Author
General
The regular procedure is regulated in the International Protection Act. The determining authority must take a decision in the shortest time possible, and no later than six months from lodging the application. If it cannot issue a decision within six months, it needs to inform the applicant in writing about the delay, the reasons for the delay and the timeframe within which they can expect a decision. If it cannot make a decision in the estimated timeframe, it can again inform the applicant in writing about the reason for the delay and set a new timeframe within which they can expect the decision.[1] In practice, the reasons in writing are only given in very broad terms, e.g., “the authority is working on pending cases that were submitted earlier and on priority cases of vulnerable persons.”[2]
The determining authority can extend the 6-month time limit for no longer than 9 months: (a) if the applicant does not fulfil their obligations regarding the asylum procedure; (b) if the authority is faced with complex legal and factual questions; or (c) in case of a large number of applications for international protection.[3] According to the amended IPA, if the Migration directorate is to extend the time limit due to a large number of applicants for international protection, it has to notify the European Commission about this decision at least once per year and as soon as the reasons for the extension no longer exist.[4] It is evident from the proposal of the amendments[5] that the purpose of the provision is to implement article 49, paragraph 3 of the Asylum Procedures Directive. However, the IPA does not contain any objective criteria regarding the number of asylum seekers or other circumstances that would prompt the use of the provision.
The Ministry can further extend the additional 9-month time limit by no more than 3 months, under justified circumstances and in order to ensure a proper and comprehensive examination of the application.[6]
In addition, the determining authority may suspend the procedure if, due to an uncertain situation in the country of origin, which is expected to be of temporary nature, it cannot be expected from the determining authority to decide in any of the abovementioned timeframes. In this case, the determining authority needs to review the situation in the country of origin every 6 months, inform the applicant about the reasons for suspending his application and inform the European Commission about the suspension of all procedures regarding this country of origin. The maximum time period in which the application needs to be examined in this case is 21 months.[7] In practice, this provision has not been implemented.
If the application of the asylum seeker is processed in the Dublin procedure, the time limit for making a decision starts when it is established, in accordance with the Dublin regulation, that Slovenia is responsible for the examination of the application and the applicant is on its territory.[8]
There are no consequences set out in law for not respecting the time limit. In practice the time limits are not respected, and duration of the procedure is one of the biggest shortcomings of the Slovenian asylum system. In 2023, 7,261 applications for international protection were lodged and 1,147 asylum applications were pending by the end of the year. According to the official statistics, the average duration of the procedure in 2023 was 45 days[9] from lodging the application to the decision. In case of an in-merit decision the average duration of the procedure was 111 days.[10] Out of 129 positive decisions issued by the Migration directorate, 82 were issued in less than 6 months. Out of 55 decisions granting subsidiary protection, 52 were issued to Ukrainian citizens[11] whose claims were in practice prioritised.[12] Other asylum seekers had to wait longer for first instance decisions as 25 positive decisions were issued 6 -12 months after the lodging the application and 22 were issued one year after the lodging the application. In 2023, 165 negative in-merit decisions were issued, out of which 136 were issued in less than 6 months, 10 were issued 6-12 months after lodging the application and 15 were issued 1 year after lodging the application.[13]
In 2023, the refugee recognition rate was 25%, however it should be noted this refers to a limited number of persons (74 applicants were granted refugee status). The percentage of people obtaining subsidiary protection was 19% as 55 persons were granted subsidiary protection. Out of 55 persons, 52 were from Ukraine.[14]
For applicants who lodged their application after November 2021, when the amendments of the IPA came into force, negative decisions also contain a return decision. Applicants are given 10 days for voluntary return by law,[15] counting from the moment the decision becomes enforceable,[16] and are subjected to a one-year entry ban,[17] that comes into force only if the person does not leave Slovenia within the timeframe for voluntary return.[18] The decision also mentions that, should the applicant not leave Slovenia voluntarily, they will be removed from the territory.
Prioritised examination and fast-track processing
According to Article 48 of the IPA, the Migration directorate must prioritise cases of vulnerable persons with special needs or cases in which the applicant has been detained in the Asylum Home or the Foreigners Centre. However, in accordance with the amended IPA, only applications which are likely to be substantiated can be prioritised. However, this is often not respected in practice.[19] Official statistics on the number of prioritised applications are not gathered by the Migration directorate. In practice, Ukrainian applications for asylum were prioritised during 2023 as the majority of applicants were granted subsidiary protection in under 6 months.[20]
According to Article 49/1 of the IPA, in a fast-track procedure, the application can only be rejected as manifestly unfounded. 129 applications were processed in the fast-track procedure in 2023.[21] All applications processed in the fast-track procedure were rejected as manifestly unfounded. In 2023, 5 applications of unaccompanied minors were processed in a fast-track procedure and were rejected as manifestly unfounded.[22]
Personal interview
The law provides that the Migration directorate has to conduct the personal interview before taking a decision both in the regular and accelerated procedure, in the inadmissibility procedure and in the Dublin procedure.[23] The personal interview can be omitted if:[24]
- The Migration directorate can grant the applicant refugee status on the basis of evidence at its disposal;
- The applicant cannot participate in the procedure on their own due to a temporary or permanent mental disorder or illness or reasons which prevent them from understanding the meaning of the procedure.
- The applicant has otherwise provided relevant information for the process of determining the State responsible for examining the application, provided that the competent authority enables the applicant, before making a decision on his transfer to the responsible State, to send all relevant information needed for the correct decision on the responsible State.
Upon lodging their application, asylum seekers are given the date and time of the personal interview. In practice the personal interview is normally conducted within one month after the lodging of the application. Interpretation is provided by the Migration directorate. The personal interview is conducted with each adult asylum seeker individually. Children are not present during the parents’ personal interview. In case of a minor who is 15 years old or older and in case of an unaccompanied minor the legal guardian is present during the personal interview.[25] The personal interview with a minor under 15 years old can only be conducted in exceptional cases.[26] This is normally done in cases of unaccompanied minors in order to obtain the information needed for status determination.
In 2023 officials of the Migration directorate attended different trainings on vulnerability and work with unaccompanied minors. (see: Determining authority) While there is no special division for processing applications of vulnerable groups all decision makers attended the EUAA training on working with vulnerable groups and one official attended the training on working with unaccompanied minors.[27]
If the applicant has legal representation, their representative is also present. With the applicants’ consent, the official of the Migration directorate can also allow the presence of a UNHCR representative, another official or employee of the Ministry of the Interior (MOI), a researcher, a student or another public official if their presence is important for scientific work or their institution.[28] Since the September 2021 amendment of the IPA, applicants can no longer be accompanied by a person of their own choosing for emotional support during the interview.
The personal interview is carried out by the officials of the Migration directorate who have previously carried out the application procedure. During this interview (“first in-merit interview”), the officials of the Migration directorate aim to establish the identity of the applicant and accompanying family members, the applicant’s reasons for seeking asylum and all other facts and circumstances that are important for the decision.[29] During the personal interview, the applicant is expected to provide detailed grounds for asylum as well as to provide documents and other evidence.[30] Until June 2016, the first in-merit interview regarding grounds for asylum was conducted together with the lodging of the asylum application. Since then, the practice changed and this has been separated into two distinct phases in an attempt to make procedures more efficient, considering that more than half of the applicants abscond soon after the lodging of the application and a high percentage of applications is dismissed in Dublin procedures, meaning that many lengthy interviews regarding grounds for asylum were conducted in vain. It also enables the Migration directorate to lodge a higher number of applications daily. Nonetheless, delays in individuals being able to lodge an application are increasing each year, and this continues to be one of the bigger shortcomings of the asylum system in Slovenia. (See also: Lodging of the application)
Under the provisions of the IPA, the date of the personal interview is determined during the lodging of the application. The personal interview can be conducted immediately after the application is lodged only if: the application is processed in the border procedure; or if is evident from the information, given at the lodging of the application, that the grounds for processing the application as inadmissible or manifestly unfounded are met.[31] Notwithstanding the provisions of the IPA, the Ministry conducted personal interviews with Ukrainian asylum seekers immediately after they lodged the application for international protection in 2023. Their applications were not processed as inadmissible or manifestly unfounded as they were granted subsidiary protection.
The personal interview is completed after the minutes are read to the asylum seeker and signed by everyone present during the interview. The personal interview can also be recorded using electronic audio or video recording devices. In this case, the Migration directorate has to ensure that the recording is attached to the mentioning that the interview was recorded,[32] and the asylum seeker does not have to confirm the content of the minutes.[33] Electronic audio and video recording of personal interviews is not used in practice.[34] The IPA also allows in exceptional circumstances for the personal interview to be conducted through modern electronic media under the condition that secure data transmission is ensured.[35] This provision is also not used in practice.[36]
In line with the IPA, the official of the Migration directorate has to conduct the personal interview in a way that enables the applicant to fully present their reasons for seeking asylum and their personal circumstances, such as their cultural background, gender, sexual orientation and identity or vulnerability. While conducting the personal interview the official also has to take the abovementioned personal circumstances of the applicant into account.[37] The applicant can request that the interview be conducted and interpreted by, respectively, an official and an interpreter of the same gender.[38] The manner in which the personal interview is conducted depends on the official that conducts it. Due to the lack of female translators, translation by a person of the same gender is not often provided to female asylum seekers in practice while the Migration directorate arranges the caseload in a way that female officials conduct the majority of personal interviews with female asylum seekers.[39]
Following this first in-merit interview, the case is referred to a “decision-maker”, who decides if another in-merit interview is needed before an in-merit asylum decision is taken on the case. In some cases, this interview is omitted when the decision-maker can grant the applicant international protection on the basis of evidence at their disposal or reject the application. Before the final decision is issued, it has to be authorised by a responsible official of the sector for international protection procedures.[40]
Official statistics on the number of personal interviews is not gathered by the authorities.[41]
Interpretation
The IPA states that the assistance of an interpreter must be provided to a person who does not understand the official language during the lodging of the application and during the personal interview. In other justified cases, the assistance of an interpreter can be approved by the competent authority.[42]
The amendments to the IPA also foresee that applicants and refugee counsellors are entitled to the assistance of an interpreter during the procedure before the Administrative and Supreme Court. They are entitled to 2 hours or four translation pages per case, irrespective of the lengthiness of the procedure.[43] This provision was included in the amendments to the IPA as a result of a Supreme Court decision, stating that applicants are entitled to an interpreter if required for communication with their counsellors in preparation of the legal remedy.[44]
According to the IPA, the interpreter is bound to respect the rules of the Code of Conduct for interpreters and translators in the international protection procedures which is adopted by the Minister of the Interior. The Ministry also needs to inform the interpreters on the rules and specifics of interpreting in the international protection procedures and on their role in such procedures.[45] In 2023 the Ministry of the Interior did not organise any training on interpretation in the asylum procedures.[46]
Lack of qualified interpreters for certain languages is a systematic problem in Slovenia. The quality of interpretation varies considerably and, in some cases, does not meet required standards. 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. Although interpreters have to submit proof of language, education and references, 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 Migration directorate can use in the procedures.[47] In practice, Migration directorate does not monitor the quality of the translation. Often, interpreters operate in languages in which they are not fluent, but which are used in their countries of origin. As some cannot adequately write in these languages, decisions on asylum are often wrongly translated by interpreters. There were also cases where the translation stated that the person does not have the right to appeal the asylum decision. The lack of proper interpretation affects the credibility assessment of asylum seekers. Systematic changes in the selection of interpreters should be made in order to provide asylum seekers with proper interpretation in the asylum procedure and guarantee their ability to obtain international protection in Slovenia.[48]
The IPA foresees that, where possible, asylum seekers can request the presence of an interpreter of the same sex.[49] In practice, however, this is often not respected due to the lack of available female interpreters (See: Personal interview).[50]
Interpreting can be conducted through video conferencing if secure data transfer is guaranteed.[51] In practice this is used only for the interpretation of languages for which an interpreter cannot be provided in Slovenia. In this regard, the Ministry of the Interior can ask for help with interpretation from another Member State, EU institutions or other international organisation.[52] In 2023 the Migration directorate had contracts with 52 interpreters for different languages. In 2023, because of the lack of available interpreters for certain languages, interpretation through videoconference was used 20 times and, in all cases, provided by the EUAA online.[53]
Recording and report
Minutes are taken during the lodging of the application and during personal interviews. According to the law, the interview can also be recorded with audio/video electronic devices. In this case, the competent authority needs to ensure that the recording is attached to the official record which needs to contain a note that the recording has been made.[54] In practice, the audio/video recordings are not used. (See: Personal interview)
In practice the applicant’s statements are not written down verbatim; the interpreters often only summarize the applicants’ statements, and the interviewer rephrases the translated answers so as to include their important elements. Upon completion of the lodging of the application or of the personal interview, the interpreter has to translate orally the contents of the report to the applicant, who can then add comments. When the applicant signs the minutes after lodging the application, they officially obtain the status of an applicant for international protection in Slovenia. Others who are also present at the lodging (e.g., the official of the Migration directorate, interpreter, legal guardian, legal representative) also have to sign the minutes. Further changes cannot be made to the official minutes at a later time. The copy of the minutes is given to the applicants’ legal representative and to the applicant if they want, no specially request is needed.[55]
In practice, asylum seekers often complain upon second reading after the personal interview that their statements were wrongly interpreted, and that their statements were not properly read to them by the interpreter, meaning that they were not aware of the content of the minutes made during the interview. [56]
Appeal
First appeal
The legal remedy available to rejected asylum applicants is a judicial review, which is initiated by filing a lawsuit against the Ministry of the Interior.[57] In the proceedings that follow, the applicant for international protection acts as the plaintiff and the Ministry as the defendant. The Administrative Court of the Republic of Slovenia, with headquarters in Ljubljana, decides on the application for judicial review. The general rules of procedure are set out in the Administrative Dispute Act, while specific provisions particular to judicial review in international protection procedures are included in the IPA.
If the application was rejected in the regular procedure, the deadline for lodging the judicial review is 15 days. The Administrative Court has to decide on it within 30 days,[58] yet court proceedings are usually much longer in practice, sometimes taking up to one year or longer. The length of the procedure mostly depends on the complexity of the case. This practice continued in 2023.[59]
An application for judicial review against the rejection of an application in the regular procedure has automatic suspensive effect.[60] The review includes an assessment of both facts and points of law. Because a negative decision issued in the regular procedure also includes a return order the applicant must present arguments regarding asylum and return when lodging the judicial review. As no other separate legal remedy is prescribed for the return decision the applicant cannot lodge a separate judicial review after the court decision becomes final.
In practice, most asylum applicants that receive a rejection decision have difficulties filling for judicial review due to difficulties in obtaining a refugee counsellor. In 2020, the practice of accessing refugee counsellors changed and asylum seekers face challenges to secure legal representation since then (see Legal assistance on appeal).
In 2023, 165 negative decisions, 4,096 Dublin decisions, 45 detention orders and 11 inadmissibility decisions were issued. However, 278 appeals on asylum cases were lodged at the Administrative Court. 168 were lodged against negative asylum decisions and 27 against detention orders. In 2023, the Administrative Court issued 260 asylum-related decisions. In 218 of these cases, the Administrative Court conducted a hearing before making the decision.[61]
In 2021, the practice of the Administrative Court changed and oral hearings became more frequent due to the decision of the Supreme Court in X Ips 22/2020,[62] in which the court noted that an oral hearing has to be conducted if the facts of the case are disputed, and that the court has to make a decision regarding the suggested evidence at the oral hearing.[63] However, the fact that the oral hearing is conducted does not necessarily mean that the applicant will be questioned. Therefore, the oral hearings in some cases last less than 20 minutes. The practice of conducting oral hearings differs between judges based on their interpretation of the Supreme Court’s decision. In 2023, the Administrative Court carried out 218 oral hearings. In 47 cases, the Administrative Court made decisions without an oral hearing.[64]
Oral hearings are public. Decisions of the Administrative Court are published, with information on the applicant’s identity removed.[65]
In the vast majority of the cases where the Administrative Court finds faults in the first instance decision, it annuls the decision and returns the case to the first instance. The Migration directorate is then obliged to issue a new decision within 30 days.[66] However, this is not respected in practice. Instead, the repeated procedure in front of the Migration directorate again takes an excessively long time, which can bring the duration of the entire asylum procedure, from the time of lodging the application to the final decision, to several years. In addition, the Migration directorate often does not respect the decision or the instructions of the Administrative Court, which can further prolong the procedure.[67] In 2023, the Administrative Court did not grant international protection in any case.[68]
Onward appeal
The amendments to the IPA foresees the right of appeal to the Supreme Court against a decision of the Administrative Court,[69] as was already the case under the former IPA into force until 24 April 2016. The Supreme Court has to issue its decision within 30 days of receiving the appeal.[70] This right of appeal applies only to those asylum seekers who lodged their application after the amendments came into force. To be noted that applicants who lodged their application before the 24 April 2016 amendment of the former IPA can also appeal to the Supreme Court against a decision of the Administrative Court. In 2023, appeals to the Supreme Court were made in 72 cases.[71]
Asylum seekers who lodged their application between 24 April 2016 and 09 November 2021 cannot appeal against a decision of the Administrative Court. They can, however, challenge the decision by way of extraordinary legal remedies.
Decisions of the Supreme Court are published, with identifying information of applicants anonymised.[72]
In any case, applicants can appeal to the Constitutional Court. The appeal needs to be lodged within 15 calendar days of the applicant being served the decision of the Administrative Court or the Supreme Court.[73] Decisions of the Constitutional Court are published, with identifying information of applicants anonymised.[74] One constitutional appeal was lodged by a refugee counsellor in 2023.[75]
Legal assistance
Legal assistance at first instance
The IPA does not provide free legal representation for applicants in the first instance procedure. This was provided by a non-governmental organisation PIC – Legal Center for the Protection of human Rights and the Environment[76] financed by AMIF, under which most funding was provided by the European Commission and a smaller part by the Republic of Slovenia. In line with the project, PIC provided free legal help and representation to all asylum seekers during the project implementation. At the end of April 2020, the AMIF program concluded. This coincided with the formation of a new government in Slovenia that was less inclined to NGOs and therefore decided that they will not open a new call for the NGOs. Since then, legal advice and representation is no longer provided to all asylum seekers in Slovenia, however the NGO PIC continues to provide legal representation during the first instance. The PIC provides legal representation throughout the whole first instance procedure, which includes the lodging of the application and all subsequent personal interviews, legal assistance throughout the asylum procedure, preparation of country of origin information and help with accessing refugee counsellors when requests for judicial review need to be filed. In 2023, PIC assisted more than 776 individuals in the asylum procedure. PIC remains the only NGO providing legal assistance to asylum applicants.
The PIC has an office next to the Asylum Home in Ljubljana, the accommodation facility where the majority of applicants reside during the international protection procedure. PIC lawyers are available to asylum applicants by phone and email every working day between 8 am and 3 pm. Additionally, they also organise in-person meetings and visit the Asylum Home or its branches (Logatec, Student Dormitory Postojna, Kotnikova) and the Foreigners Centre.
In 2021, the Ministry of the Interior published a new AMIF call that excluded NGOs and was intended for individuals, particularly refugee counsellors, to provide free legal help and representation to asylum seekers during the first instance procedure. The program, however, did not foresee free legal help and representation to all asylum seekers: vulnerable and detained asylum seekers would be provided with free legal help and representation for lodging the application, while others could be provided with legal services during the personal interview, if they asked for representation. Non-governmental organisations were not able to apply for the call. The call was not public and was, instead, sent to a limited number of refugee counsellors that were selected by the Ministry of the Interior. Out of the applications made, six refugee counsellors were selected for the call based on the offered price and their references. The project lasted from 1 April 2022 to 30 November 2022. The project implementation was very inconsistent and discriminatory against vulnerable individuals. The PIC estimates that, throughout the project implementation, only 135 asylum seekers were provided with free legal help and representation, more than 60% being unaccompanied minors. During that period, 4,282 asylum seekers lodged an application for international protection, which means that less than 3% were provided with free legal under the AMIF project. Vulnerability assessment is not conducted before or during the lodging of the application and, therefore, access to free legal aid under this pilot project was not provided to the majority of eligible individuals. The project did not continue after 2022. The PIC therefore continues to be the only entity to provide free legal help and representation.
Legal assistance on appeal
Legal assistance in the appeal procedure is provided to applicants by refugee counsellors.[77] The latter are graduate lawyers, selected by public tender and appointed by the Ministry of the Justice for a term of 5 years. Before they can start undertaking cases, prospective refugee counsellors have to participate in a seminar on law of international protection for a minimum duration of 10 hours. If they do not have the required one year experience on refugee and asylum law or have not previously represented asylum seekers at least 3 times before the national courts, they also have to pass an exam before participating in the seminar.[78] In line with the amended IPA, they also have to pass a security check and obtain permission to access classified information.[79] Since refugee counsellors selected in the last call in 2023 were appointed based on the provisions of the former IPA, passing the security check and obtaining the permission was not needed at the last appointment. The provision has therefore not been used in practice.
There is no “merits test” on the basis of which the applicant can be refused legal assistance.
Applicants therefore have access to refugee counsellors who initiate judicial review on their behalf and represent them in court, free of charge. In January 2023, the list included 36 refugee counsellors.[80] A new public call was published in October 2021; the procedure of appointing new refugee counsellors was finalised by in March 2023. In January 2024 the list contained 43 refugee counsellors.[81]
The amendments of the IPA include several novelties regarding the work of refugee counsellors. According to the new provisions, refugee counsellors have to pass a security check and obtain permission to access classified information.[82] Both new provisions were heavily criticised by NGOs and lawyers as refugee counsellors are the only legal professionals in Slovenia required to do so in order to be able to represent their clients. As other legal representatives refugee counsellors are bound by confidentiality. In addition, they should have access to all the relevant information pertaining the case in order to be able to represent their clients. Since refugee counsellors are bound by the same legal standards as other legal representatives the provision is not necessary for the function of the refugee counsellors. In practice, the provisions have not been used as refugee counsellors have not been appointed based on the new provisions yet.
One of the most notable and problematic changes of the IPA are the new grounds for dismissal of the refugee counsellor. Under the new provisions, the refugee counsellor can be dismissed by the Ministry of Justice if it is established that they:
- are aware of the true identity of the asylum seeker;
- have the identity documents of the asylum seeker;
- are aware of the asylum seeker’s actual age, in case the asylum seeker claims they are underage; or
- are aware of facts based on which the asylum seeker is not eligible for refugee status or subsidiary protection and does not disclose these facts to the Migration directorate.[83]
According to the Administrative Court’s case law, the activities of refugee counsellors, as established by the IPA, are identical to the activities of attorneys.[84] As refugee counsellors carry out the same activities as attorneys, they share the same rights and obligations in relation to their clients;[85] including the obligation to respect attorney-client privilege under which the communication between the attorney and client is protected as confidential.[86] Breach of this obligation is considered a severe violation of the attorney’s duties according to the Constitutional Court.[87] In addition, the duty to protect attorney-client privilege is not the privilege of the attorney but his/her obligation, together with the protection of his/her clients’ constitutionally protected human rights, mainly the protection of privacy and personal rights, protection of secrecy of letters and other media and protection of personal data. This ensures the respect of the right to judicial review and the right to appeal.[88]
The provision that allows the refugee counsellor to be dismissed from the function is therefore in direct violation of the Slovenian Constitution. To date, the Slovenian Ombudsperson has not submitted the provisions to the Constitutional Court for review, despite NGOs’ repeated urge to do so. In addition, refugee counsellors submitted the provisions for review to the Advocate of the Principle of Equality. The Advocate of the Principle of Equality stated in his decision that asylum seekers have the right to an effective legal remedy and judicial review and that the provision of the IPA renders that right void and null. He noted that confidentiality between the asylum seeker and the refugee counsellor is the basis for exercising the right to an official legal remedy. The Advocate of the principle of Equality also issued a recommendation to the Ministry of the Interior to change the discriminatory provisions relating to the lawyer-client privilege of asylum seekers and refugee counsellors.[89] In February 2022, opposition parliamentarians submitted the provision to the Constitutional Court for constitutional review however the decision was not taken by the end of the year.[90]
In 2020, asylum seekers faced challenges in accessing the refugee counsellors. Until the end of April 2020, all asylum seekers were represented by PIC lawyers, who helped them securing a refugee counsellor to represent them before the Administrative Court. The AMIF project that enabled the PIC to represent asylum seekers was concluded at the end of April 2020. Since then, the Migration directorate provides asylum seekers with a list of refugee counsellors, together with a decision, in their language, by post mail. The list instructs asylum seeker to obtain the help of a refugee counsellor themselves or contact the Migration directorate to provide them with one. In practice, many individuals cannot access refugee counsellors before the deadline for the appeal. Detained asylum seekers face problems in accessing the help of refugee counsellors since many have no access to a phone. Lack of interpretation, mistranslated decisions and illiteracy also prevent asylum seekers from obtaining the representation of refugee counsellors. Asylum seekers therefore either leave Slovenia without filling for the judicial review or rely heavily on social workers, the PIC or other NGOs to help them find a refugee counsellor. There have also been reported cases of more than one refugee counsellor lodging an appeal at the Administrative Court against the decision of an asylum seeker in cases when the same asylum seeker would obtain the help of more than one refugee counsellor. In 2023 the Ministry of the Interior provided asylum seekers with refugee counsellors in 41 cases. In 12 cases refugee counsellors were appointed for representation against negative decisions, in 28 cases against inadmissibility decisions (including Dublin) and in 1 case against the rejection of the request for a subsequent application. In all other cases applicants obtained the help of refugee counsellors on their own. According to the official statistics 165 in merit negative decisions, 4,096 Dublin decisions, 11 inadmissibility decisions and 45 detention orders were issued in 2023.[91] However only 278 judicial reviews were lodged before the Administrative court during the year,[92] out of which only 98 were lodged against a negative decision.[93] Although both the UOIM and the Ministry provided information that judicial review was lodged against all detention orders issued, according to the official statistics only 27 judicial reviews against the detention order were received by the Administrative court.[94] Although the majority of Dublin decisions are issued to applicants who have already absconded and are no longer present in Slovenia and therefore cannot lodge the judicial review statistics shows that judicial review is not lodged in a high number of cases.[95]
Refugee counsellors are entitled to the assistance of a translator for the amount of 2 hours or 4 translated pages per case.[96] They are not entitled to reimbursement for extraordinary legal remedies,[97] however they are entitled to reimbursement for the appeal procedure before the Supreme Court.[98] They are still not entitled to reimbursement for representation before the Constitutional Court, the ECtHR or the CJEU.[99]
The financial compensation of the refugee counsellors is half the amount of the official attorney’s fee, same as for free legal aid.[100] In 2022, the law on Attorney’s Tariff changed. Since then, the fee for the free legal aid is the full attorney’s fee,[101] and refugee counsellors’ services are the only services compensated at half the tariff. According to informally obtained data at least two refugee counsellors initiated an administrative dispute, claiming discrimination, before the Administrative Court. By the end of the year the decisions have not been made.[102]
The remuneration and reimbursement of expenses for their work are granted by the Ministry of the Interior.[103] The refugee counsellor is not entitled to financial compensation in the following instances:
- if the applicant has left the premises of the Asylum Home or its branch (and not returned) three days before the appeal was lodged before the Administrative Court;
- the applicant retracts the power of attorney before the legal remedy is lodged;
- the refugee counsellor does not lodge the legal remedy in time; or
- another refugee counsellor has already lodged the legal remedy.[104]
In practice, refugee counsellors are often not fully reimbursed for their representation, as the Ministry does not approve the reimbursement claims in full or in the same manner as reimbursement claims are approved by the court in other proceedings.[105] In addition, refugee counsellors can only issue a reimbursement claim after the decision in the procedure becomes final.[106] This means that in practice, refugee counsellors can issue the reimbursement claims after several months or even years due to the lengthiness of the procedures.
In accordance with the new amendments, legal remedies before the Administrative and the Supreme Courts can no longer be free for all asylum seekers. The new provisions state that the Ministry of the Interior can demand reimbursement of costs, or a proportionate part of the costs, for refugee counsellors from asylum seekers with sufficient means of subsistence.[107] To this end, the Ministry can demand that asylum seekers submit documentation regarding their financial situation (e.g., bank statements). The following revenue can count as means of subsistence: revenue from employment contracts; unemployment benefits; revenue from other forms of work contracts; pension; revenue from self-employment; annuity, rent or lease; benefits rewarded by a court decision, with the exception of maintenance.[108] In 2023, the Ministry did not enforce the provision.[109]
[1] Article 47(1)-(2) IPA.
[2] Observation by the PIC.
[3] Article 47(3) IPA.
[4] Ibid.
[5] Državni zbor: Besedilo Predloga zakona o spremembah in dopolnitvah Zakona o mednarodni zaščiti, 10 December 2020, available in Slovenian at: https://bit.ly/3G3xBD0.
[6] Article 47(4) IPA.
[7] Article 47(5)-(6) IPA.
[8] Article 47(8) IPA.
[9] This includes procedures that were stopped due to the high absconding rate of applicants, and Dublin procedures.
[10] Official statistics provided by the Migration directorate, March 2024.
[11] Ibid.
[12] Observation by the PIC.
[13] Official statistics provided by the Migration directorate, March 2024.
[14] Official statistics provided by the Migration directorate, March 2024.
[15] Article 49(10) IPA.
[16] Article 49(11) IPA
[17] Article 49(13) IPA.
[18] Article 67(2) Foreigners Act.
[19] Observation by the PIC.
[20] Ibid..
[21] Official statistics provided by the Migration directorate, March 2024.
[22] Ibid.
[23] Article 46(1) IPA.
[24] Article 38(1) IPA.
[25] Article 37(2) IPA.
[26] Article 37(3) IPA.
[27] Information provided by the Migration directorate, March 2024.
[28] Article 37(4) IPA.
[29] Article 46(2) IPA.
[30] Article 21(2) IPA.
[31] Article 45(5) IPA.
[32] Article 37(7) IPA.
[33] Article 37(9) IPA.
[34] Observation by the PIC.
[35] Article 37(8) IPA.
[36] According to the PIC’s experience.
[37] Article 37(1).
[38] Article 37(6) IPA and Article 6(6) IPA.
[39] Observation by the PIC.
[40] Information provided by the Migration directorate March 2024.
[41] Information provided by the Migration directorate, March 2024.
[42] Article 6(1)-(2) IPA.
[43] Article 11(1) IPA.
[44] Supreme Court, Decision I Up 226/2017, 22. November 2017, available in Slovenian at: https://bit.ly/48rDrKM.
[45] Article 6(10)-(11) IPA.
[46] Official statistics provided by the Migration directorate, March 2024.
[47] Example of the Ministry’s public call: https://bit.ly/3IbUFRM.
[48] Observation by the PIC.
[49] Article 6(6) IPA.
[50] Observation by the PIC.
[51] Article 6(13) IPA.
[52] Article 6(12) IPA.
[53] Official statistics provided by the Migration directorate, March 2024.
[54] Article 37(7) IPA.
[55] Observation by the PIC.
[56] Ibid.
[57] Article 70(1) IPA.
[58] Articles 70(1) and 71(1) IPA.
[59] Information provided by the refugee counsellors, March 2024.
[60] Article 70(3) IPA.
[61] Official statistics provided by the Administrative Court, March 2024.
[62] Supreme Court decision, X Ips 22/2020, 26. 8. 2020, available in Slovenian at: https://bit.ly/3NqdKA8.
[63] The decision of the Supreme Court follows the decision of the Constitution Court Up 360/16-22, 18.6.2020 and the decisions of the ECtHR, Application No 32303/13, Judgment of 13 March 2018, Mirovni inštitut v. Slovenia, available at: http://bit.ly/3KKqNyk and ECtHR, Application No 58512/16, Judgment of 30 June 2020, Cimperšek v. Slovenia, available at: http://bit.ly/3mhzFS0.
[64] Official statistics provided by the Administrative Court, March 2024.
[65] Decisions can be found at: http://bit.ly/41xuspd.
[66] Article 64(4) Administrative Dispute Act.
[67] Observation by the PIC.
[68] Official statistics provided by the Administrative court, March 2024.
[69] Article 70(4) IPA.
[70] Article 71(4) IPA.
[71] Official statistics provided by the Migration directorate, March 2024.
[72] Available in Slovenian at: https://bit.ly/38vowWZ.
[73] Article 72 IPA.
[74] Available in Slovenian at: https://bit.ly/3sxUOrc.
[75] Official statistics provided by the Migration directorate, March 2024.
[76] PIC – Legal Center for the Protection of Human Rights and the Environment, available at: https://pic.si/.
[77] Article 9(1) IPA.
[78] Article 12 Rules on knowledge testing of candidates for refugee counsellors and on the training of refugee counsellors at the Judicial Training Centre.
[79] Article 9(4), indent 7 IPA.
[80] Ministry of the Interior, Imenik svetovalcev za azil / begunce, available in Slovenian at: https://bit.ly/3UuRaLT.
[81] Ibid.
[82] Article 9(4), intendant 7 IPA.
[83] Article 9(10) intendant 6 IPA.
[84] Administrative Court decision, U 2135/2004, 14. November 2005, available in Slovenian at: https://bit.ly/3yQq8W7; Administrative Court decision, I U 1858/2015, 16. November 2016, available in Slovenian at: https://bit.ly/39xHcpi.
[85] Ibid.
[86] Zagovornik načela enakosti, Ocena diskriminatornosti zakona ali drugega predpisa po 38. členu ZVARD, 10 June 2022, available at: http://bit.ly/3HgWEEP.
[87] Constitutional Court decision, Up-2530/06, 14. April 2010, available in Slovenian at: https://bit.ly/3yKzPFy; Constitutional Court decision, U I 115/14, 21, January 2016, available in Slovenian at: https://bit.ly/3Mvi7dj.
[88] Ibid.
[89] Zagovornik načela enakosti, Ocena diskriminatornosti zakona ali drugega predpisa po 38. členu ZVARD, 10 June 2022, available in Slovenian at: http://bit.ly/3HgWEEP.
[90] 24.ur: Določbe zakona o tujcih in mednarodni zaščiti v ustavno presojo, 10 February 2022, available in Slovenian at: https://bit.ly/3Pv1Yq7.
[91] Official statistics provided by the Migration directorate, March 2024.
[92] Official statistics provided by the Administrative court, March 2024. The statistics includes all judicial reviews lodged in 2023.
[93] Official statistics provided by the Migration directorate, March 2024.
[94] Information provided by the UOIM, Migration directorate and the Administrative court, March 2024.
[95] Observation by the PIC.
[96] Article 11(1) IPA.
[97] Article 11(4) IPA.
[98] Article 11(1) IPA.
[99] Ibid.
[100] Article 5(1) Rules on the access of applicants for international protection to refugee counsellors and on the remuneration and reimbursement of the expenses of refugee counsellors, Official Gazette of RS, No. 22/17.
[101] Amendments to the Attorney’s Tariff, available in Slovenian at: https://bit.ly/49PcPEN.
[102] Informally obtained data by refugee counsellors – cases are run under the numbers I U 1735/2023 and I U 1348/2023.
[103] Article 11(1) IPA.
[104] Article 11(2) IPA.
[105] Observation made by refugee counsellors.
[106] Article 11(4) IPA.
[107] Article 11(5) in relation to Article 11(1) if the IPA.
[108] Article 8(2)-(3) Rules on the access to refugee counsellors, remuneration and reimbursement of the expenses of refugee counsellors, and criteria for calculating the reimbursement of the expenses from the person with sufficient own means.
[109] Official statistics provided by the Migration directorate, March 2024.