Overview of the main changes since the previous report update

The previous version of this report was last published in March 2021.

Asylum procedure

• Access to the territory: In 2021 according to the UNHCR and Commissariat for Refugees and Migration, at least 60,338 refugees and migrants resided on Serbian territory. In 2021, the COVID-19 preventive measures were not introduced at Serbian entry borders as it was the case in 2020, but push-back practices continued. However, the exact number of arrivals and departures from and to Serbia cannot be determined with certainty taking in consideration low registration capacities of the MoI, but also different methodologies for counting of new arrivals used by different state and non-state stakeholders.
• Pushback practices: The practice of push-backs and other forms of collective expulsion continued, especially on the southern border with North Macedonia where the Government has built a barbed-wire fence in 2020. UNHCR, civil society organizations, and the Ombudsman office reported numerous instances in which refugees, migrants and asylum seekers were collectively expelled to North Macedonia and Bulgaria. Expulsions were very often of violent nature and included different instances of ill-treatment such as: slaps, kicks, hits with rubber truncheons, insults, and threats. According to the official statistics of the Ministry of Interior (MoI) and public praises of highest police figures, at least 120,000 refugees, asylum seekers and migrants have been ‘prevented from illegally crossing of the border’ since 2016. This further means that the denial of access to territory represent a systemic practice reflected along the entire Balkan Route. In January 2021, the Constitutional Court adopted a constitutional appeal submitted by 17 refugees from Afghanistan who complained about being collectively expelled to Bulgaria in February 2017. The case concerned a forcible removal of 25 Afghan refugees in total (including 9 children) who entered Serbia from Bulgaria. The Court found violation of the prohibition of collective expulsions and applicants’ right to liberty and security. This landmark judgment did not have a major influence on unlawful border practices and the implementation of judgment has not been considered from the systemic point of view. In 2021, two applications to the European Court of Human Rights were communicated to the Government of the Republic of Serbia with regards to unlawful expulsion practices involving collective expulsions or forcible removals which lacked procedural guarantees against refoulement in terms of the Article 3 and Article 13 read in conjunction with Article 3 of the Convention. In December 2021, the United Nations Committee against Torture criticized Serbia again for practices which undermine refugees’ and asylum seekers’ right to access territory and asylum procedure recommending once again establishment of the independent border monitoring mechanism which will be comprised of representatives of the MoI, UNHCR and CSOs. The findings of the Committee are just the continuation of international criticism, which in the past had come from the UNHCR, Human Rights Committee, Amnesty International, and other reliable entitles.
• Push-backs from other countries to Serbia: Wide-spread push-backs towards Serbia have been documented along the green border with Bosnia, Croatia, Hungary and Romania where refugees and asylum seekers are systematically denied access to the territory and the asylum procedure, and are often subjected to various forms of ill-treatment, some of which may amount to torture. In 2021, a total of 71,470 persons were pushed back from Hungary to Serbia, and since 2016, a total of 130,050 instances of pushbacks were reported by Hungarian immigration authorities. European Union Agency for Fundamental Rights (FRA) reported that in 2021 28,737 persons were pushed back from Romania to Serbia, while UNHCR reported at least 1,000 persons being pushed-back from Croatia to Serbia. The persons pushed back to Serbia might still face obstacles in accessing the asylum procedure, especially if they were previously registered according to the Asylum Act or Foreigners Act and may be subjected to misdemeanour proceedings for irregular entry to the neighbouring countries (in particular Croatia) or issued with an expulsion decision. Ukrainian refugees have unhindered access to territory and asylum procedure, irrespective of having travel documents or not. Their treatment should be praised, but at the same time, the violent and discriminatory approach of border authorities towards other persons in need of international protection transparently embodies the widespread trend within European countries. There were no instances of push-backs of Ukrainian refugees from Serbia to other countries, nor pushbacks from Hungary, Croatia or Romania to Serbia.
• Access to the asylum procedure at the airport: Persons in need of international protection still face significant problems in accessing asylum procedure at the airport Nikola Tesla, where they are deprived of their liberty in an arbitrary manner and in conditions which could amount to inhumane and degrading treatment. They are frequently refused entry and returned to a third country or country of origin without any assessment on the risks of refoulement. In 2021, several instances of severe violence were reported at the airport, including kicks, slaps, insults and threats. The vast majority of applicants reported that ill-treatment occurred during the attempt of forcible removal. Moreover, the manner in which refusal of entry decision is issued gives serious reasons for concern, especially in situation where persons who are obviously in need of international protection are returned to their country of origin. One such arbitrary removal resulted in applicant’s imprisonment in his country of origin. The European Court of Human Rights (ECtHR granted one interim measure in the case of Kurdish political activist from Turkey who was eventually granted access to territory. The described practice has been criticized again by the UN CAT. Not a single relevant authority considers persons in need of international protection who are refused entry and placed in the detention room at the airport as persons deprived of their liberty, including the Constitutional Court of Serbia. In 2022, a communication phase before the ECtHR, in a case relating to a transit zone detention, has been concluded.
• Registration: The number of persons issued with registration certificate has significantly dropped from around 12,900 in 2019 to 2,800 certificates in 2020 and 2,306 in 2021. In 2021, the certificates were mainly issued to citizens of Afghanistan (1,025), Syria (466) and Burundi (134). In the Detention Centre for Foreigners, not a single person expressed an intention to lodge an asylum application in Serbia. Out of the 2,306 persons who obtained a registration certificate in 2021, only 175 persons officially lodged an asylum application. This figure implies that Serbia is still considered to be a transit country, but also that many persons in need of international protection face obstacles in registering and lodging their application for international protection. Between 2008 and 2021, a total of 652,708 registration certificates were issued in line with the legal framework governing asylum system. Out of that number, only 3,700 asylum applications were lodged, which is 0,6% of all foreigners registered in line with the new and old Asylum Act in Serbia.
• Asylum procedure: 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. 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. This means that out of 3,700 asylum applications in the afore-mentioned period, only 196 applicants were granted asylum. In other words, only 5,3 % of asylum applications were resolved positively. In comparison to the number of persons who received registration certificates (652,708) but did not submit asylum application, the number of persons who received international protection is nothing but the statistical mistake (0,03 %). These numbers clearly reflect the fact that Serbia has never had fair and effective asylum procedure and that it has always been considered as a transit country, which unfortunately supports the narrative used by the highest state officials. 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). 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 showing that the practice of the Asylum Office has been inconsistent and especially in relation to LGBT applicants, survivors of SGBV, UASCs, draft evaders and converts from Islam to Christianity. These inconsistencies were obvious also in 2021.
• Procedure at first instance: The Head of the Asylum Office was changed twice in the fourth quarter of 2020, thereby leaving the determining authority without a person in charge for the beginning of 2021. At the beginning of 2021, the former head of the Asylum Office was reappointed, but the capacities of the first instance authority remain low in terms of the number of staff and the quality of work among different asylum officers. The quality assurance activities which will be conducted by UNCHR and in cooperation with the MoI and CRM in 2022 are much needed.
• Key asylum statistics: In 2021, the Asylum Office delivered only 114 decisions regarding 156 asylum seekers which means that the total number of decisions has continued to decrease in relation to previous years and shows a drop of 29% in comparison to 2020, and the lowest number of decisions in the past 5 years. Out of that number, 39 decisions regarding 51 asylum seekers were rejected in merits. A total of 12 decisions granting asylum to 14 asylum seekers were delivered. Four cases regarding 4 persons were declared inadmissible. 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. In 2021, the Asylum Office also rendered two interesting decisions regarding the age assessment of two boys from Afghanistan and Pakistan which indicate that the problem of age assessment procedure should be treated as a priority. These cases manifested the lack of capacity of relevant authorities to apply the in dubio pro reo principle with regards to children’s age. 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. Rejection rate in 2021 was 76%, while the recognition rate was 24%. This represents 3% drop in recognition in comparison to 2020. Asylum was granted through 12 decisions (24%) encompassing 14 persons. The refugee status was granted through 6 decisions to citizens of Iraq (3), Burundi (2), Iran (1) and Pakistan (1). Subsidiary protection was granted through 6 decisions to citizens of Syria (3), Somalia (2), Afghanistan (1) and Libya (1). What is common for the vast majority of positive decisions is the fact that the procedure lasted for more than 1 year. The number of asylum interviews was extremely low in 2021, when only 85 were conducted.
• Procedure at the second instance: 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 were rendered 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. As it was the case in previous years, the second instance body has not carried out any asylum hearing. In other words, the corrective influence on the Asylum Office has continued to lack. The qualifications of the members of Asylum Commission remain contentious, and it is clear that the quality assurance control is necessary in the future.
• Procedure at the third instance: In 2021, the Administrative Court delivered 22 judgments 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. Only three decisions could be considered relevant for the development of the practice of lower instance authorities. Still, as it was the case in previous years, the Court did not carry out any asylum hearing nor did it grant international protection. The judges of the Court lacked resources and infrastructure to act in asylum cases and one of the solutions would be to designate a special department within the Court which would comprise judges with a defined specialization in asylum, migration and human rights law.
• Legal assistance: The quality of legal aid performed by CSOs remains a serious concern. In 2020 and 2021, there were instances in which poor initial assessment, inadequate preparation for asylum procedure and reckless behaviour of certain legal representatives have contributed to the negative outcomes in asylum procedure, the drop in asylum applications and in general the lower recognition rate. The fluctuation of legal aid providers continues to be a problem, as well as the lack of quality assurance control. The legal framework should be amended in order to introduce free legal aid from the first instance and by attorney at law. Additionally, the training modules should be designed with an aim to introduce a profile of migration lawyers.
• Vulnerable applicants: The practice of the Asylum Office regarding vulnerable applicants varied. While some improvements were noted for UASC, the opposite trend was noted for LGBTQI and SGBV claims. Regardless, a positive development was the fact that Serbian asylum authorities granted asylum to two victims of sexual and gender-based violence from Iraq. The evidentiary activities conducted during the asylum procedure and which imply best interest determination (BID) for UASC, psychological reports drafted by PIN or IAN and sometimes even medical and forensic medical documentation can be disregarded. In general, a detailed vulnerability assessment is conducted only in relation to persons in need of international protection who are willing to lodge an asylum application in Serbia. The identification of vulnerable applicants, as well as their vulnerability assessment is usually conducted by CSOs or with the help of CSOs. The length of asylum procedure for vulnerable applicants is particularly worrying.

• Inadmissibiltiy decisions: In 2021, as it was the case in 2020, only a handful of decisions (4 in total) implied rejection of asylum applications as inadmissible and on the basis of the safe third country, safe country of origin or first country of asylum concepts. 12 subsequent asylum applications were rejected as unfounded. There were no instances in which asylum seekers lodged subsequent asylum application after they returned to their country of origin, and came back to Serbia due to a significant change of circumstances.

Reception conditions

• Reception capacity and conditions: In 2021, 7 reception facilities were designated as Asylum Centres, while the remaining 12 were designated as Reception Centres in which only material reception conditions are provided, but asylum procedure was not conducted. The asylum procedure was conducted only in 2 out of 7 Asylum Centres – AC Krnjača and AC Banja Koviljača. While the official reception capacity reached 5,655 places according to the authorities at the end 2021, in practice it was much more limited. Serbia can only host between 3,000 and 3,500 migrants, asylum seekers and refugees in order to comply with applicable housing and human rights standards. As of March 2022, several thousand refugees, asylum seekers and migrants were accommodated in tents or collective premises with dozens of bunk beds in unhygienic conditions and with limited privacy and insufficient number of sanitary facilities.

• Freedom of movement/deprivation of liberty: The COVID-19 pandemic has severely impacted the right to freedom of movement of refugees, asylum seekers and migrants who were prohibited from leaving asylum and reception centres from 10 March 2020 to 14 May 2020, i.e. these centres were practically transformed into detention centres. Fortunately, this practice was not applied in 2021. The Constitutional Court dismissed initiatives for the review of constitutionality of the legal framework that had led to a collective detention of all refugees, asylum seekers and migrants residing in asylum and reception centres, which has further led to several applications being submitted to the European Court of Human Rights. These applications were communicated to the Government of Serbia, and it remains to be seen if the 2020 COVID-19 measures amounted to detention or they were a simple limitation of the right to freedom of movement.

• Inhumane and degrading treatment: According to the National Preventive Mechanism (NPM), conditions in the reception centres of Obrenovac and Adaševci could have possibly amounted to inhumane and degrading treatment during the COVID-19 lockdown, confirming the findings published in the previous versions of this AIDA report. From 15 March to 7 May 2020, an emergency legal framework led to a detention of more than 9,000 refuges, asylum seekers and migrants in 18 Asylum and Reception Centres in conditions that correspond to those that were criticised by NPM and which were contrary to COVID-19 recommendations of the World Health organisation (WHO) and European Committee for the Prevention of Torture (CPT). This detention was described by CSOs as unlawful and arbitrary, but also contrary to derogation standards developed in the practice of the ECtHR. Issues of violence, ill-treatment and related incidents from reception staff continued to be reported throughout the year. In 2021, there appeared to be no instances of inhumane and degrading detention conditions, but a longer stay in Reception Centres in Subotica, Sombor, Adaševci, Kikinda and several others, regardless of the fact that these facilities are open, might amount to inhumane and degrading treatment due to the lack of space, privacy, hygiene and security.

Detention of asylum seekers

• Detention of asylum seekers: The practice of the Detention Centre for Foreigners remained unchanged, and it is still safe to claim that Serbian authorities rarely detain asylum seekers. Nevertheless, people who may be in need for international protection but are not officially recognised as asylum seekers can be detained under the Foreigners Act during the removal procedure. The Ministry of Interior does not publish statistics on detained foreigners nor is it willing to provide this data to CSOs. Detained individuals are also not provided any legal assistance in the forcible removal procedure. In 2021, a new Detention Centre was opened in Dimitrovgrad, close to border with Bulgaria. It is still not clear what are the official capacities of this new facility. This Detention Centre has not been used so far.

Content of international protection

• Integration: The integration of refugees and asylum seekers still largely depends on the assistance of CSOs, despite the clear mandate of the Commissariat for Refugees and Migration (CRM) to provide social, economic and cultural assistance. There is no precise data on how many persons granted asylum remained in Serbia, but it is reasonable to assume that it is less than 100. This can be attributed to the lack of prospect to access the labour market. Access to education for all children seeking or granted asylum in guaranteed, and first 4 refugees enrolled into universities in 2021.
• Travel documents: In absence of a legal framework on travel documents for beneficiaries of international protection, which was due to be adopted 60 days after the entry into force of the Asylum Act in 2018, the loophole persists and the right to freedom of movement of persons granted asylum is still undermined.
• Family reunification: For the first time in 2020, a family reunification procedure was carried out in Serbia, allowing an Afghan refugee represented by the APC to reunite with his family in 2020. The procedure took 10 months, but it is hoped that it will set precedent for future family reunification cases.

Response to the situation in Ukraine as of 27 April 2022

On 18 March 2022, the Government of the Republic of Serbia adopted Decision on providing temporary protection in the Republic of Serbia to displaced persons coming from. According to the data from 31 March 2022, 51 Ukrainian citizens received temporary protection, while only 4 of them lodged asylum application. A total of 40 Ukrainian citizens resided in the Asylum Centre in Vranje on 31 March 2022.

Additionally, around 15,000 Ukrainian citizens have resided or transited through the Republic of Serbia since the beginning of the conflict and Russian aggression and as of 31 March 2022. On 21 April 2022, a total of 5,589 refugees from Ukraine reported their residency in Serbia.[1] What is important to mention is that Ukrainian citizens who arrive to Serbia are entitled to 90-day stay, because they do not require visa to enter. The vast majority of them use this time to find a way to move on towards EU countries. Also, many Ukrainians decided to regulate their stay in line with the Foreigners Act, applying for different forms of residencies, such as temporary residency based on work, family connections or humanitarian reasons. The practice has shown that these types of residencies were granted without major problems, providing refugees from Ukraine with the possibility to work and have access to other relevant rights. On the contrary, if they decide to apply for asylum, they would be denied access to labour market for at least 9 months. Thus, the fact that the Decision on Temporary Protection was adopted in 2022 is an extraordinary act of the Government which in a proper manner could treat mass arrival of refugees from Ukraine. On the other hand, this Decisions means that Ukrainians will not apply for asylum in regular procedure in high numbers, which would be insurmountable burden on the already low capacities of Serbian asylum authorities.

DECISION

on providing temporary protection in the Republic of Serbia to displaced persons coming from Ukraine

Official Gazette of RS, No. 36 of March 18, 2022.

1. Temporary protection is granted in the Republic of Serbia to displaced persons coming from Ukraine, i.e. who were forced to leave Ukraine as a country of their origin or habitual residence or who were evacuated from Ukraine, but who cannot return to permanent and safe living conditions due to the current situation prevailing in that state.
2. Displaced persons referred to in Item 1 of this Decision shall be considered:

1) citizens of Ukraine and members of their families who have resided in Ukraine;

2) asylum seekers, stateless persons and foreign citizens who have been granted asylum or equivalent national protection in Ukraine and members of their families who have been granted residence in Ukraine;

3) foreign nationals who have been granted valid permanent residence or temporary residence in Ukraine and who cannot return to their country of origin under permanent and long-term circumstances.

Temporary protection is also granted to citizens of Ukraine and members of their families who legally resided in the Republic of Serbia at the time of the decision referred to in item 1 of this Decision, but whose right to residence expired before the decision on temporary protection was revoked.

For the purposes of this Decision, family members are considered to be persons who are considered family members in accordance with the provisions of the Law on Asylum and Temporary Protection.

3. The Ministry of the Interior, in accordance with the provisions of the Law on Asylum and Temporary Protection and this Decision, registers persons who have been granted temporary protection and makes a decision on granting temporary protection for each person separately.
4. Persons granted temporary protection shall have access to all rights under Article 76 of the Law on Asylum and Temporary Protection.

The competent authorities shall take care of the exercise of the rights referred to in Article 76 of the Law on Asylum and Temporary Protection in accordance with the law.

5. Temporary protection shall last for one year from the date of entry into force of this Decision.
6. This Decision shall enter into force on the day following that of its publication in the “Official Gazette of the Republic of Serbia”.

Decision No. 05 number 019-2345 / 2022

ARTICLE 76 of the Law on Asylum and Temporary Protection 

Rights and obligations of the person who has been granted temporary protection

A person granted temporary protection is entitled to:

1) stay during the period of temporary protection;

2) a document confirming his/her status and right to reside;

3) health care, in accordance with the regulations governing the health care of foreigners;

4) access to the labour market during the period of temporary protection, in accordance with the regulations governing the employment of foreigners;

5) free primary and secondary education in public schools, in accordance with special regulations;

6) legal assistance under the conditions prescribed for the applicant;

7) freedom of religion under the same conditions as citizens of the Republic of Serbia;

8) collective accommodation in facilities designated for those purposes;

9) appropriate accommodation in the case of a person in need of special reception guarantees, in accordance with Article 17 of this Law.

A person who has been granted temporary protection has the right to apply for asylum.

The competent authority may, in justified cases, allow family reunification in the Republic of Serbia and grant temporary protection to family members of a person who has been granted temporary protection.

A person who has been granted temporary protection is obliged to respect the Constitution, laws, other regulations and general acts of the Republic of Serbia.

The decision on the accommodation of persons who have been granted temporary protection is made by the Government, at the proposal of the Commissariat for Refugees and Migration.

[1] Danas, Komesarijat: Paketi pomoć za izbeglice iz Ukrajine na privatnim adresama, 21 April 2022, available at: https://bit.ly/39cvErz.