Author
Foreigners can express their intention to apply for asylum before any state or local authority, which has the duty to inform the police.[1] From the moment someone has expressed an intention to apply for international protection, they cannot be deported from the country in accordance with the IPA.[2]
According to Article 35 IPA, an individual who has entered Slovenia illegally must express their intention to apply for international protection within the shortest time possible. Failure to do so is one of the grounds that can lead to a rejection of the asylum application as manifestly unfounded in the Accelerated Procedure.[3] The application cannot be considered as manifestly unfounded solely on this ground. Whether the individual applied in the shortest time possible must be decided based on the individual case.[4] Individuals who express an intention to apply for international protection in due time are exempt from any penalties regarding illegal entry.[5]
The “preliminary procedure”
The Police conduct the so-called “preliminary procedure”, in which they establish the identity and travel route of the individual and complete the registration form. In line with the IPA, the police also have to inform the asylum seekers in a language they understand about the consequences of leaving the Asylum Home or its branch before lodging their application, namely that they would be processed under the Foreigners Act.[6] The registration form includes a paragraph notifying the applicant of the aforementioned and information on the consequences: that the application will be considered as withdrawn and that the person can be detained in line with the IPA. This information is listed on the registration form in Slovenian and in a language that the person understands.
The applicant signs the registration form to confirm they have received this information.
While the registration form now includes the information in the language the person understands individuals often claim, during the asylum procedure, that they were not aware of the provisions as they were not given the opportunity to read the registration forms before signing them. In practice, individuals can wait for up to 20 days to lodge the application. The provision instructing asylum seekers to stay in the asylum home until lodging the application is therefore extremely problematic since it means that asylum seekers are de facto detained until they lodge the application. The fact that they left the premises of the Asylum home before lodging the application can also be used to justify the risk of absconding and detain the individual after they lodge the application.
In accordance with the amended IPA, the police can also establish other circumstances that are relevant for the asylum procedure.[7] It is not clear what those circumstances are and what is the extent of the police’s authority in this regard. The police make a report about the procedure, together with any circumstances identified, and forwards it to the Migration directorate as part of the registration form.[8] During the procedure, the police also take a short statement regarding the reasons for applying for international protection. The documentation of the police procedure is part of the asylum procedure, and statements made during the preliminary procedure are used in practice to identify inconsistencies between the applicant’s statements, and form part of the credibility assessment of the applicant. This is problematic considering that the police procedure often takes place without an interpreter and is not conducted individually, which means that individuals do not have the opportunity to make individual statements at this stage.[9]
In accordance with the IPA, applicants must be provided with interpretation and translation in a language that they understand throughout the preliminary procedure.[10] This is not necessarily the individual’s mother tongue, and it is up to the police to judge whether an individual understands the language. Interpreters for some languages are not available in Slovenia, or may not be available at the given time, or the provided interpretation is of poor quality, which may lead to problems with accessing the asylum procedure. Interpreters are selected based on a public call. During the selection, interpreters are not subject to a test to determine their level of knowledge of the Slovenian language or the language they interpret. The decisive factor in the public call is the price of the interpreter’s services. Those with the lowest prices are prioritised on the list of interpreters that the police can use in the procedures. In practice, the police also sign separate contracts with interpreters who do not have any proof of obtaining formal education in their countries of origin.[11]
Proper interpretation is therefore one of the main systemic challenges individuals face in the preliminary procedure. As a result, the applicant’s statements taken in the preliminary procedure are often inconsistent with the those made later in the process, notably when they formally lodge the application. Asylum seekers often claim that the statements they made in the preliminary procedure were not read back to them or were incorrectly translated. Inconsistencies between the statements made during the preliminary procedure and those made while lodging the applications also form part of the credibility assessment of the asylum seeker. Since there is no systematic monitoring of the conduct of the preliminary procedure, recording should be introduced to allow for comprehensive supervision. Such monitoring would enable to quickly dispel any potential doubts concerning the conduct of the police during the procedure, while making it easier to detect any possible violations of standards.[12]
Once the preliminary procedure is concluded by the police, the individual is transferred to the Asylum Home in Ljubljana or its Logatec branch. The applicant does not receive a document from the police certifying their intention to seek asylum at that stage.
Lodging of the application
Upon completion of the preliminary procedure, individuals who express their intention to apply for international protection are brought to the Asylum Home or its branch facility in Logatec.
There is no time limit prescribed for the authorities between the expression of intention to apply for asylum and the lodging of the application. The average time for registration of the application has increased steadily. In 2023, due to a large number of arrivals, asylum seekers continued to wait for up to 20 days to lodge the application. The waiting period varied during the year, depending on the number of new arrivals, but people usually had to wait 3–20 days.[13]
While waiting to lodge the application, asylum seekers are de facto detained (see Detention: General). They are not issued a detention order with respect to their detention in the Asylum Home or its branch. While they are no longer locked in the reception area, they are informed that if they leave the premises before lodging the application they will be processed as foreigners[14], meaning they can subsequently be detained in the Foreigners Centre and processed in the return procedure based on the bilateral readmission agreements or the Foreigners Act. They are not given any document that would allow them to move freely within the territory. They also do not have the right to free legal advice or representation regarding their detention. Until they lodge their application, individuals are not considered to be asylum seekers and, hence, do not enjoy the rights thereof.
The capacity of the pre-reception area of the Asylum home is small – up to 40 persons can be accommodated there. Due to a large increase of arrivals the whole Asylum home served as a reception centre and accommodation centre during the year, meaning that people waiting to lodge the application were accommodated together with asylum seekers. Unaccompanied minors and other vulnerable groups waiting to lodge the application were not separated from the general public. Due to lack of capacities the problem with overcrowding continues in 2023. The conditions worsened and became unbearable as 600 to up to 1800 people were accommodated in the Asylum home during the year. Do to overcrowding there was not enough beds for all asylum seekers and some even slept outside the Asylum home. Additional containers and tents were put on the premises of the Asylum home, as no new reception capacities were established in 2023.[15]
Since asylum seekers are no longer locked in the reception area, a large number of asylum seekers absconded before lodging the application. During the year, 58,757 individuals expressed the intention to lodge the application[16] however only 7,261 applications were lodged.[17] The Ombudsperson previously noted that the conditions in the Asylum home and Logatec are so severe that they infringe access to asylum.[18]
Prior to lodging the application, the medical staff at the Asylum Home or its branch conduct a medical examination. During the medical examination, an assessment as to the person’s vulnerability should also be conducted.[19] Subsequently, the staff of the Migration directorate will photograph and fingerprint applicants older than 15 years old and run these fingerprints through the Eurodac database.[20] Applicants are then shown a video presentation on the asylum procedure in Slovenia.[21] The video contains the procedural steps, the rights and obligations of asylum seekers in the procedure, information about the Dublin procedure, refugee counsellors and judicial review. Although the IPA requires that individuals are also informed about NGOs working on the field of asylum and migration,[22] the video does not include such information and it is not provided to individuals by the Ministry in any other manner. The video also does not contain any explanation regarding the reasons for granting asylum. In 2021, the video was adapted for unaccompanied minors – it contained additional information regarding the procedure for unaccompanied minors but no information on reasons for granting asylum or NGOs working on the field of asylum and migration. According to the IPA, unaccompanied minors have to be informed about their rights and obligations before they lodge an application, and this must be done in a manner that is adjusted to their age and development.[23] Excluding the additional information, the video for unaccompanied minors does not differ from the video presentation intended for adult asylum seekers. The video presentation is the same for all unaccompanied minors and is not adjusted for younger unaccompanied minors. Unaccompanied minors are shown the video in the presence of the interpreter and their legal guardian.
The application is then lodged with the Migration directorate. However, the officials who conduct the lodging of the application are not the same as those who take the final decision on the application. In the process of lodging the application, the individual is asked to state their personal information and describe the journey from their country of origin to their arrival in Slovenia. They also give a brief statement about their reasons for applying for international protection.
If the applicant has a legal representative or a legal guardian, this person will be present during the procedure, together with the interpreter. The application is lodged after the minutes are read and signed by all those present at the lodging, confirming their content.
According to the amendments of the IPA, the competent authority can only process the application in the border procedure if the application is inadmissible, in which case it will be processed in the accelerated procedure, or if the applicant has lodged a request for a subsequent application. During the border procedure, the applicant is accommodated at the border, airport or port. The timeframe for the Ministry to take a decision is three weeks. If the Migration directorate does not issue a decision within three weeks, or the applicant’s application is processed in the regular procedure, the applicant is allowed entry into the territory. The fiction of pre-entry is also a novelty.[24] In practice, due to a lack of infrastructure, this procedure at the border, airport and port is not used. Applicants who submit their application in such places are subject to the regular procedure.
The general rule is that an application is lodged orally. The IPA also allows the Migration directorate to instruct the asylum seeker to lodge the application in writing or electronically under exceptional circumstances, which are however not defined.[25] There is no system in place under which the applicant could lodge the application electronically. The oral application consists of a special form which is filled in by the applicant, with the assistance of the Migration directorate officials that should be available in order for the applicant to do so.[26] In practice, written applications are lodged at the Migration directorate in group settings – foreigners speaking the same language are put in one room where they receive the video information session after which they fill out the application forms. The groups are normally comprised of 5 – 20 foreigners filling out the form simultaneously. Foreigners are given a form in their language. The forms are then filled out by the asylum seekers in the presence of a translator who helps them fill out the form. Officials of the Migration directorate are present while foreigners fill out their applications. After they fill out the form, the translator translates the form and fills out another form in Slovenian language. The translator then gives both forms, the one filled out by the applicant and the translated one, to the official of the Migration directorate. The applicants can obtain the copy of the application if they wish, no special request is needed.
This practice does not allow asylum seekers any privacy during the lodging of the application. In addition, the interpreters are often de facto leading the procedure, answering the questions and helping foreigners although they are not qualified and do not have the official authorisation to do so. Furthermore, for reasons including illiteracy, lack of information and guidance, applicants are not able to list all the reasons for which they seek asylum on the forms. Nevertheless, their statements made in the written application are used in the credibility assessment. Due to the increase of asylum seekers the majority of applications were lodged in writing in 2023. Out of 7,261 applications lodged in 2023, 5,434 applications (75%) were lodged in writing, and none was lodged electronically.[27]
[1] Article 42(1) IPA.
[2] Article 36(1) IPA.
[3] Article 52, seventh indent IPA.
[4] See for example: Administrative Court Decision, I U 1894/2011, 17 November 2011, available in Slovenian at: https://bit.ly/48p4iav.
[5] Article 35 IPA.
[6] Articles 42(1)-(2) IPA.
[7] Article 42(2) IPA.
[8] Article 2(5) and 3(2) of Rules on the procedure for aliens who wish to apply for international protection in the Republic of Slovenia and on the procedure for accepting applications for international protection.
[9] Ombudsman, Poročilo Varuha človekovih pravic RS o izvajanju nalog državnega preventivnega mehanizma po Opcijskem protokolu h Konvenciji OZN proti mučenju in drugim krutim, nečloveškim ali poniževalnim kaznim ali ravnanju za leto 2019, available at: https://bit.ly/3c9H26y, Ombudsman, Končno poročilo o obravnavi policijskih postopkov s tujci na območju Policijske postaje Ilirska Bistrica, 19 July 2019, available in Slovenian at: https://bit.ly/3r3nG7j.
[10] Articles 4 and 6(1) IPA.
[11] PIC observations regarding the quality of translation and the Ministry’s selection procedure for translators.
[12] National Preventive Mechanism, Priporočila iz obiskov (preglednice), available at: https://bit.ly/3Lo1zSZ.
[13] Observation by the PIC.
[14] Article 42(2) IPA.
[15] Siol, Azilni dom na Viču poka po šivih, migranti spijo po hodnikih in na prostem, 14 September 2023, available in Slovenian at: https://bit.ly/3T9HOGc.
[16] Official police statistics, available at: https://bit.ly/3WvTZfq.
[17] Official statistics of Ministry of the Interior, available at: https://bit.ly/3ksiZGh.
[18] The Ombudsperson, Sporočilo javnosti o ugotovitvah Varuha glede razmer v azilnem domu v Ljubljani, 13 September 2023, available at: https://bit.ly/4bU0LnB and Poročilo z obiska nastanitvenega centra v Logatcu, 7.0-4/2022-4-NAB.
[19] Article 13(1) IPA.
[20] Articles 42(4)-(5) IPA.
[21] Videos available at: https://bit.ly/42P6bfd.
[22] Article 5(1) IPA.
[23] Article 16(5) IPA.
[24] Article 43(1)-(2) IPA.
[25] Article 45(1) IPA.
[26] Article 10(4) Rules on the procedure for aliens who wish to apply for international protection in the Republic of Slovenia and on the procedure for accepting applications for international protection.
[27] Official statistics provided by the Migration directorate, March 2024.