Author
In case the asylum application is submitted by a minor, the asylum procedure shall not automatically commence.[1]
Pursuant to Article 16(2) of the Asylum Act, legal acts on behalf of a third-country national who has not attained the age of majority are performed by their legal representative. Where the person is present in Slovakia without a legal representative, the court shall appoint a guardian. This provision refers to additional legislation, namely Act No. 40/1964 Coll., the Civil Code (The Civil Code), and Act No. 36/2005 Coll. on the Family and on Amendments and Supplements to Certain Acts (the Family Act), which further specify the concepts of majority and guardianship.
Under the Civil Code, majority is attained upon reaching the age of eighteen. Prior to reaching this age, the majority may only be attained through marriage. The majority acquired in this way is not lost upon the dissolution of the marriage or upon a declaration that the marriage is void.[2]
It follows from the above that a guardian must be appointed to all UAMs who are considered minors under the Civil Code.
Regarding the guardianship of UAMs, the Asylum Act refers to Article 60 of the Family Act, which allows for the appointment of a guardian to a minor child where necessary for other reasons and where this is in the best interests of the child. In such cases, the court may also appoint a municipality as guardian.[3]
The identification of a UAM generally takes place prior to the initiation of the asylum procedure, primarily by officers of the BFPB PFP. The police are required to immediately notify and transfer the UAM to the Department of Social and Legal Protection of Children and Social Curatorship of the Office of Labour, Social Affairs and Family (OLSAF) within whose territorial jurisdiction the child was found.[4]
Where the UAM cannot be entrusted to the personal care of another person or a relative, the OLSAF must immediately file a motion for an interim measure (neodkladné opatrenie), on the basis of which the child is placed in a facility.[5] In practice, UAMs are placed in the Centre for Children and Families in Medzilaborce. The law also allows the court to act ex officio, i.e. without a motion, particularly in cases where the court becomes aware of the discovery of a UAM and no request for an interim measure has yet been submitted by the competent OLSAF.
The court must decide on the interim measure by means of a resolution within 24 hours of receiving the motion for the interim measure.[6] After the implementation of the interim measure, i.e. following the child’s placement in the Centre for Children and Families, the court appoints a guardian for the UAM.
The role of guardian may be performed by a natural person or, where no such person is available, by the Department of Social and Legal Protection of Children and Social Curatorship of OLSAF. In practice, the OLSAF is usually appointed as guardian for UAM. The guardian is required to perform their duties in the best interests of the child and is entrusted by the court with a defined scope of rights and obligations to ensure the purpose of the guardianship and the adequate protection of the child’s interests.
Given the low number of UAM asylum applicants, HRL is not aware of problems relating to an insufficient number of OLSAF guardians for UAMs. National legislation does not establish a maximum number of UAMs for whom a representative may be responsible at the same time.
A guardian appointed by the court may, on behalf of the UAM, perform all legal acts in asylum proceedings that are available to asylum applicants. In particular, the guardian may submit an asylum application, be present during all interviews, give consent to medical examinations conducted as part of the age assessment procedure, and access the asylum file. Decisions issued in asylum proceedings are served exclusively on the guardian.
In asylum proceedings, the guardian may be represented by a legal representative. However, despite the fact that OLSAF guardians are, in most cases, not specialists in asylum law, they rarely make use of this possibility.
There is no effective state-run monitoring and evaluation system of UAM guardianship in place.
[1] Article 3(1) of the Asylum Act.
[2] Article 8(2) of the Civil Code.
[3] Article 60 of the Family Act.
[4] Article 127(4) of the Asylum Act.
[5] Article 27(1) of the Act No. 305/2005 Coll. On on Social and Legal Protection of Children and Social Guardianship and on Amendments and Supplements to Certain Acts (The Act No. 305/2005 Coll.).
[6] Article 365(2) of the Act No. 161/2015 Coll.,The Code of Non-Contentious Civil Procedure (The Non-Contentious Civil Procedure Code.