Overview of the main changes since the first report

Slovenia

Country Report: Overview of the main changes since the first report Last updated: 25/05/22

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The previous report update was published in March 2021.

At the end of March 2021, important legislative changes were adopted relating to the International Protection Act (IPA) and the Foreigners Act. While some relevant information is provided on the latter at various points, this report will not fully cover these recent amendments. As further described in the report, the amendment of the IPA and the Foreigners Act lower the protection standards of asylum seekers in the asylum procedure and allow for the closure of the border in the case of a “complex crisis” in the field of migration, preventing most individuals from lodging an application for international protection in Slovenia. During the legislative procedure, NGOs opposed the proposed amendments and urged different institutions to submit them to the Constitutional Court for constitutional review after they were adopted.[1]

 

Asylum procedure

 

  • Access to territory: Access to the asylum procedure continued to be one of the main problems in 2021. In March 2021, amendments to Article 10a and 10b of the Foreigners Act[2] were adopted. These articles had previously been annulled by the Constitutional Court[3] because they violated the prohibition of torture enshrined in Article 18 of the Constitution of the Republic of Slovenia, since they allowed the closure of the border to asylum seekers. Nonetheless, the new amended articles again allow the National Assembly to close the border in case of a ‘complex migration crisis’. If the articles were to be activated, individuals would not be able to apply for asylum in Slovenia, apart from in exceptional cases. The Slovenian Ombudsman informed the European Commission of the adoption of the articles.[4] However, no answer was given in 2021. In February 2022 members of the opposition parties submitted the provision of the Foreigners Act to the Constitutional Court for constitutional review.[5]
  • Legislative changes: On 09 November 2021, the amendments of the International Protection Act (IPA) came to force. Applicants who lodged the application before this date will still have their applications processed under the previous provisions of the IPA, while any applications lodged after this date are processed by the revised IPA. The new amendments include a new regulation regarding refugee counsellors and legal guardians, the definition of the risk of absconding, shorter time lines for lodging a judicial review, and other procedural changes that limit the rights of asylum seekers in the procedure and limit their ability to effectively participate in the procedure. Further, decisions on asylum applications will now also include a decision on return. The right of appeal to the Supreme Court against an Administrative Court decision is also re-established. The amendments of the IPA were heavily criticized by NGOs[6] as the changes are generally considered to be too restrictive, while some are not in accordance with the CEAS or the Slovenian constitution.  Under the new provisions asylum seekers and refugee counsellors, as well as legal guardians of unaccompanied minors are no longer protected by lawyer-client privilege. Refugee counsellors and legal guardians of unaccompanied minors can be dismissed from their positions if they do not disclose the true identity of the applicant, do not submit the applicant’s original documents, do not disclose the applicant’s true age if he/she claims to be an unaccompanied minor, or do not disclose any other information based on which the applicant is not eligible for international protection.[7] If the applicant does not respond to requests to state all facts and circumstances of the case or does not submit all documentation and available evidence, the application can be considered as withdrawn.[8] The new provisions also considerably shorten the time frame for submitting a judicial review to 3 days unless the application was rejected, thus hindering the applicant’s right to effective legal remedy and judicial review.[9] The provision that allows the UOIM to ‘de facto’ detain the applicant in one room in the pre-accommodation area for up to 3 days in the case of house rules violations[10] hinders the right to personal freedom and does not uphold the standards relating to the detention of asylum seekers. The provisions on detention do not include alternatives to detention, which remain unavailable to asylum seekers.[11] In addition, the amended IPA allows for detained asylum seekers to be subjected to the same measures as other detained foreigners in the case of house rule violations. This includes them being subjected to solitary confinement.[12] The newly introduced definition of the risk of absconding includes circumstances unrelated to asylum as an indication of the risk for absconding, for example if the applicant was processed for an offence.[13] While not in direct violation of the CEAS, the provision that the freedom of movement of asylum seekers is limited to the municipality in which they are accommodated is in violation of article 32 of the Slovenian Constitution.[14] NGOs have urged the Slovenian Ombudsman and the Advocate for the Principle of Equality to submit the amendments regarding refugee counsellors, legal guardians and the limitation of freedom of movement to the Constitutional Court for review. The amendments relating to refugee counsellors and legal guardians of unaccompanied minors and the limitation of freedom of movement to the municipality in which the applicant is accommodated were submitted to the Constitutional Court for constitutional review  by members of the opposition parties in February 2022.[15]
  • Judicial review: Several new provisions together with the practice of the Ministry of Interior present obstacles to the applicant’s right to an effective legal remedy and the right to judicial review. The amendments of the IPA include unconstitutional provisions that require refugee counsellors and legal guardians to disclose any information they might have that could negatively affect the applicant’s case. It demands that the refugee counsellor break lawyer-client privilege, and that legal guardians compromise the trust of unaccompanied children. If the Ministry of Interior finds that counsellors or guardians did not disclose such information, they will be removed from their function. In addition, the amendments have shortened the timeframe for judicial review to 3 days (with the exception of decisions made in the regular procedure where the timeframe remains 15 days). Access to judicial review is harder for asylum seekers who do not have free legal representation and counselling in the first instance procedure. In practice, decisions are often not served to asylum seekers personally but to the staff of the Asylum Home, who then give the decision to the asylum seeker. Decisions are therefore often relayed to asylum seekers by the security personnel. This means that often, asylum seekers are not given the decision on the same day it is delivered. After being served with the decision, asylum seekers must obtain the help of a refugee counsellor themselves or contact the Ministry of Interior to do so on their behalf. Short time frames and logistical and linguistic barriers make it hard for asylum seekers to obtain help from refugee counsellors, and for them to lodge the judicial review within the time frame. Not all asylum seekers have free legal help and representation in the first instance, which means that they only receive information through a short informational video affecting their ability to effectively exercise their rights and obligations. All asylum seekers are given the video to watch before they lodge their 1st application. They do not see it in case of subsequent applications.

 

Reception conditions

 

  • Reception capacity: In 2021 the number of asylum seekers increased. Due to the increase in arrivals and the mandatory COVID-19 quarantine period, the accommodation centre in Logatec was reorganized into a pre-reception centre. Asylum seekers had to wait up to 20 days in the pre-reception area of the Asylum Home or Logatec to lodge their applications. During this time, they did not have access to other services or material conditions, since they do not qualify as asylum seekers until they lodge the application. Due to a lack of capacity, some were accommodated in containers during their quarantine period. Due to the amendments of the IPA, the freedom of movement of all asylum seekers was limited from 09 November 2021. Asylum seekers can move freely inside the municipality where they are accommodated but must ask for permission to leave it. Permission can be granted for the limited reasons set out in the IPA. In addition, asylum seekers can no longer ask for financial assistance to live outside the Asylum Home or its branch, since this possibility was excluded in the new IPA. In 2021, COVID-19 vaccinations were available for all asylum seekers. In addition, free COVID-19 testing was available for all asylum seekers in the Asylum Home. A systematic solution for the accommodation of unaccompanied children was not established in 2021, which meant that migrant unaccompanied children were still being detained in the Foreigners Centre, while unaccompanied child asylum seekers were accommodated in the Student Dormitory Postojna or in the Asylum Home.

 

Detention of asylum seekers

  • IPA amendments: The amendments of the IPA include the definition of the risk of absconding, which provided the legal ground needed in order for the Migration Directorate to detain asylum seekers. In 2021 the Migration Directorate therefore began to detain asylum seekers in the Foreigners Centre. The majority of asylum seekers were detained in the Foreigners Centre because their application was being processed in the Dublin procedure, or because they had violated public order.[16] Families were also detained in the Asylum Home if their asylum applications were being processed in the Dublin procedure. Although the Migration Directorate considers detention on the premises of the Asylum Home as an alternative to detention, it is not deemed to be such by the Administrative Court.[17] The amendments of the IPA did not introduce any other alternatives to detention. Therefore, alternatives to detention are still not available in Slovenia. In addition, the new amendments allow the Government Office for the Support and Integration of Migrants (UOIM) to also detain asylum seekers on the ground of violation of public order.[18] This is a novelty, as up until this point the Migration Directorate was the only authority with the power to detain asylum seekers. The IPA also allows the detention of individuals who have expressed the intention to apply for international protection but have not yet lodged an application. This provision was not used in 2021 and individuals were still detained unlawfully for up to 20 days, without any kind of decision or procedural guarantees, before lodging the application. In addition, the IPA also allows the UOIM to de facto detain asylum seekers in solitary confinement if they carry out a serious violation of the Asylum Home house rules. These provisions are regulated separately from the provisions on detention. Individuals are not entitled to legal representation from refugee counsellors in order to appeal the decision. The amendments of the IPA provide that asylum seekers detained in the Foreigners Centre may be subjected to the same measures as other migrants for violating the house rules in the Foreigners Centre. This means that they can also be subjected to solitary confinement for longer periods of time.

 

Content of international protection

 

  • Refugee status recognition: In 2021 only 17 persons were granted international protection in Slovenia. This is the lowest number since 2008. The duration of the first instance procedure continues to be one of the biggest shortcomings of the asylum procedure in Slovenia.
  • Shortened financial assistance: The amendments of the IPA limited the rights of beneficiaries of international protection while in the integration process. The duration of financial assistance for accommodation was shortened from 18 months to 1 year. Access to all rights, including accommodation is conditioned by signing the integration contract. In addition, beneficiaries who do not pass a Slovenian language exam[19] at CEFR Level A1 within 1 year of obtaining international protection can be removed from the unemployment register, which is the predisposition for financial assistance. In practice due to the lack of Slovenian language courses and the limited number of exam terms, applicants face difficulties when passing the exam.

 

Response to the invasion of Ukraine  

Individuals fleeing from Ukraine can be processed under the Temporary Protection of Displaced Persons Act[20] or the International Protection Act in case they do not meet the conditions for the temporary protection – mainly if they were not in Ukraine on the 24 February 2022.

Upon entering Slovenia, individuals fleeing from Ukraine have to register with the police, where they can also apply for either temporary protection or international protection. If they applied for temporary protection and do not have means of subsistence for private accommodation or guaranteed private accommodation (with friends, family ect.) they are accommodated in centres in Logatec or Debeli Rtič. If they apply for international protection they can also be accommodated in the Asylum Home or its branch. Different NGOs are present in the centres implementing activities for children, free legal help, informational sessions regarding trafficking of persons, sexual and gender-based violence, individual psychological counselling etc.

Under the Temporary Protection of Displaced Persons Act, individuals are entitled to rights under the act upon receiving Temporary Protection status. Before Temporary Protection status is granted, they only have the right to freedom of movement on the territory, urgent medical care, and accommodation in one of the centres. Children have the same rights as Slovenian children meaning that they have the right to full medical care and education before obtaining temporary protection status.

The authority responsible for lodging the application for Temporary Protection status is the police. The police make the application and send it to the responsible administrative unit based on the applicant’s place of residence. Administrative units are responsible for making decisions on temporary protection.

 

 

 

[1] Slovenska filantropija, Odziv NVO na predloga Zakona o mednarodni zaščiti in Zakona o tujcih, available at: https://bit.ly/3NnnHhY.

[2] Foreigners Act, Official Gazette of RS No, 9/21 and subsequent changes.

[3] Constitutional Court decision, U-I-59/17, 18. September 2019, available in Slovene at: https://bit.ly/3t7INJB.

[4] Varuh človekovih pravic, Varuh Evropsko Komisijo seznanil s svojimi pogledi na novelirano tujsko zakonodajo, available at: https://bit.ly/3wEsAwk.

[5] N1, Stranke KUL zahtevajo presojo ustavnosti določb zakona o tujcih, available at: https://bit.ly/39ACEP9.

[6] Slovenska filantropija, Odziv NVO na predloga Zakona o mednarodni zaščiti in Zakona o tujcih, available at: https://bit.ly/3NnnHhY.

[7] Article 9(10) and 18(8) IPA.

[8] Article 50 (2) fifth intendant.

[9] Article 70(1) IPA.

[10] Article 82.b(2) IPA.

[11] Article 84 IPA.

[12] Article 84(12) IPA.

[13] Article 84 IPA, eleventh intended.

[14] Article 78(1) IPA.

[15] 24. ur, Določbe zakona o tujcih in mednarodni zaščiti v ustavno presojo, available at: https://bit.ly/3Pv1Yq7.

[16] The violation of public order has to pose a real, current and sufficiently serious threat to the fundamental interests of the state.

[17] Administrative court judgements: I U 62/2022, 19. January 2022, I U 59/2022, 19. January 2022 and I U 1887/2021 30. December 2021.

[18] The violation of public order has to pose a real, current and sufficiently serious threat to the fundamental interests of the state. In practice the measure is used in case the person is intoxicated, violent towards other applicants in the Asylum home or staff, or in case of destruction of property of the Asylum home. 

[19] Level A1.

[20] Temporary Protection of Displaced Persons Act, Official Gazette of RS, No. 16/17 available at: https://bit.ly/3ac7w8T.

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