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EU: Serbia is "no longer a safe third country" but Commission says that readmission "functions smoothly"

25 September 2012

25.09.2012 - Deportations of asylum-seekers from the EU to Serbia look set to continue, despite the United Nations High Commissioner for Refugees (UNHCR) stating last month that the Balkan nation should no longer be considered a safe third country to which to return asylum seekers.

"UNHCR recommends that Serbia not be considered a safe third country of asylum, and that countries therefore refrain from sending asylum seekers back to Serbia on this basis," the international agency said in a report published last month. [1]

The report went on to say that Serbia's asylum system, which was operated by the UNHCR until August 2008:

"Has been unable to cope with the recent increases in the numbers of asylum applicants. This has exposed significant shortcomings in numbers of personnel, expertise, infrastructure, implementation of the legislation and government support."

The UNHCR's criticisms add further weight to those made in June by the Hungarian Helsinki Committee, who issued a report on the Serbian asylum system. According to the Committee, problems include limited access to protection and lack of procedural safeguards; risk of chain refoulement (deportation from Serbia to another country considered "safe"); and danger of asylum seekers becoming destitute. [2]

EU law - namely the Asylum Procedures Directive - states that Member States may apply the "safe third country concept" only when its authorities are satisfied that asylum-seekers' life and liberty will not be threatened by discrimination; the principle of non-refoulement is respected; removal from the third country will not lead to torture or cruel, inhuman or degrading punishment; and the possibility exists to request and obtain refugee status. [3]

The Commission has stated that it is "continuously monitoring" the application of the Asylum Procedures Directive rules and "will not hesitate to use its powers under the Treaty in case of infringement."

It has so far declined to do so, despite a Commission report published in August stating that:

"In the field of migration, Serbia has not made progress. The legislative framework largely meets EU standards but remains to be effectively implemented. Claims are still temporarily processed by the Border Police Asylum Unit, as the Asylum Office foreseen as the first instance body has not been formally established yet. The mandate of the Asylum Commission, the second instance body, expired in April 2012 and new members remain to be elected. Serbia has two asylum reception centres, but they have insufficient capacity to provide services for all asylum seekers." [4]

Despite this, the report concluded that "readmission between the EU and Serbia functions smoothly," a finding that may be disputed by asylum-seekers who have been deported from the EU.

Sending asylum-seekers to Serbia

The treatment of Serbia as a safe third country means that under a 2007 agreement, EU countries are able to deport asylum-seekers (along with irregular migrants) to the Balkan state if they are judged to have arrived there before entering Europe.

Hungary "routinely" deports asylum seekers to Serbia, according to the Hungarian Helsinki Committee. In 2011, "more than 450 asylum seekers were deported to Serbia by Hungary without being admitted to the in-merits procedure."

Those permitted by the Hungarian authorities to have their applications examined, meanwhile, typically face being detention for up to five months while their applications are considered, spending "much of the day locked in their rooms." [5]

A host of new laws introduced under the government of Viktor Orbán, which has faced heavy criticism from the EU, NGOs and Hungaian opposition parties on several occassions, [6] have seen "the human rights and protection needs of asylum-seekers overshadowed by law enforcement objectives in the fight against illegal migration," according to the UNHCR. [7]

Technical arrangements

The operation of the EU-Serbia readmission agreement is monitored by a Joint Readmission Committee (JRC), made up of representatives of the Commission (representing the EU) and Serbia. A 2011 Commission document evaluating the EU's readmission agreement states that:

"Given the growing role of the EU readmission agreements in the returns process and their possible interaction in practice with human rights and international standards, the possibility of inviting relevant NGOs and international organisations to JRC meetings should be considered." [8]

When asked whether any international organisations or NGOs had been invited to meeting of the EU-Serbia JRC, the Commission replied that "meetings of the JRC have so far not been attended by participants other than officials of the Parties to the EU-Serbia readmission agreement."

It is however unclear what benefits - if any - the participation of third parties in these meetings may have in ensuring the protection of human rights standards. The Commission also said that the JRC:

"Is not competent to discuss issues of international protection. [It] is a body which monitors the implementation of the EU-Serbia readmission agreement by exchanging information and discussing implementation obstacles of a technical nature if and when these arise."

Suspension clauses?

An evaluation of readmission agreements published by the Commission in 2011 stated that human rights protection of persons subject to deportation:

"Might be further reinforced by including in the agreement a suspension clause which would provide for temporary suspension of the agreement of the agreement in the event of persistent and serious risk of violation of human rights of readmitted persons." [9]

The Commission said that since the publication of the evaluation it "has been endeavouring to include suspension clauses in negotiating directives for new readmission agreements," although it did not say whether it would be attempting to renegotiate current agreement so as to include suspension clauses.

The agreement with Serbia lasts "for an unlimited period," with the Commission or Serbia permitted to "completely, or partly, temporarily suspend" it "with regard to third country nationals and stateless persons" (i.e. not Serbian nationals) "for reasons of security, protection of public order or public health." [10]

The EU's "inhumane deportation policy"

Aside from asylum-seekers whom Member States determine should be deported under safe third country rules, thousands of other people have been removed from European territory to Serbia in recent years.

According to the organisation Migreurop, in 2011 Frontex organised seven "collective deportation flights," to Serbia, the legality of which "is disputable according to European and international legislation." The organisation expressed:

"Deep concern regarding forced removals to Serbia, which are carried out regardless of the migrants' vulnerability and their exposure to discrimination in the country in the country of return. Migreurop condemns the inhumane deportation policy of the EU and its Member States." [11]

Sources
[1] UN High Commissioner for Refugees, 'Serbia as a country of asylum. Observations on the situation of asylum-seekers and beneficiaries of international protection in Serbia', August 2012, p.22
[2] Hungarian Helsinki Committee, 'Serbia as a safe third country: Revisisted', April 2012
[3] Article 27, 'Safe third country concept', Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status
[4] European Commission, 'Third report on the post-visa liberalisation monitoring for the Western Balkan countries in accordance with the Commission statement of 8 November 2010', COM(2012) 472 final, 28 August 2012 p.10
[5] UN High Commissioner for Refugees, 'Hungary as a country of asylum: Observations on the situation of asylum-seekers and refugees in Hungary', 24 April 2012
[6] Ian Traynor, 'Hungary PM Viktor Orban faces EU backlash over new policies', The Guardian, 18 January 2012
[7] UN High Commissioner for Refugees, 'Hungary as a country of asylum: Observations on the situation of asylum-seekers and refugees in Hungary', 24 April 2012
[8] European Commission, 'Evaluation of EU readmission agreements', COM(2011) 76 final, 23 February 2011, p.10
[9] 'Evaluation of EU readmission agreements', p.14
[10] Article 22, 'Entry into force, duration and termination', Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status
[11] Migreurop, 'Germany-Serbia: another charter flight to Serbia organised by FRONTEX', 13 March 2012