Short overview of the asylum procedure

Serbia

Country Report: Short overview of the asylum procedure Last updated: 02/05/22

Author

Nikola Kovačević

The right to asylum is enshrined in Article 57(1) of the Constitution of the Republic of Serbia (Serbia).[1] The constitutional appeals submitted by asylum seekers to the Constitutional Court (CC) are also examined under Article 25 which prohibits torture and inhumane or degrading treatment or punishment and which can be interpreted in line with the practice of the ECtHR and Article 3 of the ECHR.

The asylum system and procedure stricto sensu are mainly governed by the Law on Asylum and Temporary Protection (Asylum Act) that came into force on 3 June 2018.[2] Additionally, relevant are the Foreigners Act,[3] the General Administrative Procedure Act (GAPA)[4] and the Administrative Disputes Act (ADA).[5] GAPA act as legi generali with regard to the Asylum Act and Foreigners Act in their respective subject matter, as well as the Migration Management Act,[6] which regulates certain issues relevant to the housing and integration of asylum seekers and refugees, alongside the Decree on the Manner of Involving Persons Recognised as Refugees in Social, Cultural and Economic Life (Integration Decree). There are several more bylaws which regulate the House Rules in reception facilities, social and health-care issues and other aspects related to inclusion and integration of asylum seekers and refugees.

The asylum Act was introduced in 2018 and has now been applied on all asylum applications. All the procedures initiated under the old Asylum Act from 2008 have been finalized by the end of 2019.[7] Thus, all the novelties, except for border procedure, are generally applied in practice.[8]

In 2021, the Government was working towards amending the Asylum Act. The MoI initiated the dialogue on the amendments and all relevant CSOs were invited to take part in consultations in November 2021. The MoI shared with CSOs the first draft of the amendments of Asylum Act which included numerous positive changes such as:

  1. introduction of the new category of the “foreigner who expressed intention to lodge asylum application” who will be entitled to the majority of aspects of the material reception conditions;[9]
  2. harmonization of terminology and certain procedural steps governed by GAPA;
  3. pre-elementary school education and preparation for children under the age of 7;
  4. introduction of additional provisions related to refugee travel document.

The suggestions for the amendments of the First Draft of the amendments to the Asylum Act were proposed by some of the CSOs after the consultations. IDEAS has suggested the following changes, which to a certain extent, reflect the proposals of other CSOs:

  1. prescribing more precise criteria for the assessment of the possibility of asylum seekers to enjoy protection from persecution in the country of origin – Article 31;
  2. excluding the deadline 15+8 days for submission of asylum application – Article 36 (see Lodging an application);
  3. introducing specific evidentiary activities such as forensic expert opinion and witnesses – Article 37;
  4. clarifying registration of asylum seekers at the border in terms of their detention and introducing provisions which govern the procedure and competent body for a decision on deprivation of liberty for the purpose of asylum procedure or forced removal– Article 48;
  5. making the clear distinction between measures which imply deprivation of liberty and measures which are related to the limitation of the freedom of movement – Article 78;
  6. introducing clear criteria for the application of the safe third country concept – Article 45;
  7. specifying which aspects of material reception conditions should be granted to the newly introduced category of “foreigner who expressed intention to lodge asylum application”;
  8. harmonization of provisions on guardianship contained in the Family Law with provisions of Asylum Act governing accommodation of unaccompanied and separated children (“UASC).

It was also suggested that the amendments of the provisions governing the exclusion procedure require more time and external expertise.

However, it is unclear when the process will resume and when will it be finalized.[10] Given political developments,[11] amendments of the Asylum Act could be adopted in the last quarter of 2022 at earliest.

The procedure for seeking asylum in Serbia is as follows: a foreigner may “express the intention to submit asylum application” within Serbian territory or at border crossings (including the Nikola Tesla Airport in Belgrade), following which he or she is recorded by the officials of the Ministry of the Interior before whom he or she has expressed the intention and receives a registration certificate of having done so.[12] The asylum seeker is then expected to go to his or her designated asylum centre, or to notify the Asylum Office should he or she wish to stay at private accommodation.[13] It is not possible to express the intention in diplomatic or consular representations of Serbia. In other words, the potential applicant must be present on the Serbian territory or under an effective control of Serbian Border Police or other state authority.

Upon arrival at the centre or private accommodation, the asylum seeker should wait for 15 days for the Asylum Office to facilitate the lodging of the asylum application and then to issue him or her personal identity documents for asylum seekers. It is also possible to lodge a written application within 8 days after the expiry of the above-mentioned deadline.[14] Afterwards, asylum officer will conduct the asylum hearing.[15]

The Asylum Office is under the legal obligation to decide on the application within 3 months of its submission, during which time one or more hearings must be held in order to establish all of the facts and circumstances relevant to rendering a decision. This deadline could be extended up to 9 months.[16] Thus, the maximum length of asylum procedure is 1 year.

In the case of a negative decision, asylum seeker has 15 days to lodge an appeal to the Asylum Commission. Negative decision also contains an order to leave the country and the deadline which can be up to 30 days. However, when the decision on rejection becomes final (confirmed by the Administrative Court), the relevant MoI unit for foreigners renders additional expulsion decision in case where the applicant has failed to voluntarily leave the territory of the State within the given deadline.[17]

The Asylum Commission has to decide and deliver the second instance decision to the applicant within 60 days.[18] An onward appeal to the Administrative Court must be submitted within 30 days from the delivery of the second instance decision and there is no deadline within which the third instance body has to decide.[19] Both remedies have automatic suspensive effect.[20]

The last instance in Serbian legal system is the Constitutional Court (CC). The constitutional appeal does not have an automatic suspensive effect. It is possible to lodge a request for interim measures to the CC, but several cases, which implied forcible removal, have shown that this mechanism is weak and slow.[21] This was accepted by the ECtHR which granted interim measures submitted by Serbian lawyers on at least 10 occasions.

In the past several years, the number of asylum seekers addressing UN Treaty Bodies and the ECtHR has been increasing. Currently, there are 10 communicated cases pending before the ECtHR related to the rights of asylum seekers:

  1. A. and Others v. Serbia;[22]
  2. Seraj Eddin v. Serbia;[23]
  3. H. v. Serbia;[24]
  4. K. v. Serbia;[25]
  5. W. v. Serbia;[26]
  6. H. v. Serbia and North Macedonia and A.H. v. Serbia;[27]
  7. G.D. v. Serbia;[28]
  8. H. and Others v. Serbia;[29]
  9. E.B. v. Serbia and A.A. v. Serbia;[30]
  10. B. and Others v. Serbia.[31]

It should be added that, Serbia being neither a member of the European Union nor a party to the Dublin Regulation, there is nothing equivalent to a Dublin procedure in the country. However, Serbia has concluded the Readmission Agreement with the European Union[32] as well as North Macedonia,[33] Albania,[34] Montenegro[35] and Bosnia and Hercegovina (‘Bosnia’).[36]

As regards the Readmission Agreement with the EU, it has not been properly functioning since September 2015 and Hungary expels foreigners to Serbia in an informal manner, amounting to a push-back policy. The same practice is applied by Croatia and Romania in the vast majority of cases. According to the MoI, in 2019, not a single foreigner was returned to Serbia under the Readmission Agreement, while in 2020, 84 readmission requests were accepted by Serbia. It is not clear from which states foreigners were returned as well as how many foreigners were included in these 84 requests.[37]

The same can be said for the functioning of Readmission agreement with North Macedonia. The NPM outlined in its Report the following:

              ‘The NPM also wants to point out the difficult implementation of readmissions with North Macedonia. According to the data obtained during the visit, in 2020, 68 requests for readmission of same number of persons were submitted to North Macedonia and all requests were rejected, usually with the explanation that there was no evidence that a foreigner entered Serbia from North Macedonia, even though, according to officials’ statements, that was more than obvious, and all the necessary evidence was provided.’[38]

In April 2019, Serbia and Austria signed an agreement that would allow Austria to send to Serbia refused asylum seekers who had entered from Serbia. Upon their return, they are to be placed in an “adequate” accommodation, for which Vienna will pay. As of April 2020, the agreement has not yet been put in practice and it triggers debates in both Austria,[39] and Serbia.[40] As of December 2020, this agreement has not been applied in practice.

The conclusion that can be drawn is that formal cooperation on returns of refugees, asylum seekers and migrants between the States in the Western-Balkan region is basically non-existing. The border policies are mainly based on illegal forms of expulsions which are contrary to the principle of non-refoulement and prohibition of collective expulsions.

 

 

 

[1] ‘Any foreign national with reasonable fear of prosecution based on his race, gender, language, religion, national origin or association with some other group, political opinions, shall have the right to asylum in the Republic of Serbia,’ ‘Constitution of the Republic of Serbia’, Official Gazette of the Republic of Serbia, no. 83/06, Article 51(1).

[2] Official Gazette no. 24/2018.

[3] Official Gazette no. 24/2018.

[4] Official Gazette no. 18/2016 and 95/2018.

[5] Official Gazette no. 111/2009.

[6] Law on Migration Management of the Republic of Serbia, Official Gazette of the Republic of Serbia, no. 107/2012.

[7] AIDA, Country Report Serbia, 2019 Update, May 2019, 32.

[8] Ibid., 18-19.

[9] At the moment, only persons who lodged asylum application are recognized as a category which is entitled to material reception conditions.

[10]  The usual remaining steps are the following:

  1. drafting of the final Draft of the Amendments to the Law on Asylum and Temporary Protection by the MoI;
  2. Additional comments by the CSOs and other interested parties such as UNHCR;
  3. Adoption of the Draft by the Government;
  4. Public debate on the Draft;
  5. Referral of the Draft to the relevant Committee within the Parliament;
  6. Referral of the Draft to the Plenary meeting of the Parliament;
  7. Adoption of the Draft by the Parliament;
  8. Promulgation of the Law by the President;
  9. Vacation Legis.

[11] The Parliament was dissolved on 15 February and early parliamentary elections will take place on 3 April 2022. It is also reasonable to assume that results of the elections will be pronounced at least several weeks after the elections. The new Government can be formed in late July 2022 at latest.

[12] Article 35 Asylum Act.

[13] Ibid.

[14] Article 36 Asylum Act.

[15] Article 37 Asylum Act.

[16] Article 39 Asylum Act.

[17] Article 74 (1-8) Foreigners Act.

[18] Article 95 Asylum Act and Article 174 GAPA.

[19] Article 96 Asylum Act.

[20] Ibid.

[21] Constitutional Court, Decision No. UŽ 3548/2013, Decision of 19 September 2013, available in Serbian at: http://bit.ly/3cG4bhy.

[22] Application No 37478/16, 30 June 2016, available at: https://bit.ly/3JyPWs8.

[23] Application No 61365/16, 19 October 2016, available at: https://bit.ly/3sO861Z.

[24] Application No. 62410/17, 23 October 2017, available at: https://bit.ly/34MuQHJ.

[25] Application No. 57188/16, 3 October 2016, available at: https://bit.ly/3rVFfde.

[26] Application No. 70923/17, 29 September 2017, available at: https://bit.ly/3oT0Ot0.

[27] Application Nos. 60417/16 79749/16, 19 October and 27 December 2016 respectively, available at: https://bit.ly/3oVp8dz.

[28] Application No. 3158/20, 12 December 2019, available at: https://bit.ly/3HU3uxR.

[29] Application No. 57185/17, 1 August 2017, available at: https://bit.ly/3JyPhXo.

[30] Application Nos. 50086/20 50898/20, available at: https://bit.ly/3GUV4F1.

[31] Application No. 22463/17, 8 February 2017, available at: https://bit.ly/3JuDPfu.

[32] Official Gazette no. 103/2007

[33] Radio Free Europe, Srbija i Makedonija potpisale sporazum o readmisiji, 4 October 2010, available at: http://bit.ly/3kI8Od3 [accessed on 26 February 2021].

[34] Official Gazette no. 7/2011.

[35] Official Gazette no. 13/2013.

[36] Radio Free Europe, Srbija i BiH potpisale Sporazum o readmisiji, 5 July 2013, available at; http://bit.ly/3dSKJ1F [accessed on 26 February 2021].

[37] MoI, Извештај о спровођењу Стратегије супротстављања ирегуларним миграцијама за период 2018-2020. година, June 2021, available at: https://bit.ly/3Dtss4r, 24.

[38] Ombudsman, Serbia: National Report on the situation of human rights of migrants at the borders, ENNHRI, July 2021, available at: https://bit.ly/3JxAnRn, 21.

[39] Taz, Einfach weitergeschoben: Abgelehnte Geflüchtete will Österreich in serbischen Abschiebezentren unterbringen – und für sie zahlen, 17 April 2020, available (in German) at: https://bit.ly/2SY8U3c; Der Standard, Grüne lehnen Abschiebung abgelehnter Flüchtlinge nach Serbien ab, 16 April 2020, available (in German) at: https://bit.ly/2T0LzOv.

[40] BCHR, BCHR Calls on the Serbian Authorities to Immediately Respond to Claims about the Existence of an Alleged Serbia-Austria Agreement Migrants and Asylum Seekers, 17 April, available at: https://bit.ly/2T31tIh.

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