Author
Asylum seekers are informed orally about the reasons for their detention in a language they understand by the officials of the Migration directorate and by their legal representatives if they are represented. They are given legal instruction, however it depends on the official if they will also give the information on the help of refugee counsellors. Then the Migration directorate has to issue a written decision in 48 hours and serve it to the applicant in the next 3 working days. In the written decision reasons for detention are stated together with the information about judicial review.[1] The dictum, the essential reasons for the decision and the legal instruction are translated in a language the applicant understands.[2] In addition, a list of refugee counsellors together with the instruction on how to contact them is given to the applicant in the language he understands.
Applicants have the right to challenge the detention order before the court. They can file the judicial review before the Administrative Court within three days of notification of the decision. The Administrative Court has to conduct an oral hearing and take a decision in three days.[3] In 2022, out of 105 issued detention orders, 90 were challenged before the court.[4].However, some individuals were not able to access refugee counsellors to obtain representation and thus to challenge detention orders. In 42 cases, the appeal was granted and the detention order was lifted.[5]
There is no automatic review of the lawfulness of detention. However, the President of the Administrative Court can decide that a supervision of the application of the measure in practice needs to be performed. They then appoint one or more judges together with instructions on the timeframes, places or specific asylum seekers that have to be included in such supervision. If it is concluded that the reasons for detention of a certain asylum seeker no longer exist, the President of the Administrative Court can order the termination of the measure.[6] Informally collected data shows that such review was used once in 2018 at the initiative of the refugee counsellor of the applicant. Based on the new evidence presented the President of the Administrative Court issued a release order for the detained applicant.[7] Since the ruling of the Supreme Court in March 2019 made it impossible to detain asylum seekers based on any risk of absconding ground, no automatic review of the lawfulness of detention was conducted in 2019.[8] Based on informally collected data, none were conducted in 2021 either which can largely be attributed to the fact that detention of asylum seekers was not carried out until November 2021, when the new provisions of the IPA came to force. In 2022 the Administrative Court carried out such supervision of detention of asylum seekers in at least 6 cases. In one case they conducted a visit to the Foreigners centre and in 5 cases they only issued a report on the implementation of the measure.[9] .
While the duration of court procedures is a problem in other types of procedures such as judicial review of rejection and Dublin decisions, the time limits set in law are generally respected in detention cases. Judicial review is effective in the sense that many detention orders are annulled by the court. However, the outcome of cases has been very unpredictable, often depending on the individual judge deciding on the case.
In addition, the applicant has the possibility to appeal against the decision of the Administrative Court to the Supreme Court. According to the IPA the Supreme Court has 30 days to decide on the appeal.[10] However in practice it takes longer. Therefore often the asylum seeker is released before the decision on the appeal is made.
[1] Article 84(5) IPA.
[2] Article 6(5) IPA.
[3] Article 84(7) IPA.
[4] Official statistics provided by the Migration directorate, March 2023.
[5] Ibid.
[6] Article 84(6) IPA.
[7] Administrative Court, Decision I U 1010/2018-7, 7 May 2018.
[8] Supreme Court Decision, X Ips 1/2019,13 March 2019, available in Slovenian at: https://bit.ly/2Q5VHnF.
[9] Official statistics provided by the Administrative Court, February 2023.
[10] Article 70(3) IPA.