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, the vulnerability of persons is assessed during the medical examination, which is conducted before the lodging of the asylum application.[2] Their vulnerability can also be identified during the lodging of the application or any time later pending the asylum procedure.[3]
In practice, physical vulnerability is assessed during the medical examination. In order to ensure the 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.[4] 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 mostly 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 which information will be added depends on the official of the Migration directorate. The practice is not consistent and information on vulnerability that does not include medical needs is often not added. The form is then checked by the responsible social worker of the UOIM in order to ensure that the 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 up. 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 is not as affected by the number of asylum seekers as by 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.[5] 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. Although all officials receive training on conducting interviews with vulnerable applicants, only 3 decision makers have the authority to make decisions on applications of vulnerable applicants.[6] 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 independently the Migration directorate is obliged to notify the social services.[7] 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.[8] In practice the Migration directorate will order an expert opinion before making the recommendation to the social services. In line with the decision of the Administrative Court the Ministry of 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 cannot be a party in the procedure and 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.[9]
In 2022, 2 asylum seekers were found to be unable to participate in the procedure independently and in need of a legal guardian. 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.
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)[10] is conducted and the Migration directorate attends the meeting. The information gathered in the SOPS is not automatically submitted in the asylum procedure.
The Inter-ministerial Working Group for Combating Trafficking in Human beings prepared the Action plan for combating trafficking in human beings[11] that includes preventative measures, detection, investigation and prosecution and a call for systemic solutions and legislative changes.
Special information sessions 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[12] and the staff of UOIM. In 2022 this information sessions were conducted by staff of UOIM. The aim of the sessions is informing potential victims of the dangers of trafficking, and at identifying potential victims. In general, these sessions should be conducted with all unaccompanied minors, single women and identified victims of trafficking. In practice, due to the lack of translators and the high absconding rate of asylum seekers, the information sessions are not carried out with most of the eligible applicants. 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 2022 PATS sessions were carried out with only 39 individuals out of which 29 were conducted with unaccompanied minors and 10 with single women. Only 9 SOPS were conducted.[13]
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 and is often not addressed during the accommodation. In addition, there is no separate accommodation facilities for vulnerable groups (LGBTQI+, single women, single women with children, unaccompanied minors) available in Slovenia.
Age assessment of unaccompanied children
If doubts about the age of the unaccompanied minor arise during the examination of the application for international procedure, a medical examination of the applicant can be ordered by the competent authority.[14]In the course of preparation of the opinion, the medical expert can also consult with experts of other fields.[15]
The medical examination for the purpose of age assessment can only be conducted if both the unaccompanied minor and their legal representative give written consent. If they refuse to give consent 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.[16]
If after obtaining the expert opinion, a doubt still exists as to the applicant’s age, they are considered a minor.[17]
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. Based on the results an opinion is written out.
In practice doubts as to the child’s age usually arise when the child’s statements do not match the submitted documents. In this case 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. 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.
In 2022, age assessment procedures (MRI and dental X-ray) were conducted in 2 cases. In both cases the assessment concluded that the individuals were minors.[18] 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.
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.
In 2022, age assessment was conducted for 2 unaccompanied minors.[19]
[1] Article 2(22) IPA.
[2] Article 13(1) IPA.
[3] Article 13(2) IPA.
[4] 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.
[5] Official statistics provided by Migration directorate, March 2023.
[6] Official statistics provided by the Migration drectorate, March 2023.
[7] 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.
[8] Article 19(1)-(2) IPA.
[9] Administrative Court Decision, I U 194/2021, available at: http://bit.ly/3D8moki.
[10] The SOPS protocol is available in Slovene at: https://bit.ly/39AXpdb.
[11] Action plan for combating traffickinh in human beings fort he 2021-2022 period, available at: https://bit.ly/3HA3hBZ.
[12] The Institute for African Studies website can be accessed here: http://bit.ly/3ZsusVJ.
[13] Official statistics provided by UOIM, February 2022.
[14] Article 17(2) IPA.
[15] Article 17(3) IPA.
[16] Article 17(4), (5) and (7) IPA.
[17] Article 17(6) IPA.
[18] Official statistics provided by the Migration directorate, March 2023.
[19] Official statistics provided by the Migration directorate, March 2023.