Regular procedure

General (scope, time limits)

The asylum procedure in Serbia is governed by the Asylum Act as lex specialis to GAPA which is applied in relation to questions that are not regulated by the Asylum Act.[1] The provisions of the Asylum Act shall be interpreted in accordance with the Convention and Protocol relating to the Status of Refugees and the generally recognised rules of international law.[2] Additionally, the third instance procedure before the Administrative Court is also governed by the ADA.

The Asylum Act provides that a decision on asylum applications in the regular procedure must be taken within a maximum period of 3 months from the date of the lodging of the asylum application or the admissible subsequent application.^[3] In 2021, there were almost no instances in which the first instance asylum procedure was concluded within the 3-month  period when the case was complex despite vulnerability of the applicant and credibility of the claim Manifestly unfounded cases can be rejected within a month, but the question that remains open is why the highly credible cases, or the most vulnerable cases have to wait for more than a year for a positive decision. The best example is the case of prima facie not credible application of Pakistani national, and a torture victim from Iran.[4] The first one was rejected in exactly 1 month, while the torture victim received international protection after 20 months.[5]

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.^[6] 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.^[7] The applicant shall be informed on the extension.^[8] BCHR reported two such cases in 2020, while IDEAS recorded one such case in 2021.[9] Other CSOs providing legal aid to asylum seekers did not publicly disclose such information. It is quite clear that in the vast majority of cases, such notifications are not provided to applicants and their legal representatives.

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.^[10] Nevertheless, the decision must be taken no later than 12 months from the date of the application.^[11] Thus, the Asylum Office has a discretionary power to decide on the extension of the time limit for the decision.

As outlined, the possibility to extend the deadline for delivering the first instance decision is rarely used, and there is no official data on how many times this possibility was used in 2021 which represents a continuation of such practice from 2020 when the state of emergency was in force.[12] Still, not a single decision was rendered within three months. The length of the first instance asylum procedure is still much longer than three months. In other words, the first instance procedure still lasts unreasonably long (around 12 to 14 months on average) which is one of the reasons discouraging asylum seekers from considering Serbia a country of destination. In 2021, CSOs in Serbia did not lodge appeals complaining about lack of response by the administration to the Asylum Commission and excessive length of first instance procedure, as it was the case in 2020 when APC and BCHR submitted more than 10 appeals. In March 2022, the UN Committee on Economic, Social and Cultural Rights (CESCR) recommended that Serbia ensure compliance with the statutory deadlines of the asylum procedure.[13]

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;^[14] (b) a decision to reject the asylum application;^[15] (c) a decision to discontinue the procedure;^[16] or a decision to dismiss the application as inadmissible.^[17]

The Asylum Act contains detailed provisions regarding the grounds for persecution,^[18] sur place refugees,^[19] acts of persecution,^[20] actors of persecution,^[21] actors of protection in the country of origin,^[22] the internal flight alternative,^[23] and grounds for exclusion.^[24] This clearly indicates that the legislature was guided by the Common European Asylum System framework, namely the recast Qualification Directive. Still, there is plenty more room for improvement, especially with regard to the exclusion clause which lacks the clear procedural rules which would be in line with UNHCR Guidelines (see Short overview of the asylum procedure).[25]

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. If an applicant fails to do so, asylum officer has the possibility to render a decision in an accelerated procedure.^[26] 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 – as 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…”^[27]

Also, the benefit of the doubt principle (in dubio pro reo) 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.”

Overview of the practice of the Asylum Office for the period 2008-2021

In the period form 1 April 2008 to 31 December 2021, asylum authorities in Serbia rendered 138 decisions granting asylum (refugee status or subsidiary protection) to 196 persons from 25 different countries.[28] A total of 59 decisions was rendered in relation to 97 applicants who received subsidiary protection, while 79 decisions were rendered in relation to 99 applicants who were granted refugee status.

The highest number of decisions was rendered in 2019 (26), and then in the following order: 2015 (24), 2016 (21), 2020 (19), 2018 (16), 2021 (12), 2017 (7), 2014 (4), 2009 (4), 2012 (3), 2013 (1) and 2010 (1). In 2008 and 2011, not a single positive decision was rendered. Top 5 nationalities which received international protection in Serbia are: Libya (46), Syria (27), Afghanistan (26), Iran (19) and Iraq (16).

Libya

The highest number of applicants who were granted international protection in Serbia originate from Libya – 46 persons through 18 decisions. A total of 3 decisions were rendered granting refugee status to 7 Libyans. On the other hand, 15 decisions granting subsidiary protection were rendered in relation to 39 applicants. Decisions on subsidiary protection were based on the state of general insecurity and widespread violence which implied the risk of suffering serious harm. The main source, in terms of the CoI, were different updates of UNHCR position papers on returns to Libya and moratorium on returns which is valid as of March 2022.[29] The remaining 3 decisions referred to the risk of persecution on ethnic and political grounds for applicants belonging to the same tribe as Muammar Gaddafi[30] or a 5-member family belonging to the ethnic group of Berbers which was particularly targeted during the civil war and in post-conflict period in Libya.[31]

In the history of Serbian asylum system, a total of 65 Libyans applied for asylum, even though 655 was issued with registration certificate, but never applied for asylum. There were no instances in which the applicant from Libya has been rejected with the final decision of the Administrative Court, except in one case where a 5-member family addressed the ECtHR and was later on granted subsidiary protection.[32] This case, as well as another which was positively resolved in 2022, were the cases in which asylum applications were rejected on the basis of negative security assessment from BIA. Still, it can be safely assumed that, if provided with adequate legal support, applicants from Libya have decent chances to obtain international protection in Serbia.

Syria

A total of 27 Syrians were granted international protection in Serbia through 22 decisions. Eight were granted refugee status via 8 decisions while 19 were granted subsidiary protection through 14 decisions. However, a total of 319,746 Syrians was registered in Serbia since 2008, while 526 lodged asylum application. The vast majority of Syrians absconded before the first instance decision was rendered, while at least several dozens were subjected to the automatic application of the safe third country concept (STCC), which plagued Serbian asylum system in the period 2008-2018.[33] The vast majority of the applicants whose asylum application was dismissed absconded asylum procedure, while only 1 remained and his case is currently pending before the ECtHR.[34] There were no instances in which Syrian asylum application was rejected in merits with the final decision, but there is 1 case which was rejected as such in the first instance, in 2022. Still, it is safe to assume that Syrians have strong prospects to receive international protection in Serbia at the end of 2021

Decision in which Syrians were granted subsidiary protection in Serbia were based on the state of general insecurity and widespread violence which implied the risk of suffering serious harm. The main sources in terms of CoI which were cited in such decisions were UNHCR position paper on returns to Syria[35] and EASO reports on Syria.[36] As for the decisions granting refugee status, they were mainly based on the risk of persecution due to political opinion or draft evasion.[37] When it comes to draft evasion, the practice has been contradictory, implying that some applicants were granted refugee status, while other subsidiary protection.

Afghanistan

Persons in need of international protection from Afghanistan are the second biggest group of persons registered in Serbia (184.737) and the largest group that actually lodged asylum application (953). However, only 26 Afghanis were granted asylum through 18 decisions. The vast majority of Afghan applicants absconded asylum procedure, as it has been the case with Syrians and Iraqis. The Asylum Office rendered 13 decisions granting refugee status to 17 Afghanis on the basis of the risk of persecution which they faced as: interpreters,[38] artists,[39] members of police and other security forces,[40] persons who worked for US companies[41] or persons who faced risk of Taliban recruitment.[42] The subsidiary protection was granted to individuals who belonged to vulnerable categories such as UASC or families with small children who faced the state of general insecurity and arbitrary violence from Talibans.[43] The recognition rate of Afghan applicants varied throughout the years, but it is yet to be seen how the Taliban rule will affect the practice of asylum authorities in the future.[44] There was only 1 decision in 2021 in which the Taliban rule and general situation in Afghanistan was declared as grounds for subsidiary protection.[45]

Iraq

A total of 10 decisions granting international protection was rendered in relation to 15 Iraqi nationals. Through 4 decisions 7 persons were granted subsidiary protection as Sunni Muslims who faced arbitrary violence in post US invasion Iraq,[46] during Islamic State of Iraq and Syria (ISIS) control of area around Mosul[47] and in post-ISIS period.[48] Iraqis granted refugee status faced risk of forcible military recruitment,[49] were directly targeted as Sunni Muslims[50] or were victims of sexual and gender-based violence (SGBV).[51]

It is noteworthy to say that 82,750 Iraqi were registered in Serbia since 2008 and that only 292 lodged asylum application. As it was the case with Syrians, the vast majority of them absconded before the first instance decision was rendered, or afterwards, after they were subjected to the practice of the STCC. In one instance , the STCC was applied through final decision of the Administrative Court, and this person was later on granted humanitarian residency due to his integration into Serbian society. In this particular case, the legal representatives have failed to challenge automatic application of the STCC before the ECtHR which would potentially provide a durable solution for the applicant.[52] There were probably several more instances in which the STCC was confirmed with the final decision in relation to Iraqi applicants. The author of this Report is not aware of any decisions in which Iraqi asylum applications was rejected in merits with the final decision.

Iran

Iranian asylum seekers were granted asylum through 15 decisions encompassing 19 persons. A total of 17 applicants received refugee status through 13 decisions and the grounds were mainly of religious nature – conversion from Islam to Christianity.[53] There were instances in which the victims of torture who opposed the Iranian political system received refugee status,[54] as well as LGBT persons.[55] One human rights activist[56] and 1 UASC received subsidiary protection.[57] Since 2008, a total of 14,579 Iranians were registered, while only 348 lodged asylum application. The vast majority of asylum applications based on religious reasons (conversion) were rejected in merits and became final and executive.

Ukraine

Even though only 18 Ukrainians were registered in the period 2014-2016, 16 of them lodged asylum application and 10 were granted asylum. Five Ukrainian applicants received subsidiary protection through 3 decisions, and 5 were granted refugee status through the same number of decisions. All of their claims were based on their Russian ethnicity or pro-Russian orientation, or they had previous family or other connections with Serbia. It remains to be seen how many Ukrainians will apply for asylum following the invasion by Russia from February 2022. In March 2022, 4 Ukrainian officials lodged asylum application to the Asylum Office.

Burundi

A total of 222 Burundians were registered in line with the Asylum Act, and 78 of them lodged asylum application in the period 2017-2021. The increase in the number of Burundian applicants can be connected with the free visa regime that Serbia has introduced for Burundian citizens. Still, only 8 Burundians were granted asylum through 6 decisions. A total of 7 Burundians was granted refugee status through 5 decisions and 1 Burundian was granted subsidiary protection. Refugee status was granted to women victims of SGBV, torture victims and political opponents. All of them are ethnic Tutsi.

Cuba

A total of 167 Cubans were registered in line with the Asylum Act, while 57 of them lodged asylum application since the onset of Serbian asylum system. Only 7 of them received refugee status through 5 decisions and on the basis of political persecution which they faced as political activist opposed to the Government.

Somalia

A total of 66,463 Somalians were registered in line with the Asylum Act, while only 336 of them lodged asylum applications. Subsidiary protection was granted to 5 individuals, and on the basis of the state of general insecurity in the Somaliland.

Other nationalities

A total of 5 Sudanese from Darfur were granted refugee status in the period 2015-2016 (5 decisions), 4 Pakistanis were granted asylum out of which 3 subsidiary protection and 1 UASC refugee status and as a survivor of human trafficking. A total of 3 athletes from Ethiopia were granted subsidiary protection in 2009 due to political reasons, as well as 3 women from Chechnya-Russia, who had LGBT claims. The same claim had a LGBT couple from Turkey who received refugee status in 2013. A woman from Cameroon and her daughter were granted refugee status as survivors of SGBV, while one underage girl from Nigeria was granted refugee status as a survivor of human trafficking. Another Nigerian man with sever disability received subsidiary protection. Two stateless Palestinians were recognized as refugees and victims of forced military recruitment in Syria. One applicant from Bangladesh who is quadriplegic was granted subsidiary protection. The same protection was granted to the applicant from Mali in 2020. Refugee status was granted to Christian Copt from Egypt on the basis of religious persecution, as well as to Chinese Uygur, Kazakh Christian and Tunisian Christian on the same grounds. A man from Lebanon escaped political persecution from Hezbollah and received refugee status, as well as South Sudanese who belonged to the opposition.

Particular grounds for international protection, contradicting practices and different trends

Out of the total of 138 decisions rendered by Asylum Office (135) and Asylum Commission (3), it can be said with certainty that the recognition rate in Serbia would have been much higher if not for automatic application of the STCC in the period 2008-2018.[58] On other hand, among 138 decisions, excellent examples of good practice can be observed. In the history of Serbian asylum system, asylum authorities have granted asylum on almost all grounds envisaged in Article 1 of the 1951 Refugee Convention. However, there are numerous examples in which the practice of the Asylum Office has been inconsistent and especially in the following type of cases:

• LGBT applicants
• SGBV survivors
• UASCs
• draft evaders
• converts from Islam to Christianity

LGBT

When it comes to LGBT applicants, the first ever-positive decision was granted to the Turkish gay couple in 2013.[59] Several other decisions, which represent an example of good practice, ensued in the following years. Among those are decisions granting refugee status to two gay men from Iran[60] and 3 lesbians from Chechnya.[61] However, in the same period, several contentious decisions indicate the inconsistency in assessing LGBT claims by asylum authorities in Serbia. One decision referred to a transgender man from Bosnia whose asylum application was also rejected in the Netherlands.[62] In two other, separate decisions, which related to a gay couple from Tunisia, the first instance authority outlined that the state of human rights of LGBTQI in Tunisia has been significantly improving throughout the years, highlighting the fact that even one of the presidential candidates openly declared as gay. However, the Asylum Office disregarded the fact that the Tunisian legal framework still stipulates ‘forced anal examination’ of people ‘suspected to be gay’ and criminalises homosexuality in its Criminal Code, prescribing the prison sentence of up to 5 years.[63] Another contentious decision referred to a transgender woman from Iran who was rejected even though the UNHCR office in Serbia eventually granted her the mandate status.[64] In 2021, there were two decisions in which application from a gay man from Iran was rejected as unfounded,[65] as well as application from a gay man from Bangladesh.[66] The threshold set in these two cases represents a dangerous precedent when it comes to LGBT claims.[67]

Victims of SGBV

The practice of asylum authorities when it comes to the survivors of SGBV has also been inconsistent. The first notable case goes back to 2016, when a woman from Chechnya was rejected in merits. Namely, during the hearing, M.G. unequivocally expressed her well-founded fear of persecution by Chechens (including her family members), who threatened her because she ‘lost her virginity out of wedlock’ and because she was pregnant at the time of leaving Russia. In addition, the mere fact that the asylum seeker left Russia and her family may be a reason for retaliation by her father and other Chechens. She specifically stated that she received threats from her father that he would kill her if she had sexual relations before marriage, and described how Chechens treat girls in such cases, i.e. that those girls are often victims of honour killing. The applicant stated that her mother once told her about a case where a brother killed a sister who was had sex before marriage, then killing her mother because she did not take good care of her daughter.[68]

Another contentious case was recorded in December 2017, when an application by a woman who was a victim of SGBV in Afghanistan was dismissed on the basis that Bulgaria was a safe third country. The Asylum Office disregarded the fact that Z.F. was also raped in Bulgaria, manifesting in that way the lack of capacity to establish gender sensitive approach in admissibility procedure.[69] Asylum Office decision was also confirmed by the Asylum Commission and the woman eventually was resettled by UNHCR and received refugee status in France.[70]

A case which represents an example of good practice refers to a woman N. with a small child from Cameroon who escaped arranged marriage and whose asylum application was assessed as credible through individual circumstances which she put forward and relevant CoI.[71] This was the first ever case in which the applicant was qualified to be a member of a particular social group – persons at risk of SGBV, manifested though the risk of forced marriage. On the contrary, a case of another women from Cameroon was not examined with rigorous scrutiny as the case of N., even though it referred to the practice of forced marriage when she was underage. Her case was dismissed even though she has never had the opportunity to apply for asylum at one of the airports in Italy which Serbia considered as the safe third country.[72] A very high burden of proof for the risk of gender based violence was established in the case of Ms. Y from Iran,[73] and Ms. Z from Burundi in 2021.[74] On the other hand, a high quality decision was rendered in relation to Iraqi women and her daughter who received refugee status as SGBV survivor who was forcibly married to her cousin when she was only 15 years old.[75]

UASC

Since the establishment of Serbian asylum system, only 10 UASC received international protection in Serbia. The first child was a girl from Nigeria who was also recognized as a survivor of human trafficking which occurred in her country of origin and which was assessed as an act of persecution.[76] Another UASC who received subsidiary protection was boy from Afghanistan who avoided forced recruitment by Talibans.[77] The same decision was rendered in relation to a Kurdish boy who fled forcible military recruitment by Peshmergas in Iraq and who was granted refugee status,[78] In both of these cases Asylum Office applied the standard of a ‘buffer age period,’ which is a remarkable example of good practice.[79]

An identical case of forced recruitment of UASC by Taliban forces was positively resolved at the end of 2019 in the case of an Afghan boy who was granted refugee status.[80] A child soldier from Palestine (proclaimed as stateless), received refugee status after it was determined that he was forcibly recruited in the conflict in Syria.[81] Similar case was resolved for an UASC from Afghanistan who fled Taliban recruitment as well.[82] A boy from Iran who converted from Islam to Christianity was granted subsidiary protection.[83] Another boy from Afghanistan who fled customary family dispute and revenge killing was granted subsidiary protection in 2020.[84] Afghan boy who suffered severe injuries in a car accident in Serbia and remained in induced coma was granted subsidiary protection in 2021.[85] And finally, the last UASC who was granted a refugee status was a boy from Pakistan who received the status of the victim of human trafficking and who was granted refugee status in 2021 on the basis of labour and sexual exploitation.[86]

Apart from positive decisions, there have been a handful of cases in which UASC’s applications were rejected in merits even though their asylum claims were similar or identical to the above-described. In all these cases boys, mainly from Afghanistan, had a positive best interest assessment decision issued by CSW which contained a recommendation for protection in Serbia. This indicates that practice in the field of UASC also varies, which can be also seen in the past AIDA reports.[87

Draft evaders and forcible recruitment

A significant number of male Syrian applicants who received international protection outlined in their applications that one of the main reasons why they had to flee their country was the risk of being recruited by some of the fighting sides. The reasoning of the Asylum Office decisions always outlined such individual circumstances, but in the end awarded different forms of international protection – mainly subsidiary protection and rarely refugee status. Moreover, draft evasions and rejection in general to take part in the armed conflict, was outlined by the UNHCR in its position papers as a reason for protection arising from 1951 Refugee Convention.[88] Thus, there were instances in which draft evaders were granted refugee status[89] and instances in which the same category received subsidiary protection.[90] The same examples can be seen in the practice towards UASC who fled Taliban recruitments described above.

Converts from Islam to Christianity

The vast majority of Iranian claims were based on the alleged risk of religious persecution, frequently due to a conversion from Islam to Christianity. However, even before the mass arrival of Iranian citizens in 2017-2018,[91] the fist refugee status was granted to a man from Kazakhstan, who converted to Christianity.[92] The second person was a man from Iran who was granted refugee status in 2016 for the same reasons.[93] And then, in the period 2018 – 2020, the Asylum Office granted refugee status on the said grounds on at least 7 occasions.[94]

However, in the same period, dozens of other Iranian applicants who put forward the same claims with identical or similar evidence, were rejected in merits. Also, the number of persons who received international protection on these grounds was slowly decreasing and in 2021, not a single Iranian was granted refugee status on these grounds. Thus, it is clear that the threshold for Iranian converts has significantly increased and that it is not reasonable to expect that in the future these claims will have prospect of success.[95] Since 2017, the Asylum Office rendered the following decisions:^[96]

Protection was granted to citizens of the following countries in 2021:

Source: Asylum Office and UNCHR office in Serbia.

Asylum Office practice in 2021

In 2021, the Asylum Office delivered only 114 decisions regarding 156 asylum seekers. Out of that number, 39 decisions regarding 51 asylum seekers were rejected  in merits. 12 decisions granting asylum to 14 asylum seekers were delivered. Four cases regarding 4 persons were assessed as inadmissible.[97] Asylum procedure was discontinued in 51 cases regarding 73 applicants, due to their absconding, while in 6 instances subsequent asylum application was declined in relation 12 applicants. Finally, in 2021, the Asylum Office rendered two interesting decisions regarding the age assessment and in relation to two boys from Afghanistan and Pakistan.

The first conclusion that can be drawn from these figures is that the total number of decisions has continued to decrease in previous years. A total number of decisions dropped by 29% in comparison to 2020 and was the lowest in the past 5 years. If COVID-19 was the reason for such state of affairs in 2020, in 2021 this can be attributed to general degradation of Serbian asylum system.  Still, the trend from previous years has continued and the vast majority of applicants decided to abscond from asylum procedure before the decision in the first instance was rendered. This represents a total of 45% of all decisions rendered in 2021. Around 5% of decisions concerned rejections of subsequent applications, while 3,5% of decisions were inadmissibility decisions.

In 2021, it can be said that 63 decisions, rendered in relation to 83 asylum seekers can be considered as relevant for analysis and better understanding of the quality and effectiveness of asylum procedure, the practice with regards to certain nationalities, the grounds for persecution and the origin of the applicants. These 63 decisions were rendered in relation to 83 asylum seekers: Iran (20), Burundi (9), Cuba (6), Turkey (6), Jordan (5), Pakistan (4), Syria (4), Ghana (3), Libya (3), Iraq (3), Afghanistan (3), Bulgaria (3), Bangladesh (2), Nigeria (2) and 1 from Bosnia and Hercegovina, Stateless, Congo, Sudan, Mali, Tunis, Somalia, Cameroon, Russia and Senegal.

When it comes to decisions rendered on the merits, it can be concluded that rejection rate in 2021 was 76%, while the recognition rate was 24%. This represents 3% drop in recognition in comparison to 2020.^[98] In total, international protection was granted through 12 decisions (24%) encompassing 14 persons. Of this, the refugee status was granted through 6 decisions and to citizens of Iraq (3), Burundi (2), Iran (1) and Pakistan (1). In turn, subsidiary protection was granted through 6 decisions and to citizens of Syria (3), Somalia (2), Afghanistan (1) and Libya (1),

Most of the decisions were rendered in 2021 in relation to citizens of Iran – 11 regarding 20 applicants. Out of them, 8 decisions regarding 13 applicants was rendered in merits, 2 decisions regarding 6 applicants referred to subsequent applications and 1 decision on dismissal was rendered in relation to 1 Iranian citizen. Only in 1 out 8 decisions rendered in merits, the Asylum Office granted refugee status.[99] All other applications were rejected as unfounded. The Asylum Office rendered two decisions rejecting subsequent applications of two Iranian families of 4 and 2 respectively.[100] Both families had claims based on conversion from Islam to Christianity.

Second highest number of decisions were rendered in relation to Burundians – 9 regarding 9 applicants. Three applications were resolved positively, while 5 were rejected and 1 was dismissed Accordingly, recognition rate for citizens of Burundi in 2021 was 37.5%%.

The third largest group of applicants whose cases were decided on merits are asylum seekers from Cuba, and the recognition rate for Cubans in 2021 was 0%. The same recognition rate characterised applications by Turkish citizens. Asylum Office rendered 4 decisions rejecting 6 applicants from Turkey. This kind of practice is dangerous, taking in consideration that many of the applicants can be affiliated with Gulenist movement or belong to Kurdish ethnic group.

In 2021, Asylum Office rendered 3 decisions in relation to 4 citizens of Syria. In August 2021, the first ever applicant from Syria was rejected in merits, while 3 applicants were granted subsidiary protection through 2 decisions.[101] Conversely, all three applicants from Iraq received refugee status through 2 decisions.[102] In turn, one Afghan citizen was granted subsidiary protection, while other UASC from Afghanistan had his request for the change of date of birth in registration certificate rejected.[103]

The zero-recognition rate is recorded in relation to the applicants from Jordan. Asylum Office rendered 2 decisions rejecting asylum application of 6 Jordanians, including the mother of 4 whose husband died in Serbia.[104] Asylum Office was solely rendering decision rejecting asylum applications in merits in cases of the citizen of Ghana (3 decisions in relation to 3 persons),[105] Nigeria (2 decisions in relation to 2 persons), Bangladesh (2 decisions in relation to 2 persons), Senegal, Mali, Russia, Tunis, Congo, Bosnia and Hercegovina (1 decision in relation to 1 person in each case).

Asylum Office rendered 3 decisions in relation to three applicants from Libya. Two cases were decided in merits, 1 positive, the other one negative, [106] and one case was rejected as inadmissible. With regards to 4 applicants from Pakistan, one application was rejected in merits,[107] one application was upheld and UASC applicant was granted refugee status,[108] while one case was rejected as inadmissible. One UASC from Pakistan lodged subsequent application, which was rejected as unfounded.[109] The same boy requested the change of his year of birth in registration certificate, and in line with the principle of in dubio pro reo with regards to age assessment, which was also rejected as unfounded.[110]

The quality of the decision-making process in 2021 deteriorated in comparison to previous years.^[111] The Asylum Office rendered 12 decisions in relation to 14 applicants granting them asylum. In those cases where Asylum Office granted refugee status or subsidiary protection the following can be observed:

• 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 (CoI);
• 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 PIN when examining the credibility of applicant’s statement;
• In 1 case, 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 and invoking Article 17 which provides for special procedural guarantees for vulnerable applicants such as UASC;
• the safe third country concept was not applied in any of the said decisions and the reasoning of each decision contains a paragraph on why the country in which the applicant resided before coming to Serbia cannot be considered as a safe third country.

The Asylum Office rendered two decisions granting subsidiary protection to 3 Syrians.^[112] However, in August 2021, one Syrian applicant was rejected in merits. Thus, the impeccable practice of this body when it comes to Syrian asylum applicants whose cases are decided on the merits does no longer exist. Still, the said case is still pending, and it is reasonable to assume that this decision will not become final. In one of the two decisions granting subsidiary protection, it can be seen that the practice of the Asylum Office still largely reflects, for instance, UNHCR moratorium on returns to Syria,^[113] or the current standing of ECtHR when it comes to the risks of treatment contrary to Article 2 and 3 of ECHR in case of removal to Syria.^[114] Nevertheless, the number of Syrian applicants in Serbia remains low.

In April 2021, Asylum Office granted subsidiary protection to a Libyan citizen, confirming its standing from previous case law that the current political instability in this country is still considerable enough for international protection.[115] In the same month, a citizen from Iraq was granted refugee status.[116]

On 14 May 2021, E.J. from Burundi was granted subsidiary protection and on the basis of the problems that he had faced due to his father political involvement with one of the opposition parties. After his father was killed, he decided to escape to Serbia where he applied for asylum in 2019. This decision indicates that family affiliation with opposition parties can be considered as source of risk of serious harm in Burundi.[117] However, the flexible approach based on the principle of in dubio pro reo, is not generally applied in other Burundian cases.

On 21 May 2021, Asylum Office granted subsidiary protection to the Somali national Y. and due to the situation of general insecurity caused by Al-Shabab group. This was a fifth decision in which Somali applicant was granted subsidiary protection due to the risk of serious harm which can be caused by terrorist acts of this militant group. According to the BCHR, the risks outlined in asylum applications should have been considered as grounds for refugee status.[118]

On 29 and 30 of June 2022, two torture victims from Burundi were granted refugee status.[119] The entire assessment of individual and objective circumstances can be assessed as thorough, accompanied with forensic medical reports lodged by legal representatives.[120] These two decisions outline why the multidisciplinary approach is a necessity at this stage of development of Serbian asylum system.

In June 2021, an UASC from Afghanistan was granted subsidiary protection due to a state of insecurity in his country which has strongly affected the health-care system.[121] Namely, the applicant suffered serious injuries in one of the traffic incidents in Serbia in 2019 and requires everyday care since he is immobile and cannot speak. Thus, the health care reasons were grounds for subsidiary protection, and this decision represents the continuation of the good practice of the Asylum Office in which people who have severe health issues and who would not be able to receive treatment and care in their countries of origin are granted asylum.[122]

Another positive decision was rendered in relation to the torture victim from Iran who was persecuted on political grounds and as a person who supported the opposition candidate in elections. The complexity of this case implied the application of the safe third country concept in relation to several countries in which the applicant applied for asylum. The Asylum Office took in consideration the psychological report which indicated the consequences of different torture techniques that were applied at the applicant.[123]

Another extraordinary example of good practice was a decision on refugee status which was granted to a woman and her daughter from Iraq, who was a SGBV survivor and victim of the arranged marriage. The applicants were qualified under the membership in a particular social group and all relevant subjective and objective criteria were taken into consideration.[124] However, this decision does not reflect a general approach of the Asylum Office when it comes to the assessment of the risk of ill-treatment in countries of origin of applicants who have a gender component in their claim.

And finally, in September 2021, an UASC from Pakistan was granted refugee status as a victim of human trafficking which involved both sexual and labour exploitation. Asylum Office took in consideration the Best Interest Decision provided by the Center for Social Work, as well as the decision on granting the status of the victim of human trafficking by the Government’s Centre for Human Trafficking Victims’ Protection (CHTV).[125] However, this case had lasted extensively long, which can be particularly damaging for a vulnerable applicant.

What is common for most of the cases in which Asylum Office granted refugee or subsidiary protection to the applicants is the fact that first instance procedure lasted on average for more than 1 year. This is completely unacceptable for the most vulnerable applicants such as UASC, SGBV survivors and survivors of human trafficking. At the same time, excessive length of asylum procedure for applicants coming from Syria or Afghanistan also lack proper justification, taking in consideration the clarity of the situation in these countries, as well as position of UNHCR on returns to these countries, or EASO Guidelines.

Regardless of the above stated examples of good practice, there are still serious concerns in practice which indicate that the Serbian asylum procedure should not be considered as fair and efficient, and in some cases can be seen as unpredictable The concerns are the following:

• the contradicting practice in similar or identical cases;
• reluctance to grant refugee status (but rather granting subsidiary protection 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, especially in decisions on rejection.

In January 2021, a Libyan applicant was rejected based on the negative security assessment by BIA.[126] This case had been pending since 2018 and from the very beginning, it was obvious that decision making process was influenced by the negative assessment by security agencies in Serbia. Mr. G. has lived in Serbia for decades, he has established family, but had undisputable connections with the former regime of colonel Ghaddafi. However, the absolute nature of the principle of non-refoulement does not allow any limitations or derogations. This case can be connected with the case of family A. which was also declared as a security threat by BIA. Only after the case was communicated to the ECtHR, the security assessment was declared as positive,[127] and they were granted subsidiary protection.[128] Mr. G. was rejected on several occasions, but every time, Asylum Commission would refer the case back to the first instance body. His case was finally resolved in February 2022, when he was grand refugee status.[129] However, this positive outcome ensued only after the Commission obtained positive security assessment from BIA, which clearly shows that national security reasons can play a significant role in asylum procedure.

One of the most contentious decisions rendered in 2020, and which is relevant for the practice in 2021, refers to a boy from Afghanistan whose asylum application was rejected due to inconsistencies between three different assessments/statements given by PIN’s psychologist, Social Welfare Centre worker in BID and the boy applicant himself during the asylum interview.^[130] First of all, the Asylum Office correctly determined that unaccompanied child from Afghanistan provided different information which were compiled in BID report, psychological report and which were stated during the asylum hearing and introduced in the minutes of the hearing signed by the applicant and his legal representative. Secondly, it is the legal representative who most likely did not prepare his client for an interview and who provided psychological report to the Asylum Office, obviously without reading it first. It remains unclear how the legal representative had failed to determine very obvious inconsistencies between minutes from the asylum hearing and psychological report drafted after the hearing. For its part, the Asylum Office failed to at least try to clarify the said inconsistencies and to schedule additional hearings of the boy, but also to question psychologist and social welfare worker. Also, it failed to examine this application from the child specific perspective, as it did in the case of a boy from Nirjab district who was granted subsidiary protection.^[131] This case is currently pending before the Administrative Court and it appears that deficiencies and uncoordinated work of legal representative, legal guardian and psychologist will be assessed by that court.

Another decision which refers to an Afghan UASC was rendered in February 2020 and in which the risk of persecution was assessed in relation to the situation in Pakistan, not Afghanistan. Namely, the boy lived with his family in Pakistan as a refugee, and even though the boy explicitly expressed that the Talibans in Pakistan attempted on several occasions to recruit him and threatened him not to continue his education. From the reasoning of the decision, it cannot be seen in which way acting asylum officer assessed psychological report, decision on BID and CoI which goes in favour of his claims. The first instance authority took a one-sided stance citing the CoI sources which only go in favour or rejection and dismissed applicants’ lawyers CoI submissions on Pakistan. The ‘buffer age’ standard was not applied as well. This, and the previous decision, indicate a clear problem of contradicting practice when it comes to Afghan applicants and UASC.^[132] A similar case occurred in 2021, when an UASC of Afghan origin who was born in Pakistan was rejected in merits and the first instance authority disregarded BID again. Asylum Office also disregarded the fact that the boy is stateless and does not enjoy refugee status in Pakistan and that Pakistan is not a state signatory of the 1951 Refugee Convention.[133] An entire set of child specific recommendations from the BID were completely disregarded.

Even though Asylum Office rendered excellent decisions in relation to a LGBTQI applicants in the past, there were at least three decisions based on LGBTQI claims which were negative in 2021. The first case referred to a gay man from Congo who escaped his former partner’s family who wanted to kill him, but also abuse from his own family. His boyfriend was killed, and his mother provided a letter of testimony confirming the said incidents.[134] This, as well as numerous CoI reports were declined as relevant evidence by the Asylum Office.

The second case referred to an extremely vulnerable applicant from Iran who was raped, abused and who was questioned by the police as a suspect for committing criminal offence which implies sexual acts between men. The applicant provided an entire set of evidence, including the court summon which ensued after the arrest during which he was questioned about his sexual orientation. The reasoning of the Asylum Office gives serious reasons for concern taking in consideration the Criminal Code of Iran, individual problems that the applicants faced and relevant CoI. This decision is a perfect example on how the first instance authority in some cases strive to cite CoI which goes in favour of negative decision, but completely disregards CoI which clearly indicates the risks of persecution of LGBTQI applicants from Iran. Moreover, even though Asylum Office failed to take relevant CoI proprio motu, the applicant’s legal representatives provided an entire set of relevant reports which confirm the existence of the events and incidents which were experienced by the applicant.[135] They were not addressed in the reasoning of the decision.

Another worrying decision which involves LGBTQI applicant was rendered at end of 2021. It was the case of X. from Bangladesh, who left his country of origin because of his sexual orientation, but also religious believes (atheist). The applicant was targeted by extremist student organization, which further led to him being forced to quit studies. He was not able to address Bangladeshi authorities for protection due to discriminatory legal framework which penalizes LGBTQI people. He was also raped, and his boyfriend committed a suicide.[136]

In two other, separate decisions from 2020,^[137] which were related to a gay couple from Tunisia, the first instance authority rejected their applications as unfounded, stating that the state of human rights of LGBTQI in Tunisia has been significantly improving throughout the years, outlining the fact that even one of the presidential candidates openly declared as gay. However, the Asylum Office disregarded the fact that the Tunisian legal framework still stipulates ‘forced anal examination’ of people ‘suspected to be gay’ and criminalises homosexuality in its Criminal Code, prescribing the prison sentence of up to 5 years. The fact that both applicants were detained by the Tunisian police on several occasions on suspicion that they are gay was not disputed by the Asylum Office but was assessed as ‘not serious enough’ since both applicants avoided anal examination and were afforded lawyers. This interpretation gives serious reasons for concern since the threshold for persecution was set too high, and the Asylum Office failed to acknowledge that a very fact that someone who is suspected to be a gay can be taken to police custody, in combination with the risk of anal examination and criminal charges, undoubtably amounts to persecution.

Thus, the practice from 2020 and 2021 indicated that Asylum Office has been departing from a very decent practice with regards to LGBTIQI applicants established back in 2013, when a Turkish gay couple was granted refugee status due to systemic discrimination and violence to which they were submitted in different places of residency.^[138] The Turkish legal framework is far more favourable than the Tunisian, Iranian or Bangladeshi, but the interpretation of the Asylum Office from 8 years ago appears to be much more progressive than in several more recent decisions. In combination with another contentious decision of a transgender applicant from Iran rendered in 2019,^[139] the practice of the first instance authority regarding LGBTQI claims seriously deteriorated. Thus, the recognition rate of LGBTQI applicants in 2021 was 0%.

In January 2020, the Asylum Office rejected an application on the merits concerning a mother and daughter from Iran, who were obvious victims of gender-based violence and whose serious psychological state, confirmed in PIN’s report, accompanied by other evidence compiled in CoI submissions created a strong and credible asylum claim.^[140] Before this decision, Asylum Office applied on two occasions the safe third country concept in relation to Turkey. After both decisions were overturned by the Asylum Commission, Asylum Office decided to reject application in merits. Mother and daughter eventually decided to leave Serbia. This case lasted for more than two years, several hearings took place, and several lawyers changed. Without any doubt, this case was permeated with acts which caused secondary traumatisation. Even though the mother had visible injuries and scares from the alleged violence, forensic medical examination was never conducted by either Asylum Office or one of several legal representatives.

One decision from the end of 2020 which was related to SGBV survivor and her two children from Turkey also goes in favour of the general assessment that practice with regards to SGBV applicants varies and is unpredictable.[141] BCHR also observed the negative practice of Asylum Office as regards  a victim of genital mutilation from Somalia.[142] What represents an additional aggravating circumstance is the fact that the lawyer in the case of Somalian applicant failed to lodge a complaint within 15-day deadline. This has led to the dismissal of lawyer’s appeal by the Asylum Commission and the applicant is now facing potentially several years of procedural struggle to have her case re-examined in merits.[143]

In 2021, another Iranian citizen whose claim was based on religious grounds was rejected as unfounded. Thus, it appears that converts from Islam to Christianity are no longer considered as persons in need of international protraction,[144] even though 17 Iranians received refugee status in the period 2016-2020 on these grounds. Several other negative decisions rendered in 2020, including the decision rejecting an application of two Iranian applicants who converted from Islam to Christianity,^[145] were just the beginning of now well-established case law of the Asylum Office. These decisions confirm again an inconsistent approach taken by the Asylum Office in cases of converters from Iran.^[146]

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. More precisely, the interview must be conducted within the period of 3 months during which Asylum Office has to render and deliver to the applicant and his legal representatives the first instance decision. 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.^[147]

An authorised officer of the Asylum Office may interview the applicant on more than one occasion in order to establish the facts.^[148] 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.^[149] 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. This possibility has never been applied in practice.

The Asylum Act also specifies three situations when interviewing of applicants may be omitted, where:^[150]

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.^[151] This option was applied for the first time in 2021, and in relation to an Afghan UASC who was not able to take part in the hearing procedure due to his health condition which implies that he is immobile and not able to talk.[152] He was granted subsidiary protection;
3. The admissibility of a Subsequent Application is being assessed.

An applicant is entitled to request that an interview is to be conducted by the person of specific gender. The same rule applies to interpreters.^[153] In practice, asylum seekers often wait from several weeks to several months following the lodging of their application for an interview to be scheduled. Due to COVID-19 circumstances, this period has been extended for several months in 2020, and remained very long in 2021. For instance, a woman with a child from Burundi lodged her asylum application on 29 May 2021, and was not questioned as of March 2022. The same can be said about a 4-member Afghan family who lodged their asylum applications on 30 August 2021 and are yet to be invited for an asylum interview. Identical example is an application of Burundian family of 5 who lodged asylum application in September 2021, or Afghan man who lodged asylum application in December 2021.

The Asylum Office conducted only 85 interviews in 2021, which is comparable to the number of interviews in 2020 (84) but represents an overall drop compared to 2019 (178). The reason for the low number in 2020 can be attributed to COVID-19 which suspended this stage of asylum procedure from second half of March until June 2020. However, it is hard to find an excuse for such a low number of hearings in 2021.

There were no instances in which asylum interviews were conducted through video conferencing, including during the COVID-19 invasive measures in 2020. There were at least two instances in which witnesses of applicants in asylum procedure were interviewed via Skype application, in line with Article 111 of GAPA which provides for such possibility. One case is still pending,[154] while the other one resulted in a positive decision regarding an UASC from Iran.[155] No major problems were recorded with regards to video conferencing, but it is clear that this practice is rarely applied and is yet to be seen whether problems will arise in the future.

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.^[156]

The costs of interpretation are covered by UNHCR and the interpreters are hired from their list. The interpreters are available for the following languages: English (31), Arabic (29), Farsi (17), French (13), Turkish (11), Russian (9), Spanish (8), Bengali (4), Kurdish (4), Urdu (4), German (3), Macedonian (3), Georgian (2), Bulgarian (2), Kirundi (2), Romanian (2) and Swahili (2). One interpreter is also available for each of the following languages: Albanian, Armenian, Azeri, Chinese, Dutch, Hazaragi, Hindu, Hungarian, Italian, Portuguese, Pashto, Polish, Somali, Turkmen and Uzbek.

When it comes to the practice, there were several instances in which CSO 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 CSO requested their removal from the list. There were several other instances in which lawyers failed to react and which had damaging consequences for the applicant. Such was the case of an Afghan boy who, according to his testimony given to his legal guardian, did not understand an interpreter for Farsi. His asylum application was rejected in the first instance,^[157] and the decision was upheld by the Asylum Commission.^[158] It remains to be seen if flaws in interpretation will be taken in consideration by the Administrative Court. One interpreter for Kirundi was removed from the list because of his affiliation with the Burundian Government.

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.^[159] 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.^[160] 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.^[161] 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, and was later replaced by the professor of Constitutional Law from the Criminal-Police Academy. The membership of the second instance undergone one change which is not relevant for the quality of their work and general competencies in asylum issues.^[162]

An appeal to the Asylum Commission automatically suspends the enforcement of the first instance decision and it must be submitted within 15 days from the delivery of the decision.^[163] The first instance decision may be challenged for the following reasons which are relevant for asylum procedure:

• lack or flawed application of the Law, other regulation or general act in the first instance decision;
• incompetent authority in charge of the first instance decision;
• incorrectly or incompletely established factual grounds;
• flawed conclusion derived from the established factual grounds;
• violation of the rules of the administrative procedure.[164]

New facts and evidence may be presented in the appeal, but the appellant is obliged to explain why he or she did not present them in the first instance procedure.[165] This provision is often relied on in the second instance decisions  when applicants, mainly due to poor quality work of their legal representatives, invoke or provide new evidence which they had failed to provide in the course of the first instance procedure. Asylum Commission appears to be very rigorous in examining new facts and evidence in the appeal stage and limits itself by the framework established in asylum application and during the asylum hearing before the Asylum Office. However, it is important to note that many evidence and facts should be gathered by the asylum authorities proprio motu, especially CoI reports and other general circumstances, and regardless of the efforts of legal representatives and the quality of their work.

The appeal must be submitted to the Asylum Office in a sufficient number of copies for the Asylum Commission and the opposing party.[166] The Asylum Office then examines if an appeal is timely, allowed in line with the GAPA rules of procedure and if it is lodged by an authorized person. If Asylum Office determines any of the above-enlisted deficiencies, an appeal will be dismissed.[167]

Also, the GAPA envisages that Asylum Office might upheld the appeal without referring the case to the Asylum Commission if it determines that arguments from the appeal are founded[168] and render a new decision which annuls the initial decisions and contains a new one. It is also possible that Asylum Office supplements the procedure with additional asylum interview or other evidentiary activity which it deems necessary.[169]

If an appeal is not dismissed, the Asylum Office will refer the case files to the second instance body within 15 days from the receipt of the appeal and will also provide its response to arguments, facts and evidence outlined in the appeal.[170]

The Asylum Act does not specify the duration of the second instance procedure. However, the GAPA stipulates that the second instance decision must be rendered within 60 days.[171] 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.^[172] 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. During the state of emergency, Asylum Commission delivered more decisions than in 2019. The main reason for this is because Asylum Commission has never held a hearing in order to directly determine the facts.^[173] However, it is welcome that, in the vast majority of cases, this body has been rendering decisions within two to three months.

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.^[174] 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.^[175] In the event it does not reject the appeal,^[176] the Asylum Commission may itself decide on the administrative matter.^[177] 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.^[178] The last possibility is the usual scenario, and since the establishment of the Serbian asylum system, the second instance body has rendered only three decisions granting asylum to applicants from Somalia,^[179] Libya,^[180] and Iran.^[181]

Statistical Overview of Asylum Commission practice 2009-2021

Asylum Commission Practice in 2021

In 2021, the Asylum Commission took 74 decisions regarding 80 persons, which is an increase in comparison 2020 when 62 decisions were rendered regarding 80 persons. Of these, first instance decisions dismissing or rejecting asylum applications were upheld in 51 cases, while in only 11 cases the appeals were upheld, and the cases were referred back to the Asylum Office for further consideration. Also, additional 8 decisions quashing the first instance decision after the judgment of the Administrative Court in which the onward appeals were upheld. Additional four decisions discontinuing asylum procedure were rendered in the same period. In 2021, the Asylum Commission did not render any positive decision, i.e. it did not grant international protection.

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.^[182] 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.^[183] This means that the Commission has limited corrective influence on the practice of the Asylum Office.

Since the Asylum Commission refused to share with the authors decisions rendered in 2020 and 2021, which was not the case in previous years, only a few decisions will be shortly analysed below, in light of cases which were outlined in the previous updates of this AIDA report. The nationalities encompassed in these decisions in 2021 are the following: Iran (23), Burundi (9), Bulgaria (8), Turkey (6), Jordan (4), Libya (4), Cuba (3), Pakistan (3), Syria (2), Ghana (2), Bangladesh (2), Nigeria (2), Russia (2), Afghanistan (2) and 1 from Cameroon, Iraq, Congo, Bosnia and Hercegovina, Montenegro, China, Tunis and 1 Stateless person.

On 18 January 2021, Asylum Commission rejected an appeal of Burundian citizen who escaped his country of origin after several members of his family were killed. His asylum application and appeal were rejected because both first and second instance body determined that he was not politically active and that on several occasions, he pointed to poor economic situation in Burundi.[184]

In February 2021, Asylum Commission rejected an appeal of Burundian citizen of Tutsi ethnic background who claimed that his ethnicity was a reason for persecution.[185] Asylum Commission determined that CoI reports are not sufficient to prove the risk of persecution.

On 8 March 2021, Asylum Commission rejected the appeal of gay man from Congo whose case was rejected in merits by the Asylum Office which took a standing that applicant failed to prove the risk of persecution as a member of a particular social group. Letter from applicant’s mother, as well as relevant CoI were not found to be sufficient for granting of asylum.[186] This represents a continuation of the practice from 2020, and with regards to LGBT applicants. In 2021, the Commission rejected the appeal of the transgender applicant from Iran, whose asylum application was rejected in November 2019,^[187] and confirmed the stance of the first instance authority that the fact that Iranian state authorities formally acknowledged her gender transition implies that she would be safe in Iran.^[188] However, the Asylum Commission, in the same manner as the Asylum Office, disregarded the threats and attacks she received from her family, but also from members of Iranian society and her former employer. The applicant was granted mandate status by the UNHCR, and was resettled to another country.

On 17 March 2021, Asylum Commission rejected another appeal of Iranian converts from Islam to Christianity, confirming in that manner that this kind of asylum claims are no longer considered as credible in Serbian asylum system.[189] However, in the same month, Asylum Commission upheld an appeal of an UASC who was declared as stateless and whose asylum application was rejected without adequate assessment of the treatment of Afghan refugees in Pakistan which is not a state signatory of the 1951 Refugee Convention.[190]

On 15 April 2021, Asylum Commission refereed the case of Iranian family back to the first instance authority after the Administrative Court upheld the complaint.[191] The case is related to the family who escaped political persecution and who lodged their asylum application in 2019. Asylum Office rejected their asylum application in merits again[192] and this decision was confirmed by Asylum Commission again.[193] On the other hand, Asylum Commission upheld an appeal of a women from Iran who was a human rights activist in her country of origin.[194] The Commission indicated to the first instance authority to assess all evidence lodged by the applicant, as well as CoI reports outlined by legal representatives.[195]

In May 2021, Asylum Commission upheld BCHR’s appeal and refereed the case back to Asylum Office. The case is related to Cuban couple who fled Cuba due to political persecution.[196]

In July 2021, Asylum Commission rendered one contentious decision rejecting applicant’s asylum application. Namely, additional evidence which was submitted after the first instance decision was declared as unacceptable. The Commission stated that applicant had enough time to provide all of the evidence during the course of the first instance procedure, and thus, rejected to take new evidence in consideration. This kind of approach can be considered as dangerous, and it deters from the standard which implies that any risk of treatment contrary to prohibition of ill-treatment must be assessed with rigorous scrutiny, ex nunc and proprio motu. By rejecting to assess the new evidence, Asylum Commission failed to act in line with the basic guarantees against refoulement. Also, the fact that all evidence was not lodged in time can most likely be attributed to the work of legal representative. Inadequate work of legal representative should not be taken as a reason to deny applicant the possibility to have his case examined thoroughly.[197] However, it appears that Asylum Commission has failed to reflect on other parts of the appeal, which further confirms that the second instance body frequently repeats the first instance mistakes, which imply the lack of assessment of all individual and objective circumstances outlined by the applicant and his or her representatives.[198]

In September 2021, Asylum Commission upheld an appeal of Libyan citizen whose asylum procedure had been pending since 2018 and who was declared to be a security risk due to his connections with the former Ghaddafi regime.[199] An appeal was upheld after the Commission obtained from BIA a positive security assessment, even though this assessment was different in January 2021 when asylum application was rejected.[200] This case perfectly illustrates that BIA conducts security assessment of each and every applicant and prior to the first instance decision. This case irresistibly resembles on the case of family A. whose asylum application was rejected on the same grounds in 2016. They were granted subsidiary protection after their case was communicated to the ECtHR. Mr. G. from Libya was finally granted subsidiary protection in February 2022.

Onward appeal (“complaint”) before the Administrative Court

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.^[201] The first training was facilitated by the UNHCR in 2019, but the training planned for 2020 were postponed due to COVID-19 situation. In December 2021, UNHCR facilitated the training on credibility assessment which included judges from the Administrative Court.

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 Asylum Act, the initiation of an administrative dispute has an automatic suspensive effect.^[202]

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 2021 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 three to four months for the Administrative Court to deliver its judgment, but there were instances in which the judgment was pending for a year or more.^[203]

Statistical Overview of the Administrative Court Practice 2009-2021

Administrative Court Practice in 2021

In 2021, the Administrative Court delivered 22 decisions regarding 36 persons from the following nationalities: Iran (12), North Macedonia (4), Unknown (4), Bulgaria (4), Burundi (2) and 1 from Iraq, Turkey, Ghana, Congo, Croatia and Russia.

Out of that, 10 complaints were rejected encompassing 16 persons. In one judgment referring to a 4-member family from North Macedonia, the Court rejected their applications as manifestly unfounded.[204] The same outcome can be found in judgments in which the Court rendered a final decision rejecting one Croatian applicant,[205] one Russian applicant[206] and 3 applicants from Bulgaria.[207] All 4 decisions can be described as well-reasoned and justified.

Administrative Court rendered 2 judgments regarding 2 applicants from Burundi in which it confirmed decision on rejection due to the lack of evidence of persecution on the basis of their ethnic origin – Tutsi.[208] In both judgments, the Court outlined that additional evidence lodged with the appeal, and which was not taken in consideration by the Asylum Commission, should have been provided in the course of the first instance procedure. This approach can only be described as inadequate, but at the same time, this has been a long-lasting standard applied by both Commission and the Court. However, it is important to note that each and every evidence should be examined with rigorous scrutiny, taking in consideration the procedural limb of the principle of non-refoulement. On the other hand, it is clear that as long as this kind of standing exists in the practice of asylum authorities in Serbia, legal representative should strive to collect and put forward all the necessary evidence in the first instance and provide additional evidence at later instances with the accompanying justifications of why it was not possible to provide them at earlier stages of asylum procedure.

Another Turkish applicant was rejected with the final judgment of the Administrative Court.[209] The case referred to a man who was also in extradition proceeding. He claimed that he would face persecution in Turkey because of his Kurdish ethnic origin. However, it is not possible to assess the credibility of his statement because the reasoning of the decision does not contain detailed information on the type and nature of the persecution in Turkey. Still, this decision further confirms that Turkish applicants of Kurdish origin who claim ethnical and political persecution do not have strong chances to be granted asylum in Serbia.

In January 2021, another judgment rejecting Iranian converts from Islam to Christianity was rendered. With this judgment, it became clear that in the practice of the third instance body as well, these kinds of applications have minimum chances of success.[210]

The Administrative Court rendered a judgment rejecting alleged SGBV survivor from Ghana, who, according to the legal representative, might also be the victim of human trafficking.[211] From the reasoning of the judgment, it cannot be seen if asylum authorities and the applicant have provided all the necessary evidence based on the multidisciplinary approach. Thus, there are no expert opinions of the Center for Social Work, or assessment of the Centre for Human Trafficking Victims’ Protection (CHTV). The Court only shallowly states that such assessments were not provided but fails to see its responsibility to obtain such expert opinions. Thus, regardless of the credibility of the claim, it is clear that all three instances and legal representative have failed to undertake all the necessary assessments in order to thoroughly examine risks of persecution and the existence of the SGBV and human trafficking component. In other words, this case clearly shows how this applicant was failed by asylum system as whole.

The case of gay man from Congo was rejected with the final judgment of the Court, confirming a 100% rejection rate of LGBTQI applicants in 2021.[212]

In 2021, the Administrative Court upheld 9 complaints encompassing 15 persons. However, 6 of these judgments are irrelevant for the assessment of effectiveness of the work of the Court. One question implied the assessment of whether old or new Asylum Act should be applied in the application of 3 Iranian citizens.[213] Procedural issues were examined in the judgment U 8275/19 which was rendered on 5 March 2021. Two judgments were related to the legality of discontinuation of asylum procedure[214] and the same number of judgements referred to the issue of the silence of administration (the failure of Asylum Commission to render the second instance decision within the legal deadline of two months).[215]

Three decisions upholding the complaint deserve a more detailed assessment. The first one refers to the gay applicant from Burundi who was not afforded enough time to dispute the application of the first country of asylum concept. Namely, the applicant’s asylum application was dismissed on the basis that the refugee statutes that he was granted in Rwanda in line with Article 43 (2) of the Asylum Act. The principal legal question in this case was how much time Asylum Office affords to the applicant to dispute the safety in the first country of asylum. In this particular case, it is clear that several days cannot be considered as sufficient. Thus, this decision should be welcome.[216]

The other case referred to a 4-member family from Iran who claims to face political and religious persecution due to their digital activism on social networks and the fact that applicants are atheist who promote atheist views.[217] The Court indicated that the first and the second instance authority have failed to provide an explanation of why the evidence provided by the applicants is not assessed as credible. However, it impossible to escape the impression that the Court had had the possibility to determine these facts directly through the hearing. In this way, asylum procedure of this family will continue which can never be considered as an example of good practice.

And finally, the last judgment upholding the complaint referred to an internal flight alternative, and a failure of Asylum Office and Asylum Commission to properly outline reasons for considering other parts of Iraq as safe in the case of Iraqi applicants. The Court determined that a special hearing should be facilitated in order to assess to possibility of the applicant to find protection in other part of the country. What is the most disturbing aspect of this judgment is the fact that it took 3 years to the Court to render it. The applicant left Serbia long time earlier.[218]

Finally, two procedures were discontinued[219] and 1 complaint was declared as inadmissible.[220]

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,^[221] refugees and persons granted subsidiary protection.^[222] However, the Free Legal Aid Fee Schedule Regulation (FLA Regulation)^[223] envisages free legal aid only for administrative dispute procedures conducted before the Administrative Court. This means that asylum seekers could apply for the State funded free legal aid only if they reach the third instance authority. Still, asylum seekers can cover the cost of free legal aid in all three instances. So far, not a single asylum seeker has used State funded free legal aid,^[224] but in the course of 2021, several attorneys at law provided legal representation to asylum seekers who had their own financial means.

The fact that free legal aid is only guaranteed in the third instance can be considered as an extremely bad solution, taking in consideration the level of development of Serbian asylum system in general, but also the quality of the decision-making process of the first and the second instance authority. In 90% of the cases which reach the Administrative Court, the negative decision will most likely be confirmed. Additionally, the quality of legal air provided by CSOs is also highly questionable, taking in consideration the fluctuation of lawyers in different CSOs, lack of clear recruitment criteria, lack of experience and necessary training. However, it is fair to say that asylum seekers who enjoy CSO’s legal support from the beginning of asylum procedure have more chance for a positive outcome, than those who do not have such support. Still, it is clear that a migration lawyer profile does not exist in Serbia as it is the case in EU countries in which asylum systems have been established several decades ago. Unfortunately, there are no signs that such profile will be established in the near future taking in consideration that practising other branches of law is more lucrative and attractive to attorneys at law.

The right to free legal aid is also guaranteed by the Asylum Act, as well as the right to receive information concerning asylum.^[225] The Asylum Act further provides that an asylum seeker shall have access to free legal aid and representation by UNHCR and CSO 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 CSO lawyers before both national and international bodies. Their work and assistance is not state, but project funded. CSOs represent asylum seekers in all three instances, and in front of the Constitutional Court.

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 2021 only six civil society organisations (CSO) were providing legal aid in Serbia: APC, Balkan Centre for Migration and Humanitarian Activities (BCMHA), BCHR, IDEAS, Humanitarian Centre for Tolerance and Integration (HCIT), and KlikAKtiv. The total number of active lawyers in these CSOs is between 14 and 16, out of which many are also tasked with other project activities or are hired part-time.^[226] Other, non-CSOs lawyers, occasionally provide legal aid. All of these CSOs are based in Belgrade, except for HCIT which is based in Novi Sad. Thus, their presence in asylum and reception centres located on south or east is rare,^[227] and refugees and asylum seekers are not only forced to wait for weeks or months to access asylum procedure and lodge asylum application, but also to wait for initial legal advice by a competent lawyer.

Given that in 2021 an approximate number of persons who are likely in need of international protection was at least 65% of total migrant population who entered Serbia and received registration certificates (around 2,306), it is clear that current capacities are insufficient. The low number of legal representatives is also the reason why some CSOs sometimes deny legal assistance to applicants whose asylum claim has less prospect of success. Thus, 2021 was the year in which several dozen asylum seekers either failed to lodge their asylum application or lodged their asylum applications in writing by themselves, and without legal support. At the same time, the number of asylum applications dropped, which can also be attributed to insufficient human capacities.

The second reason is the fact that most of legal representatives from respective CSOs have between 1 to 3 years of experience,^[228] which is usually the period after which many of them decide to leave the field of asylum and migration.

As a result, the capacity and quality of legal assistance provided by CSOs remains limited.^[229] While certain CSO lawyers are successful, the large majority of them do not obtain positive outcomes at all, or have one or two positive decisions in 5 years and 90% of decisions in which the outcome is negative.

Several decisions from 2020 and 2021 analysed in this Report show that applicants who had strong asylum claims were not adequately prepared for hearing and, for instance, provided more detailed statements to their psychologist than to their lawyer. The contradicting statements in asylum hearing which ensued was the reason why Asylum office rejected their claims.^[230] Another example is the lack of coordination in preparation for asylum hearing of a Tunisian gay couple.^[231] These flaws are mainly due to their lack of experience and knowledge of the asylum field which raises serious concerns. Several applicants decided to abscond during asylum procedure due to non-responsiveness of their legal representatives and the lack of certainty about the outcome of their process. One of the UASC applicants absconded a couple of months before he was granted asylum due to violence to which he was subjected. His legal representative was not aware of this fact, even though the violence was reported to him.^[232] The other UASC had only had half an hour meeting with two different legal representatives within a year and decided to abscond to Bosnia.^[233] He attempted to lodge subsequent application, but was unsuccessful and  eventually decided to abscond from Serbia.[234] Specific issues in relation to the provision of legal assistance include a lack of assessment of COI information and individual circumstances,^[235] lack of thorough preparations of clients for their personal interview and failure to conduct evidentiary activities such as medical expert opinion.^[236]

For instance, a family D. from Iran outlined that they signed the PoA in November 2018 and the next time they met their lawyer was in December 2018 prior to the submission of asylum application and for only 1 hour. They stated that they were not prepared for lodging of the asylum application in person, and that their preparation with the lawyer for the asylum interview lasted for several hours and only a few days before the hearing in August 2019. CoI report attached to this application after the interview has outlined more facts than the facts provided to the Asylum Office orally. In the practice of Serbian asylum authorities, the impression that asylum officer gets at the hearing is crucial and usually determining factor for a positive decision. And vice versa, applicants who are not capable to go into details during the interview face risk of being rejected in the first instance, and chances of remedying of such outcome are extremely low. In the same case, legal representative has failed to gather additional evidence, such as decision on refugee status in the Netherlands of the brother of one of the applicants or his written testimony. The family has attempted to lodge the subsequent asylum application submitting additional evidence, but the standing of asylum authorities was that they should have done it in the initial asylum procedure.[237] Thus, in this particular case, the flaws can be found in the work of both legal representatives and asylum authorities. The proof that this case is an example of bad practice in terms of legal representation is the fact that this family of 4 is 1 of total 2 cases where refugees were granted asylum in Hungary since summer 2020. Thus, their claim was strong enough for deteriorating and basically non-existing asylum system in Hungary, but not good enough for Serbian asylum authorities.

The following cases from 2018-2021 also contain examples of poor legal representation:

• UASC A.A. application was rejected as unfounded even though he outlined during the interview that he did not understand the interpreter. His legal officer remained silent. Additionally, the legal officer has failed to provide the written testimony from his mother of the persecution that this boy faced by the Talibans.[238] His case is still pending before the Administrative Court with minimum chances of success.
• Family X. from Iran outlined that they have not established any communication with their legal representative and the case files in all three instances indicate the same passive attitude which can be seen in the case of family D. granted asylum in Hungary.[239]
• in 2021, a woman from Cameroon was assessed by one of the CSOs as non-credible case. It turned out that she was an active case of human trafficking and was later on granted the status of the victim of human trafficking.[240]
• Similar case was recorded at the end of 2021, when a woman from Cameroon, who is a suspected victim of human trafficking and a victim of SGBV, was told that she does not have a case.[241]
• In November 2021, Asylum Office discontinued asylum procedure of the woman from Iraq and her underage son who arrived in Serbia in February 2020. She has an identical case as the women from Iraq granted refugee status on the basis of SGBV in 2021.[242] Still, she was assessed as uncredible case after a 1-hour long interview in which she was not ready to outline traumatic events to, at that time, unknown persons. Only after intensive psychosocial support, Ms. M.I. shared her life story which implies systemic violence committed by her family and her former husband. She lodged her asylum application in May 2021, but absconded after several months because she was frustrated about being forced to stay in legal limbo for more than 18 months. If she had lodged her asylum application in the first half of 2020, she would have been granted refugee status before May 2021.[243]
• Identical case was recorded in 2021, where a 5-member family from Afghanistan lodged asylum application after more than 4 years of being in Serbia. Not a single CSO who counselled them in AC Krnjača assessed their case as credible, disregarding in that way the security situation in Herat, girl-specific risks of 3 daughters (the risk of child marriage for instance) and the fact that their mother was also a victim of SGBV and arranged marriage. After they lodged asylum application, the absconded. Still, if they had lodged their asylum application, for instance, in 2018, they would have been granted asylum before COVID-19 pandemic.[244]
• And finally, the most notable example of reckless and unprofessional service provision relates to the case of an alleged victim of genital mutilation from Somalia whose lawyer has failed to lodge an appeal against the first instance decision in time. This case clearly demonstrates not only the lack of capacity among providers of free legal aid, but also the need for the establishment of responsibility mechanisms for those legal representatives whose inadequate behaviour has led to a situation in which highly vulnerable and traumatized people were let down by individuals who are not capable to follow statutory deadlines and perform the roles of legal representatives.[245]

It is reasonable to assume that there are plenty of more cases such as the ones enlisted above.[246] These cases clearly indicate that the number of applicants would have been higher if not for a restrictive and shallow approach which lawyers from different CSOs display during the initial assessment. This would also mean that recognition rates would have been higher. Thus, the low number of applicants and the low recognition rate, in a system such as Serbian, can also be attributed to the low quality of legal service provided to the applicants. The role of CSOs at this stage of development of Serbian asylum system is crucial and the proactive approach is necessary. And for that reason, as it is the case with the assessment of decisions of asylum authorities, it is also important to conduct an analysis of all stages through which beneficiaries pass in their work with legal representatives and to introduce a quality assurance control of free legal aid providers.

The lack of any legal response is evident in cases which concern push-backs and the risk of violation of the non-refoulement principle. The poor quality of legal assistance by CSOs is particularly patent in the cases where access to territory and asylum procedure is at stake. Even though thousands of pushbacks to North Macedonia were recorded, there was no attempt to legally challenge such practice. There is only one case litigated by the APC which implied informal expulsion from Belgrade to North Macedonia.[247] It appears that most of the CSOs providing legal aid are mainly focused on persons who wish to apply for asylum and who are accommodated in asylum or reception centres after they successfully avoided harmful border practices. For instance, CSOs providing legal aid in asylum procedure failed to react on time to prevent readmission of an Iranian family which was detained in Detention Centre for Foreigners in Padinska Skela even though they requested legal assistance. In the statement of the National Mechanism for Prevention of Torture (NPM) it can be seen that NPM was present during the forcible removal in that particular case,^[248] while in all other statements (regarding other forcible removals) it highlighted that persons subjected to forcible removal did not have any complaints against the treatment and removal^[249] and that police officer acted professionally.^[250] This remark was not highlighted in this Statement regarding Iranian family expelled to Bulgaria. However, some witnesses indicate that the family was in a distress during the forcible removal since it was their second time being returned to Bulgaria under the Readmission agreement with the EU (father and two small children).

To conclude, it is necessary to improve the 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 so all potential asylum seekers can have at least technical assistance when lodging asylum applications. And finally, the system of free legal aid must be reformed so that 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 attorneys at law should be facilitated so that each person who expresses the wish to apply for asylum is provided with the assistance.

[1] Article 3 (1), Asylum Act.

[2] Article 3 (3), Asylum Act.

[3] Article 39(1) Asylum Act.

[4] Asylum Office, Decision No. 26-760/21, 20 May 2021.

[5]  Asylum Office, Decision No. 26-108/20, 27 August 2021.

[6] Article 39(2) Asylum Act.

[7] Article 39(3) Asylum Act.

[8] Article 39(4) Asylum Act.

[9] Notification No. 26-1197/21, 18 November 2021.

[10] Article 39(5) Asylum Act.

[11] Article 39(6) Asylum Act.

[12] AIDA, Country Report Serbia, 2020 Update, 38.

[13]  CESCR, Concluding observations on the third periodic report of Serbia, 4 March 2022, E/C.12/SRB/CO/3, available at: https://bit.ly/3u87lBI, paras. 32-33.

[14] Article 34(1)(1)-(2) Asylum Act.

[15] Article 38(1)(3)-(5) Asylum Act.

[16] Article 47 Asylum Act.

[17] Article 42 Asylum Act.

[18] Article 26 Asylum Act.

[19] Article 27 Asylum Act.

[20] Article 28 Asylum Act.

[21] Article 29 Asylum Act.

[22] Article 30 Asylum Act.

[23]  Article 31 Asylum Act.

[24]  Articles 33 and 34 Asylum Act.

[25] UNHCR, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, HCR/GIP/03/05, https://bit.ly/3plP7es.

[26] Article 40 Asylum Act.

[27] Article 32 Asylum Act.

[28] The author of this Report has collected 119 out of 138 decisions. The number of decisions and applicants was counted by the author of this Report and on the basis of a unique database which is established in IDEAS. Namely, official number of persons who received international protection in Serbia is 208 or even more according to some CSOs. However, this number includes the cases which were not final in the given year. For instance, there is at least 7 asylum procedures in which legal representatives appealed the decision on subsidiary protection claiming that their clients deserve refugee status. Asylum Commission or Administrative Court upheld appeals and onward appeals respectively and sent the case back to the Asylum Office. However, Asylum Office rendered the same decision (subsidiary protection) with regards to the same person again. The lawyers were then complaining again. There were instances in which 1 person received 3 decisions on subsidiary protection in the period of 7 years and was granted refugee status in the end. However, it is possible that the statistics provided by the author of this Report are not 100% accurate. Still, the author believes that this is the most accurate statistics which can be provided for now and potential variations cannot be higher than maximum 5 decisions regarding 5 applicants. 

[29] E.g. UNHCR, UNHCR Position on Returns to Libya – Update II, September 2018, available at: http://bit.ly/39VMQNz.

[30] Asylum Office, Decisions Nos. 26-2324/11, 19 December 2012 and 26-2326/11, 20 December 2012.

[31]  Asylum Office, Decision No. 26-812/16, 29 September 2016.

[32] Asylum Office, Decision No. 26-222/15, 16 June 2018; ECtHR, A. and Others v. Serbia, Application No 37478/16, Communicated on 12 December 2017.

[33]  AIDA, Country Report Serbia, Update March 2018, 41-53.

[34] M.H. v. Serbia, Application No 62410/17, Communicated on 26 October 2018.

[35] E.g. UNHCR, International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update VI, March 2021, HCR/PC/SYR/2021/06, available at: https://bit.ly/3HO7C1B.

[36] E.g. EASO, EASO Country of Origin Information Report: Syria Security situation (July 2021), available at: https://bit.ly/3HKwasb.

[37] Asylum Office, Decision No. 26-5413/15, 2 March 2016.

[38] Asylum Office, Decision No. 26-77/17, 1 August 2017.

[39] Asylum Office, Decision No. 26-78/17, 10 January 2018.

[40] Asylum Office, Decision No. 26-81/17, 16 April 2018.

[41] Asylum Office, Decision No. 26-1239/17, 10 January 2018.

[42] Asylum Office Decisions Nos. 26-784/18, 20 November 2019 and 26-1403/19, 11 December 2019.

[43]  Asylum Office Decisions Nos. 26-652/16, 17 June 2016, 26-2643/17, 30 January 2019, 26-2474/19, 15 October 2020 and 26-1084/20, 7 June 2021.

[44]  AIDA, Country Report Serbia, Update March 2020, pp. 41 and 43.

[45]  Asylum Office, Decision No. 26-1084/20, 7 June 2021.

[46] Asylum Office, Decision No. 26-766/08, 4 February 2009.

[47] Asylum Office, Decisions Nos. 26-2879/15, 11 September 2015 and 26-2149/16, 26 December 2016.

[48] Asylum Office, Decision No. 26-2047/17, 21 March 2019.

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

[50] Asylum Office, Decision No. 26-5266/15, 26 March 2015.

[51]  Asylum Office, Decision No. 26-1601/20, 30 August 2021.

[52] Administrative Court, Judgment U 6060/18, 4 October 2018.

[53] Asylum Office, Decisions Nos. 26-1051/16, 13 September 2016, 26-1083/18, 26 January 2018, 26-430/17, 23 April 2018, 26-1081/17, 4 July 2018, 26-1395/18, 5 February 2019, etc.

[54] Asylum Office, Decision No. 26-108/20, 27 August 2021.

[55] Asylum Office, Decisions Nos. 26-1605/18, 15 March 2019 and 26-2467/17, 15 January 2020.

[56] Asylum Commission, Decision No. AŽ 16/19, 2. September 2019.

[57]  Asylum Office, Decision No. 26-1271/19, 15 October 2020.

[58] AIDA, Country Report Serbia, Update March 2018, 41-53.

[59] Asylum Office, Decision No.26-1280/13, 25 December 2013.

[60] Asylum Office, Decisions No. 26-1605-18, 15 March 2019 and 26-2467/17, 15 January 2020.

[61] Asylum Office, Decisions Nos. 26-1216/18, 26-1217/18 and 26-1218/18, 12 February 2019.

[62] Asylum Office, Decision No. 26-2347/19, 8 June 2020.

[63] Asylum Office, Decision No. 26-2038/19, 30 July 2020 and 26-2039/19, 17 August 2020.

[64] Asylum Office, Decision No. 26-1592/18, 20 November 2019 and see also, AIDA, Country Report Serbia, Update March 2019, 37.

[65] Asylum Office, Decision No. 26-1284/20, 1 December 2021.

[66] Asylum Office, Decision No. 26-404/12, 4 November 2021.

[67]  See more in the Chapter on 2021 practice of the Asylum Office.

[68] Asylum Office, Decision No. 26-286/16, 26 October 2016.

[69] Asylum Office, Decision No. 26-1667/17, 25 December 2017.

[70] Asylum Commission, Decision No. AŽ 2/18, 25 January 2018.

[71] Asylum Office, Decision No. 26-536/16, 16 December 2016.

[72] Asylum Office, Decision No. 3109/16, 18 December 2017.

[73] Asylum Office, Decision No. 26-1672/19, 29 January 2021.

[74] Asylum Office, Decision No. 26-3136/19, 26 November 2020.

[75] Asylum Office, Decision No. 26-1601/20, 30 August 2021

[76] Asylum Office, Decision No. 26-329/18, 28 December 2018.

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

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

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

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

[81]  Asylum Office, Decision No. 26-218/19, 20 February 2020.

[82]  Asylum Office, Decision No. 26-2573/19, 15 October 2020.

[83]  Asylum Office, Decision No. 26-1271/19, 15 October 2020.

[84]  Asylum Office, Decision No. 26-2474/19, 15 October 2020.

[85] Asylum Office, Decision No. 26-1084/20, 7 June 2021.

[86] Asylum Office, Decision No. 26–3064/19, 14 September 2019.

[87] Asylum Office, Decision No. 26-378/19, 11 February 2020 and 26-1437/18, 13 February 2020, and see also: AIDA, Country Report Serbia, Update March 2020, 43.

[88] UNHCR, International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update VI, March 2021, HCR/PC/SYR/2021/06, available at: https://bit.ly/3HO7C1B.

[89] Asylum Office, Decision No. 26-5413/15, 2 March 2016.

[90] Asylum Office, Decisions Nos. 26-4062/15, 8 January 2016, 26-2489/17, 1 June 2018 and 26-1731/18, 16 September 2019.

[91] See more in AIDA, Country Report Serbia, Update March 2018, 18.

[92] Asylum Office, Decision No. 26-4906/5, 9 December 2015.

[93] Asylum Office, Decision No. 26-1051/16, 13 September 2016.

[94] Asylum Office, Decision Nos. 26-1083/18, 26 January 2018, 26-430/17, 23 April 2018, 26-1081/17, 4 July 2018, 26-187/18, 1 November 2018, 26-1395/18, 5 February 2019, 26-1435/18, 16 June 2020.

[95] See more in AIDA, Country Report Serbia, Update March 2020, 44.

[96] 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. 

[97] Either because of the safe third country concept or first country of asylum concept.

[98] AIDA, Country Report Serbia, 2020 Update, 40.

[99] Asylum Office, Decision No. 26-108/20, 27 August 2021.

[100] Asylum Office, Decision No. 26-2404/18, 7 June 2021.

[101] Asylum Office, Decision No. 26-1376/20, 12 July 2021.

[102] Asylum Office, Decision No. 26-1601/20, 30 August 2021.

[103] Asylum Office, Decision No. 26-11/21, 13 April 2021.

[104] Asylum Office, Decision No. 26-649/21, and 26-558/21, 3 November 2021.

[105] Asylum Office, Decision No. 26-1212/20, 4 October 2021.

[106] Asylum Office, Decision No. 26–1389/17, 19 January 2021.

[107] Asylum Office, Decision No. 26-760/21, 20 May 2021.

[108] Asylum Office, Decision No. 26–3064/19, 14 September 2021.

[109] Asylum Office, Decision No. 26-3229/19, 26 January 2021.

[110] Asylum Office, Decision No. 26-3229/19, 16 May 2021.

[111] AIDA, Country Report Serbia, Update March 2021, 41.

[112] Asylum Office, Decision No. 26-1376/20, 12 July 2021

[113] UNHCR, International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update V, 3 November 2017, available at: http://bit.ly/3or74Vq, 70.

[114] ECtHR, L.M. and Others v. Russia, Application Nos. 40081/14 40088/14 40127/14, Judgment of 15 December 2015, EDAL available at: http://bit.ly/3psdOE7 and S.K. v. Russia, Аpplication No. 52722/15, Judgment of 14 February 2017, EDAL, available at: http://bit.ly/3oqsouq.

[115] The author of this Report was not able to obtain the copy of this decision.

[116] Ibid.

[117] Asylum Office, 26-536/19, 14 May 2021.

[118] Asylum Office, 26-536/19, 21 May 2021, see also, BCHR, Right to Asylum in the Republic of Serbia Periodic Report for January–June 2021, 14-16.

[119] Asylum Office, Decisions Nos. 26-1337/20, 29 June 2021 and 26-103/20, 30 June 2021.

[120] BCHR, Right to Asylum in the Republic of Serbia Periodic Report for January–June 2021, 11-12.

[121] Asylum Office, Decision No. 26-1084-20, 7 June 2021.

[122] Asylum Office, Decision No. 26-5044-15, 25 December 2017 and 26-4370-15, 27 December 2017.

[123] Asylum Office, Decision No. 26-108/20, 27 August 2021.

[124] Asylum Office, Decision No. 26-1601/20, 30 August 2021, see also: BCHR, Right to Asylum in the Republic of Serbia 2021, 114-116.

[125] Asylum Office, Decision No. 26–3064/19, 14 September 2021, see also, BCHR, Right to Asylum in the Republic of Serbia 2021, 111-113.

[126] Asylum Office, Decision No. 26–1389/17, 19 January 2021.

[127] ECtHR, A. and Others v. Serbia, Application No 37478/16, 30 June 2016, available at: https://bit.ly/33xHp4r.

[128] Asylum Office, Decision No. 26-222/15, 3 July 2018.

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

[130] Asylum Office, Decision No. 26-378/19, 11 February 2020.

[131] Asylum Office, Decision No. 26-1437/18, 13 February 2020.

[132] Asylum Office, Decision No. 26-374/18, 14 February 2020 and AIDA, Country Report Serbia, Update May 2020, 38.

[133] Asylum Office, Decision No. 2349/19, 12 January 2021.

[134] Asylum Office, Decision No. 26-81/20, 13 January 2021.

[135] Asylum Office, Decision No. 26-1284/20, 1 December 2021.

[136] Asylum Office, Decision No. 26- 26–404/21, 4 November 2021, and see also BCHR, Right to Asylum in the Republic of Serbia 2021, 114-115.

[137] Asylum Office, Decision No. 26-2038/19, 30 July 2020 and 26-2039/19, 17 August 2020.

[138] Asylum Office, Decision No. 26-1280/13, 25 December 2013.

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

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

[141] Asylum Office, Decision No. 26-1073/20, 1 December 2020.

[142] Asylum Office, Decision No. 26-1599/19, 13 October 2020, see also: BCHR, Right to Asylum in the Republic of Serbia 2021, 114.

[143] Asylum Commission, Decision No. AŽ 51/20, 24 December 2020.

[144] Asylum Office, Decision No. 26–3079/19, 13 January 2021.

[145] Asylum Office, Decision No. 26-1436/18, 21 February 2020.

[147] Article 37(1) Asylum Act.

[148] Article 37(2) Asylum Act.

[149] Article 37(12) Asylum Act.

[150] Article 37(10) Asylum Act.

[151] Article 37(11) Asylum Act.

[152] Asylum Office, Decision No. 26-1084-20, 7 June 2021.

[153] Article 16 (2) Asylum Act.

[154] Asylum Office, Case File No. 26-2534/17, 7 May 2021.

[155] Asylum Office, Decision No. 26-1271/19, 15 October 2020.

[156] Article 13 Asylum Act.

[157] Asylum Office, Decision No. 932/19, 30 September 2019.

[158] Asylum Commission, Decision No. AŽ 38/19, 3 December 2019.

[159] Article 63 GAPA.

[160] Article 21(1)-(2) Asylum Act.

[161] Article 21(3) Asylum Act.

[162] AIDA, Country Report Serbia, Update May 2020, 40.

[163] Article 95 Asylum Act and Articles 151 and 153 GAPA.

[164] Article 158 GAPA.

[165] Article 159 (2).

[166] Article 160 GAPA.

[167] This was the case with the application of an alleged SGBV survivor from Somalia who claimed that she has been subjected to the practice of genital mutilation. The legal representative in this case failed to lodge an appeal in time. Asylum Office, Decision No. 26-1599/19, 13 October 2020.

[168] Article 165 (1) GAPA.

[169] Article 165 (2) GAPA.

[170]  Article 166 GAPA.

[171] Article 174 GAPA.

[172] Article 19 Administrative Disputes Act.

[173] Hod po žici, 53.

[174] Article 165 GAPA.

[175] Article 165(2)-(3) GAPA.

[176] Article 170 GAPA.

[177] Article 171(5) GAPA.

[178] Article 173(3) GAPA.

[179] Asylum Commission, Decision AŽ 25/09, 23 April 2010.

[180] Asylum Commission, Decision AŽ 06/16, 12 April 2016.

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

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

[183] Article 5 (3) GAPA.

[184] Asylum Commission, Decision No. AŽ 55/20. 18 January 2021.

[185] Asylum Commission, Decision No. 55/20, 3 February 2021, see also more in: BCHR, Right to Asylum in the Republic of Serbia 2021, 51.

[186] Asylum Commission, Decision No. AŽ 04/21, 8 March 2021.

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

[188] Asylum Commission, Decision No. AŽ 44/19, 30 January 2020. 

[189] Asylum Commission, Decision No. AŽ 02/21, 17 March 2021.

[190] Asylum Commission, Decision No. AŽ 46/20, 17. March 2021.

[191] Asylum Commission, Decision No. 06/19, 5 Aprila 2021.

[192] Asylum Office, Decision No. 26–1382/18, 20 July 2021.

[193] Asylum Commission, Decision No. Až-47/20, 5 July 2021.

[194] Asylum Commission, Decision No. AŽ 8/21, 26 April 2021.

[195] BCHR, Right to Asylum in the Republic of Serbia 2021, p. 55.

[196] Asylum Commission, Decision No. 41/20, 31 May 2021.

[197] Asylum Commission, Decision No. 47/20, 5 July 2021.

[198] BCHR, Right to Asylum in the Republic of Serbia 2021, 52-63.

[199] Asylum Commission, AŽ-29/19, 23 September 2021.

[200] Asylum Office, Decision No. 26–1389/17, 19 January 2021, see also BCHR, Right to Asylum in the Republic of Serbia 2021, 55.

[201] 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.

[202] Article 96 Asylum Act.

[203] Administrative Court, Judgment U 10233/19, 13 May 2020.

[204] Administrative Court, Judgment U 4487/21, 13 May 2021.

[205] Administrative Court, Judgment U1760/20, 8 March 2021.

[206] Administrative Court, Judgment U 15585/20, 17 March 2021.

[207] Administrative Court, Judgment U 12133/19, 13 May 2021.

[208] Administrative Court, Judgment U 3526/21, 23 June 2021 and Judgment U 5163/21, 23 June 2021.

[209] Administrative Court, U 21427/21, 26 October 2021.

[210] Administrative Court, Judgment, U 11006/20, 28 January 2021.

[211] Administrative Court, Judgment U 22906/18, 25 November 2021.

[212] Administrative Court, Judgment U 8080/21, 7 December 2021.

[213] Administrative Court, Judgment U 20833/20, 5 February 2021.

[214] Administrative Court, Judgments U 6801/20 and U 6801/20, 27 April 2021.

[215] Administrative Court, Judgments U 2144/21, 21 May 2021 and U 25046/20, 16 September 2021.

[216] Administrative Court, Judgment U 734/21, 3 September 2021.

[217] Administrative Court, Judgment U 19743/19, 23 September 2021.

[218] Administrative Court, judgment U 1263/18, 20 July 2021.

[219] Administrative Court, Judgment U7697/20, 27 May 2021 and U 7784/21, 6 December 2021.

[220] Administrative Court, Judgment U 8380/21, 21 September 2021.

[221] Article 4 (2-6) FLA.

[222] Article 4 (2-7) FLA.

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

[224] This conclusion is drawn from the fact that legal representatives in all Administrative Court judgments were CSOs.

[225] Article 56(3)-(4) Asylum Act.

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

[227] Once to two times per month.

[228] Some of them less than a year and without previous training and experience in the field of asylum and migration.

[229] 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.

[230] Asylum Office, Decision No. 26-378/19, 11 February 2020.

[231] Asylum Office, Decision No. 26-2038/19, 30 July 2020 and 26-2039/19, 17 August 2020.

[232] Asylum Office, Decision No. 26-2573/19, 15 October 2020. This boy fled to Bosnia where he got in touch with his former legal representative who changed jobs.

[233] The boy decided to return to Serbia and, with the help of IDEAS lawyers, submitted subsequent application.

[234] Asylum Office, Decision No. 26-3229/19.

[235] 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.

[236] Asylum Office, Decision No. 26-2177/19, 20 August 2020.

[237]  Ibid.

[238] Asylum Office, Decision No. 26-932/19, 30 September 2019.

[239] Asylum Office, Decision No. 26-1831/18, 30 July 2020.

[240] The applicant lodged her asylum applicaiton in March 2022.

[241] She lodged her application in March 2022.

[242] Asylum Office, Decision No. 26-1601/20, 30 August 2021

[243] Asylum Office, Decision No. 26-876/21, 10 November 2021.

[244] Asylum Office, Decision No. 26-1791/21, 9 March 2021.

[245] Asylum Office, Decision No. 26-1599/19, 22 November 2019 and AŽ 51/20, 24 December 2020.

[246] The author of this Report only analysed cases in which he had an opportunity to assess in details personal circumstances of the applicants with regards to their asylum claims, but also their experience with regards to Serbian asylum system.

[247] ECtHR, A.H. v. Serbia and North Macedonia, and A.H. v. Serbia, Application Nos. 60417/16 79749/16, 19 October and 27 December 2016 respectively, available at: https://bit.ly/3oVp8dz

[248] The Ombudsman, Тим Заштитника грађана у обављању послова НПМ обавио надзор над принудним удаљењем иранске породице у Бугарску, 3 September 2020, available at: http://bit.ly/3csPK0i.

[249] The Ombudsman, Обављен надзор над удаљењем страних држављана, 8 December 2020, available at: http://bit.ly/3csgsGk.

[250] The Ombudsman, Обављен надзор над поступком принудног удаљења страног држављанина, 18 September 2020, available at: http://bit.ly/2L3uJ0D.