Author
Categories of people considered to be vulnerable are similar to those listed in Article 21 of the recast Reception Conditions Directive, the only difference being that the IPA definition does not explicitly include persons with serious illness, although the definition is open to categories not listed.[1]
Screening of vulnerability
According to the law, vulnerability is assessed during a medical examination, which is conducted before the lodging of the asylum application.[2] Vulnerability can also be identified during the lodging of the application or at any later time during the asylum procedure.[3]
In practice, physical vulnerability is assessed during the medical examination.[4] In order to ensure that proper support is given to vulnerable asylum seekers, the Migration directorate and the UOIM have to share information regarding the existence and nature of identified special needs of asylum seekers.[5] During the lodging of the application, the Migration directorate states the detected vulnerability or identified special needs of the applicant on a form that is later sent to UOIM when the applicant is accommodated. The Migration directorate mainly collects basic information on the form such as medical needs of the applicant. The form is normally filled out before the application is lodged and the information included in the form depends on the official of the Migration directorate. The practice is not consistent and information on vulnerability that does not require medical needs is often not added. The form is then checked by the responsible social worker of the UOIM in order to ensure that proper support regarding accommodation is provided to the applicant.
Although the vulnerability of the applicant can also be identified by the Migration directorate, during the personal interview, the above-mentioned form is not filled in. This means that the UOIM may not be aware of the detected vulnerabilities.
The identification of vulnerability is therefore largely based on the applicant’s statements during the lodging of the application and the personal interview. Since no special procedure for assessing vulnerability is in place, the vulnerability assessment does not depend on the number of asylum seekers but on other factors like the person’s willingness to share sensitive personal information and the capacity of officials to detect special needs. In theory, all caseworkers should be responsible for identifying vulnerable applicants and for examining their asylum claim, but the procedure is not in place and this does not happen in practice.
The Migration directorate does not collect statistics on vulnerable asylum seekers.[6] In practice, the vulnerability assessment is also not part of the final decision on asylum and vulnerability of the applicants is often not considered as a factor in the final decision. All officials receive training on conducting interviews with vulnerable applicants.[7] In practice, since the vulnerability assessment is not made, other decision-makers also make decisions on applications of vulnerable applicants.
If it is established that the asylum seeker is not able to participate in the asylum procedure, the Migration directorate is obliged to notify the social services.[8] Based on the recommendation of the Migration directorate and a medical examination, social services have to immediately appoint a legal guardian to the asylum seeker.[9] In practice the Migration directorate will order an expert opinion before making the recommendation to the social services. In line with a decision of the Administrative Court, the Ministry of the Interior is obliged to make sure that the person acting as a party in the procedure has the legal capacity to understand the procedure. In case they do not, the applicant has to be represented by an appointed legal guardian. The procedure conducted with a person without the legal capacity to be a party in the procedure and without the representation of a legal guardian renders the decision made in the procedure unlawful.[10]
In 2023, one asylum seeker was found to be unable to participate in the procedure independently and in need of a legal guardian.[11] Due to the position of the Migration directorate that a legal guardian can be paid only if they represent an unaccompanied minor and not if they represent an adult that is not able to independently participate in the procedure, legal guardians are not generally willing to represent such adults. In addition, legal guardians are only trained to represent unaccompanied minors, and not adults.[12]
Vulnerability can also be detected by the UOIM social workers where the applicant is accommodated. Information on detected vulnerability is not shared with the Migration directorate unless the Standard operative procedure for the prevention and action in cases of sexual and gender-based violence (SOPS)[13] is conducted and the Migration directorate attends the meeting. The information gathered in the SOPS is not automatically submitted in the asylum procedure.
In 2023, due to a large increase of arrivals identification of unaccompanied minors in mixed migration flows posed a serious systematic issue.[14] According to the official statistics only 46 unaccompanied minors lodged the application for international protection in 2023.[15] Statistics on the number of unaccompanied children who expressed the intention for asylum and are processed in the preliminary procedure is not gathered. Statistics of the number of unaccompanied children accommodated in the Asylum home or its branch before they lodge the application is also not gathered.[16] Lack of statistics on the number of unaccompanied children who are processed by the police but abscond before lodging the application hinders the possibility to thoroughly assess the scope of the issue.
In practice, unaccompanied minors were often not identified as such during the preliminary procedure. If a child stated during the police procedure that they are of age, they were processed as an adult. During the year, children as young as 14 would be processed as adults by the Police and were only identified as unaccompanied minors in the Asylum Home or its branch. In addition, children were often not processed by the Police as unaccompanied but as traveling with an adult family member such as a cousin or uncle. This meant that before lodging the application children were often accommodated in the Asylum Home, which is inappropriate for accommodating children (see: Reception conditions) instead of its branches Logatec or Student Dormitory Postojna that are a little bit more suitable for children.[17]
The issue of unidentified unaccompanied minors was also addressed by the Ombudsperson. The Police Directorate Novo mesto operates with 6 police stations and one for Compensatory Measures.[18] The Police Directorate Novo mesto processed 78,5% irregular crossings of the border in 2023 (47.543 irregular crossings).[19] During the visit of the police station for Compensatory Measures in 2023 the Ombudsperson noted that the Police observed that unaccompanied children often claim to be of age in order to not be separated from the group they are traveling with. While they can obtain the help of 3 officers from the Specialized unit for border control they aim to train 5 more police officers for vulnerability identification who would be permanently stationed at the police station.[20]
The National Working Group for Combating Trafficking in Human beings prepared a two-year Action plan for combating trafficking in human beings,[21] which foresees preventative measures, detection, investigation and prosecution and a call for systemic solutions and legislative changes. In practice, applicants who are victims of trafficking in human beings are rarely identified or recognized as such. In practice, the Police does not identify asylum seekers as victims of trafficking as it is their position that the criminal act was committed before entering Slovenia therefore the victim ceased to be a victim as the criminal act has already been committed. Due to this position, traffickers are often processed for smuggling instead of trafficking while the risk of being a victim of trafficking in the future is not assessed. Issues regarding the identification of victims of trafficking were also highlighted in the 2023 GRETA report.[22] The report highlighted the need for additional training of relevant stakeholders, engaging a sufficient number of trained interpreters, providing information to asylum seekers as well as adequate and safe living conditions. Lack of effective identification of victims of trafficking was also addressed by the Committee against Torture during the 2023 fourth periodic review. The Committee recommended that authorities should intensify its efforts to prevent and combat trafficking in persons, including by strengthening the procedure for early identification and referral of victims among persons in vulnerable circumstances, such as asylum-seekers and migrants, including unaccompanied minors, and by providing specialized assistance to children who are victims of trafficking, including adequate accommodation in facilities adapted to their specific needs. It should also enhance its efforts to investigate and prosecute all cases of trafficking and provide adequate redress to the victims.[23]
In order to ensure that people are informed about the dangers of human trafficking, the UOIM started a project through which special information sessions (called PATS[24]) following the asylum application should be conducted with unaccompanied children and other potential victims of trafficking. Until 2022, the project was implemented both by the NGO Institute for African Studies and UOIM staff. In 2023, this information sessions were conducted by Društvo Ključ[25] an NGO specialised in human trafficking. The aim of the sessions was informing potential victims of the dangers of trafficking, and to identify potential victims.
If someone is identified as a victim of trafficking, the SOPs are conducted, during which a plan for further action and support is made and the victim is offered additional support. In 2023, Društvo Ključ provided information to 2,981 applicants. Individual PATS informational sessions were carried out with 457 individuals, out of which 59 were women and 394 were men. Out of 2,981 applicants who received the information 465 were minors. [26] SOPs were not conducted in 2023.[27]
Lack of vulnerability screening is one of the biggest shortcomings of the asylum system. Since a vulnerability assessment is not conducted, vulnerability is also not taken into account in the decision.[28] In addition, there is no separate accommodation facilities for vulnerable groups (LGBTQI+, single women, single women with children) available in Slovenia. In April 2024 the separate accommodation centre for systemic accommodation of unaccompanied children was opened in Postojna.
Age assessment of unaccompanied children
If doubts about the age of an unaccompanied minor arise during the examination of the application for international protection, a medical examination of the applicant can be ordered by the competent authority.[29] In the course of preparation of the opinion, the medical expert can also consult with experts of other fields.[30]
The medical examination for the purpose of age assessment can only be conducted if both the unaccompanied minor and their legal representative give their written consent. If they refuse without stating a valid reason, the applicant is considered to be an adult. However, the decision to reject their application cannot be based solely on that refusal.[31]
If after obtaining the expert opinion, a doubt still exists as to the applicant’s age, they are considered a minor.[32]
In 2018, the Ministry of the Interior concluded negotiations with medical institutions that are to perform age assessment examinations. Before the agreement, the age assessment procedure was not used in practice. Age assessment is conducted by the Institute for Forensic medicine that is part of the Medical Faculty of the University of Ljubljana. Age assessment includes a physical examination, an MRI of the applicant’s wrists and collar bones, and a dental X-ray. Members of civil society are concerned that conducting such age assessment is unethical and unsafe. An opinion is then issued based on the results of the assessment.
In practice, due to the large cost of medical examinations and the logistical problems owing to the remote locations where MRI can be conducted, the Migration directorate only conducts age assessments in exceptional cases.[33] In 2023, identification of unaccompanied minors in mixed migration flows posed a serious systematic issue. In practice, young children would identify as adults and adults would identify as unaccompanied minors. In both cases, they would be processed by the Police based on their statements even in cases when it was evident that the statements were false.[34] Some were then identified as unaccompanied minors in the Asylum Home or during the asylum procedure (see: Screening for vulnerability). In 2023 an age assessment procedure (MRI and dental X-ray) was not conducted.[35]
In practice, doubts as to the child’s age usually arise based on the person’s appearance or when the child’s statements do not match the submitted identity documents. In case the doubt arises based on the child statements, the Migration directorate sometimes conducts an interview in order to clear the inconsistencies before ordering the age assessment. The law stipulates that age assessment can only be conducted in case there are doubts as to whether the child is underage and not in cases when there is doubt about a child claiming to be of age. [36] Therefore, in practice, adults claiming to be minors can be accommodated together with unaccompanied children until the assessment is made. Due to the lengthiness of the procedure this could happen for up to a couple of months. In addition, children claiming to be of age can be accommodated with adults since age assessment cannot be made in their case.
The applicant cannot appeal against the results of the age assessment; however, the applicant can argue issues relating to age assessment procedure in the appeal procedure against the international protection decision.
[1] Article 2(22) IPA.
[2] Article 13(1) IPA.
[3] Article 13(2) IPA.
[4] Obsevation by the PIC.
[5] Article 13 (1) 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.
[6] Official statistics provided by Migration directorate, March 2024.
[7] Official statistics provided by the Migration drectorate, March 2024.
[8] Article 13(2) 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] Article 19(1)-(2) IPA.
[10] Administrative Court Decision, I U 194/2021, 6 September 2021, available in Slovenian at: http://bit.ly/3D8moki.
[11] Official statistics provided by the Migration drectorate, March 2024.
[12] Obsevation by the PIC.
[13] The SOPS protocol is available in Slovenian at: https://bit.ly/39AXpdb.
[14] Observation by the PIC.
[15] Official statistics provided by the Migration drectorate, March 2024.
[16] Information provided by the Ministry of the Interior and the UOIM, March 2024.
[17] Observation by the PIC.
[18] Police, List of police stations and their contacts, available at: https://bit.ly/3uGHPYN.
[19] Official police statistics, available at: https://bit.ly/3WvTZfq.
[20] National Preventive Mechanism, Priporočila iz obiskov (preglednice), available at: https://bit.ly/3l6Xhs0.
[21] Government of Slovenia, Action plan for combating trafficking in human beings for the period 2023 – 2024, 18 December 2003, available at: https://bit.ly/444ZeHP.
[22] GRETA, Third evaluation round: Access to justice and effecive remedies for victims of trafficking in human beings, 15 June 2023, available at: https://bit.ly/3wrKvtN.
[23] UN Committee against Torture: Concluding observations on the fourt periodic report of Slovenia; 7 December 2023, available at: https://bit.ly/3OY4B5k.
[24] PATS is short for Identification, Assistance and Protection of victims of trafficking and/or SGBV.
[25] Društvo Ključ, available at: https://bit.ly/49KgzHZ.
[26] Information provided by Društvo Ključ, April 2024.
[27] Official statistics provided by UOIM, March 2024.
[28] Observation by the PIC.
[29] Article 17(2) IPA.
[30] Article 17(3) IPA.
[31] Article 17(4), (5) and (7) IPA.
[32] Article 17(6) IPA.
[33] Observation by the PIC also evident from the official statistics.
[34] Observation by the PIC.
[35] Official statistics provided by the Migration directorate, March 2024.
[36] Article 17(2) IPA.