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In Slovenia unaccompanied minors are subject to different kind of guardianship regimes based on their legal status in Slovenia. At their arrival in Slovenia they are appointed a legal guardian for a special case according to the provisions of the Family Code.[1] After the border procedure the minor is accompanied to the Foreigners Centre or another institution. This means that a new legal guardian for a special case is appointed based on the geographical location. In both cases the legal guardian for a special case is normally the Centre for social services. If the unaccompanied minor applies for international protection, then a new legal guardian (for unaccompanied minor asylum seekers) is appointed in line with the provisions of the International Protection Act.[2] The responsbility of the legal guardian ends when the child becomes of age or when the international procedure is finished. After the international procedure is finished and the minor either obtained international protection or is in the return procedure a legal guardian for a special case is again appointed in line with the provisions of the Family Code. This means that in practice unaccompanied children can be appointed at least 3 legal guardians during their stay in Slovenia.
Under Article 16(1) IPA each unaccompanied child is assigned a legal guardian before the procedure for international protection starts. This means that they have to form the first contact with the child right before they lodge the application for international protection. Therefore, legal guardians are not familiar with the child’s needs, prior procedures, vulnerability, reasons of asylum or any other relevant information before lodging the application. In addition, they are only provided with the help of translator if they can prove that they need the help due to reasons connected to one of the fields of their work. In practice, guardians are often unable to obtain the help of the translator when communicating with the child.
A legal guardian is not appointed if the child is married and older than 15 years.[3]
The legal guardian must accompany the unaccompanied child from the beginning of the application throughout the entire procedure. They are responsible for representing the minor in relation to the asylum procedure, health care, education, protection of property rights and rights related to reception.[4] The legal guardian is present during the child’s asylum application and all subsequent personal interviews and can ask additional questions beside those asked by the official and legal representative.[5] The legal guardian also has to consent, together with the applicant, to the age assessment procedure.[6]
The child can in addition be assisted by a PIC lawyer, as is the case for any other asylum applicant (see Regular Procedure: Legal Assistance). As legal help and representation is not automatically provided to all asylum seekers, legal guardians can be the only representatives of the child, responsible for the child’s international protection claim. This means that they have to pose relevant questions during the lodging of the application and subsequent personal interviews, prepare COI and perform other relevant acts during the procedure although they have not received any training on how to do it. Legal guardians therefore rely heavily on the help of NGOs. In 2021 PIC assisted 177 children in the procedure.
Candidates for legal guardians for unaccompanied children are appointed to the list of legal guardians upon applying to the public tender. One cannot be appointed as a legal guardian if they have been deprived of parental rights, if they do not have capacity to contract, if their interests are in conflict with the interests of the child or if, due to their personal characteristics or relationship with the child or their parents, it cannot be expected that they will correctly perform their duties as legal guardians.[7] In practice, the fitness of guardians to perform their duties with a view to a positive involvement in the child’s procedure and care has raised questions in some cases. In one case, the social services removed a legal guardian from the list. In 2020 the UOIM sent negative reports about three legal guardians to social services. The social services initiated the procedure of objection to the work of the three guardians based on the report regarding their work made by the UOIM. The procedures were completed in 2021 and no legal guardian was suspended from the list.
According to the amendments of the IPA that came into force in 2021, legal guardians can be removed from the list in case they do not inform the Ministry of Interior about the real identity of the child, do not submit the child’s documents into the procedure, do not disclose the real age of the child that claims to be a minor or do not disclose any other information that can be relevant in the status determination procedure.[8] The article was submitted to the Advocate for the Principle of Equality who found that the provision was discriminatory and issued a recommendation that the provision is removed. The Advocate concluded that the provision is in contradiction with the main purpose of legal guardianship which is the establishment of a confidential relationship between the child and the legal guardian.[9] No legislative changes were made by the end of the year however the provision was submitted to the Constitutional Court for review by the parliamentarians.[10]The decision was not made by the end of the year.
Legal guardians are compensated for their work if it relates to the asylum procedure, health care, education, protection of property rights and rights related to reception. They are not compensated for visiting the child or performing any kind of necessary duties not related to these five areas. Although legal guardians are compensated for their work legal guardianship is not a regular form of employment meaning that legal guardians can only perform their duties outside of their regular employment, if they are self-employed or retired. In practice most of the duties of legal guardians have to be performed during working hours therefore only a few legal guardians are actually able to perform their duties and are willing to represent children. Thus, the fluctuation in legal guardians is high and the authorities have trouble finding persons eligible and willing to become legal guardians.
Before being appointed as legal guardians, candidates also have to attend a special training organised by the Faculty of Social Work, University of Ljubljana, which includes family law, social work, psychology, protection of children’s rights, protection of human rights and asylum law.[11] They receive 40 hours of training (16 hours of theory and 24 hours of practice). The training does not include an in-depth training on international protection and the procedure in Slovenia. In practice, this means that they face difficulties when representing the children in the international procedure. In addition, legal guardians have to attend training every 3 years.[12]
The absconding rate of unaccompanied children in Slovenia is very high, which seems to be mostly due to children having family in other Member States or, more generally, Slovenia not being their destination country. The absconding of unaccompanied minors continued to be a significant issue in 2022. Out of 253 unaccompanied minors that lodged the application, 251 absconded before the first instance decision. The absconding rate was therefore 99% in 2022. Unaccompanied minors represented 4% of asylum seekers in 2022.[13]
[1] Article 267 of the Family Code.
[2] Article 6(1) IPA.
[3] Article 16(9) IPA.
[4] Article 16(1) and (3) IPA.
[5] Article 14 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] Article 17(4) IPA.
[7] Article 18(2) IPA and article 181 Marriage and Family Relations Act, Official Gazette of RS, No. 69/04 and subsequent amendments.
[8] Article 18(8) IPA.
[9] Advocate for the Principle of Equality, opinion available at: https://bit.ly/3nDaYR6.
[10] 24.ur, Določbe zakona o tujcih in mednarodni zaščiti v ustavno presojo, available at: https://bit.ly/3Pv1Yq7.
[11] Article 18(3) IPA.
[12] Article 6(2) Decree on the implementation of the statutory representation of unaccompanied minors and the method of ensuring adequate accommodation, care and treatment of unaccompanied minors.
[13] Official statistics provided by the Migration directorate, March 2022.