List of authorities intervening in each stage of the procedure

Author

Nikola Kovačević

Impact of security checks on asylum procedures

In Serbia, the Security Information Service (BIA), but also the Department of the MoI for Combating Organized crime and Terrorism (DCOT), always conduct security checks and assessments, after which an application for international protection can be rejected based on exclusion grounds.[2] This has become the usual practice before the decision granting asylum is officially rendered. According to the observations of the author of the report, the main issue is that a negative decision issued after such assessments does not contain any factual information or evidence which would indicate why the asylum seeker in question represents a national security risk. This further undermines their possibility to challenge such assessment before the Asylum Commission and the Administrative Court, who also keep applicants in the dark on the facts which allegedly indicate their security threat to Serbia.

This practice was applied for the first time in the period 2015-2018 in one case concerning a Libyan family whose asylum applications were rejected because they were on the list of individuals whose presence on Serbian territory was considered a threat to national security. The family complained before the European Court for Human Rights (ECtHR) that their expulsion to Libya would violate Articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) due to their political affiliation with the former Ghaddafi regime, and under Article 13 of ECHR due to an alleged lack of effective remedy in Serbia.[3] Eventually, they were granted subsidiary protection. After they were granted subsidiary protection, they decided to withdraw part of the ECtHR application and opted to pursue the case only from the perspective of access to an effective legal remedy (due to the lack of suspensive effect of the remedy provided) and in relation to the expulsion order rendered on the basis of a negative security assessment which was not provided in the reasoning of the decision.[4] However, the ECtHR was satisfied with the fact that the applicants were allowed to apply for international protection after they were served with the expulsion order which in view of the Court remedied the lack of suspensive effect.[5] Thus, the case was struck out of the ECtHR list in 2024.

Another case, which also refers to an applicant from Libya, was rejected on security grounds in 2019. The case was referred from the first to the second instance body on several occasions and, eventually, the applicant was granted refugee status in February 2022,[6] after the second instance body received a positive security assessment from BIA. According to the assessment of the author of the report, the fact that this case was not taken further before international instances can be attributed to the results of the case of A. and Others explained above.

In 2022, there were three additional cases in which negative assessments from the BIA were used as grounds for detention of one Kirgizstan[7] and two Turkish[8] citizens of Uzbek and Kurdish ethnicity respectively, one of the Turkish citizens also being a member of the Gulen movement.[9] All these applicants were rejected on the merits during the asylum procedure, but, according to the assessment of the author of the report, it is clear that the outcome of their cases was impacted by the negative security assessment of BIA. Another common point to these cases is the fact that they were all fugitives subjected to the extradition procedure. Although all the extradition procedures ultimately resulted in favour of the ‘fugitives’, protecting them from extradition, their negative security assessments remained. In one of the instances, E.P., a Turkish citizen, whose asylum application and subsequent asylum applications were rejected, was detained for a maximum of 6 months after which he fled the country.[10]  The Kyrgyz national decided to leave Serbia.

In 2023, the Asylum Office rejected the asylum applications of 3 more applicants on the grounds of the negative assessments of the BIA (for further elaboration, see Regular procedure – General).

In 2024, the national security grounds were applied in 9 negative decisions which represents 16% of all negative decisions rendered in 2024 by the Asylum Office. Accordingly, in 2024, this practice expanded beyond those applicants who were also treated as fugitives in extradition procedure.[11]

Thus, according to the observations of the author of the report, the practice from 2024 indicates that arbitrary national security assessments are more widely applied in asylum, but also other residential procedures, as well as a common ground for immigration detention.

[1] Formally speaking, the Border Police is not authorised to refuse entry to any person seeking asylum.

[2] Article 33 (2) Asylum Act.

[3] ECtHR, A. and Others v. Serbia, Application No. 37478/16, Decision of 23 May 2024, available at: https://bit.ly/3V7WW6A.

[4] See a similar case where the Court ruled that the right to an effective remedy under Article 13 of the ECHR was violated, ECtHR, D and Others v. Romania, Application No. 75953/16, 14 January 2020, EDAL, available at: http://bit.ly/3aBHWGZ.

[5] ECtHR, A. and Others v. Serbia, Application No. 37478/16, Decision of 23 May 2024, available at: https://bit.ly/3V7WW6A.

[6] Asylum Office, Decision No. 26–1389/17, 2 February 2022.

[7] Radio Free Europe, Komitet protiv torture UN naložio Srbiji odlaganje izručenja državljanina Kirgistana, 24 August 2022, available in Serbian at: http://bit.ly/3KFw1LR; the applicant eventually decided to leave Serbia.

[8] BIRN, Serbia to Extradite Kurdish Politician to Türkiye over ‘Terrorism’ Charges, 31 May 2022, available at: https://bit.ly/3xY3Ujj and Amnesty International, Serbia: Political Activist on Hunger Strike, available at: https://bit.ly/4cbeNR4.

[9] Radio Free Europe, Bez odgovora Ministarstva pravde Srbije o izručenju turskog državljanina, 31 May 2022, available in Serbian at: http://bit.ly/41uwlTB.

[10] Article 77 Foreigners Act, and N1, Kurdish activist Ecevit Piroglu leaves Serbia, 7 August 2024, available here.

[11] See more in AIDA Country Report: Serbia – 2023 Update, p. 21.