Regular procedure

Serbia

Country Report: Regular procedure Last updated: 30/11/20

Author

Belgrade Centre for Human Rights Visit Website

General (scope, time limits)

 

The asylum procedure in Serbia is governed by the Asylum Act as lex specialis to the General Administrative Procedure Act (GAPA). The new Asylum Act came into force in June 2018. It is prescribed that the old Asylum Act will continue to apply for all ongoing procedures. However, it is also envisaged that the ongoing procedures will be qualified under the new Asylum Act if it is more favourable for the applicant.[1] On 12 July 2019, the Asylum Commission rendered a decision Až 26/18 upholding applicant’s appeal and referring the case back to the Asylum Office. In the said decision, the Commission was of the opinion that first instance authority failed to provide reasoning on why the old Asylum Act had been more favourable then the new one, inter alia regarding the provisions governing the safe third country concept. Based on the said decision, the Asylum Office issued another decision, but this time applying the new Asylum Act.[2] Thus, in July 2019, the application of the previous Asylum Act came to an end.

The Asylum Act provides that a decision on asylum applications in the regular procedure must be taken within a maximum of 3 months from the date of the lodging of the asylum application or the admissible subsequent application.[3]

It is possible to extend the time limit by 3 months in case the application includes complex factual or legal issues or in case of a large number of foreigners lodging asylum applications at the same time.[4] Exceptionally, beyond these reasons, the time limit for deciding on an asylum application may be extended by a further 3 months if necessary, to ensure a proper and complete assessment thereof.[5] The applicant shall be informed on the extension.[6]

The Asylum Act also envisages a situation where a decision on asylum application cannot be made within 9 months due to temporary insecurity in the country of origin of the applicant which needs to be verified every 3 months.[7] Nevertheless, the decision must be taken no later than 12 months from the date of the application.[8] Thus, the Asylum Office has a discretionary power to decide on the extension of the time limit for the decision.

The possibility to extend the deadline for delivering the first instance procedure was used only twice in 2019. Still, not a single decision was rendered within three months. The length of the first instance asylum procedure is still longer than three months, but this fact is not covered by an individualised and reasoned decisions extending this time limit. In other words, the first instance procedure still lasts unreasonably long (from 6 to 8 months, and even for more than a year in certain cases) which discourages asylum seekers from considering Serbia to be a country of destination.

The first instance procedure before the Asylum Office may be completed by: (a) a decision to uphold the application and recognise refugee status or subsidiary protection;[9] (b) a decision to reject the asylum application;[10] (c) a decision to discontinue the procedure;[11] or a decision to dismiss the application as inadmissible.[12]

The Asylum Act contains detailed provisions regarding the grounds for persecution,[13] sur place refugees,[14] acts of persecution,[15] actors of persecution,[16] actors of protection in the country of origin,[17] the internal flight alternative,[18] and grounds for exclusion.[19] This clearly indicates that the legislature was guided by the Common European Asylum System framework, namely the recast Qualification Directive. 

Even though the new Asylum Act does not explicitly set out the burden of proof required for being granted asylum, Article 32 provides that the applicant is obliged to cooperate with the Asylum Office and deliver all available documentation and present true and accurate information regarding the reasons for lodging an asylum application. It is further prescribed that, in examining the substance of the asylum application, the Asylum Office shall collect and consider all the relevant facts and circumstances, particularly taking into consideration:

“1. the relevant facts and evidence presented by the Applicant, including the information about whether he or she has been or could be exposed to persecution or a risk of suffering serious harm;

2. current reports about the situation in the Applicant’s country of origin or habitual residence, and, if necessary, the countries of transit, including the laws and regulations of these countries, and the manner in which they are applied – s contained in various sources provided by international organisations including UNHCR and the European Asylum Support Office (EASO), and other human rights organisations;

3. the position and personal circumstances of the Applicant, including his or her sex and age, in order to assess on those bases whether the procedures and acts to which he or she has been or could be exposed would amount to persecution or serious harm;

4. whether the Applicant’s activities since leaving the country of origin were engaged in for the sole purpose of creating the necessary conditions to be granted the right to asylum, so as to assess whether those activities would expose the Applicant to persecution or a risk of serious harm if returned to that country…”[20]

Also, the benefit of the doubt principle has not been explicitly defined as such, but it is prescribed that the applicant’s statements shall be considered credible in the part where a certain fact or circumstance is not supported by evidence if:

“1. the applicant has made a genuine effort to substantiate his or her statements with evidence;

2. all relevant elements at his or her disposal have been submitted, and a satisfactory explanation have been given regarding any lack of other relevant facts;

3. the applicant’s statements are found to be consistent and acceptable, and that they are not in contradiction with the specific and general information relevant to the decision on the asylum application;

4. the applicant has expressed intention to seek asylum at the earliest possible time, unless he or she can demonstrate good reason for not having done so;

 5. the general credibility of the Applicant’s statement has been established.”

In 2017,2018 and 2019 the Asylum Office rendered the following decisions:[21]

First instance decisions by the Asylum Office: 2017-2019

Type of decision

2017

2018

2019

Grant of asylum

6

17

26

Rejection on the merits

11

23

54

Dismissal as inadmissible

47

38

10

Discontinuation

112

128

133

Total

176

206

223

Protection was granted to citizens of the following countries in 2019:

Countries of origin of persons granted refugee status / subsidiary protection: 2019

Country

Granted refugee status

Granted subsidiary protection

 Syria

0

6

Iraq

1

5

Iran

5

1

Afghanistan

4

1

Cuba

3

0

Russia

3

0

Libya

0

3

Pakistan

0

2

China

1

0

Total

17

18

Source: Asylum Office

 

Asylum Office practice in 2019

In 2019, the Asylum Office delivered 90 decisions regarding 122 asylum seekers in the first instance procedure (an additional 133 decisions on discontinuation were issued). Out of them, 54 asylum applications were rejected on the merits (60%);[22] 10 were dismissed on the basis of the safe third country concept (9%);[23] while 26 decisions granted asylum (29%),[24] 13 decisions granted subsidiary protection (14%)[25] and 13 decisions granted refugee statuses (14%).[26]

It can be concluded from the above that the trend from previous years has continued, and that the vast majority of asylum seekers abandon the asylum procedure before a first instance decision is rendered. 133 of the 223 decisions taken in 2019 were discontinuation decisions. As for the positive decisions, it is important to note that 18 (70%) of them were rendered in the first 5 months, and that the recognition rate sharply dropped from June to December 2019 to only 8 decisions (30%). This trend has continued in January 2020 where only 1 decision granting refugee status was delivered.[27]

However, it is fair to state that 2019 was a year in which the practice of the Asylum Office significantly improved. During 2019, the Asylum Office rendered the highest number of positive decisions (26) (concerning 35 persons)[28] since the establishment of asylum system in Serbia in 2008.[29] The most important improvements in practice are the following:

  • The Asylum Office was, in the reasoning of its decisions, clearly taking into consideration the fact that legal representatives were submitting written submissions indicating individual and general risks of persecution or other serious harm in countries of origin or third countries. These submissions contained data on individual circumstances and facts, but also findings compiled in credible reports published by UNHCR, EASO, UN Treaty bodies, UN Special Procedures, Amnesty International and others;
  • The reasoning of decisions contains the citations of credible reports taken into consideration by the Asylum Office proprio motu and occasional reliance on the general principles of the ECtHR;
  • In several cases the Asylum Office adequately took into consideration the psychological assessment provided by CSO Psychosocial Innovation Network (PIN) when examining the credibility of applicant’s statement;
  • In several cases, the Asylum Office adequately took into consideration the best interest of a child assessment provided by the Social Welfare Centre (SWC) and rendered well-reasoned decisions containing child specific considerations;
  • Significant decrease in the safe third country concept application was evident;

On 30 January 2019, the Asylum Office granted subsidiary protection to an Afghan national Z. who fled his country of origin in order to avoid forced recruitment by Taliban groups in Laghman Province. The reasoning of the decision indicates that Asylum Office applied rigorous scrutiny and assessed both individual and general circumstances, taking in consideration the written submission lodged by the legal representative and relevant country of origin information (EASO, HRW, ReliefWeb and OCHA). However, the most important achievement of the said decision is that Asylum Office acknowledged the fact that the applicant is still an adolescent, who turned 18 one month before lodging his asylum application. By taking the age of the applicant into consideration, the Asylum Office invoked Guidelines for the Alternative Care of Children[30] and the CoE’s Committee on Migration, Refugees and Population report on unaccompanied children in Europe.[31] The Office highlighted the notions of ‘transitional period’ and ‘buffer age period’ underlining the continuing existence of applicant’s vulnerability regardless of him becoming an adult. The Office also took in consideration PIN’s psychological assessment.

Another important decision was rendered in January 2019, when a Kurdish boy X. from Iraq was granted refugee status on the basis of the risk of forced recruitment by Peshmergas.[32] The Asylum Office took into consideration the Best Interest Determination (BID) as well as PIN’s psychological assessment stating that the boy needs a safe and supporting environment to overcome issues arising from the family separation trauma. Apart from that, the Office applied the principle of in dubio pro reo, giving the credence to applicant’s allegations, and supporting them with relevant CoI. Also, in November 2019, the Asylum Office continued with the positive practice regarding underaged asylum seekers and granted the refugee status to an Afghan boy who fled persecution from Talibans.[33]

It is important to note that Asylum Office rendered 4 decisions granting refugee status to 3 Chechnian[34] women and 1 Iranian[35] due to a persecution on the basis of their sexual orientation. They were recognised as the members of a particular vulnerable group. Also, one member of Uyghur ethnicity was granted refugee status,[36] as well as an Iranian family who converted from Islam to Christianity[37] and a Cuban family which fled political persecution in their home country.[38]

Other important decisions refer to Syrian applicants who were granted subsidiary protection on the basis of the state of general violence in their country of origin.[39] This means that the practice of Serbian asylum authorities is stable when it comes to Syrians whose applications are decided on the merits. Almost the same can be said for three Libyan applicants who were granted subsidiary protection for the same reason.[40]

Regardless of the above stated improvements, there are still serious concerns in practice which indicate that the Serbian asylum procedure should not be considered as fair and efficient. The concerns are the following:

  • the contradicting practice in similar or identical cases;
  • reluctance to grant refugee status, even though from the reasoning of the decision it is clear that the first instance authority has acknowledged and accepted the facts which indicate the existence of one of the 5 grounds for persecution;
  • extensive length of the first instance asylum procedure which has a discouraging effect on applicant’s will to remain in Serbia;
  • the quality of the decision-making process varies between different asylum officers;
  • not all the facts and evidence submitted by the applicant and the legal representative are taken into consideration, and the substantiation of the decision lacks an explanation as why these arguments are not deemed as credible;

In September 2019, the Asylum Office rejected the asylum application of a Libyan citizen M. who fled his country of origin due to well-known affiliation with the former Gadhafi regime, but also because of the state of general insecurity. However, the first instance authority stated that his affiliation with the former regime was not sufficiently substantiated, even though Mr. M. provided evidence on his friendship with the closest members of the Gadhafi family. Also, the Asylum Office has departed from a well-established practice[41] based on UNHCR’s recommendation that asylum seekers should not be sent to Libya until the general state of human rights significantly improves.[42] UNHCR stance was used as grounds for several decisions granting subsidiary protection in all of the cases concerning Libyans. This decision in many ways reminiscent of the case of family A. whose asylum application was rejected despite all other positive decisions regarding Libyan applicants.[43] The reason for this kind of outcome can be found in the fact that the MoI cancelled Mr. M’s residency on the grounds of national security, which was also the case with the family A. The latter case was finally resolved after family A’s application had been communicated to the ECtHR. Soon after, they were granted subsidiary protection.[44] However, in none of the two cases did the Asylum Office invoke security grounds as a reason to reject asylum applications,[45] even though it is clear that the decision making process was influenced by the Security Information Agency. This stance is supported by the Government’s Written Observations submitted to the ECtHR in the case of family A.[46] Thus, it can be safely argued that the decision in Mr. M’s case casts a shadow on the Asylum Office’s independence.  

The Asylum Office rendered several decisions granting subsidiary protection, even though from the reasoning of the said decisions it can be seen that allegations of persecutions on one of the five grounds from the Refugee Convention were accepted as credible. For instance, in one decision regarding Libyan applicant, the first instance authority granted subsidiary protection on the grounds of the state of general insecurity, even though it is clear that his affiliation and support for the Gadhafi regime was assessed as credible.[47] The Office cited UNHCR position paper which clearly states that so called ‘Gaddafi loyalists’ are frequent victims of persecution.[48] In three decisions, granting subsidiary protection to Libyan,[49] Afghan[50] and Syrian[51] nationals, the Asylum Office failed to apply the ground relating to membership in a particular social group and with regard to the notion of the able bodied man who declined to take part in an armed conflict. The Office did not dispute the applicants’ allegations of risks of forced recruitment which would have been materialised if they had not fled their countries of origin. These decisions contradict the practice from the same year,[52] but also from previous years, where able-bodied man who avoided forced recruitment or military service were treated as members of the particular social group and were granted refugee status.[53]

In November 2019, the Asylum Office rejected the asylum application of the transgender applicant K. from Iran, who faced discrimination in Iran (she was fired from the University and molested by police) and who faced persecution from her family.[54] The main reasoning behind such decision was the fact that the applicant was issued with the official ID which confirms that Iranian state authorities formally acknowledged her gender transition. However, the Asylum Office entirely disregarded the threats and attacks she received from her family, but also from members of Iranian society and her former employer. Moreover, Mrs. K was granted mandate status by the UNHCR, and is currently in the resettlement procedure. This decision entirely contradicts the Decision No. 26-1605/18 in which the first instance authority accepted that the applicant’s family and the Iranian society were agents of persecution, and for the reasons of his sexual orientation. In this decision, the Asylum Office took into consideration numerous reports on the treatment of LGBTQI persons in Iran but failed to consult the same reports in Mrs. K’s decision.

As it mentioned above, the Asylum Office has recognised in several decisions the conversion from Islam to Christianity as credible grounds for refugee protection.[55] However, in the Decision No. 26-2404/18, the Office rejected the asylum application of the family F. who also converted from Islam to Christianity. Two parts of the reasoning give serious reasons for concern. The first one is related to the stance that, since family F. applied for asylum 10 months after their arrival to Serbia and attempted to leave to the EU several times, diminishes the credibility of their asylum claims. The essence of the asylum procedure is to determine whether or not an individual faces persecution in his or her country of origin at the time of the decision-making process, not the applicant’s aspirations to stay or leave the state where protection is being sought.[56] The second one refers to the part of the decision in which it was outlined that applicants had the possibility to secretly practice Christianity in Iran, and in that way avoid persecution. On the other hand, in the February 2019 Decision No. 26-1395/18, the Office has clearly recognised that religious freedoms in Iran are limited for those who do not practice Islam and who converted to Christianity.[57] In the said decision the first instance authority invoked numerous reports supporting that finding, which was not the case in the decision of the family F.

And finally, the Asylum Office delivered a lot of contradicting decisions regarding Afghan applicants. For instance, the Office rejected application of the Afghan national M. who fled Taliban persecution due to his brothers’ affiliation with the Afghan Government, Tajik ethnicity but also due to the state of general insecurity in Kabul and his home province Badakhshan.[58] The Asylum Office was of the opinion that Mr. M. cannot be considered as a victim of persecution since he is not the one affiliated with the Government but his brother. This stance contradicts the Decision No. 26-77/17 from 1 August 2017, in which the Office granted refugee status to an Afghan interpreter whose two brothers were killed because of his affiliation with US forces and foreign companies. In other words, the Office acknowledged that victims of persecution could also be persons who are related to an individual who is a primary target. Also, Mr. M.’s decision lacks thorough consideration of credible reports which were submitted as evidence by his legal representative and which were consulted in other positive decisions, such as November 2019 decisions Nos. 26-784/18 and 26-1403/19. The same conclusion can be drawn in relation to Decision No. 26-932/19 of 30 September 2019 which rejected asylum application of an unaccompanied child from Kabul. It remains unclear what is the current position of the Asylum Office on the security situation in Afghanistan, and more narrowly in Kabul. On 29 May 2019, the Office granted refugee status to an Afghan national who fled Taliban persecution because of his status as an employee of the Government,[59] his ethnic origin (Tajik) and general state of violence in Kabul. Thus, it is clear that the practice is highly contradictory.

 

Prioritised examination and fast-track processing

 

No caseloads are prioritised as a matter of law or practice.

 

Personal interview

 

The interview in the regular procedure is regulated by Article 37 of the Asylum Act. The interview should take place at the earliest time possible. The applicant is interviewed about all the facts and circumstances relevant to deciding on his or her application and particularly to establish his or her identity, the grounds for his or her asylum application, his or her travel routes after leaving the country of origin or habitual residence, and whether the asylum seeker had previously sought asylum in any other country.[60]

An authorised officer of the Asylum Office may interview the applicant on more than one occasion in order to establish the facts.[61] In the case where a large number of asylum applications has been lodged to the extent that the authorised officers of the Asylum Office are not able to interview all the applicants in good time, the Asylum Act provides that the Government may, at the request of the competent authority, decide on temporary involvement in the interviewing process of officers from other departments of the competent authority or officers from other authorities.[62] However, although prescribed that they must undergo the necessary training before engaging in the process, it remains unclear whether this training can provide the officers from other departments of the competent authority or officers of other authorities with the sufficient level of knowledge as required for interviewing the applicants given the specific characteristics of the asylum procedure.

The Asylum Act also specifies three situations when interviewing of applicants may be omitted, where:[63]

  1. A decision may be adopted upholding the application and granting the right to asylum on the basis of the available evidence;
  2. The applicant is unable to give a statement due to circumstances of non-temporary nature beyond his control. In this case it is possible for the applicant or a member of his or her family to adduce evidence and give statements relevant to deciding on his asylum application;[64]
  3. The admissibility of a Subsequent Application is being assessed.

Applicant is entitled to request that his interview is conducted by the person of specific gender. The same rule applies to interpreters.[65]

The Asylum Office conducted 178 interviews in 2019. In practice, asylum seekers often wait from several weeks to a month following the lodging of their application for an interview to be scheduled.

Interpretation

An applicant who does not understand the official language of the asylum procedure shall be provided free interpretation services into his or her native language, or a language that he or she can understand, including the use of sign language and the availability of Braille materials.[66]

The costs of interpretation are covered by UNHCR and the interpreters are hired from their list.   

When it comes to the practice, there were several instances in which BCHR lawyers decided to halt the interview since it was clear that interpreters were incompetent and that they could not establish effective communication with the applicants. Afterwards, the BCHR requested their removal from the list.

Recording and report

At the end of the interview, the records are signed by the asylum seeker, their legal representative, the interpreters and the official leading the interview.[67] The asylum seekers’ legal representatives are entitled to ask additional questions to ensure comprehensive establishment of the facts of the case.

 

Appeal

 

Appeal before the Asylum Commission

Appeals against Asylum Office decisions are reviewed by the Asylum Commission, a body comprising nine members appointed to four-year terms in office by the Government.[68] The Asylum Commission member must be a citizen of the Republic of Serbia, have a university degree in law, a minimum of five years of work experience, and must have an understanding of human rights law.[69] The last requirement gives a lot of reasons for concern, since none of the members fulfil this criterion. The only person who met this criterion was a professor of International Human Rights Law at the Faculty of Law of the University of Belgrade who resigned in 2019. As for the other members, the Government has never delivered their biographies. However, at two roundtables that took place in the second half of 2018,[70] several newly elected members manifested a disturbing lack of basic knowledge of international refugee and human rights law. Thus, it is not reasonable to expect that this body could positively influence the practice of the Asylum Office.

An appeal to the Asylum Commission suspends the enforcement of the first instance decision and it must be submitted within 15 days from the delivery of the decision.[71]

The Asylum Act does not specify the duration of the second instance procedure. Under the Administrative Disputes Act, a claim against “administrative silence” may be filed with the Administrative Court in the event the Asylum Commission fails to render a decision on the appeal within 60 days of the day of its receipt, upon the expiry of 8 days from the day a reminder was sent to the second-instance authority.[72] In other words, the time limit for the second instance decision and its delivery to the applicant is two months after the appeal was lodged. In practice, however, it takes at least three to four months for the Asylum Commission to render and deliver the second instance decision.  

When the Asylum Commission receives the appeal, it may render a different decision on the matter and substitute the impugned ruling with a new one, should it find the appeal well-founded and that it is unnecessary to conduct the procedure again.[73] Should the Asylum Office find that the procedure it had implemented was incomplete, it may perform the requisite supplementary actions and render a new decision, which is also subject to appeal by the asylum applicant.[74] In the event it does not reject the appeal,[75] the Asylum Commission may itself decide on the administrative matter.[76] It may also set aside the impugned ruling and order the first instance authority to re-examine the matter, when it finds that the shortcomings of the first instance procedure will be eliminated more rapidly and economically by the Asylum Office.[77] The last possibility is the usual scenario, and since the establishment of the Serbian asylum system, the second instance body has rendered only one decision granting asylum to a Libyan couple whose asylum claim was rejected on the merits by the Asylum Office.[78]

Asylum Commission Practice in 2019

The Asylum Commission took 45 decisions in 2019. Of these, first instance decisions dismissing or rejecting asylum applications were upheld in 27 cases. In 14 cases the appeals were upheld, and the cases were referred back to the Asylum Office for further consideration. The Asylum Commission rendered 1 decision granting subsidiary protection to an Iranian citizen,[79] two decisions rejecting a request for the reopening of the asylum procedure and 1 decision terminating a decision granting asylum.[80] One of the major concerns regarding the Asylum Commission’s practice relates to the failure to individually and separately assess all allegations included in the applicant’s appeal.[81] In several analysed decisions, the Commission summarily rejected applicant’s arguments, but also failed to examine the applicants’ cases in line with the Asylum Office’s positions which were taken in previous cases of identical or similar nature.[82] This means that the Commission has limited corrective influence on the Office.

Most decisions related to citizens of Iran – 20 decisions regarding 34 persons. Out of them, 7 decisions (9 persons) upheld an appeal and remanded the case back to the Asylum Office, 12 decisions (24 persons) rejected an appeal and 1 decision upheld an appeal and granted subsidiary protection. This further means that the rejection rate of Iranian asylum seekers reaches 60%, recognition rate 5% while decisions upholding an appeal (35%) can be divided into two groups. The first one refers to 3 decisions in which appeals were submitted against decisions on discontinuation of the asylum procedure due to alleged absconding of the applicants,[83] and 2 decisions regarding the same applicants in which the Commission indicated to the Asylum Office to examine the prospect of applying the new Asylum Act.[84] In other words, the Asylum Commission was not dealing with the substance of the applicants’ claims. In the remaining 3 decisions, appeals were upheld in two cases due to poor evidentiary assessment of the individual and general circumstances by the Asylum Office.[85]

Since its establishment in 2008, the Asylum Commission has decided on the merits in just three cases. The last one refers to an Iranian applicant who was granted subsidiary protection due to a risk of persecution on the basis of her political views expressed on Instagram and Twitter and regarding the status of women in Iran. However, it remains unclear why the applicant was not granted refugee status, taking into consideration that all of her allegations were determined to be credible.[86]

The Asylum Commission rejected an appeal and upheld the first instance decision in a case of 4 Iranian applicants who converted from Islam to Christianity without proprio motu and ex nunc assessment of credible reports on the state of religious rights in Iran.[87] More precisely, the second instance decision did not contain a single reflection on reports of credible international organisations which were invoked and submitted by the legal representative. The Asylum Commission simply concluded that “international reports are not relevant in the concrete case”. Also, the Commission has failed to take into consideration the practice of the first instance authority in relation to Iranian converts who were granted international protection in the past, and in line with Article 5 of the GAPA.[88] The said article obliges administrative authorities to always take in consideration previous decisions which are related to identical or similar administrative issues. This approach was underlined by the Administrative Court in the Judgment No. 6310/18 from August 2018, where the Commission was ordered to provide reasoning for every decision that represents deviation from the previously established practice. Apparently, this judgment have not impacted ensuing practice.

A further confirmation that Asylum Commission has failed to establish the practice to rely on the previous conclusions in the identical administrative issues is the decision AŽ 47/18 from 2 July 2020.[89] The second instance authority rejected the applicant’s appeal as unfounded and confirmed the first instance decision.[90] The Commission disregarded the applicant’s claims that his case is no different than several previous cases in which the Asylum Office granted Afghan applicants refugee status due to a persecution by Taliban groups arising from their affiliation or imputed affiliation with official authorities, but also because of their ethnic origin (Tajik) and accompanied with the state of general insecurity and arbitrary violence.[91] In its reasoning, the Commission simply stated that the previous practice cannot be applied to the applicant’s case, without providing further explanations.

One of the most problematic decisions regarding Afghan asylum seekers is the case of a boy W.[92] His appeal was rejected by the Commission even though he fled Kabul as unaccompanied child fearing persecution by Talibans, but also due an increasing arbitrary violence. The Social Welfare Centre (SWC) issued the best interest of a child assessment, and PIN provided psychological report indicating the high level of W’s vulnerability and the need for the safe and supporting environment. His legal representatives provided up to date reports on increasing violence in Kabul, but also examples of previous and positive practice of the Asylum Office. The Commission disregarded previous practice, psychological report and the best interest of a child assessment and rejected the appeal.

The Commission rendered several decisions automatically applying the safe third country concept in relation to Greece,[93] North Macedonia,[94] and in one case referred the case back to the Asylum Office indicating the lack of reasoning as to why Bulgaria cannot be considered as a safe third country.

It is also important to note that the Asylum Commission clarified its position on asylum cases which had started in line with the old Asylum Act. In several decisions which were revolving around the safe third country concept, the Asylum Commission outlined that Asylum Office had to provide explanation as to why the old Asylum Act is more favourable then the new one.[95] All of these cases were remanded to the first instance authority.

The Commission delivered several decisions upholding an appeal against the decisions on discontinuation of asylum procedure due to alleged absconding of the applicant. This practice has been quite consistent and represents an example of good practice in relation to those applicants who decided to leave Asylum or Reception centre, but then came back with a clear intent to continue their asylum procedure.[96] This stance ensures that asylum seekers will have their application examined on the merits before being referred to the legal regime of the Foreigners Act.

In one of the decisions regarding a Turkish applicant, the Commission upheld the appeal and remanded the case to the Asylum Office due to a poor assessment of the risks of torture in Turkey.[97]

Also, the Commission rendered one decision repealing the decision on refugee status of a Lebanese citizen who had obtained the status in line with Foreigners Act.[98] It also rejected two requests for reopening of the asylum procedure of one Sudanese[99] and one Syrian[100] refugee who are victims of the flawed and automatic application of the safe third country concept, despite the fact that their applications are pending before ECtHR.[101] Namely, in the correspondence with the ECtHR, the State Agent of Serbia outlined that both of the applicants could apply for the reopening of their asylum procedures dismissing their argument which is based on the risk of their expulsion to North Macedonia. Consequently, the applicants decided to lodge the request for the reopening but with no avail.[102]

Onward appeal (“complaint”) before the Administrative Court

Asylum seekers may initiate an administrative dispute before the Administrative Court in order to challenge the final decisions of the Asylum Commission, or in case it fails to render a decision on the appeal within the legal deadline.[103]

The Administrative Court does not have a department or panel specialised in reviewing asylum cases and it rules on the lawfulness of a final administrative act in three-member judicial panels. Moreover, only a few judges are tasked to decide upon asylum complaints. At several conferences and roundtables that took place in the second half of 2018, judges from the Administrative Court stated the problem of understaffing, lack of knowledge of international refugee law and international human right law (mainly the relevant jurisprudence of the ECtHR) and sought help from relevant national and international organisations (NGOs and UNHCR) to facilitate more trainings and workshops regarding asylum and migration law.[104] The first training was facilitated by the UNHCR in 2019, and one more was in plan for 2020.

The lawfulness of an administrative act may be challenged by a claim in an administrative dispute:

  • In the event it was adopted by an authority lacking jurisdiction;
  • At the authority’s discretion, in the event the authority had exceeded its legal powers or the decision had not been adopted in accordance with the goal it had been granted specific powers;
  • In the event the law or another general act had not been enforced properly;
  • In the event the procedural rules have been violated during the procedure;
  • In the event the facts were established in a manner that was incomplete or inaccurate, or an incorrect conclusion was drawn from the facts.

According to the new Asylum Act, the initiation of an administrative dispute has an automatic suspensive effect.[105]

In practice, the Administrative Court has not itself held any hearings on asylum claims to date. Its decisions so far have merely confirmed the lawfulness of the asylum authorities’ practice of automatically applying the safe third country concept despite the fact that it had not first been established that the third countries were actually safe for the asylum seekers in casu. Also, to this date, the Administrative Court has never decided on a complaint on the merits. It can be concluded with certainty that corrective the role of the Administrative Court in relation to the first and second instance authorities is almost entirely lacking. The year 2019 was the year in which the Court has failed to deliver a judgment which could have positively affected the practice of lower instances.  

Usually, it takes approximately around three to four months for the Administrative Court to deliver its judgment.

Administrative Court Practice in 2019

In 2019, the Administrative Court delivered 17 judgments. Twelve complaints were rejected, 4 were upheld and referred back to the Commission while one judgment discontinued asylum procedure.

The practice of the Court in 2019 confirmed the flawed application of the safe third country concept in 7 judgments and in relation to Montenegro,[106] Romania,[107] Bulgaria and[108] Turkey[109]. The Court delivered 4 judgments rejecting asylum application in relation to citizens of Cameron,[110] Iran,[111] Montenegro[112] and Pakistan.[113]

The Administrative Court upheld the applicant’s complaints and remanded the cases back to the Asylum Commission only in 4 cases. In the first one, the final outcome was the Asylum Office’s decision granting a Syrian applicant of Kurdish origin subsidiary protection.[114] The second one appears to be the case of a Syrian refugee who was granted subsidiary protection in 2013[115] and which has been pending for more than 6 years.[116] Namely, the applicant’s legal representative has been challenging the decision on subsidiary protection multiple times, claiming that his client deserves refugee protection. The third one refers to a Somali applicant whose application was not assessed by the lower instances ex nunc, which was why the case was remanded back to the Commission.[117] And finally, the Court remanded the case of an Afghan applicant back to the Commission for the procedural reasons[118]

The Administrative Court also delivered one judgment discontinuing asylum procedure,[119] but also judgment applying the safe country of origin concept in relation to Montenegro.[120]

 

Legal assistance

 

On 1 October 2019, the Free Legal Aid Act (FLA) came into force. The right to free legal aid is explicitly guaranteed to asylum seekers,[121] refugees and persons granted subsidiary protection.[122] However, the Free Legal Aid Fee Schedule Regulation (FLA Regulation)[123] envisages free legal aid only for administrative dispute procedures conducted before the Administrative Court. This means that asylum seekers could apply for free legal aid only if they reach the third instance authority. The right to free legal aid is also guaranteed by the Asylum Act, as well as the right to receive information concerning asylum.[124] The Asylum Act further provides that an asylum seeker shall have access to free legal aid and representation by UNHCR and NGOs whose objectives and activities are aimed at providing free legal aid to refugees. In practice, the vast majority of persons who submit an asylum application in Serbia use the services of NGO lawyers before both national and international bodies.

It is important to highlight that not all persons who wish to apply for asylum have the possibility to have effective legal representation. The first reason is that in 2019 only three civil society organisations (CSO) were providing legal aid in Serbia: APC, BCHR and Humanitarian Centre for Tolerance and Integration (HCIT). The latter has just recently started, while the first two have been present in the system since 2008 and 2012 respectively.

The second reason is the fact that many legal representatives from respective CSOs have between 1 to 3 years of experience, which is usually the period after which many of them decide to leave the field of asylum and migration. The total number of legal representatives that actively provide legal aid in asylum procedure is most likely around 10.[125] Several additional lawyers occasionally provide legal aid but are also tasked with other responsibilities. Given that in 2019 an approximate number of persons who are likely in need of international protection was at least 50% of total migrant population who entered Serbia and received registration certificates (around 6,000), it is clear that current capacities are insufficient.

As a result, the capacity and quality of legal assistance provided by CSOs remains limited.[126]  While certain CSO lawyers are successful, the large majority of them representing applicants for international protection do not obtain positive outcomes. This is mainly due to their lack of experience and knowledge of the asylum field which raises serious concerns, in particular where it concerns push-backs and the risk of violation of the non-refoulement principle. Specific issues in relation to the provision of legal assistance include a lack of assessment of COI information and individual circumstances,[127] lengthy preparations of clients to their personal interview and issues with recording. The poor quality of legal assistance by CSOs is particularly patent in the cases where access to territory and asylum procedure is at stake.

To conclude, it is necessary to secure a quality of the work of legal representatives employed in different CSOs. Furthermore, it is also important to facilitate trainings on CoE and UN standards regarding International Refugee and International Human Rights Law. The recruitment procedures should be designed, but also the volunteer and internship systems should be established. And finally, the system of free legal aid must be reformed so it allows attorneys at law to provide legal assistance from the first instance procedure. This would mean that FLA and FLA Regulation have to be amended, and that extensive trainings of attorney at law should be facilitated.



[1] Article 103 Asylum Act.

[2] Asylum Office, Decision No. 26-148/18, 27. December 2019.

[3] Article 39(1) Asylum Act.

[4] Article 39(2) Asylum Act.

[5]  Article 39(3) Asylum Act.

[6]  Article 39(4) Asylum Act.

[7] Article 39(5) Asylum Act.

[8] Article 39(6) Asylum Act.

[9] Article 34(1)(1)-(2) Asylum Act.

[10] Article 38(1)(3)-(5) Asylum Act.

[11] Article 47 Asylum Act.

[12] Article 42 Asylum Act.

[13] Article 26 Asylum Act.

[14] Article 27 Asylum Act.

[15] Article 28 Asylum Act.

[16] Article 29 Asylum Act.

[17] Article 30 Asylum Act.

[18] Article 31 Asylum Act.

[19] Articles 33 and 34 Asylum Act.

[20] Article 32 Asylum Act.

[21] The statistical data in the table reflect the number of people granted international protection, not the number of positive decisions. One decision can cover more than one person. 

[22] Regarding 76 asylum seekers.

[23] Regarding 11 asylum seekers.

[24] Regarding 35 asylum seekers.

[25] Regarding 17 asylum seekers.

[26]  Regarding 18 asylum seekers.

[27] Asylum Office, Decision No. 26-2467/17, 15 January 2020.

[28] 25 decisions were delivered in 2015.

[29] The second-best year was 2015, when Asylum Office rendered 25 positive decisions.

[30]  UNGA, Guidelines for the Alternative Care of Children, 24 February 2010, A/RES/64/142, para. 28.

[31]  Council of Europe, Parliamentary Assembly, Unaccompanied children in Europe: issues of arrival, stay and return, 21 March 2011, Doc. 12539, para. 94.

[32] Asylum Office, Decision No. 26-2348/17, 28 January 2019.

[33] Asylum Office, Decision No. 26-784/18, 20 November 2019.

[34] Asylum Office, Decision Nos. 26-1216/18, 26-1218/18 and 26-1219/18, 12 February 2019.

[35]Asylum Office, Decision No. 26-1605/18, 15 March 2019.

[36] Asylum Office, Decision No. 26-2050/17, 12 September 2019.

[37] Asylum Office, Decision No. 26-1395/18, 5 February 2019.

[38] Asylum Office, Decision No. 26-1260/18, 13. March 2019.

[39] Asylum Office, Decisions Nos. 26-176/18, 15 March 2019; 26-1731/18, 8 May 2019, 26-3638/15, 16 September 2019 and two more decisions in which APC acted as legal representative.

[40] Asylum Office, Decision Nos. 26-1351/18; 26-1352/17, 14 January 2019 and in the third case APC acted as legal representative.

[41] Asylum Office, Decision Nos. 26-2324/11, 19 December 2012; 26-2326/11, 20 December 2012; 26-5792/14, 26-5793/14, 26-5794/14, 3 August 2015; 26-4099/15, 7 August 2015; 26-4099/15, 7 October 2015; 26-4568/16, 12 July 2016; 26-812/16, 29 September 2016; 26-5618/15, 1 December 2016; 26-5489/15, 20 October 2017; 26-1695/17, 15 June 2018; 26-222/15, 3 July 2018; 26-1352/18, 14 January 2019; 26-1351/18, 14 January 2019 and the latest decision from August 2019 where APC acted as legal representative.

[42]UNHCR, UNHCR Position on Returns to Libya – Update II, September 2018, para. 37.

[43] AIDA, Country Report Serbia, 2017 Update, February 2018, p. 21

[44] A. and Others v. Serbia, Application No 37478/16, Communicated on 12 December 2017.

[45] Article 33 (2) Asylum Act.

[46] Government of Serbia, Written Observations (pursuant to Rule 38 of the Rules of the Court), A. and Others v. Serbia, Application No. 37478/16, April 2018, para. 50.

[47] Asylum Office, Decision No. 26-1352/17, 14 January 2019.

[48] UNHCR, UNHCR Position on Returns to Libya – Update II, September 2018, para. 11.

[49] Asylum Office, Decision No. 26-1351/17, 14 January 2019.

[50] Asylum Office, Decision No. 26-2643/17, 30 January 2019.

[51] Asylum Office, Decision No. 26-1731/18, 8 May 2019.

[52] Asylum Office, Decision No. 26-2348/17, 28 January 2019.

[53] Asylum Office, Decision No 26-5413/14, 2 March 2016.

[54] Asylum Office, Decision No. 26-1592/18, 20 November 2019.

[55] Asylum Office, Decision Nos. 26-1359/18, 5 February 2019; 26-1051/17, 13 September 2016; 26-1083/17, 30 January 2018 and 26-1081/17, 4 July 2017.

[56] ECtHR, Thampibillai v. the Netherlands, Application No 61350/00, Judgment of 7 February 2004, para. 61

[57] The findings of the UN Treaty bodies and Special Procedures, but also HRW, press clipping and others.

[58] Asylum Office, Decision No. 26-1278/17, 17 April 2019.

[59] Asylum Office, Decision No. 26-787/19, 29 May 2019.

[60] Article 37(1) Asylum Act.

[61] Article 37(2) Asylum Act.

[62] Article 37(12) Asylum Act.

[63] Article 37(10) Asylum Act.

[64] Article 37(11) Asylum Act.

[65]Article 16 (2) Asylum Act.

[66] Article 13 Asylum Act.

[67] Article 63 GAPA.

[68] Article 21(1)-(2) Asylum Act.

[69] Article 21(3) Asylum Act.

[70] Roundtables were organised through the project “Novelties in the Asylum and Migration System in the Republic of Serbia and Challenges in their Application”, implemented by the AIRE Centre, IOM and the British Embassy in Serbia.

[71] Article 95 Asylum Act.

[72] Article 19 Administrative Disputes Act.

[73] Article 165 GAPA.

[74] Article 165(2)-(3) GAPA.

[75] Article 170 GAPA.

[76] Article 171(5) GAPA.

[77] Article 173(3) GAPA.

[78] Asylum Commission, Decision Až 06/16, 12 April 2016.

[79] Asylum Commission, Decision Až X, 2 September 2019.

[80] This decision refers to the Lebanese applicant who was granted refugee status in 2015 and who successfully obtained permanent residency in Serbia on the basis of his marriage with Serbian citizen. Asylum Office, Decision No. 26-3886/15, 9 September 2015.

[81] This statement mainly refers to the BCHR’s clients since the author had an opportunity to examine the entire case files.

[82] Article 5 (3) GAPA.

[83] Asylum Commission, Decisions AŽ 10-18, 16 January 2019, AŽ 10-19, 3 June 2019 and AŽ 31-19, 17 October 2019.

[84] Asylum Commission, Decision AŽ 26-18, 31 May 2019 and AŽ 26-18, 12 July 2019.

[85] Asylum Commission, Decisions AŽ 11/19, 13 May 2019, AŽ 15-19, 2 July 2017 and AŽ 19-19, 26 August 2019.

[86] Asylum Commission, Decision AŽ X, 2 September 2019.

[87] Asylum Commission, Decision AŽ 04/19, 1 March 2019.

[88] Asylum Office, Decision Nos. 26-1359/18, 5 February 2019; 26-1051/17, 13 September 2016; 26-1083/17, 30 January 2018 and 26-1081/17, 4 July 2017.

[89] Article 5 (3) GAPA.

[90] Asylum Office, Decision No. 26-1278/17, 17 April 2019 (Mr. K.).

[91]Asylum Office, Decision No. 26-787/19, 29 May 2019.

[92] Asylum Commission AŽ 38/19, 24 December 2019.

[93] Asylum Commission, Decision AŽ 41/16, 21 March 2019.

[94] Asylum Commission, Decision AŽ 28/18. 1 April 2019.

[95] Asylum Commission, Decisions AŽ 04/18, 1 April 2019 and AŽ 26/18, 12 July 2019. 

[96] Asylum Commission, Decisions Nos. AŽ 10/18, 16 January 2019; AŽ 10/19, 3 June 2019;

[97]Asylum Commission, Decision AŽ 05/19. 1 April 2019.

[98] Asylum Commission, Decision No. AŽ 26-3886/15, 22 January 2019.

[99] Asylum Commission, Decision AŽ 08-15, 6 May 2019.

[100] Asylum Commission, Decision AŽ 48/16, 17 June 2019.

[101] ECtHR, A.K. v. Serbia, Application No 57188/16, Communicated on 19 November 2018; M.H. v. Serbia, Application No 62410/17, Communicated on 26 October 2018.

[102] Both applicants are represented by before the ECtHR by the Author of this Report.

[103] Article 15 Administrative Disputes Act.

[104] Roundtables were organised through the project “Novelties in the Asylum and Migration System in the Republic of Serbia and Challenges in their Application”, implemented by the AIRE Centre, IOM and the British Embassy in Serbia.

[105] Article 96 Asylum Act.

[106] Administrative Court, Judgment U 16335/18, 11 January 2019

[107] Administrative Court, Judgment U 13320/16, 18 January 2019.

[108] Administrative Court, Judgments U 12951/18, 21 February 2019; U 8442/18, 8 March 2019; U 11906/18, 22 August 2019.

[109] Administrative Court, Judgment U 1883/19, 29 March 2019; U 10053/19, 5 September 2019.

[110] Administrative Court, Judgment U 6118/18, 20 June 2019.

[111] Administrative Court, Judgment U 2774/19, 5 July 2019.

[112] Administrative Court, Judgment U 5037/19, 12 June 2019.

[113]Administrative Court, Judgment U 11314/19, 14 August 2019.

[114] Administrative Court, Judgment U 13512/16, 31 January 2019.

[115] Asylum Office, Decision No. 26-1443/12, 13 June 2013.

[116] Administrative Court, Judgment U 6547/16, 6 September 2019.

[117] Administrative Court, Judgment U 19901/18, 10 January 2019.

[118] Administrative Court, Judgment U 18067/17, 5 December 2019.

[119]  Administrative Court, Judgment U 3938/18, 9 May 2019.

[120] Administrative Court, Judgment U 5037/10. 12 June 2019.

[121] Article 4 (2-6) FLA.

[122] Article 4 (2-7) FLA.

[123] Free Legal Aid Fee Schedule Regulation (Uredba o tarifi za pružanje besplatne pravne pomoći), Official Gazette of the RS No. 74/2019.

[124] Article 56(3)-(4) Asylum Act.

[125] BCHR has 5 lawyers who are solely providing legal aid to asylum seekers, HCIT 2 while APC does not have more than 4.

[126] The author of this Report was a legal coordinator at BCHR, but also acts as a strategic litigation officer at BCHR. He has been providing legal aid to asylum seekers since 2012.

[127] This conclusion was drawn from the Analysis of dozens of case files from the period 2017-2019 originating from both BCHR and APC’s legal practice. A more detailed analysis of the quality of work of legal representatives will be conducted during the course of 2020.

 

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