Short overview of the asylum procedure

Serbia

Country Report: Short overview of the asylum procedure Last updated: 23/03/21

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. The asylum system and procedure stricto sensu, however, are mainly governed by the Act 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.[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).

The Asylum Act introduced in 2018 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 plans to amend the Asylum Act. The dialogue on the amendments is yet to be initiated by the Ministry of Interior. Nevertheless, it is not excluded that these amendments may be postponed to 2022 since the campaign for early Parliamentary elections will begin in December 2021.[9] It remains unclear what these amendments will include.

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. 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. 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 waits 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. 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. In the case of a negative decision, asylum seeker has the possibility to lodge an appeal to the Asylum Commission and onward appeal to the Administrative Court. Both remedies have automatic suspensive effect.

The last instance in Serbian legal system is the Constitutional Court of the Republic of Serbia (‘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,[10] which was accepted by the ECtHR which granted interim measures submitted by Serbian lawyers on at least 8 occasions.

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[11] as well as North Macedonia,[12] Albania,[13] Montenegro[14] and Bosnia and Hercegovina (‘Bosnia’).[15] As regards the Readmission Agreement with the EU, it is not operational since September 2015 and Hungary expels foreigners to Serbia in an informal manner, amounting to a push-back policy.

 

 

[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, p. 32.

[8]           Ibid., p. 18 and 19.

[9] N1, Vučić: Vanredni parlamentarni izbori najkasnije 3. aprila 2022, 20 October 2020, available at: http://bit.ly/3pJn6eW

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

[11]          Official Gazette no. 103/2007

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

[13]          Official Gazette no. 7/2011.

[14]          Official Gazette no. 13/2013.

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

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