Author
The flawed and automatic application of the safe third country concept used to be a major problem of the Serbian asylum system since its very establishment[1]and was severely scrutinized by many relevant international actors and bodies.[2] Throughout the years, the asylum authorities automatically relied on the Safe Countries List denying prima facie refugees the possibility for their asylum claim to be decided on the merits.[3] Moreover, this practice was equally damaging for the applicants who did not have prima facie claims regarding their country of origin, but had an arguable claim[4] in terms of the risk of torture and other forms of ill-treatment in the third countries through which they had travelled before arriving in Serbia and which were designated as “safe” in the asylum procedure. In the previous Asylum Act, which has not been in force since 1 October 2018, the safe third country concept was poorly governed and automatically applied on the basis of the list of the said list drafted by the Government.
Although the new law significantly improves the framework of the safe third country concept, there are still ambiguities that may limit its adequate application. Namely, according to Article 45 of the Asylum Act, a “safe third country” is a country where the applicant is safe from persecution, as well as from the risk of suffering serious harm. Additionally, the safe third country must ensure that the applicant enjoys protection from refoulement, which includes access to an efficient asylum procedure.[5] In establishing conditions for the application of the safe third country, each asylum application is assessed individually, examining whether the country fulfils the conditions set by Article 45(1), and whether there is a connection between that country and the applicant on the basis of which it could be reasonably expected that they could seek asylum there.[6] The new approach of the Asylum Act is better than the previous one, as it requires an individual consideration of each case and not the application of the Safe Countries Decision or any other regulation proclaiming a country “safe” without transparent criteria.
Article 45(3) states that applicants will be informed in due time about the application of the safe third country concept so they can have the possibility to challenge it. It may be reasonable to assume that the information should be provided by the authorities before the interview, when the asylum seeker would outline facts and circumstances which could indicate that safety in the country in which he resided previously. This assumption is supported through the content of Article 37 of Asylum Act, which provides that an officer of the Asylum Office authorised for interviewing shall establish facts related to the travel routes of the applicant after leaving their country of origin or habitual residence, and whether applicants had previously sought asylum in any other country. However, so far it is not possible to make remarks on the implementation of the new norm.
Also, and Interpreting the Asylum Act as a whole, it follows from Article 32 that the Asylum Office collects and considers all the relevant facts, evidence and circumstances when deciding on the merits of the asylum application as well as on the assessment of a certain third country as “safe”. Under ‘facts, evidence and circumstances’ it considers ‘current reports about the situation in… countries of transit [of the applicant], including the laws and regulations of these countries and the manner in which they are applied – as contained in various sources provided by international organizations including UNHCR and the European Asylum Support Office… and other human rights organisations.’
Another provision which might be relevant for the application of the safe third country concept is Article 17 of the Asylum Act, which refers to specific personal circumstances. These circumstances have to be taken into account during the decision-making process and as a part of vulnerable individual’s right to enjoy special procedural and reception guarantees. Specific circumstances exist if the applicant is a child, including unaccompanied or separated children, person with disabilities, elderly person, single parent with underage children, survivors of human trafficking, severely ill person, a person with mental disorder and persons who survived torture and other forms of ill-treatment, survivors of sexual and gender-based violence. By analogy and following a logical interpretation of the above provision, it is evident that a person falling within one of the above categories must be granted equal reception guarantees in the receiving country if subject to application of the safe third country concept. Moreover, the competent authorities must consider proprio motu the extent to which these special guarantees could be enjoyed in the receiving country.
The issue that remains unclear in the provisions regarding the safe third country concept is the certificate that the Asylum Office issues to the applicant, having ruled on dismissing their application due to application of the concept. Namely, the new Asylum Act only states that the certificate shall include an information for the authorities of a third state that the Republic of Serbia has not examined the asylum application on the merits. Consequently, it is not clear whether applicants will have to go to the border crossing points themselves and present the certificate on the “safe third country” to the authorities or if the authorities of the safe third country are officially informed that the application of a certain individual had been dismissed as it was concluded that it could and should have been examined on the merits in that country. It is still not clear how this will function in practice.
Practical ambiguities of this provision aside, the issue of major concern is the absence of clear and accurate provisions on individual guarantees, the key issue relating to every forcible removal procedure. The issues that remain after the beginning of the implementation of the Asylum Act are the manner in which the said guarantees would be obtained from the states assessed to be safe, what exactly would these guarantees include, and to what extent would they be personalised to each individual. Based on the above, however, it follows that, before the final evaluation, it is necessary to wait for the first decisions of the Asylum Office that will apply the safe third country concept in line with the Asylum Act.
Finally, the Asylum Act provides that the Republic of Serbia would examine a foreigner’s application on the merits if a third country considered safe refuses to admit them.
Since the Asylum Act came into force on 1 October 2018, the safe third country concept has been rarely applied. Basically, in 2020, the Asylum Office almost completely stopped applying this concept, which has led to a significant improvement in practice and the sharp increase of the cases being decided on the merits. Apart from legislative changes, another main reasons for the shift of the Office’s attitude towards the safe third country notion is the fact that there are two relevant cases pending before ECtHR at the time of updating of this Report.[7]
The concept was applied in a total of 10 decisions in 2019 concerning 11 persons, and none in 2020. In 2021, maximum of 4 applicants could have been subjected to the STCC decision (Iran, Pakistan, Libya and Burundi), but since the author did not succeed in obtaining these decisions, it is not possible to claim with certainty if this concept was applied. In 2022 and 2023, there were no STCC decisions.
[1] AIDA, Country Report: Serbia – Update on the year 2020, March 2021, available here, 57-58.
[2] Including UNHCR, CAT, CERD, CCPR, Amnesty International and national civil society organizations, see the detailed analysis of this flawed practice in the AIDA, Country Report: Serbia – Update on the year 2018, March 2019, available here, 41-53.
[3] ECtHR, El-Masri v. ‘The Former Yugoslav Republic Of Macedonia’, Application No 39630/09 Judgment of 13 December 2012, para 165; M.S.S. v. Belgium and Greece, Application No 30696/09, Judgment of 21 January 2011, EDAL, available at: https://bit.ly/2ErG9VZ, para 296.
[4] Council of Europe Committee of Ministers, Recommendation on the Right of Rejected Asylum Seekers to an Effective Remedy Against Decisions on Expulsion in the Context of Article 3 of the European Convention on Human Rights, 18 September 1998, Rec(98)13, Rec. 1.
[5] Article 45(1) Asylum Act.
[6] Article 45(2) Asylum Act.
[7] ECtHR, A.K. v. Serbia, Application No 57188/16, Communicated on 19 November 2018; M.H. v. Serbia, Application No 62410/17, Communicated on 26 October 2018.