Author
General (scope, time limits)
The possibility of border procedures was added to the existing legal provisions on airport and port procedures in the IPA in 2016.[1]
Although regulated in law, the procedure at the border, airport or port is not used in practice. There are two border transit zones in Slovenia, one at the Jože Pučnik Airport in Ljubljana and one at Edvard Rusjan Airport in Maribor. Persons can be detained in both transit zones for up to 48 hours in accordance with the State Border Control Act. In the case that a person is detained for more than 6 hours, a detention order has to be issued by the police. The person has the right to appeal against the detention order, and the right to free legal representation in order to be able to do so.[2]
Whilst detention occurs in the transit zones this is not for the purpose of the border procedure (see Detention conditions). If a person expresses the intent to apply for international protection, detention is stopped and the person is processed in the preliminary procedure. People who apply for international protection at the border, airport or port are, therefore, first processed by the Police in the preliminary procedure and then transferred to the Asylum Home in Ljubljana or its branch in Logatec as soon as possible as part of the Regular Procedure. In practice individuals arriving at the border, airports and sea ports face issues in accessing the asylum procedure (see Access to territory and pushbacks and the “preliminary procedure”).
The reason the procedure is not used in practice is mainly practical. The Asylum Home and the Migration directorate branch offices near the Asylum Home serve as a reception centre and host the majority of the asylum procedure. The majority of services intended for the applicants are therefore provided there (e.g. social services, legal representation etc.). Such infrastructure is currently not in place at the border, airport or port. The provision was included in the IPA to enable the procedure on the border, airport or port in case of a large number of applicants, as explained in the preamble to the draft of the IPA.
According to the amendments of the IPA, the Migration directorate can only process applications at the border, airport or port:
(a) in the admissibility procedure;
(b) in the accelerated procedure if there are grounds for rejecting the application as manifestly unfounded, or
(c) if the person lodged the request for a subsequent application and has not submitted any new evidence or listed any new circumstances that significantly increase their chance to be granted international protection.[3]
The decision in the border, airport or port procedure has to be taken within three weeks. If the decision is not taken within three weeks or if the application needs to be examined in a regular procedure, the applicant is allowed entry to Slovenia.[4] This is also a novelty introduced by the new amendments of the IPA. It is not clear from the wording of the provisions which authority – the Migration directorate or the Police – would make the decision regarding entry to the territory. In practice this is made by the Police, since the Police are normally the first to process the individual in the preliminary procedure. The general rule that an individual cannot be deported from the country from the moment they have expressed the intention to apply for international protection, still applies in the border procedure.[5]
In case of a large number of applicants who express the intention to apply for international protection at the border, airport or port, they can be accommodated near the border under the condition that material reception conditions are guaranteed.[6]
Another novel provision introduced by the amendments relates to the treatment of vulnerable persons with special needs. The provision states that if a vulnerable person with special needs lodges an application in the border procedure, the Migration directorate should give priority to the protection of the person’s health, including their mental health, and has to ensure that they are regularly monitored and have adequate assistance, taking into account their special position.[7]
Personal interview
The border procedure is not applied in practice. According to the law, the rules for personal interviews are the same as in the Regular Procedure: Personal Interview and Dublin: Personal Interview.
Appeal
In the border procedure, the same rules for appeals apply as in the relevant procedures conducted on the territory (see Dublin: Appeal, Admissibility Procedure: Appeal and Accelerated Procedure: Appeal).
Legal assistance
The law does not contain any special provisions regarding legal representation of asylum seekers during the border procedure. Free legal representation during the first instance procedure is not guaranteed by the IPA, while support and legal assistance in the appeal procedure is provided to applicants by refugee counsellors.[8]
[1] Article 43 IPA.
[2] Article 32 of the State Border Control Act, Official Gazette of RS, no. 35/10 and subsequent changes.
[3] Article 43(1) IPA.
[4] Article 43(1) IPA.
[5] Article 36(1) IPA.
[6] Article 43(2) IPA.
[7] Article 43(4) IPA.
[8] Article 9(1) IPA.