Author
The possibility of placing asylum seekers in detention in Serbia is prescribed by the Asylum Act.[1] Detention of asylum seekers represents the form of administrative detention which can also be imposed by the MoI-Border Police Department (BPD) and in relation to foreign nationals who were qualified as irregular migrants, but who can often be in need of international protection (they do not wish to apply for asylum in Serbia).[2] Since Serbia has not been the destination country for most of its refugee population, it is a common practice that, for instance, Afghans or Syrians, who do not wish to apply for asylum, are detained as irregular migrants and for the purpose of their forcible removal to Bulgaria.
On the other hand, asylum seekers are rarely detained, and their detention is frequently short, unless the case has a strong political component and is qualified as a national security case.[3] For that reason, the practice of the Asylum Office, as detaining authority, can be described as positive in the vast majority of cases, and in general, Serbia does not have a problem of detention of asylum seekers. In 2021, the Asylum Office did not resort to such measure, while in 2022 only 5 asylum seekers were detained and they were from Syria (3), Iran and Kyrgyzstan. In 2023, only 1 Afghan national was detained, while one Turkish national was detained by the MoI-BPD, even though , he should have been detained by the Asylum Office and in line with the Asylum Act as he had lodged a subsequent asylum application.[4]
Asylum seekers are detained in Detention Centre for Foreigners in Padinska Skela (DC Padinska Skela) a municipality in Belgrade. In addition, in 2021, a new centre was opened in Dimitrovgrad (DC Dimitrovgrad), at the green border with Bulgaria, and it became fully operational in 2022. In 2022, another detention centre in Plandište (DC Plandište), was opened and is located close to the border with Romania.
The total capacities of DC Padinska Skela is 110 places,[5] whereas the capacities of DC Plandište and DC Dimitrovgrad are of 100 places each.[6] Thus, overall detention capacity is of 310 beds.[7]
To reiterate instances in which asylum seekers are detained are extremely rare, and this attitude of the Serbian asylum authorities should be praised. However, the question that remains open, and which has not been addressed sufficiently by the bodies which have regular access to immigration detention (such as the Ombudsman and NPM) is to which extent are foreign nationals detained under the Foreigners Act allowed access to the asylum procedure and in general enjoy their rights as persons deprived of their liberty, which are fundamental safeguards against ill-treatment, including refoulement.[8]
It is important to note that the immigration detention of individuals declared as irregular foreigners is based on the existence of an expulsion order, issued in line with Article 74 (2) of the Foreigners Act. The expulsion order is issued by immigration police officers from various police departments in Serbia and who are not trained to assess the risks of refoulement within the meaning of Article 83 of the Foreigners Act. Thus, decisions on expulsion are issued without the assessment of the objective and individual circumstances of a foreigners and the assessment of expected treatment in third countries or countries of origin. This practice is contentious considering that more than 71% of all detainees in 2023 were nationals of Afghanistan and Syria and, therefore, have prima facie claim, while almost 80% can also be considered to be in need of international protection since detainees originated from Palestine, Somalia, Türkiye, Iraq, etc.[9]
Not a single foreigner detained was issued with the registration certificate in 2021. In 2022, only 4 persons were issued a registration certificate at DC Padinska Skela, while no foreigners who might be in need of international protection (e.g., from Syria or Afghanistan) were registered as asylum seekers at DC Plandište and DC Dimitrovgrad. In 2023, 1 foreign national was registered in immigration detention in line with the Article 35 of the Asylum Act.
Thus, in the future, it will be important to address the issue of access to the asylum procedure for detained persons who might be in need of international protection and who are detained for the purpose of forcible removal to their country of origin or third countries.
In 2018, the MoI stopped providing statistical data on the number of detainees qualified as irregular migrants,[10] but provided the author with the requested data for the purpose of the 2022 Update of this report. This positive practice continued in 2023 and this Report contains comprehensive statistical data for all three detention centres.
And finally, when it comes to the placement of foreign national in immigration detention, 3 reports on the visits to all three facilities published by the NPM in 2023 shed more light on immigration detention practice in Serbia. Namely, in all three reports, the NPM noticed the practice in which immigration detention was ordered on the grounds of facilitation of forcible removal, but in reality, in many of such cases, forcible removal was impossible to execute. For that reason, NPM clearly outlined that immigration detention should not be used in relation to those individuals who are marked as ‘unacceptable security risk’ and who are suspected of having committed criminal offence or misdemeanour.[11] Detention under these premises was assessed by the NPM as unlawful and arbitrary.[12]
Persons who are likely to be in need of international protection can be detained on various other grounds. These include being convicted for irregular entry or stay in Serbia without having invoked the benefits of Article 8 of the Asylum Act or being held in the airport transit zone in a completely arbitrary manner (see Access to the Territory).
[1] Article 77 Asylum Act.
[2] Article 87 Foreigners Act.
[3] Examples will be described in the following parts of this Chapter.
[4] Administration for Foreigners, Decision No. 26-13/22, 14 July 2022.
[5] It was expanded after the reconstruction which was finalised in 2022.
[6] See more in, MoI, Izveštaj o sprovođenju Strategije suprotstavlјanja iregularnim migracijama za period 2018-2020. godina, available at: https://bit.ly/4dzBxKX, 14.
[7] Response on the request for the information of public importance no. 07-34/24 received on 15 April 2024.
[8] CPT has outlined that detained irregular migrants should, from the very outset of their deprivation of liberty, enjoy three basic rights, in the same way as other categories of detained persons. These rights are: (1) to have access to a lawyer, (2) to have access to a medical doctor, and (3) to be able to inform a relative or third party of one’s choice about the detention measure. The right of access to a lawyer should include the right to talk with a lawyer in private, as well as to have access to legal advice for issues related to residence, detention and deportation. This implies that when irregular migrants are not in a position to appoint and pay for a lawyer themselves, they should benefit from access to legal aid. See, CPT, Immigration detention, March 2017, CPT/Inf(2017)3, available at: https://bit.ly/3Li4Xzd, 2.
[9] Response on the request for the information of public importance no. 07-34/24 received on 15 April 2024.
[10] However, in its reports, the Ombudsman determined that at least 13 foreigners were forcibly removed to third countries or countries of origin in 2020. The MoI forcibly removed citizens of Türkiye (1), China (1), Afghanistan (1) and Croatia (1) to their countries of origin, and 1 Pakistani to Romania,3 Iranians and 1 Iraqi to Bulgaria.
[11] NPM, Извештај о посети Прихватилишту за странце у Падинској Скели, no. 22900, 12 September 2023, available at: https://bit.ly/3K0Etnr, 12.; Извештај о посети Прихватилишту за странце у Пландишту, no. 370, 9 January 2024, available at: https://bit.ly/3wCECu2, 13; Извештај о посети Прихватилишту за странце у Димитровграду, no. 7681, 31 March 2023, available at: https://bit.ly/4bJCgIR, 12-13.
[12] Ibid.