Regular procedure

Author

Felicia Nica with support from JRS Romania Visit Website

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:

(a) the Dublin procedure for determining the Member State responsible for examining the asylum application;

(b) the First Country of Asylum procedure;

(c) the Safe Third Country procedure; or, where appropriate,

(d) 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 his or her 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 the Regional Centres for Procedures and Accommodation for Asylum Seekers at Rădăuţi, Galaţi, Timișoara, Şomcuta Mare (Maramureș) and Giurgiu the 30-day term is respected. In exceptional cases, the 30-day deadline to issue a decision was extended.

In 2021, the 30-day deadline was extended for asylum applications made by Afghan nationals after August, in all regional centres. Various reasons were given for the extension by different stakeholders such as: for a thourough analysis of the application (director of Timisoara centre), for taking an objective decision, until the EASO report was received (director of Vasile Stolnicu centre), waiting for COI (director of Giurgiu centre), official position in their case (JRS representative), international position (legal counsellor).

In Galati it was reported that a family from Turkey received the decision in 45 days and they were not informed about the reasons for the delay and the time for the decision to be taken.

In Somcuta Mare, the deadline was respected in 2021, with the exception of asylum applications made by Afghan nationals. The term was extended from August until December 2021. The JRS representative was not aware if asylum seekers were informed of the reasons and new deadline forseen for the decision. However, the JRS representative explained to them why there was a delay in their case. It was also reported by the JRS representative that in the case of two asylum seekers from Syria the term was exceeded by 5 days, due to workload and the small number of case officers at that time.

In Bucharest, interviews and decisions of Afghan asylum applications had a delay of 2-3 months. According to the JRS representative they were not informed by IGI-DAI, neither orally nor in writing about the reasons or new deadline. It was noted that families with children and single women were granted refugee status before single man. The director of Vasile Stolnicu centre stated that the term was extended for 30- maximum 60 days and asylum seekers were informed.

In Timisoara, the average duration of the extension of the 30-day deadline was 60 days, according to the director of the centre. Some of the asylum seekers were orally informed that the deadline was extended and others were not informed because they had left the centre. Around 90% of Afghan asylum seekers left the centre, according to the director.

In Giurgiu the term was extended by 30-60 days in case of asylum applications made by Afghan nationals, according to the director of the centre. There was also a case where the communication of the decision was delayed due to the fact that the asylum seeker wanted to present documents.

In Rădăuţi, the JRS representative reported that in the case of asylum seekers from Afghanistan the decision was communicated within 5-6 months of the date of the interview. The legal counsellor reported that the term was extended by 4 months and they were not informed of the reasons. An asylum seeker from Iran also received the decision in 5-6 months; he was not informed of the reasons for the extension.

CNRR reported that in 2021, most of the asylum applications made by Afghan asylum seekers were assessed within 30 days. However, there were also cases in which the interviews were postponed, or in which the assessment period was extended to 60 days. In general, the applicants were informed about the extension of the term. However, there were also situations in which asylum seekers did not receive information about the delay or the reasons behind this delay (Radauti, Regional Center for Procedures and Galati).[7]

According to IGI-DAI statistics, in 2021 the average duration was 45 days[8] in the regular procedure compared to 30-60 days in 2020 and 50 days in 2018.[9] It was 10 days[10] in the case of an accelerated procedure compared to 3 days in 2020. It was 1 day[11] for the border procedure compared to 3 days reported for 2020[12]. In practice, the average length of the asylum procedure from the moment of lodging the application until the first instance decision was taken, differed from one centre to another as follows:

Timișoara: According to the Director of the Regional Centre Timișoara, the average duration of the asylum procedure is 45 days.  According to the JRS representative the asylum procedure in the administrative phase is very fast, the average duration is 30 days; and decisions were communicated in 15-21 days in case of asylum applications made by Syrian nationals.

Radauti: JRS reported that the average duration was 3 months and the legal counsellor stated that it was 1 month.

Giurgiu: the director reported that the average duration of the procedure was 15-20 days in case of all asylum applications directly made at the centre and those made by asylum seekers transferred from Timisoara. According to the JRS representative the transferred asylum seekers have the preliminary interview the day after their arrival. Some of them they even have the personal interview on the same day. In general, they receive the decision in 15 days and the date on which the decision is communicated is mentioned on the transcript.

According to CNRR the average duration was 30 days in Bucharest, Timsoara and Giurgiu, 45 days in Galati, between 7-30 days in Radauti, 3-7 days and in some cases even 30 days in Somcuta Mare.[13]

Prioritised examination and fast-track processing

According to the law, priority is given to asylum applications lodged by unaccompanied children.[14] 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.[15] 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 him or her 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.[16]There have been no reported cases of this situation in practice.

Şomcuta Mare, in 2021 it was observed by the JRS representative that unaccompanied children were interviewed before adults. It was noticed that the length of the procedure for unaccompanied children is the same as the procedure for adults (45 days).

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 JRS representative mentioned that since September 2021 asylum applications had been delayed not only in the case of unaccompanied children from Afghanistan but also from Somalia. Decisions were only communicated at the end of December 2021 for those who had left the centre. Asylum applications of single parent families are not assessed with priority.

Galaţi: 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 interpreter. The rest of vulnerable groups are assessed in the same way.

Timișoara: Even though IGI-DAI takes all the necessary measures with priority – in a maximum of 3 days after the unaccompanied child has been accommodated in the centre – and the legal representative is assigned in 2-3 weeks. According to the director of the Regional Centre Timişoara, the asylum procedure of unaccompanied children may be delayed due to the bureaucratic procedures carried out by DGASPC. In 2021, according to the JRS representative only one interview was held, because asylum seeking children would leave the centre before the legal representative was assigned. In this case the decision was communicated in 30 days. According to the director of the centre in 2021 there were a few unaccompanied minors processed in Timisoara, only the ones accommodated at DGASPC. Around 40-50 children had the interview and left soon after.

Giurgiu: According to the JRS representative, the asylum applications of minors were not prioritised in 2021. The director of Giurgiu stated that they prioritise the applications of unaccompanied minors and vulnerable persons. The procedure in the case of asylum-seeking children lasted 30 days, according to the director.

Bucharest: According to the JRS representative, the asylum applications of unaccompanied minors were not assessed with priority; their interviews were not organised with priority and the length of the procedure was the same as for an adult.  Vulnerable persons are not treated with priority. Nevertheless, according to the director of Stolnicu applications made by vulnerable, especially by unaccompanied minors were assessed with priority. The procedure lasted 21 days in their case. In addition, he also stated that asylum applications made by asylum seekers coming from countries where there is no armed conflict or concerns linked to persecution, such as: Algeria, Tunisia, Morocco, Pakistan, Bangladesh and India, were analysed with priority, meaning in the accelerated procedure.

The same was also reported by the director of Timisoara centre. Asylum applications made by asylum seekers from the same countries as mentioned above were assessed with priority, in an accelerated procedure.

CNRR stated they have no information on any specific priority given to the asylum applications submitted by accompanied minors. However, their application was assessed in 30 days, without postponements or extensions.[17]

According to IGI-DAI, in comparison with the previous years when no asylum claim was prioritised under Article 31(7) of the recast Asylum Procedures Directive, in 2019, 189 asylum requests made by unaccompanied minors were prioritised.[18]

In 2021, IGI-DAI reported that 1,551 asylum applications were prioritised.[19]

Personal interview

According to the law, an interview is conducted in order to assess the elements of an application for international protection.[20] 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:[21]

• 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.[22]

In 2021, 4311 interviews were conducted, of which 315 were through videoconference. IGI-DAI reported that they had no statistics on the number of asylum applications assessed without an interview.[23]

Special measures imposed during the pandemic

In 2021, plexiglass on the desk of the case officers, masks for all participants and disinfectant were the main measures taken in all centres in the context of the pandemic. Social distancing was not possible in all offices, due to the office space (in Galati).

In Bucharest, during the state of alert, until June 2021, the majority of asylum seekers were transported by IGI-DAI from Stolnicu centre to Tudor Gociu centre, where the interviews are conducted, according to the JRS representative.

According to the director of Timișoara centre, asylum seekers received masks from IGI-DAI and from NGOs.

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 he or she understands 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.[24]

Availability of interpreters and double interpretation

The remuneration for interpreters was increased from 23 RON/ €4.6/hour to 50 RON/€10, according to the director of Timisoara centre.

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: In 2021 the lack of interpreters was solved. Interpreters of Dhari and Farsi were contracted by IGI-DAI from other cities and participated at interviews in person. Double interpretation (from one language to another and then into Romanian) was not used in 2021.  For an asylum seeker with hearing and speech impairments a family member translated the gestures and the interpreter what the relative was translating.

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 JRS representative reported that the number of interpreters in Rădăuţi is very low for such a high number of asylum seekers. The Farsi interpreter is also used in Galaţi by IGI-DAI and the courts. It was also reported that for a Kurdish speaking asylum seeker, IGI-DAI used an Arabic interpreter, informing the asylum seeker that they had no Kurdish interpreters. Nevertheless, IGI-DAI used a Kurdish interpreter soon after for a family.

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, there are not too many and they are not always available. They were trying to recruit students from the Faculty of Medicine, but they were not interested. Double interpretation was not used in 2021.

Giurgiu: There is still a lack of interpreters, especially for Farsi, Dhari and Pashto, according to the director of the centre. However, for these languages they were using the interpreters from Bucharest. The director further stated that when interpreters were called from Bucharest 3-4 inteviews were organised per day, for example, in the cases of asylum seekers from India, Bangladesh, Pakistan, Tunisia, Algeria, where the asylum application was clearly unfounded. As for the other asylum seekers 1 or 2 interviews were conducted in a day. According to the director double interpretation was used in 2021 for an asylum seeker from Eritrea from Tigrinya to English and English to Romanian.

Bucharest: According to the director of Stolnicu there are interpreters for all the languages and they are also trying to recruit beneficiaries of international protection as interpreters.  Double interpretation was not used in 2021. According to the JRS representative there are not enough interepreters for the main languages spoken in Eritrea.

In Rădăuţi, in 2021 IGI-DAI still used double interpretation from Somali to Arabic and from Arabic to Romanian. It was also reported that the beneficiary of international protection who was used as an interpreter in the case of asylum-seeking Somali women was not payed by IGI-DAI for the interpretation services provided. According to the JRS representative, however, double interpretation was not used in 2021.

Şomcuta Mare: The Regional Centre collaborates with the same interpreters as last year, in the following languages: Farsi, Dari, Arabic, English and French. There is no Somali interpreter. Double interpretation was not used during 2021. The JRS representative noted that it was difficult to indentify a Lingala speaking interpreter.

Stakeholders interviewed also reported that there is a limited number of female interpreters in the asylum procedure. 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 the contrary, that there are no female interpreters. In Rădăuţi there are female interpreters for English/French, Russian and Arabic. In Şomcuta Mare there is a female English and French interpreter and in Timişoara 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 2021 the number of female case officers increased in all centres, except in Şomcuta Mare and Rădăuţi where all the case officers are male. In Timișoara there are 5 case officers of whom 3 are female case officers. During 2021, Timisoara centre received support for the assessment of asylum application – two additional case officers’ positions were filled through rotation by case officers from the other centres. In Bucharest, there are 4 female case officers out of 7, according to the director of Stolnicu centre. In Giurgiu there are 4 case officers of whom 1 is a woman and in Galaţi there is one female case officer and 4 men.

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.

Quality and conduct

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

• Some interpreters have private conversations with the asylum seeker and do not translate the conversation, or they express emotions;
• Asylum seekers complained about an interpreter, who made comments during the personal interview like: “more briefly, I do not have all day at your disposal”, he 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).Even though the asylum seekers wanted to be assisted by the legal counsellor during the interview, the interpreter told them that “the presence of the legal counsellor is not necessary because you will be granted a form of protection anyway”.

In Timişoara, the JRS representative stated the asylum seekers had not reported any issues regarding the quality and conduct of interpreters, only that they did not have the chance to say a certain thing because they were not asked about it. An attorney interviewed also mentioned that there were no complaints in regard to the quality of interpretation. However, the lawyer reported that an Arabic interpreter used by the court was not knowledgeable in Romanian language and the hearing took place in English.

In Şomcuta Mare, it was reported that interpreters are not professionally trained on asylum issues. An asylum seeker complained that the interpreter interfered with the interview and he was striking the table with his fist.  The JRS representative reported that she attended an interview through video conference and she observed that the interpreter was relaying less than the asylum seeker was saying. In this case the transcription was sent via email. It was noted that the majority of asylum seekers complain that essential facts that they stated duing the interview are not mentioned in the transcript.

Rădăuţi: that their declarations were not relayed exactly or coherently. It was also reported that the Arabic translator is not relaying the exact message. It was reported that 2 asylum seekers, Somali nationals, had their interviews during the weekend, through videoconference and had no possibility to be assited by the legal counsellor, who works only during the weekdays. They stated that their transcript was not read out to them by the interpreter.

Bucharest: There are problems with interpretations for rare languages, for Bengali language, for example, there are only two interpreters and one of them does not have a good command of Romanian language and sometimes he only translates “yes” or “no” when there has been an obviously longer answer by the asylum seeker. Asylum seekers often declare that the interpreters were not relaying everything or changing the answers.  In 2021, according to the JRS representative there was only one asylum seeker from Bangladesh.

Giurgiu: the JRS representative reported that all the asylum seekers have something to add after the interview. Few of them stated that the interpreter did not relay his message or changed the asylum seekers’ declarations.

Galati: Asylum seekers did not complain about the interviews conducted, quality of the interview or conduct of interpreters. An asylum seeker from Palestine complained after his asylum claim was rejected that the interpreter did not relay his exact statements and that he was not knowledgeable in Romanian language.

The directors of Timisoara, Vasile Stolnicu 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 in 2021, 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.[25]

It was noted that only CNRR and ICAR Foundation have the funds for the services provided by interpreters. In addition, UNHCR funding may be extended to cover interpreter fees, in certain situations.

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.

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.[26] 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 or transcripts 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 2021, 315 interviews were conducted through videoconferencing in total in all the regional centres.[27]

Şomcuta Mare: According to the JRS representative interviews were held through videoconference due to a lack of interpreters.

Timișoara: all interviews with asylum seekers who made an application in detention were conducted through videoconference. Also, several interviews were conducted through videoconferencing due to the lack of interpreters. They conducted interviews through this method with Pashto, Somali, and Bengali interpreters from Galati, Rădăuţi and Giurgiu.

Galaţi: According to the JRS representative, IGI-DAI conducted interviews through videoconferencing with interpreters from other regional centres, in cases of asylum seekers who spoke Somali and Bengali.

Rădăuţi: In 2021 interviews were conducted through videoconferencing for Somali asylum seekers. No complaints were made by asylum seekers with regards to interviews conducted in this manner.

Giurgiu: Videoconferencing was also used to conduct interviews with a Somali interpreter from Bucharest.

Bucharest: As far as the JRS representative was aware no interviews were conducted through videoconference. Conversely the director of Stolnicu centre mentioned that videoconference was used whenever there was no interpreter available or in cases 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 his or her statements.[28]

At the end of the interview, the transcript of the interview is orally translated by the interpreter to the applicant.[29] 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.[30] After this, the transcript is signed on every page by all the persons present at the interview.[31] A copy of the transcript is given to the asylum seeker or legal representative, his or her lawyer or counsellor, as the case may be, which assisted him or her at the interview, after the document was signed.[32] If the applicant refuses to sign the transcript, the reasons for his or her 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.[33]

In Timișoara, asylum seekers complained that they are not notified in advance of the date of the interview. According to the JRS representative, officers wake them up on the day of the interview or they are not allowed to leave the accommodation centre in the morning, or they are informed about the interview the day before. The latter is not applied often because IGI-DAI is afraid that the asylum seekers might leave. Furthermore, information on this practice was corroborated by an attorney who stated that some asylum seekers mentioned that they are woken up at 7 AM and taken to the interview. It was also reported by one of the attorneys that at the end of the interview, the transcript is not fully translated by the interpreter; the interpreter only informs the asylum seekers that they have to sign the transcript as it includes all of their statements. According to the director of Regional Centre Timișoara, asylum seekers are notified about the date of the interview in writing in their language or in English or at the preliminary interview when the interpreter is available. According to the JRS representative, in 2021 there were no cases of asylum seekers complaining about the translation of the transcripts. Nevertheless, she believes that the transcript is not read to them because there are too many interviews conducted in one day.

The same practice was reported in Somcuta Mare, where asylum seekers are not informed beforehand about the date of their interview. They are not allowed to exit the centre and the officers at the access point check for the asylum seekers in the centre when it is time for their interview.

In Galati, the same was reported by the JRS representative, who stated that the schedule of the interview is in the case file but asylum seekers are not aware of the date of their interview. In order to find out the date of the interview, the NGO representatives have to ask the case officers, which can be burdensome because there are 5 case officers.

In Bucharest this was also the practice. The JRS representative stated that asylum seekers were not informed beforehand of the date of their interview. They were woken up in the morning and told to get in the car.  This practice limited their right to be assisted by an NGO representative at the interview. 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. It was also noted that in case of vulnerable persons both interviews may be conducted in the same day.

In Giurgiu, the director of the centre said that the date of the interview is established together with the asylum seekers in the case of the students from Craiova, as for the rest of the asylum seekers accommodated in the centre they are informed in writing of the date of their interview.

In Galaţi, there have been cases of asylum seekers complaining about the quality of the interpretation and the transcript. Asylum seekers also complain about the fact that the interpreter did not relay everything, aspects that they mentioned were omitted by the interpreter and that the transcript was not translated at the end of the interview. There was also the case of an asylum seeker who complained that the transcript did not fully include his statements and another interview was conducted.

In Giurgiu, it was reported that in practice the transcript is read at the end of the interview. Asylum seekers may formulate objections and make additional notes, which would be subsequently inserted in the transcript.

In Şomcuta Mare, the JRS representative reported that at the interviews she attended the transcript was read. Although, the manner in which the interview was conducted gave her the impression that she was attending a criminal interrogation rather than an asylum interview. The questions were formulated in such a way as to discredit the asylum seeker. The case officer was clearly biased. Asylum seekers complain about the content of the transcript when this is read to them afterwards but also before the decision is communicated to them. Essential information has been reported as ommitted and statements reportedly distorted. It was also noted that half of the interview focuses on the travel route. An asylum seeker who complained that the transcript did not contain vital information requested another interview and this was granted. The JRS representative stated that several Afghans mentioned that the interview lasted 10 minutes and the trasnscript was copy pasted. Furthermore, she also mentioned that the male case officer at the second interview with a woman had little patience and he did not know how to ask her questions.

In Rădăuţi, it was reported by the JRS representative that for a period of time, at the end of the interview, the case officer read the transcript from his computer, but the interpreter only translated it after the transcript was printed out and signed by the asylum seeker. This was the practice only when NGO representatives did not attend the interviews. This was still the case in 2021. It was also reported that the case officer read so fast that it was impossible for the interpreter to translate. If the interpreter requested that the case officer repeated the sentence, he was mocked. The legal counsellor noticed discrepencies between the statements made during the interview and statements made during the counselling session or that information was omitted. In general, however, a summary of the transcript is presented to the asylum seeker.

In Bucharest, it was reported by the JRS representative that the interpreter reads the transcript and the asylum seeker is asked if he has any objections. Objections are subsequently added to the transcript. According to the directors of Timisoara, Giurgiu and Vasile Stolnicu centres the transcript is read in full. If necessary, the case officer may conduct another interview with the asylum seeker.[34]

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.[35] The decision may be communicated to the lawyer or NGO representative representing the asylum seeker, if the asylum seeker has expressly requested this.[36]

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.[37] 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.

Appeal before the Regional Court

The Regional Court (JudecătoriaSecţiaCivilă) 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.[38]

In 2021, a total of 1,438 appeals against IGI-DAI decisions were filed before the Regional Courts.[39] According to the information provided by the Regional Courts the number of appeals in 2021 was 1,489.

Source: Regional Courts

*of which 176 appeals were in an accelerated procedure and 234 in a regular procedure.

**of which 61 appeals were in an accelerated procedure, 30 appeals in a subsequent procedure and 60 appeals in refugee cases, of which 21 were in a regular procedure.

***of which 43 appeals were in an accelerated procedure and 41 in a regular procedure

Time limits

The deadline for lodging an appeal is 10 days from the day the decision was communicated.[40] The appeal has automatic suspensive effect, if it was lodged within the term prescribed by law.[41]

The law contains a procedural safeguard in case of appeals lodged after the time limit set out bylaw.[42] 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.[43]While this review is pending, the foreigner cannot be removed from the country.[44]

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.[45] 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.[46]

The appeal has to be motivated in fact and in law.[47] It may be lodged at IGI-DAI, which has issued the decision or directly to the competent court.[48] 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.[49] 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.[50]

In general, there are no problems in appealing a decision, if asylum seekers consult the legal counsellor of an NGO.[51] 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. The JRS representative reported that sometimes this information is communicated to the asylum seeker, taking into account that CNRR has an office in Tudor Gociu Centre. Nevertheless, there were cases in which the rejected asylum seekers did not know who to turn to for the appeal against the decision of IGI-DAI to be drafted. Since Vasile Stolnicu centre was renovated in the summer of 2021 it is easier for the asylum seekers to find information about NGOs, as they are all in the same building.

It was reported by the director of the centre, that in Timisoara, 95% of the appeals are lodged at IGI and the rest directly at the court. According to the JRS representative CNRR’s legal counsellor submitted the appeals to the court via email.

In Somcuta Mare, in many cases asylym seekers received the subpoena the night before the court hearing. Moreover, one asylum seeker missed his court hearing because IGI-DAI did not hand him the subpoena. His appeal was rejected in absentia.

Article 62 of the Asylum Act provides that asylum cases should be dealt with priority before other civil matters.[52] The court should take a decision on the appeal within 30 days.[53] The court has to motivate its decision within 5 days of it being pronounced.[54]

Special measures imposed during the pandemic

In 2021, court hearings at the Regional Courts were usually carried out in person, as before the pandemic. At the same time, in order to prevent the spread of coronavirus the courts took all necessary measures such as: mandatory masks, hand sanitizers, social distancing, scheduling the hour of the hearing.

In 2020, IGI-DAI statistics refer to 1 to 2 months average duration of the appeal procedure.[55] For 2021, IGI-DAI reported that there are no statistics on the duration of the procedure.[56] In practice, the average processing time for the first instance judicial court differs from county to county, as follows:

Source: Regional Courts.

Şomcuta Mare: The JRS representative reported that the appeal procedure did not last long in 2021.  The Regional Court Baia Mare reported that the decision was reasoned in 1-5 days.[57]

Galaţi: According to the legal counsellor the average duration of the appeal procedure is usually around 90 days. However, if there is an interpreter the procedure may be finalised at the first hearing. In general, the appeal procedure has 2 court hearings at 2 weeks or 1 month apart. Court hearings were held through videoconference with interpreters from Dari or Pasto from other cities (Bucharest, Suceava).

Rădăuţi: the legal counsellor noted that the appeal procedure lasted 30-60 days. According to the legal counsellor, the length of the procedure depends on the judge; there are some judges who do not postpone the hearing for any reason. According to the JRS representative’s experience the average duration of the appeal procedure is around 3-4 months, in some cases shorter. It was reported that IGI-DAI requested the postponement of the appeal procedure of Afghan asylum seekers for one month because they were waiting for the official position of EASO. The court granted them the request. At the second hearing IGI-DAI requested the postponement of the hearing again, but the court refused the request and granted a form of protection to all Afghan asylum seekers.

Timișoara: According to a lawyer, the average duration of the appeal procedure in 2021 was 2-3 months, which also included 2-3 weeks for drafting the decision. 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 in 2021 in Timișoara the majority of cases examined by the court were in accelerated procedures. The Regional Court in Timișoara reported that out of the 382 cases in an accelerated procedure(compared to 138 from last year), 364 were assessed in 1 court hearing. The length of the appeal procedure was 31.5 days and 9.6 days for drafting the reasoned decision.  Under the regular procedure, 54 files were examined by the court; for which the duration of the appeal procedure was 53.8 days, shorther than last year when the average duration was 65 days (40.3 until the decision was given and a further 13.6 to receive the reasoned decision). Out of the total appeals in the regular procedure 22 were examined in only 1 court hearing. Subsequent applications (8 in total) were assessed by the court in 60.9 days.[58]

Bucharest: the average duration of the appeal procedure is around 3-4 months, according to the director of Stolnicu centre. According to the JRS representative the average duration is around 3 months. 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 are no more 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 57.02 days, in case of subsequent applications 67.76 days and in the assessment of permission to remain on Romanian territory 40.38 days.[59]

Giurgiu: according to the director of the centre the appeal procedure lasts around 60 days. the JRS representative stated that the average duration of the appeal was 3 months. According to the Regional Court Giurgiu the decisions are reasoned in 15 days.[60]

CNRR reported that the average duration of the appeal in Timisoara was 60-90 days for the ordinary procedure and 15-20 days for accelerated procedures; in Somcuta Mare it was 30 days for the ordinary procedure; it was 60 days in Galati; and 30 days in Radauti, District 4 Bucharest and Giurgiu.[61]

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.[62]

The Regional Court in Galaţi hears the majority of asylum seeker ex officio. In some cases the judge asks the applicant if he or she has something to add; in others the judge may ask questions.

In the Regional Court of Baia Mare, asylum seekers are not always heard, according to the JRS representative. Moreover, there are judges who refuse to hear the applicant even if he/she has requested it.

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 client.

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.[63] This is respected in practice in all the courts.

Another improvement noticed by a lawyer in the Regional Court of Bucharest District 4 is that, since October/November 2018, the list of hearings displayed outside the courtroom is anonymised and no longer contains the name of the asylum-seeking appellants. However, during the pandemic, due to the fact that access to the court building was restricted, the gendarmerie, which ensures the compliance of this measure, has a list with the names of all parties, including asylum seekers. This was still practice in 2021.

Decision

The Regional Courts took 1088 decisions in 2021, according to IGI-DAI.[64] According to data provided by the Regional Courts a total number of 1,390 decisions were issued in 2021.

Source: Regional Courts.

At the national level, there is a court portal available online,[65] but only the asylum cases registered at the Regional Court of Giurgiu are 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 counselor has to go or call the Court’s Registry.

On the other hand, practice has not change at the Regional Court and the Administrative Country Court of Giurgiu, where all the appeals are published and include full names, file number and a summary of the decision. The director of the centre reported that decisions are communicated to asylum seekers by their lawyers, stating that all asylum seekers who are following the procedure have a lawyer appointed by the court through the state legal aid system. This was also confirmed by the legal counsellor of IGI-DAI. The decisions are reasoned in 2-3 weeks, according to the director.

In addition, some of the decisions of the Regional Courts of Rădăuţi and Giurgiu are 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.[66]

Since 2019 asylum seekers could no longer consult the progress and outcome of their cases reviewed by the Regional Court of Baia Mare and the Tribunal of Maramureș because the files are no longer scanned on the portal of the Court of Appeal, even though the court still communicates a password for the portal. Even if the password is provided the file cannot be accessed because the procedure is confidential, according to the JRS representative. As a consequence, it is now difficult for asylum seekers and NGO representatives to follow their cases. It was reported that asylum seekers are not informed about the decision on their case. In 2021, in a maximum of 10 cases the court registrar sent the decision by fax to IGI-DAI and IGI-DAI informed the asylum seeker. In order to learn about the court proceedings and decisions, the JRS representative asks IGI-DAI, only when she is aware that the respective asylum seeker has had a court hearing or she asks the lawyers with whom they collaborate. Onward appeals were not lodged in some cases because she was not aware of the court hearings. JRS drafted the onward appeals and sent them via email to the tribunal. The decisions of the first instance court are communicated in 10-30 days, depending on the judge.

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 3-4 weeks.

The decisions of the Regional Court and Administrative Country Court of Galaţi are not 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 decisions of the Regional Court of Bucharest District 4 are neither published on any portal nor written in the registers. The decisions may only be accessed through the court’s archive. The JRS representative mentioned that the decision of the court is communicated by the attorney.  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.

According to CNRR, in 2021 the average time for drafting the first instance decision was 30 days, but there were also cases when the drafting was delayed, both in the country and at the District 4 Court. The delay in drafting the first instance decision reached up to 60 days.[67]

Onward appeal

Special measures imposed during the pandemic

In 2021 the court hearings at all the Administrative County Courts took place as previously.

As in 2020, in 2021 the administrative county courts took all necessary measures to prevent the spread of coronavirus (COVID-19) such as: mandatory masks, hand sanitizers, ventilation of court rooms at short intervals, social distancing, measuring the temperature of all visitors and equipping all premises with sanitizers.

IGI-DAI reported that, in 2021, there were 380 onward appeals before the Administrative County Courts.[68] According to the information provided by the Administrative County Courts the number of onward appeals was 249, lower than in 2020 when 257 onward appeals were lodged.

Source: Administrative County Courts.

*of which 129 were new onward appeals formulated during 2021.

The law prescribes the possibility to appeal the decision of the Regional Court.[69] 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.[70] 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.[71]

In 2021 IGI-DAI reported that there were no statistics on the average duration of the onward appeal.[72] In 2020 they reported that the procedure was 2-3 months.[73] In practice, this varies from one court to another:

Source: Administrative County Courts.

The onward appeal does not look at facts but examines if the appealed decision is compliant with the applicable rules.[74] As a consequence, the onward appeal has to include the grounds for illegality on which the appeal is based.[75] The decision has to be motivated within 10 days from the day it is communicated by the Regional Court.

Timișoara: The Administrative County Court added that the duration of the onward appeal varies from one month (four files) to four months (two files). According to the director of the Regional Centre of Timișoara, the average duration of the onward appeal is two months. A lawyer reported that the average duration of the onward appeal was three months, calculated from the date when the onward appeal was formulated until the decision was drafted.

Galaţi: According to a JRS representative the average duration of the onward appeal is a maximum of 90 days.

Giurgiu: The Administrative County Court of Giurgiu reported an average of 128 days for the onward appeal.[76] according to the JRS representative the average duration of the onward appeal was around six months. The director of the Giurgiu centre stated that the maximum duration was 120 days.

Şomcuta Mare: The JRS representative reported that the onward appeal lasts several months. In 2021 many cases were postponed due to the lack of interpreters. 1 onward appeal that had been pending since 2018 was finally finalised in February 2021. In this case, the court hearings were postponed several times due to the lack of an interpreter. It was emphasized that asylum seekers are not informed about the courts’ decisions.

It was reported by the JRS representative that in one case the appellant requested a Lingala interpreter, the court postponed the case without providing a date for the hearing and afterwards the asylum seeker was rejected without any court hearing. There were also onwards appeals lodged in the summer of 2021 and the date of the court hearing was only set for January 22.

Rădăuţi: The JRS representative stated that the average duration of the onward appeal is around 3-4 months. The legal counsellor mentioned that at the first or second hearing the case was finalised and the average duration of the onward proceedings was 3 months.

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.

CNRR reported that the duration of the onward appeal was 90 days in Galati, 30 days in Radauti, Giurgiu, Bucharest and Somcuta Mare, and 4 months in Timisoara.[77]

The practice observed in Bucharest in 2017 that, in most of the cases lawyers paid by the legal aid scheme did not appeal against the decision of the Regional Court, changed in 2018 and 2019. According to a lawyer who is also the head of the Judicial Assistance Service of the Bucharest Bar Association, lawyers are starting to lodge onward appeals, but they are not aware if they have the mandate to also draft the reasoned appeal in these cases. In 2021, the situation was the same, according to a lawyer.

On the other hand, CNRR stated that in general, CNRR lodges onward appeals if the asylum seeker presents the decision.[78]

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.[79]

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 2021 357 onwards appeals were finalised.[80]

However, the Administrative County Courts reported a total of 298 decisions issued.

Source: Administrative County Courts.

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 his or her personal situation.[81]

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.[82]

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, operating since August 2012 with a capacity of 15 places and one in Bucharest, working since 2015 with 18 places. They accommodate vulnerable persons, especially single mothers with children. The AIDRom centres in these cities are funded both by AMIF and by external donors. In addition, the legal counsellor of AIDRom also provides legal counselling and assistance in the IGI-DAI of Bucharest (Tudor Gociu).

The Jesuit Refugee Service (JRS), through the project “Border Management and Protection of Asylum-Seekers in Romania”, also provides legal assistance and information in all the Regional Centres, which is complementary to the assistance afforded by CNRR. The project is funded by UNHCR Romania.

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 his or her personal interview if he or she requests so.

Under the project funded by UNHCR, JRS may appoint a lawyer if the asylum seeker is a vulnerable or a person of interest for UNHCR or if it is a case that might lead to a practice altering-decision. According to JRS representative from Timișoara, the conditions for receiving funding for lawyers are even tighter. Legal representation by a lawyer under the Legal Aid Act includes representation in the administrative phase of the procedure.[83] 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.[84] 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 he or she wishes to be represented by a lawyer during the personal interview.

Legal assistance in appeals

In court proceedings, legal aid may be provided by NGOs such as CNRR and JRS, who have limited funds for legal representation. In 2021, CNRR covered 100 attorneys’ fees, from AMIF funds.[85]  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 245 appeals received by the court in 2021, 98 cases made an application for legal aid, (of which 76 were submitted by CNRR)[86] and 31 legal aid applications were rejected.[87] As for the reasons for dismissal of these requests, the court reported that they were unfounded.[88]  No reviews of the applications for legal aid were lodged in these rejected cases.[89] According to the JRS representative the reason for the dismissal of the requests was that the asylum seeker had already benefited from specialized legal assistance from an NGO and it was not considered justified to grant an ex officio lawyer. 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. According to the director and legal counsellor of the Giurgiu centre all asylum seekers who follow the steps of the procedure do have an appointed lawyer. The Legal counsellor of IGI-DAI also emphasised that since she has been working at the centre no application for state legal aid had been rejected by the court.

The Regional Court of Timișoara reported that out of 102 applications for state legal aid, none of them was rejected.[90] CNRR reported 69 applications submitted.[91]

The Regional Court Baia Mare stated that in all asylum cases a lawyer paid through the state legal aid was appointed ex officio.[92] The legal counsellor of CNRR submitted only 1 application in 2021.[93]

The Regional court Radauti reported that in the 84 appeals registered in 2021, 25 applications for state legal aid were made and all were admitted.[94] CNRR reported only 14 applications made in Radauti in 2021.[95]

The Regional Court District 4 Bucharest stated that the general rule is to appoint a lawyer paid through the state legal aid for asylum seekers who submit such a request.[96] CNRR reported only 39 applications made in Bucharest during 2021,[97] even though there were 410 appeals registered. On the other hand, in the Regional Court Galaţi as in 2020, in 2021 no such applications were submitted, even though there were 130 appeals lodged throughout the year.[98] In contrast, CNRR reported that 145 applications were made by their legal counsellor in Galati.[99]

As regards the applications for state legal aid at the level of the Administrative Country Courts, the number is even lower. The Administrative County Court Maramures reported 10 cases, the Administrative County Court Suceava reported 2, the Administrative County Court Timis 1 and at the the Administrative County Court Bucharest no applications were made, according to information provided by the courts. At the same time, the Administrative County Court Galati reported that a lawyer paid through state legal aid had been appointed ex officio.

According to CNRR, in 2021, there were no cases of rejected legal aid applications.[100]

In most cases, asylum seekers turn to legal counsellors for drafting and lodging the appeal against a negative decision of IGI-DAI.NGOs CNRR and JRS have funds for attorney’s fees, whocan 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, he or she sends 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 2021, 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 one training for lawyers in 2021.[101]

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 and JRS) 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 NGOs, when the asylum seeker was represented by a lawyer paid through the state legal aid scheme.

In Şomcuta Mare, the JRS representative mentioned that she collaborates with the lawyers appointed in the cases. The asylum seeker meets with the lawyer appointed though the state legal aid scheme 10 minutes before the court hearing. Asylum seekers who spoke English with the lawyers’ consent were given phone numbers from the JRS representative and could contact them.  The appeals were lodged by the lawyers or the JRS representative.

In Timișoara, the director of the Regional Centre of Timişoara 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 JRS representative the attorneys paid through the state legal aid scheme do not contact or discuss the case with the asylum seekers. 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 2021.

CNRR reported that in 2021, 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 his/her situation.[102]

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. The JRS representative also reported the lack of communication between lawyers and asylum seekers and that many of the asylum seekers leave the centre before lodging the 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.[103]

The information provided by the domestic courts shows that in a high number of cases an onward appeal was not lodged. The Admnistrative County Courts of Bucharest reported that in 2021 only 63 onward appeals were formulated and 389 decisions were not appealed against.[104]  In Giurgiu 127 decisions were not appealed against.[105] In Galati out of 130 decsions issued only 45 onward appeals were lodged and 85 decisions were not appealed against.[106] The legal counsellor of JRS stated that they do not lodge appeals or onward appeals in absentia. In Timisoara 34 decisions were not appealed.[107] In Somcuta Mare 13 decisions were not appealed[108] and in Suceava 6.[109]

While in 2019[110] IGI-DAI provided statistics with regards to cases in which an onward appeal was not lodged, in 2020 and 2021 IGI-DAI reported that they have no statistics on this matter.[111]

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. The fee paid through state legal aid ranges from 130 to 300 RON/ €28 to €66 per judicial instance. 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 CNRR, 15 February 2022.

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

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

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

[11] Ibid.

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

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

[14] Article 16(1) Asylum Act.

[15] Article 16(2) Asylum Act.

[16] Article 19^11 Asylum Act.

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

[18] Information provided by IGI-DAI, 20 February 2020.

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

[20] Article 19^6(2) Asylum Act.

[21] Article 45(3) Asylum Act.

[22] Article 48 Asylum Act.

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

[24] Article 45(2) Asylum Act.

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

[26] 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.

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

[28] Article 45(5) Asylum Act.

[29] Article 45(7) Asylum Act.

[30] Article 45(6) Asylum Act.

[31]  Article 45(8) Asylum Act.

[32] Article 45(9) Asylum Act.

[33] Article 45(10) Asylum Act.

[34] Article 45(11) Asylum Act.

[35] Article 54(1) Asylum Act.

[36] Article 54(1^1) Asylum Act.

[37] Article 54(1) Asylum Act.

[38] Article 65 Asylum Act.

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

[40] Article 55(1) Asylum Act.

[41] Article 55(2) Asylum Act.

[42] Article 69 Asylum Act.

[43] Article 69(1) Asylum Act.

[44] Article 69(2) Asylum Act.

[45] Article 69(3) Asylum Act.

[46] Article 69(4) Asylum Act.

[47] Article 57(1)(c) Asylum Act.

[48] Article 56 Asylum Act.

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

[50] Article 425(b) Civil Code.

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

[52] Article 62(1) Asylum Act.

[53] Article 64(2) Asylum Act.

[54] Article 64(3) Asylum Act.

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

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

[57] Information provided by Regional Court Baia Mare, 17 January 2022.

[58] Information provided by Regional Court Timișoara, 10 February 2022.

[59] Information provided by Regional Court District 4 Bucharest, 7 February 2022

[60] Information provided by Regional Court Giurgiu, 25 January 2022.

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

[62] Article 63 Asylum Act.

[63] Article 58 Asylum Act.

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

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

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

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

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

[69] Article 66 Asylum Act.

[70] Article 67 Asylum Act.

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

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

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

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

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

[76] Information provided by the Administrative County Court of Giurgiu, 16 March 2022.

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

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

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

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

[81] Article 17(1)(s) Asylum Act.

[82] Ibid.

[83] Government Emergency Ordinance 51/2008.

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

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

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

[87] Information provided by the Regional Court Giurgiu, 25 January 2022.

[88] Ibid.

[89] Ibid.

[90] Information provided by the Regional Court Timișoara, 10 February 2022.

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

[92] Information provided by the Regional Court Baia Mare, 17 February 2022.

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

[94] Information provided by the Regional Court Radauti, 19 January 2022

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

[96] Information provided by the Regional Court District 4 Bucharest, 7 February 2022.

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

[98] Information provided by the Regional Court Galaţi, 27 January 2022.

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

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

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

[102] Ibid.

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

[104] Information provided by the Regional Court District 4 Bucharest, 7 February 2022.

[105] Information provided by the Regional Court Giurgiu, 25 January 2022.

[106] Information provided by the Regional Court Galati, 27 January 2022

[107] Information provided by the Regional Court Timisoara,10 february 2022.

[108] Information provided by the Administrative County Court Maramures, 7 February 2022.

[109] Information provided by the Administrative County Court Suceava, 13 January 2022.

[110] 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.

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