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By Saša Zagorc,  Associate Professor, University of Ljubljana and Neža Kogovšek Šalamon, Director, The Peace Institute – Institute for Contemporary Social and Political Studies

Introduction  

Since its independence in 1991, Slovenia has already been confronted twice with mass influx of refugees and migrants. The first time was during the war in ex-Yugoslav Republics when 60,000 refugees (equalling 3% of the Slovenian population) found shelter in public and, mostly, private dwellings for several years. The second time was at the occasion of the unprecedented “humanitarian corridor” (analysed in the Peace Institute publication “Razor-Wired: Reflections on Migration Movements through Slovenia in 2015”) during the  2015-2016 European-wide migratory movements, when approximately 500,000 persons transited through Slovenia, but with less than 200 claiming international protection on its territory.

Proponents of both security and human rights concerns believe that Slovenian authorities were caught unprepared at the onset of the last crisis in September 2015 albeit each with a rather different reasons. Driven by the fear of repeated mass migration flows, as well as of border blockages by Austria and non-cooperation on readmission by the Croatian authorities, and with the intent to promote securitization internally and externally by sending a signal to migrants and refugees, the Slovenian Ministry of the Interior proposed amendments to the Aliens Act in mid-October 2016.

To kill two birds with one stone, the Government and the parliament insisted on a “hybrid” legal provision that would, on the one hand, empower the Police in border control processes and limit the access of persons to international protection and, on the other hand, lower the threshold to implement severe measures, typical of  a state of emergency, by avoiding any formal declaration thereof, mostly for political reasons.

We analyse the proposed legislation and the context of state of emergency in times of mass influx (section I) and then delve into the nature and effects of the envisaged extraordinary measures (section II).

I. A Quasi State of Emergency

On 26 January 2017, the Slovenian National Assembly passed amendments to the Aliens Act which allow the State to activate the closure of the borders for asylum seekers in case of mass arrival of migrants and refugees. The threshold  foreseen in the law for the closure of the border is a “changed migration situation”, due to which “public order and internal security of the Republic of Slovenia may be or are threatened”, making the “functioning of central State institutions and provision of their vital functions more difficult” (para. 2 of new Article 10a of the Aliens Act). In the assessment of such circumstances, which should  be prepared by the Ministry of Interior, the Ministry must take into account a number of factors, such as: the circumstances in the countries from which third country nationals will (intend to) enter Slovenia, the migration situation in the region, the number of third country nationals residing illegally in Slovenia, the number of foreigners with “permission to remain” (a special toleration that protects a person from expulsion but that is not a residence permit) in Slovenia, the number of asylum seekers and the number of persons granted international protection, as well as the integration and accommodation capacities of the Republic of Slovenia for all these persons (para. 3 of new Article 10a of the Aliens Act). An additional factor that must  be taken into account is the possibility to implement the International Protection Act, as well as any other relevant factor that could affect public order and internal security (ibid.).

If the state authorities assess that such changed circumstances, which resemble the mass influx witnessed in 2015 and 2016, have arisen, the Government will propose to the National Assembly to activate the extraordinary measures, effectively leading to the closure of the borders. A simple majority at the National Assembly will suffice to activate these measure (para. 2 of new Article 10a of the Aliens Act). The measure will last for six months, but may be extended every six months for an indefinite period. This is one of the differences between the Slovenian measure and the Austrian emergency law, which limits extraordinary measures to two years. The measure may be declared for the entire State territory or only for a certain border or other region.

The primacy and centrality of the 1951 Geneva Convention in the international refugee protection regime, including in situations of mass influx, have been broadly recognized internationally. In addition, mass migratory flows in the European Union cannot per se justify even the reintroduction of checks at internal borders (with few exceptions), let alone to substantially limit the accessibility of international protection. Amendments to the Aliens Act deviate drastically from such standards, as the Act deliberately obfuscates the constitutional guarantees on limitations of human rights in time of state of emergency (Article 16 in connection with Article 92 of the Slovenian Constitution). Firstly, by lowering the threshold for the introduction of extraordinary measures to virtually any serious, real or hypothetical threat to public order or public security, despite the fact that under the Slovenian Constitution, the intensity and effects of such extraordinary measures are justified only by “a great and general danger [that] threatens the existence of the State” (Article 92 of the Slovenian Constitution). Secondly, by not paying full respect to the absolute nature of the principle of non-refoulement (Article 18 of the Slovenian Constitution). Thirdly, from the operational point of view, the Slovenian Government, unlike the Austrian counterpart, did not present a coherent contingency plan for cases of mass influx, in the absence of which the public and the courts are unable to assess the necessity and proportionality of the envisaged measures.

II. Limiting the Access to International Protection

The extraordinary measures consist of the following elements. Firstly, people who enter or stay irregularly and do not express their intention to apply for international protection will be “brought to the State border and directed into the State where they entered from” (para. 1 of the new Article 10b of the Aliens Act). Given its geographical location and taking into consideration the most common routes, this other State will, in the majority of cases, be Croatia, but it might also be Hungary or Italy. Further, using more direct terms, “bringing a person to the state border” means pushback. Slovenia has signed a bilateral readmission agreement with Croatia which continues to be valid, but it would clearly not be used if this measure was activated. Namely, the agreement foresees a procedure for readmission of third country nationals who enter Slovenia from Croatia irregularly; but the measure, if activated, foresees no procedure at all. There will only be the physical deportation of the individuals concerned. There is no requirement for the Croatian authorities to be present when this happens, or to give their consent. On the contrary, these deportations could apparently also be carried out without any presence of the Croatian authorities whatsoever.

This first measure affecting “only” irregular migrants raises several legal concerns. The main concern derives from Article 153 of the Slovenian Constitution which requires that all domestic laws have to be in line with international legal agreements ratified by the National Assembly. The readmission agreement with Croatia was ratified on 7 March 2006 and is still valid. If the measure analysed is activated, Slovenia will have to officially notify Croatia about the temporary cessation of the implementation of this agreement (Article 20 of the Readmission Agreement).

The second element of the measures concerns persons who express their intention to apply for international protection. In such cases, it is foreseen that the police will first carry out an identification procedure in line with the Police Tasks and Powers Act. Then, the law specifically states that:

“Irrespective of the law regulating international protection, the police rejects this expression as ill-founded if in the neighbouring European Union Member State from which the alien entered, there are no systemic deficiencies in relation to asylum procedure and reception conditions of asylum seekers which could cause danger of torture, inhuman and degrading treatment, and directs the alien into this State. The appeal against such decisions does not suspend the execution of the decision” (para. 2 of the new Article 10b of the Aliens Act).

This provision is subject to the following exceptions:

“The previous paragraph is not used when health situation of the alien would clearly make the implementation of the measure from the previous paragraph impossible or when the alien is a family member of an alien against whom the measure is impossible due to health situation or when, based on the appearance, behaviour or other circumstances, an alien is an unaccompanied minor” (para. 3 of the new Article 10b of the Aliens Act).

The first thing to notice is that these two provisions in fact replace (“irrespective of the law regulating international protection […]”) all legislation in force in the field of asylum in Slovenia and also in the EU. In line with International Refugee Law, the Slovenian police is  normally obliged to take into consideration each person who expresses his or her intention to apply for asylum and to bring that person to the competent authorities where an asylum application is filled in and officially submitted to the responsible authorities. However, if the measure is activated, this will clearly not be the case.

The police has been given new powers by this act: 1) to reject the expression of intention to apply for asylum; 2) to assess whether there are systemic deficiencies in the asylum system of country the person entered from; 3) to assess whether these systemic deficiencies amount to torture or inhuman or degrading treatment; 4) to assess whether deportation is possible in light of the health situation of the person; 5) to assess whether the person is a minor.

From the procedural point of view, the law introduces a very strange sequence of administrative tasks. As we know, the expression of intention to apply for asylum is not yet a claim – it is not yet an administrative application which would as a consequence require the administrative body to make a decision on the asylum claim. Following the normal procedure, after the expression of an intention to ask for asylum is expressed, the police complete the registration form and send it to the asylum authorities which only then take the application. This registration form is not an application, but rather a form containing personal data and information about the person’s route. The expression is, therefore, a sort of a “signal” to the authorities that the person wishes to file an asylum application. By expressing the intention to apply, the person wishes to enter the asylum procedure and may claim that he or she meets the conditions for the refugee status. Knowing that the decision upon an asylum application is purely declaratory, it is clear that one person becomes a refugee the moment when he/she meets the conditions for qualifying for refugee status. The asylum procedure is an agreed set of rules on how to verify whether these conditions are met, and in order to do this the application has firstly to be lodged so that  the procedure can start.

According to the new law this would not be the case, as the police will, if the measure is activated, obtain the power to reject the expression itself. The question is therefore: what will the police reject from the administrative procedure point of view, if the application has not yet been lodged? Is it going to be the registration form that will be rejected?

Furthermore, according to the new law, if the measure is activated the police will allow only those persons who fall under one of the exceptions to apply for asylum – i.e. seriously ill people (and their family members) and unaccompanied minors. Thus, anyone else will only be able to apply if the system in the neighbouring country (e.g. in Croatia) collapses. It is clear that with such norms the system in Croatia would collapse – unless Croatia adopts a similar law, which one would expect due to the domino effect that such instruments are currently causing in Europe.

The new legislation raises the following concerns:

  1. It is preparing the ground for the State to de facto suspend the 1951 Geneva Convention, which is the cornerstone of the protection of refugees in both international and EU law (Article 78, TFEU). If the measure is activated, the State will no longer consider itself obliged to assess who is a refugee.
  2. The measure contravenes the Dublin Regulation, which is the only legal tool allowing the transfer of asylum seekers among EU Member States. With this Act, Slovenia in fact sets the ground for circumventing a source of secondary EU law which can be repealed or changed only at EU level, and not by an internal measure of a Member State.
  3. Also, the measures contravenes the Temporary Protection Directive 2001/55/EC which is still valid, even though it has never been used.
  4. The new rules do not contain sufficient safeguards against direct or indirect exposure to torture or inhuman or degrading treatment (Art. 3 of ECHR). The procedural rules contained in paragraph 2 of Art. 10b of the Aliens Act try to give the impression that individual circumstances will be taken into account. However, a closer look shows that this might not be the case. Due to the large degree of discretion left to the police, one could expect that it will not reject only the expressed intention to apply for asylum of those who are too sick to be returned or who are  are unaccompanied minors, or only when the system in Croatia breaks down. There are not enough guarantees that individual circumstances will be fully taken into consideration, which raises concerns not only in relation to Article 3 of ECHR but also Article 4 of Protocol 4 to ECHR which prohibits collective expulsions.
  5. Further, since the legal remedy available will not have a suspensive effect, it is questionable whether the measure meets the standards for effective legal remedy under Article 13 of ECHR. Moreover, it seems that the remedy is only available for challenging the decision of the police about the conditions for applying for asylum within the limits of Article 10b, which means that the only elements that a person will be able to challenge are considerations of one’s age, health situation or the existence of systemic deficiencies in the neighbouring country.

Conclusion    

It is well documented that Slovenia’s neighbouring States have already introduced (or declared an intention to introduce) measures that further limit access to international protection (see on this blog the case of Austria and here for the case of Hungary),  all of which most likely contravene their international obligations. The Slovenian legislation is unique to the extent that it, in our view, also contravenes its own constitutional requirements and because it does not provide for mechanisms to prevent an arbitrary assessment of claims for international protection in extraordinary times. In the worst-case scenario, the legislation eradicates the access to international protection on the designated territory of Slovenia.

Slovenian authorities intend to pursue three goals in cases of mass influx: (1) not to declare a state of emergency, (2) limit access to international protection, and (3) pay respect to the national constitution, EU law and international obligations. Figuratively, at the same time they would like to be (1) crafty, (2) authoritarian and (3) fair. The problem is that in reality the authorities can only choose two aims from the list. All three are simply not achievable in such circumstances, by which the situation reflects an adapted version of the well-known Žižek’s trilemma.