non-existence of a right that is the object of another judicial proceeding; […] (2) The suspension will last until the decision adopted in the case that caused the suspension becomes definitive.

[64] See preamble 95: ‘To ensure the consistency of the legal review carried out by a court or tribunal on a decision rejecting an application for international protection and the accompanying return decision, and with a view to accelerating the examination of the case and reducing the burden on the competent judicial authorities, such decisions should, if taken as part of the related decision on the application for international protection or decision to withdraw international protection, be subject to common proceedings before the same court or tribunal.’ Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, OJ L 2024/1348, 22 May 2024, available here.

[65] Article 65 Asylum Act.

[66] Information provided by IGI-DAI, 22 February 2023.

[67] Article 55(1) Asylum Act.

[68] Article 55(2) Asylum Act.

[69] Article 69 Asylum Act.

[70] Article 69(1) Asylum Act.

[71] Article 69(2) Asylum Act.

[72] Article 69(3) Asylum Act.

[73] Article 69(4) Asylum Act.

[74] Article 57(1)(c) Asylum Act.

[75] Article 56 Asylum Act.

[76] Articles 56(1) and 57 Asylum Act.

[77] Article 425(b) Civil Code.

[78] Information provided by CNRR, 9 January 2018.

[79] Article 62(1) Asylum Act.

[80] Article 64(2) Asylum Act.

[81] Article 64(3) Asylum Act.

[82] Information provided by IGI-DAI, 16 February 2021.

[83] Information provided by IGI-DAI, 11 March 2022.

[84] Information provided by IGI-DAI, 22 February 2023.

[85] Information provided by CNRR, 16 January 2024

[86] Information provided by Regional Court Baia Mare, 26 January 2023.

[87] Information provided by Regional Court District 4 Bucharest, 8 March 2023.

[88] Information provided by Regional Court Giurgiu, 22 February 2023.

[89] Information provided by CNRR, 15 February 2022 and 7 February 2023.

[90] Article 63 Asylum Act.

[91] Information provided by Court Baia Mare, 8 January 2024.

[92] Information provided by Court Galati, 3 January 2024.

[93] Information provided by Court Giurgiu, 28 December 2023.

[94] Information provided by Court Rădăuţi, 4 January 2024.

[95] Information provided by Court Bucharest district 4, 12 January 2024.

[96] Information provided by Court Timisoara, 5 February 2024.

[97] Experience of JRS Romania, April 2024.

[98] Article 58 Asylum Act.

[99] Information provided by IGI-DAI, 22 February 2023.

[100] Ministry of Justice, Portalu linstanţelor de judecată, available in Romanian at: http://bit.ly/2hGMVhM.

[101] Romanian Legal Information Institute (Rolii), available in Romanian at: https://bit.ly/2PKL4Yw.

[102] Information provided by the Regional Court Baia Mare, 26 January 2023.

[103] Information provided by the Regional Court Timisoara, 16 February 2023.

[104] Information provided by the Regional Court District 4 Bucharest, 8 March 2023.

[105] Information provided by CNRR, 7 February 2023.

[106] Information provided by IGI-DAI, 22 February 2023.

[107] Article 66 Asylum Act.

[108] Article 67 Asylum Act.

[109] Article 66(2) and (4) Asylum Act.

[110] Information provided by IGI-DAI, 11 March 2022 and 22 February 2023.

[111] Information provided by IGI-DAI, 16 February 2021.

[112] Article 483(3) Civil Procedure Code.

[113] Article 486(1)(d) Civil Procedure Code.

[114] Information provided by CNRR, 7 February 2023.

[115] Information provided by CNRR, 9 December 2019.

[116] Article 87(2)(3) Civil Procedure Code.

[117] Information provided by IGI-DAI, 22 February 2023.

[118] Article 17(1)(s) Asylum Act.

[119] Ibid.

[120] Information provided by CNRR, 7 February 2023.

[121] Information provided by CNRR, 16 January 2024.

[122] Government Emergency Ordinance 51/2008.

[123] Information provided by the National Union of Romanian Bar Associations, 8 January 2018.

[124] Information provided by CNRR, 16 January 2024.

[125] Information provided by CNRR, 15 February 2022.

[126] Information provided by CNRR, 7 February 2023.

[127] Information provided by the Regional Court Giurgiu, 22 January 2023.

[128] Ibid.

[129] Ibid.

[130] Article 8 of the Government Emergency Ordinance 51/2008 was modified on 15 January 2023, which reads as following: A person may benefit from the state legal aid if in the last two months prior to the request the average net monthly income per family member is below the level equivalent to 25% of the gross minimum basic salary in the country. In this case, the amounts that constitute public judicial aid are fully covered by the state.

[131] Information provided by the Administrative County Court Timis, 25 February 2023.

[132] Information provided by CNRR, 15 February 2022.

[133] Information provided by the Regional Court Baia Mare, 26 February 2023.

[134] Information provided by CNRR, 15 February 2022.

[135] Information provided by the Regional Court Rădăuţi, 19 January 2022

[136] Information provided by CNRR, 15 February 2023.

[137] Information provided by the Regional Court District 4 Bucharest, March 2023. The court noted that the low number may be explained as the requests for state legal aid are not attached to the appeal and their IT system only found this number.

[138] Information provided by CNRR, 7 February 2023.

[139] Information provided by the Regional Court Galaţi, 16 February 2023.

[140] Information provided by CNRR, 7 February 2023.

[141] Information provided by CNRR, 7 February 2023.

[142] Ibid.

[143] Ibid.

[144] Information provided by CNRR, 15 February 2022.

[145] Information provided by the Regional Court District 4 Bucharest, 7 March 2023 and Administrative County Court Bucharest 30 January 2023.

[146] Information provided by the Regional Court Giurgiu, 20 February 2023.

[147] Information provided by the Regional Court Galati, 16 February 2023.

[148] Information provided by the Regional Court Timisoara, 16 February 2023.

[149] Information provided by the Regional Court Baia Mare, 26 January 2023.

[150] Information provided by the Administrative County Court Suceava, 15 February 2023.

[151] Information provided by IGI-DAI, 20 February 2019- in 58 cases the asylum seekers did not lodge an onward appeal against the decision of the Regional Courts.

[152] Information provided by IGI-DAI,16 February 2021.