Expression of intention to seek asylum and registration
The Asylum Act envisages that foreigners within the territory of Serbia have the right to express the intention to seek asylum and submit an asylum application. Foreigners may express intention to seek asylum to the competent police officers at the border or within territory either verbally or in writing, including places such as prisons, the Detention Centre for Foreigners in Padinska Skela, airport transit zones or during court proceedings e.g. misdemeanour proceedings.
Unaccompanied children cannot express the intention to seek asylum until a social welfare centre appoints a temporary legal guardian.
An authorised police officer shall photograph and fingerprint the person, who will thereafter be issued a certificate on registration of a foreigner who has expressed intention to seek asylum. The manner and the procedure of registration, as well as the content of the registration certificate are defined in the Rulebook on Registration. This Rulebook prescribes the design and content of certificates for foreigners who expressed the intention to seek asylum. In line with the Rulebook, a certificate on registration of a foreigner who expressed intention to seek asylum (“registration certificate”) is issued to a foreigner who has expressed the intention and registered.
Pursuant to the Rulebook, registration certificates shall be issued in two copies, one of which is handed to the foreigner and the second one to be archived in the Ministry of Interior organisational unit where the officer who issued the registration certificate is employed. Registration certificates issued to foreigners who expressed intention are in Serbian and in Cyrillic alphabet. Given that the majority of asylum seekers do not understand Serbian and do not use the Cyrillic alphabet, as well as the fact that interpreters are seldom present when the certificate is issued, the possibility of the certificates being issued in English, Arabic, Farsi or some other languages should be considered in order to avoid potential dilemmas related to understanding of the rights specified therein.
Over the course of 2019, the Ministry of Interior issued a total of 12,937 registration certificates, which is a significant increase in comparison to 2018 (8,436).
The registration certificate in Serbia is not considered an asylum application. Therefore, expressing the intention to seek asylum does not constitute the initiation of the asylum procedure. It is, however, a precondition for submission of the asylum application.
After the foreigner is registered, he or she is referred to an Asylum Centre or other facility designated for accommodation of asylum seekers. The asylum seeker is obliged to report to such facility within 72 hours from the moment of issuance of the registration certificate. Transportation costs to reach that facility are not covered. If a foreigner fails, without a justified reason, to report to the Asylum Centre or other facility designated for the accommodation of the applicants within 72 hours of registration, the regulations on the legal status of foreigners shall apply. Thus this person will be considered as irregular migrant, which should not be the case for people who are in need of international protection or who, on the basis of their origin, have a prima facie claim. One of the possible consequences of misunderstanding of the content of the certificate is the failure of an asylum seeker to appear in the Asylum Centre within 72 hours. In that case, he or she would lose the status of an asylum seeker and will be treated in line with the provisions of the Foreigners Act as an irregular migrant. He or she then risks being penalized in the misdemeanour proceeding and served with one of the expulsion decisions (decision on cancellation of residency or return decision).
According to a Ministry’s of Interior letter sent to the BCHR, when issuing registration certificates and referring persons to one of the Asylum Centres or transit / Reception Centres, the police officers advise the persons who express the intention to seek asylum about their right to submit an asylum application and about the other rights and obligations, in line with Article 56 of the Asylum Act. The letter also indicates that a brochure on asylum seekers’ rights and obligations is being drafted and that it will be made available in all the organisational units of the Ministry of Interior which issue registration certificates, and to the facilities for accommodation of asylum seekers and migrants. Consequently, if said brochures in languages that asylum seekers understand have not been distributed yet, it remains unclear how the foreigners are advised about their rights and obligations given the language barrier between them and the police officers, and the fact that interpreters are rarely present in these cases. According to the testimonies collected from the BCHR’s clients, this information has never been provided to any of them so far.
Concerns in practice
It is possible for the same person to be issued with a copy of the registration certificate in case when it has expired or has been stolen or lost. This possibility exists as long as asylum application has not been rejected, in which case asylum seeker may lodge a Subsequent Application. This approach was taken by the Asylum Office in all the scenarios except in those in which foreigners receive the decision on cancellation of residency or return decision. In these kinds of situations, it is still not entirely clear whether or not Asylum Office and Ministry of Interior consider that these people still have right to apply for asylum.
As it has been the case in previous years, the total of 12,937 certificates issued in 2019 does not adequately reflect the real number of persons who were genuinely interested in seeking asylum in Serbia. Registration certificates are mainly issued for the purpose of securing a place in one of the Asylum or Reception Centres, where asylum seekers may enjoy basic rights such as accommodation, food, health care, psycho-social support from CSOs (see Types of Accommodation). Under the circumstances, the Ministry of Interior does not adequately assess an individual’s aspirations, i.e. whether or not they genuinely want to remain in Serbia.
Conversely, it is common practice that genuine asylum seekers are referred to Reception Centres instead of Asylum Centres (see section on Housing), thereby prolonging their entry into the asylum procedure. Consequently, NGOs providing legal assistance have to advocate for their transfer to one of the five Asylum Centres. This process can sometimes last for longer than several weeks, of even months, which further delays access to the asylum procedure, and can cause frustration or discouragement to the applicants. Also, in 2019, several cases of informal transfers of genuine asylum seekers from Asylum to Reception Centres by the Commissariat were recorded, which created further complications for the concerned individuals and prolonged their asylum application submission. BCHR has been suggesting for years that all genuine asylum seekers should be placed in the Asylum Centre in Krnjača which has the capacity to accommodate on an annual basis all persons who are genuinely interested in staying in Serbia, provided that the reception conditions in the centre are significantly improved. The Asylum Office shares these views, however, the Commissariat for Refugees and Migration (CRM) has been declining this without providing any reasonable explanation.
By placing all genuine asylum seekers in Krnjača, an entire set of improvements would be achieved:
- The period of time between the issuance of registration certificate and the first instance decision would be significantly shortened since the applicants would not be compelled to wait for weeks to be transferred from Reception Centres to an Asylum Centre;
- The Asylum Office, which is based in Belgrade, would focus the majority of its limited resources on the Asylum Centre which is based in Belgrade, and thus would conduct the asylum procedure in a more effective manner, scheduling lodging of asylum applications and interviews faster and more often than it is the case now, especially in distant Asylum Centres such as Sjenica and Tutin;
- Genuine asylum seekers would have access to more effective legal counselling since the NGOs providing free legal assistance are based in Belgrade and can be present more often in the centre;
- The resources which are necessary to facilitate the asylum procedure in distant camps, such as travel and accommodation costs of asylum officers and interpreters, would be saved.
It is important to reiterate that refugees expelled / returned from Hungary and Croatia informally or in line with the Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorisation, are still facing difficulties in accessing the asylum procedure. It is not clear what the official stance of Serbian authorities vis-à-vis such cases is, but BCHR has intervened on many occasions in order to secure their access to the asylum procedure. Even though there have not been major problems in 2019, it was still necessary for BCHR to intervene directly with the Asylum Office in order to secure individuals access to the procedure. However, the question that remains open is what happens with those people who do not enjoy legal support. Thus, regardless of the positive approach of the Asylum Office, it is necessary that this body passes a clear message to all police departments that every person who expresses the intention to apply for asylum should be issued with a registration certificate.
In October 2017, BCHR was obliged to submit a request for interim measures to the ECtHR in order to prevent the execution of a decision of cancellation of residence issued to an unaccompanied child from Afghanistan who was expelled from Hungary and denied access to the asylum procedure. The request was granted on 17 October 2017. A similar case occurred in 2015, when a refugee from Syria, returned under the readmission agreement from Hungary, was denied access and detained in the Detention Centre Padinska Skela for the purpose of forcible removal to Montenegro. In the latter case, the applicant was allowed to access the asylum procedure, while the Afghan minor was denied this possibility and remained in legal limbo as of April 2020.
Also, the denial of access to asylum procedure is a common practice applicable to persons who are likely in need of international protection and who attempted to irregularly cross to Croatia hidden in the back of the truck or van at the official border crossing. After they are discovered by the Croatian border police and informally surrendered back to Serbian police, they are automatically taken to the misdemeanour court in Šid or Bačka Palanka where they are penalised for a misdemeanour of illegal stay or entry and subsequently served with the decision on cancellation of residency or a decision on return. Both of these decisions have a nature of an expulsion order. Therefore, if they decide to apply for asylum, they will most likely be denied that possibility and will be further treated as irregular migrants but can be also pushed to an informal system, outside reception centres. That was the case with the late Afghani USAC X. who was eventually killed by the smugglers in front of the Asylum Centre in Krnjača.
The above-described cases indicate the existence of a very serious problem regarding access to the asylum procedure, but also other risks. Namely, people who were issued with the decision on cancellation of residency, return decision or were penalised for misdemeanour of illegal entry are often denied access to the asylum procedure. This kind of practice could have severe implications on those people who have a prima facie refugee claim since they could be forcibly removed to a third country (in the vast majority of cases to Bulgaria and North Macedonia) or even the country of origin in which they could be subjected to ill-treatment. Thus, it is very important to outline that the current practice of the most police departments in Serbia regarding the issuance of decisions on cancellation must be improved so it contains the procedural safeguards against refoulement. Accordingly, this procedure should be conducted in a manner which implies that the foreigner is allowed to contest his or her removal to a third country of country of origin with the assistance of a lawyer and interpreter, with the possibility to lodge a remedy for the judicial review of the negative first instance decision. This remedy must have an automatic suspensive effect. None of these safeguards are currently in place. Moreover, the entire procedure is based on the simple delivery of the decision to a foreigner drafted in a standard template which only contains different personal data, but no rigorous scrutiny of risks of refoulement is applied.
In one of the cases mentioned above, BCHR submitted the request for urgent interim measures to ECtHR in order to prevent expulsion of an unaccompanied minor from Serbia to Bulgaria. M.W. was issued with the decision on cancellation of residency without presence of a legal guardian, legal representative, while the Ministry of Interior failed to conduct any kind of assessment of the risks of refoulement in Bulgaria. ECtHR granted the Rule 39 request and the case was communicated to the Government on 26 March 2019. The reasoning behind the contentious decision, which was also confirmed by the second instance and third instance body, is that M.W. abused the asylum procedure when he failed to lodge an asylum application on the basis of the first registration certificate. There were dozens of other cases in which expulsion decisions were a reason for the denial of access to the asylum procedure, but these people had decided to abscond from Serbia before the deadline for voluntarily departure had expired.
The conclusion that can be drawn from the above described practices is that refugees and asylum seekers should not be returned to Serbia without a prior assessment of the facts related to individual’s previous legal status. Moreover, the request for individual assurances should be designed in line with possible obstacles which are mainly related to access to asylum procedure. However, taking in consideration a very high dysfunctionality of the child-protection system, USAC should not be returned back to Serbia as long as the situation significantly improves.
To summarise, before returning asylum seekers back to Serbia, Croatian and Hungarian, but also Bosnian authorities must determine the following facts and ensure such individual guarantees:
- what kind of status has the individual enjoyed in Serbia (asylum seeker, irregular migrant or other);
- taking in consideration the determined status, the assurances should contain strong guarantees that individual will not be referred to the misdemeanour proceeding and will not be issued with any form of the expulsion order;
- returnee will be issued with the registration certificate or its duplicate;
- returnees will be afforded legal representation by either BCHR or APC, or other lawyer who has proven qualifications in asylum and migration law;
- interpretation will be secured from the first contact with the immigration officers.
Problems regarding access to the procedure at Nikola Tesla Airport are identical (see Access to the Territory). Thus, people who are denied access to territory are simultaneously denied access to asylum procedure.
No major problems of access to the procedure were recorded in 2019 regarding the Detention Centre for Foreigners in Padinska Skela where BCHR lawyers have unhindered access.
Lodging an application
The asylum procedure is initiated by lodging (“submitting”) an application to an authorised asylum officer, on a prescribed form within 15 days of the date of registration. If the authorised asylum officer does not enable the person to lodge the application within that deadline, he or she may him or herself fill in the asylum application form within 8 days after the expiry of the 15-day time limit. The asylum procedure shall be considered initiated after the lodging of the asylum application form to the Asylum Office.
If strictly interpreted, the deadline of 15 plus 8 days could create serious problems regarding access to the asylum procedure because the reality in Serbia is that the vast majority of persons in need of international protection do not consider Serbia as a country of destination. However, they are predominantly and automatically issued with registration certificates and are thus subject to this deadline. In case the foreigner fails to meet the deadline, Article 35(13) of the Asylum Act envisages that he or she will be treated in line with the Foreigners Act, which further means that he or she could face expulsion to a third country or even the country of origin in case of the direct arrival to Serbia.
This solution is contestable on many levels. The main reason is the short period left from the moment of registration until the expiry of the 15-plus-8-day deadline for the lodging of the asylum application. There are several relevant observations to support this:
- The capacities of the Asylum Office are still insufficient to cover thousands of cases in which the registration certificate is automatically issued;
- The capacities of NGOs providing free legal assistance are also insufficient to effectively cover all the Reception Centres and Asylum Centres within the set deadline and at the same time provide thorough legal counselling and preparation for asylum interviews;
- If strictly interpreted, hundreds of people who enjoy the status of asylum seeker would be forced to submit an asylum application and then abscond from the procedure, which further means that the Asylum Office will have to render hundreds of decisions on discontinuation of the asylum procedure. This would strongly affect its regular work with the applicants who genuinely want to stay in Serbia. In other words, the time it will take for genuine asylum seekers to have an interview and receive a first instance decision would be significantly extended;
- Those people who miss the deadline but have a prima facie refugee claim would be considered to be irregular migrants and would be treated in line with the Foreigners Act. Accordingly, they would be exposed to the risk of refoulement to one of the neighbouring countries such as Bulgaria and North Macedonia.
For that reason, it is encouraging that the Head of the Asylum Office stated that this body will not interpret Article 36 strictly and literally, and that the possibility to lodge an asylum application will be provided for all people regardless of the deadline. The arguments for this approach could be derived from the jurisprudence of the ECtHR and the case Jabari v. Turkey in which the Court stated that “the automatic and mechanical application” of a short time limit (for submitting an asylum application) “must be considered at variance with the protection of the fundamental value embodied in Article 3 of the Convention.” However, it is clear that as long as this kind of provision exists in the Asylum Act, the risk of its strict interpretations will continue to exist, especially if the current policy which implies more or less flexible approach towards irregular stay of refugees, changes. Additionally, there are academics who are occasionally hired to conduct trainings for decision-makers in Administrative Law, and who are in favour of a strict interpretation of Article 36. This narrow and literal understanding of asylum law, which at the same time neglects the international and constitutional framework, can negatively influence asylum authorities, especially the decision makers within Asylum Commission and Administrative Court, who themselves acknowledged to lack sufficient knowledge of the legally binding international standards. For that reason, an amendment of this provision would dispel any doubts on possible mass denial of access to the asylum procedure in the future.
In 2019, a total of 252 asylum applications were submitted. Out of that, 78 applications were submitted in writing and sent to the Asylum Office, while 174 were lodged directly in front of asylum officer. However, it appears that asylum applications lodged in writing are not considered valid in practice, since Asylum Office facilitates asylum application submission for the same person again. Thus, the number of asylum applications is smaller than 252. In other words, lodging of a written asylum application does not function in practice. The conclusion that can be drawn is that capacities of the Asylum Office currently do not correspond to the number of persons that are genuinely interested in applying for asylum in Serbia. It is not reasonable to expect that 13 asylum officers in charge for conducting asylum procedure are sufficient for address all asylum applications in a timely manner. Thus, it is necessary to at least double the number of asylum officers in charge for taking asylum applications.
 Article 4(1) Asylum Act.
 Article 35(1) Asylum Act.
 Article 35(2) Asylum Act.
 Article 11 Asylum Act.
 Article 35(5) Asylum Act
 Article 35(12) Asylum Act.
 Article 8 Rulebook on Registration.
 See also BCHR, Right to Asylum in the Republic of Serbia 2019, 22-24.
 Article 35(3) Asylum Act.
 Article 35 (13) Asylum Act.
 Article 71 of the Border Control Act and Article 121 and 122 of the Foreigners Act.
 Article 39 (3) Foreigners Act.
 Article 77 (1) Foreigners Act.
 The letter from the MoI-Police Directorate-Border Police Administration No. 26-1991/18.
Information provided by the Border Police, 6 December 2018.
 Article 46 Asylum Act.
 Article 39 Foreigners Act.
 Articles 74 and 77 (1) Foreigners Act.
 The Reception Centres were opened during the 2015/2016 mass influx of refugees and are mainly designated for accommodation of foreigners who are not willing to remain in Serbia.
 BCHR, Right to Asylum in the Republic of Serbia 2019, 31-32.
 This does not mean that BCHR would stop providing legal counselling in all the Asylum Centres and Reception Centres with an aim to track down more people who wish to stay.
 See more in AIDA, Country Report Serbia, 2016 Update.
 ECtHR, M.W. v. Serbia, Application No 70923/17, communicated on 26 March 2019.
 ECtHR, Othman v. Serbia, Application No 27468/15.
 Misdemeanor Judgment No. P 65/19 from 14 January 2019.
 This kind of practice was determined during the Author’s 10 day field mission in Serbian border town with Croatia in September 2019. The field mission report will be published in late February 2020.
 ECtHR, M.W. v. Serbia, Application No 70923/17, communicated on 26 March 2019.
 The cases of M.W. and USAC X. are the most striking examples of this practice.
 Article 36(1) Asylum Act.
 Article 36(2) Asylum Act.
 Article 36(3) Asylum Act.
 One of the professors of Administrative Law at the Faculty of Law, University of Belgrade had an adamant approach towards the strict interpretation of Article 36, stating that Foreigners Act framework should be applied to all persons, regardless of the fact that they are in need of international protection, in case they do not meet the 15 plus 8 days deadline. This standing was expressed at the roundtable that took place on 13 December 2018 under the auspices of the project “Novelties in the Asylum and Migration System in the Republic of Serbia and Challenges in their Application”, implemented by the AIRE Centre, IOM and the British Embassy in Serbia.
 BCHR, Right to Asylum in the Republic of Serbia 2019, 32-35.