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] Whether the individual applied in the shortest time possible must be decided based on the individual case. The application cannot be considered as manifestly unfounded solely on this ground.[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 about the consequences of leaving the Asylum Home or its branch before lodging the application in a language they understand.[6] The registration form includes a paragraph that the applicant was notified that in case they leave the premises of the Asylum home they will be processed under the Foreigners act and that the applicant, by signing the form, confirm they have received this information. However, in practice applicants are usually not aware of this provision as the registration form is not read to them by the translator or the translator is not present during the procedure, the paragraph is in English and not in their language and they do not get a copy of the registration form. In addition, the paragraph does not contain the explanation of the actual consequences of leaving the premises of the Asylum Home. Asylum seekers therefore do not understand what it means to be processed under the Foreigners act. The provision is extremely problematic since it means that asylum seekers are de facto detained until they lodge the application for international protection. If they leave the premises of the Asylum home before lodging the application they can be detained after lodging the application due to the risk of absconding.
In line with the amendments of the 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. The police make a report about the procedure and any circumstances identified, before giving it to the Migration directorate as part of the registration form.[8] During the procedure they also take a short statement regarding the reasons for applying for international protection. The police documentation 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, since in practice individuals in the police procedure often do not have a translator, and the procedures are not conducted individually, meaning that individuals do not have the opportunity to make individual statements at this stage.[9]
In accordance with the IPA, each person in the process must be provided with interpretation and translation in a language that the person understands.[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.
Proper interpretation is therefore one of the main systemic challenges individuals face in the preliminary procedure. The statements taken in the preliminary procedure are often not in accordance with the statements made by individuals later in the process, while lodging the application. Individuals often claim that the statements in the preliminary procedure were not read to them or were not correctly 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 police during the procedure and the work of interpreters, recording should be introduced in the police procedure to allow for comprehensive supervision. This way, it would be possible 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.
Irregularities in the police procedure were also detected by the Ombudsman during the visits to the police stations carried out in 2022. As in previous years the Ombudsman detected that the procedures with foreigners were not conducted individually therefore violating their right to be heard.[11]
Once the preliminary procedure is concluded by the police, the individual is transferred to the Asylum Home in Ljubljana or its branch Logatec. The applicant does not receive a document from the police certifying their intention to seek asylum at that stage.
Lodging of the application
After 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 2022 asylum seekers due to a large number of arrivals continued to wait for up to 20 days to lodge the application. The waiting period changed during the year depending on the number of new arrivals, however in general people had to wait 3 – 20 days to lodge the application.
While waiting to lodge the application, asylum seekers are de facto detained (see Detention: General). They are not issued with a detention order with respect to their detention in the Asylum Home or its branch. They also do not have the right to free legal advice or representation regarding their detention. Telephones and documents confiscated by the police during the police procedure are normally returned to asylum seekers when they lodge their application, meaning that while they are de facto detained, asylum seekers cannot communicate with the outside world in order to obtain legal counsel or in order to notify their family members of their whereabouts. In addition, translators are rarely present in the pre-detention area. As individuals are not considered to be asylum seekers until after they lodge the application, they do not have access to services before they lodge the application and thereby obtain the rights of asylum seekers. They are also not given any document that would allow them to move freely within the territory. They must sign a statement declaring that they agree to be processed as foreigners if they leave the premises of the Asylum Home or its branch before they lodge the application, 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.
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 also has to be made.[12] Subsequently the staff of the Migration directorate will photograph and fingerprint applicants older than 15 years and run these fingerprints through the Eurodac database.[13] Afterwards, they are shown a video presentation on the asylum procedure in Slovenia. 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[14] 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 contains additional information regarding the procedure for unaccompanied minors but not 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.[15] 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 at 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 translator. The application is lodged after the minutes are read and signed by all who were present at the lodging, confirming their content.
According to the amendments of the IPA, if a person expresses their intention to apply for international protection at the border, at an airport or at a port, the competent authority can only process it 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 procedure, the applicant is accommodated at the border, airport or port. The new amendments also prolonged the timeframe in which the Ministry has to make a decision from 14 days to three weeks. If the Migration directorate does not issue a decision within three weeks, or the applicant’s decision is processed in the regular procedure, the applicant is allowed entry into the territory. The fiction of pre-entry is also a novelty.[16] 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 new amendment introduced a new provision under which where there are exceptional circumstances, the Migration directorate can notify the asylum seeker to lodge the application in writing or electronically.[17] 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.[18] 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. In practice, officials of the Migration directorate are rarely 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 practice does not allow persons any privacy during the lodging of the application. In addition, since officials of the Migration directorate are rarely present while applicants fill out the form the interpreters are de facto leading the procedure, answering the questions and helping foreigners although they are not qualified and do not have the official authorisation for such conduct. The applicants are not able to list all of the reasons for asking for asylum on the forms, the main reason for this being literacy and lack of proper information and guidance. Nonetheless, their statements made in the written application are used in the credibility assessment. In 2022, 840 applications were lodged in writing and none was lodged electronically.[19]
[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.
[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. 7. 2019, available in Slovene language at: https://bit.ly/3r3nG7j.
[10] Articles 4 and 6(1) IPA.
[11] National Preventive Mechanism, Priporočila iz obiskov (preglednice), available at: https://bit.ly/3Lo1zSZ.
[12] Article 13(1) IPA.
[13] Articles 42(4)-(5) IPA.
[14] Article 5(1) IPA.
[15] Article 16(5) IPA.
[16] Article 43(1)-(2) IPA.
[17] Article 45(1) IPA.
[18] 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.
[19] Official statistics provided by the Migration directorate, March 2023.