Regular procedure

Slovenia

Country Report: Regular procedure Last updated: 31/03/21

Author

General (scope, time limits)

The determining authority has to take a decision in the shortest time possible but no later than six months from lodging the application. If it cannot make a decision in six months, it needs to inform the applicant in writing about the delay, the reasons for the delay and the time frame in which he or she can expect a decision. If it cannot make a decision in the estimated time frame, it can again inform the applicant in writing about the reason for the delay and set a new time frame in which he or she 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.”

The determining authority can extend the 6-month time limit for no longer than 9 months: (a) if the applicant does not fulfil his or her 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.[2] It can further extend this time limit for no more than 3 months under justified circumstances and in order to ensure proper and comprehensive examination of the application.[3]

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 make a decision in any of the above-mentioned time frames. 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.[4]

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 2020, 3,548 applications for international protection were lodged and 274 asylum applications were pending by the end of the year (compared to 3,821 and 329 applications respectively in 2019). According to the official statistics, the average duration of the procedure in 2020 was 59 days.[5] In practice, due to the COVID-19 pandemic, the duration of the asylum process continued to increase. Figures in recent years indicate important delays in the procedure. In 2019, the number of people waiting for the first instance decision increased with approximately 30% of asylum seekers waiting for their first instance decision for more than six months.[6] According to the official statistics, the average duration of the procedure in 2019 was 44 days,[7] however this includes procedures that were stopped due to the absconding of the applicants and Dublin procedures. Due to a high absconding rate (93%) and Dublin procedures the number is significantly lower than the actual duration of the regular procedure.

In 2020, the overall refugee recognition rate dropped from 38% in 2019 to 28.6% in 2020. This decrease is particularly striking for certain nationalities. For Afghan applicants, the recognition rate decreased from 66.67% in 2019 to 40% in 2020.; for Iranian applicants from 72.7% in 2019 to 50% in 2020; and for Iraqi nationals from 83.3% in 2019 to 62.5% in 2020 The lack of legal representation and the new way of providing information through a video presentation are likely to be two of the key factors that affected this drop in the recognition rate of the refugee status.

Prioritised examination and fast-track processing

According to Article 48 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 Aliens Centre. These are the only cases that can be prioritised.  However, this is often not respected in practice. Official statistics on the number of prioritised applications is not gathered by the Migration directorate.

According to Article 49/1 of the IPA, in a fast-track procedure, the application can only be rejected as manifestly unfounded. 122 applications were processed in the fast-track procedure in 2020 out of which one application was submitted by an unaccompanied minor.[8]

 

Personal interview

The law provides that the Migration directorate conducts the personal interview before taking a decision both in the regular and accelerated procedures.[9] The personal interview can be omitted if:[10]

  • The Migration directorate can grant the applicant international protection on the basis of evidence at its disposal;
  • The applicant cannot participate in the procedure on his or her own due to a temporary or permanent mental disorder or illness or reasons which prevent him or her from understanding the meaning of the procedure.

In practice, following the lodging of the asylum application all asylum applicants are invited for a personal interview, which is carried out by the officials of the Migration directorate that have previously carried out the application procedure. This normally occurs within one month of the lodging of the application. During this interview (“first in-merit interview”) the applicant is expected to provide detailed grounds for asylum. Until June 2016, the first in-merit interview regarding grounds for asylum was conducted together with the lodging of the asylum application. Since then, this has been separated into two discrete phases in an attempt to make procedures more efficient, considering that about half of the applicants abscond soon after the lodging of the application and about 20% have their applications dismissed in Dublin procedures, meaning that many lengthy interviews regarding grounds for asylum were conducted in vain.

Following the first in-merit interview, the case is referred to a “decision-maker”, who organises another in-merit interview before he or she takes an in-merit asylum decision 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 as manifestly unfounded. Before the final decision is issued, it has to be authorised by a responsible official of the sector for international protection procedures.[11]

Although there is no official statistics on the number of personal interviews, the Ministry of Interior estimates that approximately 400 personal interviews were conducted in 2020.[12] There was no particular change in the way of conducting interviews as a result of COVID-19, i.e. they continued to be carried out in person.

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.[13] According to a recent Supreme Court decision, applicants are also entitled to an interpreter if required for communication with their refugee counsellors in preparation of the legal remedy.[14] In practice, the Migration directorate does not provide interpreters to refugee counsellors.

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.[15]

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. 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. The Migration directorate does not monitor the quality of the translation. In practice, interpreters are required to operate in languages in which they are not fluent, but which are used in their countries of origin. As they cannot 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 protect their ability to obtain international protection in Slovenia.

The IPA states that upon the request of the asylum seeker, if possible, they can be provided with the interpreter of the same sex.[16] In practice this is often not respected due to the lack of available female interpreters.

Interpreting can be conducted through video conferencing if secure data transfer is guaranteed.[17] In practice this is used only for the interpretation of languages for which an interpreter cannot be provided in Slovenia and has so far only be done in a few cases. The Ministry of Interior can also ask for help with the interpretation from another Member State, the institution of the European Union or other international organisation.[18]

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.[19] In practice the audio/video recordings are not used.

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. At the end of the application or personal interview the interpreter has to orally translate the contents of the report to the applicant, who can then add comments. When the applicant signs the minutes after lodging the application, he or she officially obtains the status of an applicant for international protection in Slovenia. Further changes cannot be made to the official minutes at a later time.

In practice, asylum seekers often complain upon second reading 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.

Appeal

The legal remedy available to asylum applicants is judicial review, which is initiated by filing a lawsuit against the Ministry of the Interior.[20] 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 needs to decide on it within 30 days,[21] yet court procedures 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. No particular delays at appeal stage were reported in 2020 due to COVID-19 and courts continued their activities throughout the year.

An application for judicial review against the rejection of an application in the regular procedure has automatic suspensive effect.[22] The review includes an assessment of both facts and points of law.

In practice, most asylum applicants that receive a rejection decision file for judicial review. They are represented by an appointed refugee counsellor.  In 2020 the practice of accessing refugee counsellors has changed and asylum seekers faced challenges in obtaining the representation of refugee counsellors (see Legal assistance on appeal).

The Administrative Court reaches its decision on the basis of written documentation and does not hold an oral hearing, except in rare cases. When hearings do occur, they are public. Decisions of the Administrative Court are published, with information on identity of applicants removed. [23]

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. In 2020 the Administrative Court annulled the decision and returned the case to the first instance 151 times. In 8 cases the court replaced the decision of the Ministry with its own and granted refugee status to the applicant.[24] When the case is returned to the first instance, the Migration directorate is obliged to issue a new decision within 30 days.[25] 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.

The decision of the Administrative Court is final and can only be challenged with extraordinary legal remedies, including an appeal to the Constitutional Court which needs to be lodged within 15 days since the applicant was served the decision of the Administrative Court.[26] Prior to the entry into force of the IPA on 24 April 2016, judicial review comprised of two instances, meaning that the Administrative Court decision could be appealed to the Supreme Court of the Republic of Slovenia. This option now only exists for old pending cases where the asylum application was lodged prior to 24 April 2016.[27]

In 2020, 445 appeals were lodged at the Administrative Court regarding asylum.[28] 167 were lodged against negative asylum decisions.[29] In 2020 the Administrative Court made 427 decisions regarding asylum. In 169 cases the Administrative Court conducted a hearing before making the decision.[30]

Legal assistance

Legal assistance at first instance

Although the IPA does not provide free legal representation for applicants in the first instance procedure, this was provided by a non-governmental organisation financed by AMIF, under which most funding was provided by the European Commission and a smaller part by the Republic of Slovenia. At the end of April 2020, the AMIF program concluded. This coincided with the formation of a new government in Slovenia that decided that they will not open a new call for the AMIF project. Since then, legal advice and representation is no longer provided to all asylum seekers in Slovenia.

The NGO providing legal representation during the first instance is the Legal-informational centre for non-governmental organisations (PIC). PIC provides legal representation throughout the whole first instance procedure which includes representation during 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 judicial review needs to be lodged. In 2020 PIC represented more than 1,342 individuals in the asylum procedure.

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 visit the Asylum Home and all three branch facilities for accommodation of applicants according to a set schedule: Asylum Home once per week, Kotnikova once per week, Logatec once per week and Student Dormitory Postojna once per month. If needed, they also visit the Asylum Home and its branches outside the set schedule.

 Legal assistance on appeal

Legal assistance in the appeal procedure is provided to applicants by refugee counsellors.[31] They are graduate lawyers, selected by public tender and appointed to the position by the Ministry of Justice for a term of 5 years. Before starting work, they have to pass an exam and participate at a seminar on law of international protection for a minimum duration of 10 hours.[32]

There is no “merits test” on the basis of which the applicant can be refused legal assistance.

Applicants therefore have access free of charge to refugee counsellors who initiate judicial review on their behalf and represent them in court. As of December 2017, the list of refugee counsellors included 27 lawyers, out of which around eight were active and took on cases.[33] In 2018 a new public tender was finalised, and a new list of refugee counsellors was drawn up. The list now includes 44 refugee counsellors who are appointed for five years.[34] In January 2021 the list included 40 refugee counsellors.[35]

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 that helped asylum seekers in obtaining a refugee counsellor to represent them before the Administrative Court. The AMIF project that enabled PIC to represent asylum seekers was concluded at the end of April 2020. Since then, the Migration directorate gives asylum seekers the list of refugee counsellors, together with a decision, in their language. In addition, they are also instructed that they must obtain the help of the refugee counsellor themselves or contact the Migration directorate to provide one for them. Cases of individuals who could not access refugee counsellors before the deadline for the appeal were reported. Detained asylum seekers had problems in accessing the help of refugee counsellors since many had no access to a phone. Lack of translation, wrongly translated decisions and illiteracy also prevented asylum seekers from obtaining the representation of refugee counsellors in 2020. There have been reported cases of more than one refugee counsellor lodging an appeal at the Administrative Court against the decision of an asylum seeker.

The financial compensation of the refugee counsellors is half the amount of the official attorney’s fee.[36] The remuneration and reimbursement of expenses for their work are granted by the Ministry of the Interior.[37] The refugee counsellor is not entitled to financial compensation if the applicant has left the premises of the Asylum Home (and not returned) three days before the appeal was lodged before the Administrative Court.[38]

[1] Article 47(1)-(2) IPA.

[2] Article 47(3) IPA.

[3] Article 47(4) IPA.

[4] Article 47(5)-(6) IPA.

[5] Official statistics provided by the Migration directorate, January 2021.

[6] Unofficial statistics from  PIC.

[7]  Official statistics provided by the Migration directorate, February 2020.

[8] Ibid.

[9] Article 46(1) IPA.

[10]  Article 38(1) IPA.

[11]  See also AIDA, Asylum Authorities, An overview of internal structures and available resources, p. 54, available at: https://bit.ly/2wiDmgo.

[12] Information provided by the Migration directorate, January 2021.

[13] Article 6(1)-(2) IPA.

[14] Supreme Court, Decision I Up 226/2017.

[15]  Article 6(10)-(11) IPA.

[16] Article 6(6) IPA.

[17] Article 6(13) IPA.

[18] Article 6(12) IPA.

[19] Article 37(7) IPA. 

[20] Article 70(1) IPA.

[21] Articles 70(1) and 71(1) IPA.

[22] Article 70(3) IPA.

[23] Decisions can be found at: http://www.sodnapraksa.si/.

[24] In 2019, the Administrative Court granted refugee status in 9 cases.

[25] Article 64(4) Administrative Dispute Act.

[26] Article 72 IPA.

[27] In 2019, 15 appeals were submitted to the Supreme Court.

[28] Official statistics provided by the Administrative Court, January 2021.

[29] Official statistics provided by the Migration directorate, January 2021.

[30] Official statistics provided by the Administrative Court, January 2021.

[31]  Article 9(1) IPA.

[32] Article 12 Rules on knowledge testing of candidates for refugee counsellors and on the training of refugee counsellors at the Judicial Training Centre.

[33] Ministry of the Interior, Imenik svetovalcev za azil / begunce, available in Slovenian at: http://bit.ly/2BDREcc.

[34]  Ibid.

[35] Ministry of the Interior, Imenik svetovalcev za azil / begunce, available in Slovenian at: https://bit.ly/3eILHOl.

[36] 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.

[37] Article 11(1) IPA.

[38]  Article 11(2) IPA.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the first report
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation