Author: Nedim Kulenović
Improving the migration and asylum policy management system is emerging as one of the critical issues on BiH’s path to EU integration. The challenges that the country encountered in 2018-2019, as well as during the pandemic, highlighted all the shortcomings of the current system. These risks remain, and authorities must act quickly to eradicate them in order to respond to future challenges in a timely manner.
The brunt of what local authorities refer to as the “migrant crisis” is still unequally distributed across the country, falling mostly on a few cantons (i.e., Una-Sana Canton and Sarajevo Canton). The foregoing can cause resentment among the local population and a disproportionate response from the authorities, resulting in serious violations of human rights, as we have seen in recent years. Furthermore, there is an ongoing lack of coordination among all relevant actors and levels of government, which has a severe impact on the most vulnerable categories, such as unaccompanied minors.
The authorities’ discourse in BiH continues to overemphasise the security aspect of mixed migration, as evidenced by the normalised and widespread use of inappropriate terms such as “illegal migrants”, including in official announcements, and praise for successful border “pushbacks” of migrants. As a result, systematic deficiencies in the asylum and international protection systems must be addressed as soon as possible, because failures in this area have a detrimental impact on the entire migration management system in BiH.
The existing shortcomings are most obvious in the fact that the domestic authorities have not yet fully seized control of all of the country’s temporary reception centres. This means that people at some centres, particularly the one in Blažuj (Sarajevo Canton), cannot access the asylum procedure through them. At the same time, all people on the move are automatically issued the intentions to apply for asylum in reception centres, regardless of whether they actually desire to access the asylum system in BiH. In other words, the authorities do not take a targeted approach to identifying people who have a genuine need for international protection and want to seek it in the country. As a result, there is a significant disparity between the number of issued intentions and submitted asylum applications (which the authorities then ironically interpret as “asylum abuse”), as well as the inefficiency of the system itself, which is overburdened and where the registration of an asylum application usually takes a long time. Such a practice is typically discouraging, even for those who have a genuine intention to apply for international protection in the country.
Moreover, contrary to current practice, asylum seekers should be able to file a request for the registration of their asylum applications on their own initiative, rather than waiting for an invitation from the competent authorities, which may only happen with significant delay. This would be more in line with how the relevant EU legislation regulates the matter, and it would also avoid discrimination against asylum seekers based on their place of residence in BiH.
As noted in the most recent 2022 Report on BiH’s Progress on the Road to European Union Membership, BiH’s legislation in this area is already significantly aligned with the European Union acquis; however, the need for additional activities was emphasised, including further adaptation of Bosnia and Herzegovina’s regulations, as well as their effective implementation. The importance of further improving the national legislation was emphasised regarding procedural safeguards in order to ensure effective procedures for the examination of applications for international protection, including improvements in interviewing techniques, evidence assessment, protection of vulnerable groups, access to rights and legal assistance, etc. It should be noted that the same conclusions were stated in the previous four progress reports, which says much about the authorities’ lack of commitment to addressing these issues. It is important to emphasise here that practices in the application of the BiH Law on Administrative Disputes in the context of the review of decisions on international protection before the Court of BiH would have to be adapted to EU standards, as well as requirements arising from the European Convention on Human Rights. This is primarily reflected in the need for oral hearings in these extremely complex cases, particularly where the credibility of the asylum seeker is contested, and in deciding on the applications on the merits, rather than continuing with the current practice of multiple annulments of final administrative acts and their return to the competent institutions for review. Of course, this adds to the overall procedure delay.
Furthermore, unlike in the European Union, where granting refugee status is the rule and subsidiary protection is the exception, BiH authorities continue to prioritise this second complementary form of international protection, even when conditions for recognition of refugee status exist. As a result, no refugee status was granted in BIH in 2022. At the same time, national legislation is not in line with the standards and best practices of EU Member States, therefore persons under subsidiary protection (unlike refugees) do not have the right to obtain a travel document, the right to family reunification, or the possibility of naturalisation. Such solutions do not provide a long-term solution to their status, considering that many of them have had it in BiH for a long time due to the situation in their country of origin (e.g., Syria). In addition to the aforementioned shortcomings in the asylum system, this is another reason why many asylum seekers risk further irregular movement towards the European Union rather than seeking international protection in BiH. In this light, it is necessary to assess local authorities’ frequent criticisms of “illegal migrants” for allegedly “abusing” the domestic asylum system.
To effectively respond to all the identified challenges, BiH would undoubtedly need to work on increasing the capacities of all relevant state authorities. This includes building the capacity of state authorities responsible for the registration and assessment of applications for international protection, as well as public providers of free legal aid, particularly those at the BiH level, who are still unable to meet the legal aid needs of people on the move. This particularly applies to people who, as a result of irregular migration, are detained at the Immigration Centre and face deportation from the country, especially if they are minors.
In any case, improving state border control and managing irregular migration more effectively must not result in denial of access to international protection and a violation of the non-refoulement principle. This must not come at the expense of the fight against trafficking in human beings, where prompt identification of potential victims must always take precedence over all other factors. It should be noted that the European Court of Human Rights adopted four temporary measures in this respect in 2022 alone, instructing Bosnia and Herzegovina not to deport asylum seekers before they are granted access to the domestic asylum system. It is difficult to determine how many people were deported before they had the opportunity to use such an international intervention, especially given the ongoing problem of translator shortage at border crossings. When adopting new regulations, the state must always be mindful of the European Convention on Human Rights’ position in the state’s legal system, including its provisions on the effectiveness of legal remedies.
Despite the fact that we are on the threshold of 2023, Bosnia and Herzegovina has yet to adopt the 2021-2025 Strategy and Action Plan on Migration and Asylum, which would be critical for the development of the asylum system and international protection. Adoption of this strategic document must begin immediately, followed by expedited harmonisation of the national legislation with European Union acquis, particularly regarding the amendments to the Law on Aliens and the Law on Asylum.
The views expressed in this text do not necessarily reflect the views of the Initiative for Monitoring European Integration’s members or the Initiative itself.