The possibility of placing asylum seekers in detention in Serbia is prescribed by the Asylum Act. Detention of asylum seekers represents the form of administrative detention which can also be imposed by the MoI in relation to foreign nationals who were qualified as irregular migrants, but who can often be in need of international protection. In other words, and since Serbia has not been the destination country for most of the refugees, 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 strong political component and is qualified as a national security case.[1] For that reason, it is fair to say that practice of the Asylum Office as detaining authority can be described as positive in the vast majority of cases, and that in general, Serbia does not have a problem of detention of refugees and 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.
Asylum seekers are detained in the long-standing Detention Centre for Foreigners in Padinska Skela (DC Padinska Skela). 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 are 110 places,[2] while, the capacities of DC Plandište and DC Dimitrovgrad are 100 places each.[3] Thus, their total capacities are 310 persons.
Since there are no available reports on the conditions and regime of life in the two newly opened centres, it is not possible to determine if these capacities are realistic and in line with the immigration detention human rights standards, such as those outlined in the CPT practice or other CoE or UN standards.[4]
To reiterate, it is fair to say that the instances in which asylum seekers are detained are extremely rare, and this attitude of 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 to access asylum procedure and in general enjoy their rights of persons deprived of their liberty which are fundamental for safeguards against ill-treatment, including refoulement.[5]
What is also important to note is that immigration detention of foreigners declared as irregular is based on the existence of an expulsion order, delivered in line with the Article 74 (2). The expulsion order is rendered by immigration police officers from various police departments in Serbia and who are not trained to assess the risks of refoulement in line with the Article 83 of the Foreigners Act. Thus, decision on expulsion is rendered without the assessment of objective and individual circumstances of a foreigners, which can be described as quite contentious having in mind that almost 70% of all detainees were from Afghanistan and Syria and by virtue of their origin they had prima facie claim.
Not a single foreigner detained was issued with the registration certificate in 2021, while only 4 of them were issued with registration certificates in 2022 in DC Padinska Skela. There were no instances in which detained foreigners who might be in need of international protection (e.g. from Syria or Afghanistan), were registered as asylum seekers in DC Plandište and DC Dimitrovgrad.
Thus, in the future, it will be important to address the issue of access to asylum procedure of detained refugees who do not wish to apply for asylum in Serbia and are detained for the purpose of forcible removal to their country of origin or third countries. They are detained on the grounds set in the Foreigners Act, mainly for the purpose of forcible removal.[6] The MoI, who stopped providing statistical data in 2018 on the number of detainees qualified as irregular migrants,[7] but for the purpose of the 2022 Update, it provided yearly statistics.
Overall, persons who are likely to be in need of international protection can be detained on various other grounds. This may occur as a result of a conviction 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] Examples will be described in the following parts of this Chapter.
[2] It was expanded after the reconstruction which was finalised in 2022.
[3] See more in, MoI, Izveštaj o sprovođenju Strategije suprotstavlјanja iregularnim migracijama za period 2018-2020. godina, available at: https://bit.ly/3H8FSaz, 14.
[4] CPT, Immigration detention [Factsheet], March 2017, CPT/Inf(2017)3, available at: https://bit.ly/3Li4Xzd.
[5] 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, CPT, Immigration detention [Factsheet], p.2.
[6] Articles 87 and 88 Foreigners Act.
[7] However, according the Ombudsman reports, it can determine 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 and 3 Iranians and 1 Iraqi to Bulgaria.