Registration of the asylum application

Serbia

Country Report: Registration of the asylum application Last updated: 23/03/21

Author

Nikola Kovačević

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.[1] Foreigners may express intention to seek asylum to the competent police officers at the border or within territory either verbally or in writing,[2] including places such as prisons, the Detention Centre for Foreigners in Padinska Skela, airport transit zones or during court proceedings e.g. misdemeanour proceedings.[3] Unaccompanied children cannot express the intention to seek asylum until a social welfare centre appoints a temporary legal guardian.[4]

An authorised police officer shall photograph and fingerprint the person,[5] who will thereafter be issued a certificate on registration of a foreigner who has expressed intention to seek asylum (‘registration certificate’).[6] 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 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 MoI organisational unit where the officer who issued the registration certificate is employed.[7] Registration certificates issued to foreigners who expressed intention are in Serbian and in Cyrillic alphabet. Given that the majority of foreigners do not understand Serbian and do not use the Cyrillic alphabet, as well as the fact that interpreters are rarely 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 and obligations specified therein.[8] There were instances in practice where UASCs were issued registration certificates as adults, but were later identified as minors and registration certificates were corrected upon the request of Social Welfare Centre.

Over the course of 2019, the MoI issued a total of 12,937 registration certificates, which is a significant increase in comparison to 2018 (8,436). However, this number sharply dropped to 2,830 in 2020. The certificate was issued to citizens of Afghanistan (1,561), Syria (297), Pakistan (264), Iraq (102), Bangladesh (100), Iran (93), Morocco (64), India (49), Algeria (49), Palestine (43), Mali (27), Egypt (25), Somalia (18), Burundi (15), Eritrea (13), Ghana (11), Turkey (10), Cuba (10), Russia (9), China (6), Myanmar (4), Moldavia (3), Gambia (3) Bosnia (2), North Macedonia (2), Yemen (2), Senegal (2), Ukraine (2), Nepal (2) and 1 from Belarus, Antigua and Barbuda, Croatia, Angola, Albania, Bulgaria, Western Sahara, Jordan, Togo, Ethiopia, Guinea, Cote D Ivory, Nigeria, DR Kongo,

The registration certificate in Serbia is not considered an asylum application and thus, individual who possesses asylum certificate is not considered to be an asylum seeker, but the person who intends to become one.[9] Therefore, expressing the intention to seek asylum does not constitute the initiation of the asylum procedure. It is, however, a precondition for lodging 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, which are usually other Reception Centres. The foreigner is obliged to report to such facility within 72 hours from the moment of issuance of the registration certificate.[10] 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.[11] He or she then risks being penalised in the misdemeanour proceeding[12] and served with one of the expulsion decisions (decision on cancellation of residency[13] or return decision[14]).

According to a MoI’s letter sent to the BCHR, when issuing registration certificates and referring persons to one of the Asylum Centres or 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.[15] 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 MoI which issue registration certificates, and to the facilities for accommodation of asylum seekers and migrants.[16] 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 information collected from CSOs providing free legal aid, the multilingual information leaflets are still not available at police departments and police stations in charge for issuing registration certificates, nor do the police officers have at their disposal translators for the languages that asylum seekers usually understand.

Concerns in practice

According to the Asylum Office, one person cannot be issued with two or more registration certificates, but 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. Also, there were many instances in which the registration certificate which had expired was considered as valid and an individual was allowed to submit his or her asylum application.[17] This possibility exists as long as asylum application has not been rejected, in which case asylum seeker may lodge a Subsequent Application.[18]

The above-described approach was taken by the Asylum Office in all the scenarios except in those in which foreigners receive the decision on cancellation of residency[19] or return decision.[20] In these kinds of situations, it is still not entirely clear whether or not Asylum Office and MoI consider that these people still have right to apply for asylum and the practice varies from one case to another. For instance, an unaccompanied child was allowed to submit asylum application regardless of the fact that he was served with two return decisions.[21] On the other hand, a boy from Afghanistan who was issued with the return decision was not allowed to access asylum procedure and submit his asylum application.[22]

The lack of clarity with regard to access to the asylum procedure of people in need of international protection who are treated as irregular migrants (since they are issued with an expulsion order or penalised in the misdemeanour proceeding) gives reasons for concern. 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 expulsion decisions 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.[23]

As it has been the case in previous years, the total of 2,830 certificates issued in 2020 does not adequately reflect the real number of persons who were genuinely interested in seeking asylum in Serbia since only 145 of them officially lodged asylum application. However, the number of registration certificates issued in 2020 more realistically reflect the interest of foreigners in need of international protection to remain in Serbia.[24] 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 MoI does not adequately assess an individual’s aspirations, i.e. whether or not they genuinely want to remain in Serbia. However, it is important to highlight that a person who possesses a registration certificate is not considered to be an asylum seeker, and thus is not recognised in the Asylum Act as person who is entitled to enjoy rights enshrined in Article 48. In other words, foreigners issued with registration certificates, but also those who are not registered at all, but are accommodated in Asylum or Reception centres, are in legal limbo. They are not entitled to any of the rights, including the right to reside in reception facilities administered by the CRM, but their stay has always been tolerated. Still, this indicates that the vast majority of persons in need of international protection lack legal certainty with regards to their status.

It is a common practice that persons who genuinely want to apply for asylum are referred to Reception Centres[25] instead of Asylum Centres (see section on Housing), thereby prolonging their entry into the asylum procedure. Consequently, CSOs providing legal assistance have to advocate for their transfer to one of the five Asylum Centres. This process can sometimes last for several weeks, which further delays access to the asylum procedure, and can cause frustration or discouragement to the applicants. APC even highlighted that asylum seekers referred to AC Tutin have been denied access to asylum procedure since Asylum Office has failed to visit this Centre in 2020.[26]

One of the solutions for this problem would be that all genuine asylum seekers should be placed in the Asylum Centre in Krnjača or/and Asylum Center in Banja Koviljača which have the capacity to accommodate on an annual basis all persons who are interested in staying in Serbia, provided that the reception conditions in these centres address the issue of overcrowding.[27] The Asylum Office shares these views, however, the CRM has been declining this without providing any reasonable explanation.

By placing all genuine asylum seekers in Krnjača or Banja Koviljača, 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 the same city, 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 CSOs 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.[28]

Access to asylum procedure for persons expelled/returned from neighbouring States

 

It is important to reiterate that people expelled or returned from Hungary, Croatia and Romania informally or in line with the Readmission Agreement between the EU and the Republic of Serbia on the readmission of persons residing without authorisation[29] can face serious obstacles in accessing the asylum procedure. It is not clear what the official stance of Serbian authorities vis-à-vis such cases is, but there were several BCHR interventions in the past which show that access to asylum procedures may be impeded for people who were penalised in misdemeanour proceeding or were issued with an expulsion order.[30] In particular, 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.[31] Both of these decisions have the nature of an expulsion order. Therefore, if they decide to apply for asylum, they could be denied that possibility and will be further treated as irregular migrants[32] and 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.[33]

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 who was informally expelled from Hungary. M.W. was issued with the decision on cancellation of residency without presence of a legal guardian, legal representative, while the MoI 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.[34] 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.

It is necessary that Asylum Office pass 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.[35]

The conclusion that can be drawn from the above-described practices is that 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[36] 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.[37]

To summarise, before returning asylum seekers back to Serbia, Croatian, Hungarian, Romanian 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, APC, IDEAS, HCIT or other lawyers who have demonstrated 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.

Even though APC and BCHR have continued to have effective access to the Detention Centre for Foreigners in Padinska Skela one case deserves a special attention and indicates the late reaction of lawyers, but also contentious practice of MoI which was observed by NPM which also failed to react and prevent an expulsion lacking procedural safeguards against refoulement. Namely, In August 2020, an Iranian family was forcibly removed to Bulgaria for the second time, even though they strongly objected to such act. Thus, they were denied the possibility to access asylum procedure or to legally challenge expulsion decision in the procedure where they will actively participate with the help of lawyer and interpreter. [38]

Not a single registration certificate was issued by the Detention Centre for Foreigners in 2020.

It is also important to outline that, during the state of emergency, which was in force from 15 March to 6 May 2020, the registration procedure was suspended. Namely, on 18 March 2020, the Government adopted a Conclusionintroducing the ban on the direct work with parties of all state authorities.[39]  Thus, registration, which implies direct contact for the purpose of taking of biometric data and photographing of foreigners was halted. This standing was confirmed on 24 March 2020 when the Government adopted a Decision on the Status of Foreign Nationals[40] which also prohibited collection of biometric data, but also extended this legal regime was in force until 7 May 2020, after the Government adopted another Decree stating in Article 11 that all procedures regarding the determination of the status of foreigners will be continued within 30 days from the day when the state of emergency was lifted.[41]

Thus, in the first 6 month, only 1,150 registration certificates were issued: January (290), February (400), March (149), April (0), May (71) and June (240). The last registration certificate in March was issued on 21 March 2020, while the first certificate after the state of emergency was issued on 16 May 2020.[42]

 

Month Total number of registration certificates Airport Detention centre in Padinska Skela Border Area
January 290 3 0 49
February 400 25 0 14
March 149 5 0 14
April 0 0 0 0
May 71 0 0 11
June 240 0 0 69
July 253 1 0 161
August 681 0 0 478
September 382 1 0 284
October 173 5 0 0
November 97 2 0 0
December 94 2 0 0
Total 2,830 44 0 1,080

 

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.[43] 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.[44] The asylum procedure shall be considered initiated after the lodging of the asylum application form to the Asylum Office.[45]

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:

  1. The capacities of the Asylum Office are still insufficient to cover hundreds of cases in which the registration certificate is automatically issued, and the police officer of the Asylum Office is only present in AC in Banja Koviljača;
  2. The capacities of CSOs 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;
  3. 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;
  4. 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 standing of the Asylum Office still implies flexible interpretation of Article 36, as it considers that the possibility to lodge an asylum application should 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.”[46] 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.[47] 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 2020, a total of 145 asylum applications were submitted. Out of them, 57 applications were submitted in writing and sent to the Asylum Office, while 88 were lodged directly in person. In the second half of 2020, the Asylum Office has started to conduct hearings based on the written asylum applications. This means that lodging of a written asylum application has started to function in practice. Also, formulars for written asylum applications were translated in languages such as Arabic, Farsi, Urdu, Pashto and were distributed to Asylum and Reception Centres, which means that foreigners can now lodge asylum applications by themselves. A total of five asylum seekers lodged written applications by themselves in 2020. The question that remains open is if asylum seekers would need a support to properly fill in the formulars.

Several weeks before, during and after the state of emergency, lodging of asylum application was suspended, even though it was possible to submit asylum application in writing. The same legal framework that enabled issuing of the registration certificates, enabled Asylum Office to facilitate the submission of asylum application in person (see Registration of the asylum application). However, the 15 + 8 deadline (even though it is not applicable in practice), was extended until 15th day from lifting of the state of emergency. This was introduced through the Government Decree on the Deadlines in the Administrative Procedure which was in force from 24 March to 7 May 2020.[48] In practice, this implied that in the span from 12 March to the first week of June 2020, only one written asylum application was lodged.[49]

 

Month Asylum Applications Written Asylum Application
January 6 6
February 14 4
March 9 3
April 0 0
May 1 0
June 6 1
July 3 3
August 9 7
September 17 2
October 9 11
November 2 6
December 13 13
Total 88 57

 

 

 

[1]  Article 4(1) Asylum Act.

[2] Article 35(1) Asylum Act.

[3] Article 35(2) Asylum Act.

[4] Article 11 Asylum Act.

[5] Article 35(5) Asylum Act

[6]  Article 35(12) Asylum Act.

[7] Article 8 Rulebook on Registration.

[8] See also BCHR, Right to Asylum in the Republic of Serbia 2019, 22-24.

[9] Article 2 (1) (4) Asylum Act.

[10]  Article 35(3) Asylum Act.

[11]  Article 35 (13) Asylum Act.

[12] Article 71 of the Border Control Act and Article 121 and 122 of the Foreigners Act and BCHR, Right to Asylum in the Republic of Serbia -Periodic Report for January – June 2020, available at: https://bit.ly/3jiKT31, p. 15-21.

[13] Article 39 (3) Foreigners Act.

[14] Article 77 (1) Foreigners Act.

[15] The letter from the MoI-Police Directorate-Border Police Administration No. 26-1991/18.

[16] Information provided by the Border Police, 6 December 2018.

[17] A Pakistani national represented by independent attorney at law submitted asylum application in December 2020, regardless of the fact that his registration certificate ‘expired’.

[18] Article 46 Asylum Act.

[19] Article 39 Foreigners Act.

[20] Articles 74 and 77 (1) Foreigners Act.

[21] IDEAS lawyers submitted written asylum application in December 2020.

[22]  ECtHR, M.W. v. Serbia, Application No 70923/17, communicated on 26 March 2019.

[23] ECtHR, Chahal v the United Kingdom, Application no. 22414/93, Judgment of 15 November 1996, EDAL, available at: http://bit.ly/2TGX4vU, para. 96 and D and Others v. Romania, Application No 75953/16, 14 January 2020, EDAL, available at: http://bit.ly/3aBHWGZ.

[24] For instance, MoI issued 12,918 registration certificates in 2019, 7,638 in 2018, 6,200 in 2017 and 12,699 in 2016.

[25] 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.

[26] APC, Azilni postupak nedostižan za izbeglice, 27 November 2020, available at: https://bit.ly/39BgZnj.

[27] Hod po žici, p. 56-57.

[28]  Ibid.

[29] Available at: https://bit.ly/2ScFtKK.

[30]  See more in AIDA, Country Report Serbia, 2019 Update, May 2020, p. 29

[31]  Misdemeanor Judgment No. P 65/19 from 14 January 2019.

[32]  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.

[33] N1, ‘Ubijen migrant koji je bio osumnjičen za ubistvo Avganistanca u centru Beograda’, 6 June 2019, available (in Serbian) at: http://bit.ly/2nNtNBA.

[34]  ECtHR, M.W. v. Serbia, Application No 70923/17, communicated on 26 March 2019.

[35] Ibid,

[36]ECtHR, Tarakhel v. Switzerland, Application no. 29217/12, Judgment of 4 November 2014, EDAL, available at: http://bit.ly/2RvQipS, para. 121-122.

[37]  The cases of M.W. and USAC X. are the most striking examples of this practice.

[38] The Ombudsman, Тим Заштитника грађана у обављању послова НПМ обавио надзор над принудним удаљењем иранске породице у Бугарску, 3 September 2020, available at: http://bit.ly/3csPK0i.

[39]  Official Gazette no. 35/2020 and 27/2020.

[40] Official Gazette no. 27/2020.

[41] Official Gazette no. 66/2020.

[42] Hod po žici, p. 36.

[43] Article 36(1) Asylum Act.

[44] Article 36(2) Asylum Act.

[45] Article 36(3) Asylum Act.

[46] ECtHR, Jabari v. Turkey, Application No 40035/98, Judgment of 11 July 2000, EDAL, available at: https://bit.ly/2Sj0D71, para 40.

[47]  AIDA, Country Report, 2019 Update, p. 31-32.

[48]  Official Gazette no. 41/2020 i 43/2020

[49]  Hod po žici, p. 37.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection