Number of staff and nature of the determining authority

Source: Asylum Office.

Asylum Office – first Instance

The Asylum Office is responsible for examining applications for international protection and competent to take decisions at first instance.[1] In line with the Rulebook on the internal organisation and systematisation of positions in the MoI, which established the Asylum Office on 14 January 2015, there should be 29 positions within the Asylum Office.

As of the end of March 2023, there were a total of 17 staff, of which:

Only 4 out of 7 asylum officers were in charge of the asylum procedure and deciding on applications for international protection in 2022. In March 2022, two asylum officers left the Asylum Office, leaving this body with only 5 operational officers, while another asylum officer as well as the Head of the CoI Department shifted to another MoI Unit.

Asylum officers are in charge of facilitating the lodging of asylum applications in person, asylum hearings and rendering decisions at first instance. In the decision-making process, they are assisted by the CoI Department, which provides information on specific issues in countries of origin and third countries which were raised during the asylum hearing. The Head of the Asylum Office must further confirm the decision of asylum officers.

The decrease in the capacity of the first instance body was one of the reasons why the number of asylum applications taken in person and the number of hearings sharply dropped in 2021. However, in 2022, due to a higher number of written asylum applications situation quantitatively improved, including also in terms of the total number of decisions rendered in 2022, as well as the recognition rate.

Moreover, the average length of first instance asylum procedure was between 8 and 12 months, which is a decrease in comparison to 2021, where the average length was 10 to 14 months.[2] Low capacities are one of the reasons why 90% of asylum procedures are conducted only for asylum seekers accommodated in Belgrade (in AC Krnjača) or who reside at a private address. However, there were several instances in which the Asylum Office visited AC Sjenica and AC in Tutin. As for the other asylum and reception centres, asylum seekers have to wait to be transferred to AC in Krnjača from several days to several weeks after they lodged their written asylum applications.

There were several changes in the office in the past few years. In September 2020, the Head of the Asylum Office was transferred to another position, and a new Head, without any prior experience was appointed. Moreover, the Deputy Head of the Asylum Office was transferred to another Department of the MoI. In December 2020, the newly appointed Head of the Asylum Office was transferred again, leaving the Country-of-Origin Information Officer as acting Head and acting Deputy Head of the Asylum Office. At the beginning of 2021, the former Head of the Asylum Office was reinstated (removed in September 2022), which was a positive development given the person’s experience in the asylum field and her status was confirmed in December 2022. Still, the Deputy was not appointed until the conclusion of this Report.

It is important to note that the findings of the European Commission that the capacities of the Asylum Office in 2021 were sufficient to process 175 asylum requests are simply flawed.[3] This statement is inaccurate and can be potentially realistic only from the quantitative point of view, which in 2021 would means that 6 operational asylum officers (in the first 8 months, and then this number dropped to only 4 operational asylum officers in the last four months) were dealing with 175 asylum requests – 30 requests per year. Still, the European Commission Report disregards the fact that asylum officers conducting asylum procedures are of different level of experience, are frequently tasked with other administrative work (issuing ID cards, issuing hundreds of different types of certificates which are related to inclusion and integration, etc.), are without state-funded interpreters and do not have capacity to operate outside Belgrade.

The proof that their capacities are low in terms of both quantity and quality is the fact that there has not been a single case in 2021 (the period covered by the Progress Report which also outlined this problems in the ensuing paragraphs) in which the first instance procedure was conducted within 3 months as the law prescribes and that the period from which asylum application was made, until the hearing is conducted is at least 3 to 6 months (which has discouraging effect on asylum applicants who decide to abscond), and sometimes even longer. Another reason why this statement from Progress Report is misleading is the fact that Asylum Office rarely undertakes evidentiary activities proprio motu (expert opinions, witness statements, etc,) and that this is mainly done by legal representatives. And finally, it is important to note that the work of asylum officers can to a certain extent be considered as heroic, taking in consideration that second and third instance authority have failed to make a proper contribution to Serbian asylum system since 2008 and that quality of many decisions from 2021 and 2022 indicates realistic potential, but which cannot be fulfilled without significant infrastructural support. In the past several years, several asylum officers who were considered to be the most effective and experienced, decided to leave this body due to unbearable overload.

What is also important to highlight is the fact that 4 operational asylum officers in 2022 received 322 asylum applications, conducted 104 hearings (which last one working day at least) rendered 65 decisions in merits and 165 decisions on discontinuing asylum procedure (plus additional administrative work). If we take in consideration that every asylum officers has on average between 180 and 200 8-hour working days in a year (excluding weekends, holidays, state holidays and sick leaves), it is fair to say that the results which they achieved are impressive in terms of the numbers, but not necessarily in terms of the quality in the decision making process, even though it cannot be disputed that there was a significant number of high quality and progressive decisions. However, the current capacities are unsustainable, especially after the influx of Ukrainian refugees who applied for temporary protection. To put it in a more descriptive way, if for some reason Serbia is considered as a safe third country, and only several hundreds of persons in need of international protection are returned on a yearly bass with the guarantees that they will be allowed to lodge asylum application, the Asylum Office capacities would collapse.

Thus, it is important to note that significant increase of operational asylum officers is necessary and that their numbers should be at least 20 so they could cope in an appropriate and timely manner with the current numbers of applicants. Also, the quantitate increase would mean nothing without proper training and capacity building which takes time. For that reason, if the capacities of the Asylum Office are to be increased in the near future, it will take several years to train newly hired asylum officers to deal with several hundred asylum applications per year. To deal with several thousand asylum applications per year would require the complete shift of State policy towards the asylum issue which has never been the case, and which is further corroborated with the fact that the first instance asylum procedure would not be conducted without the assistance of international Organisations and civil society.

Asylum Commission – second Instance

The Asylum Commission decides on appeals against decisions of the Asylum Office as the second instance body. It is comprised of the Chairperson and eight members, appointed by the Government for a four-year term. To be appointed Chairperson or member of the Asylum Commission a person must be a citizen of Serbia, have a university degree in law and minimum five years of working experience and must have an ‘understanding’ of the human rights legislation. The Asylum Commission shall operate independently and shall pass decisions with a majority of the entire membership votes.[4]

The specialisation and knowledge of the 9-member Asylum Commission can still be considered inadequate for their role, since none of the current members has a strong background in refugee and international human rights law. The fact that not a single applicant was granted asylum in 2022 by the Asylum Commission confirms this statement. In the history of the Serbian asylum procedure, since 2008, this body has rendered only 3 decisions granting asylum to 4 persons. In its 2021 Concluding Observations, the UN Committee against Torture (CAT) recommended that Serbia abolish the Asylum Commission and introduce a judicial review by the Administrative Court at the second instance.[5]

What is important to outline is the fact that Asylum Commission, in the vast majority of cases, renders decisions timely within maximum 3 months (2 months is the deadline).

Administrative Court – third Instance

The final decisions of the Asylum Commission may be challenged before the Administrative Court.[6] The Administrative Court judges still lack adequate resources to assess complaints lodged by asylum seekers and their legal representatives and none of the judges are specialised in asylum and migration issues. There is no specially designated department consisted of judges with relevant and necessary knowledge and supporting infrastructure such as CoI department. The complexity which the judges of the Administrative Court face are also related to the fact that in their everyday work they have to be familiar and apply several dozen laws and bylaws which are governing the field of administrative measures (taxes, election disputes, local municipality matters, issuance of permissions and licences, education, medical administrative disputes and others).

There are 52 administrative judges in total who are covering the entire territory of Serbia.[7] Only in 2022, they have dealt with 128,376 administrative complaints, which clearly shows that the backlog of variety of administrative disputes, accompanied with the lack of tradition for administrative judges to deal with asylum and migration issues, makes this body as ineffective, theoretical and illusory for asylum seekers.

The length of procedure before the Administrative Court can sometimes be counted in years, meaning that there were instances in which asylum procedure lasted for more than 4 years[8] and there are still ongoing cases, including those which are related to the unaccompanied and separated children (UASC) in which excessive length flagrantly contradicts their best interest.[9]

Quality assurance, transparency and cooperation with the UNHCR, EU, CSOs and other entities

The Asylum Act explicitly envisages that the asylum authorities should cooperate with the UNHCR when undertaking activities related to its mandate and the UNHCR should have free access to all persons who might be in need of international protection.[10]

At the request of UNHCR, the competent authorities shall provide:

1. General information concerning the applicants, refugees or persons who have been granted subsidiary or temporary protection in Serbia, including statistical data, and specific information on individual cases, provided that the person to whom the asylum procedure refers has given their consent in the manner and under the conditions prescribed by the law governing the protection of personal data;
2. Information regarding the interpretation of the 1951 Convention and other international instruments relating to refugee protection and their application in the context of this Law.[11]

Apart from human, professional and infrastructural lack of capacities, the lack of effective quality assurance control and comprehensive analysis of the asylum case law can be considered as one of the main reasons for contradicting decisions in the practice of Asylum Office, Asylum Commission and Administrative Court. This can also explain the lack of corrective influence of the second and third instance authorities on the quality of the decision making process in general.[12]

There is no State quality assurance control in place and also, the practice of the Asylum Office, Asylum Commission and Administrative Court cannot be adequately assessed by professionals acting externally. Thus, there are no personal records of asylum officers or judges available to the public or upon explicit request which can provide information on the decision-making process such as the number and type of decisions rendered, the length of the asylum procedure and the overall quality of the decision-making process. The same can be said for the members of the Asylum Commission.

In 2022, the MoI has agreed with UNHCR to gradually introduce external control mechanisms, which implies the occasional presence of UNHCR officers at the asylum hearings. This is the first step in establishing the quality assurance control in partnership with the UNHCR. In April 2022, the UNCHR office in Serbia hired a Quality Assurance Officer who has regular meetings with the Administration for Border Control and the Asylum Office. Also, the group of state officials from asylum authorities, Commissariat for Refugees and Migration (CRM) and other relevant institutions took part in the study visit to Italian asylum authorities facilitated by the UNHCR office in Serbia.[13] UNHCR and its partners have also designed indicators to measure the length of the first instance asylum procedure, which should be considered as a positive step.

The EASO, now EUAA (European Union Asylum Agency) has also been providing support in Serbia since 2016. The support is currently provided under the second roadmap for cooperation between Serbia and EASO/EUAA 2020-2022, established by the MoI and CRM. The main focus with regards to refugee status determination procedure is on country-of-origin information (CoI).[14] EUAA representatives held a meeting with relevant CSOs recognised as main providers of free legal aid in Serbia in October 2021.[15] In addition, representatives of asylum authorities have attended numerous seminars and trainings outside Serbia The third phase project Protection sensitive Migration Management is a regional IPA project which started in 2022 and will end in 2025, based on 4 pillars – identification and registrations, access to protection, return management and contingency plan. It is conducted by the UNHCR, IOM, FRONTEX, EU and EUAA.

When it comes to the transparency of asylum authorities’ work, it is important to outline that the MoI has stopped providing data to CSOs regarding asylum issues in 2018, and the only available data is to be extracted from legal representatives in asylum procedures and publicly available reports published by other State institutions such as the Ombudsman or the CRM. For that reason, it is not possible to analyse all 67-decision rendered in merits in 2023, but only those decisions obtained from the legal representatives, published in other reports or collected from the applicants. However, in 2023 the MoI delivered comprehensive statistical data on border practices, readmission, refusals of entry and immigration detention.[16] This data can shed more light on the issues related to the access to territory and asylum procedure.

Thus, and as it has been the case in previous years, Asylum Office and Asylum Commission have not provided copies of relevant decisions for the purpose of their analysis, while the Administrative Court remained as the most transparent and all the judgments rendered in 2022 were delivered to the author of this Report in late February 2023.[17] The Commission, but also the Asylum Office, are of the opinion that sharing copies of decisions with legal practitioners and researchers would violate the privacy of applicants.[18] Asylum Office still provides regular statistical data to the UNHCR, but the statistical overview can be significantly improved. For instance, there is no gender or age breakdown when it comes to asylum applicants, nor there is a breakdown by particular vulnerabilities or the basis of the claim. In system in which several hundred applications are made per year and are addressed to one centralised body – Asylum Office, this should not be considered as a burden.

[1] Article 20 Asylum Act.

[2] AIDA, Country Report Serbia, 2021 Update, May 2022, p. 24.

[3] European Commission, Serbia: Progress Report, SWD(2022) 338 final 12 October 2022, available at: https://bit.ly/3LedaYB, 63.

[4] Article 21 Asylum Act.

[5] CAT, Concluding observations on the third periodic report of Serbia, 20 December 2021, CAT/C/SRB/CO/3, available at: https://bit.ly/3vd0s4r, para. 34 (b).

[6] Article 22 Asylum Act.

[7] The list of judges can be found at the following link: http://www.up.sud.rs/cirilica/sudije.

[8] Administrative Court, Judgment U 12638/18, 20 July 2021; this judgment was rendered with regards to Iraqi applicant who lodged his asylum application in 2017.

[9] For instance, Administrative Court procedures related to Afghan UASCs Nos. U 14-095/20 lodged in July 2020 (32 months); U 6013/20 lodged in April 2020 (34 months) and U 3268/20 lodged in January 2020 (37 months).

[10] Article 5 (1) and (2) Asylum Act.

[11] Article 5 (3) Asylum Act.

[12] AIDA, Country Report Serbia, 2021 Update, May 2022, pp. 87 and 90.

[13] UNHCR, UNHCR: Authorities of Italy and Serbia exchange experiences related to refugee protection, 26 November 2021, available at: https://bit.ly/3HXnuzD.

[14] European Commission, Serbia 2021 Report, 19 October 2021, SWD (2021) 288 final, available at: https://bit.ly/3Byi8IQ, 52.

[15] The author of this report attended the meeting.

[16] Response of the MoI, Border Police Administration on the freedom of information request no. 072/1-32/23-3 of 26 February 2023.

[17] Administrative Court response to the freedom of information request no.  Cu-II-17a 94/22 od 26 February 2023.

[18] See for example the response on the freedom of information request of the Asylum Commission No. no. 27-A-128-9/22-KA of 8 February 2023.