Limitations of Freedom of Movement of Foreigners and Asylum Seekers in Croatian Law and Practice

Limitations of Freedom of Movement of Foreigners and Asylum Seekers in Croatian Law and Practice Presented by: Prof. Dr. Staničić Date: 19 October 2023 Legal Regulation - Foreigners Act • Twofold restriction of movement prescribed:  arrest  2. detention - International and Temporary Protection Act • - Various reasons available for restriction of movement of asylum seekers What is the goal of detention - restriction of movement? Usually to determine one's identity and/or to ensure his participation in pending administrative proceedings. The Link Between Border Protection And Border Control And Detention Of Foreigners And Asylum Seekers - Exclusive prerogative of state. - However, this right is limited by standards of international human rights. - Larger numbers of migrants and asylum seekers of course mean bigger need for restriction of movement for illegal migrants and/or asylum seekers. - All member states are obliged to implement integrated border management. - Illegal border crossings in Croatia: Until 2017 2019 2020 2021 2022 2023 5000 a year 20.278 29.904 17.404 >50.000 Data not yet available, but expecting well above 50000 (54.593 1.1.2023-1.10.2023) Restriction Of Movement Of Foreigners According To The Foreigners Act - Arrest of a foreigner • It is permissible to arrest and detain a third country national at the longest for 48 hours if there is a need to determine his identity (because of lack of documents or suspicion of a forgery for example) or the circumstances of illegal crossing of the state border or illegal stay are to be determined or there is a need to execute forcible return and there is the risk of escape of the third state national. - Detention • Only if the same purpose cannot be ensured by less coercive measures. Third country national is detected in illegal stay. Obligated to leave Croatia and EEA. • If there is reason to believe that such third country national is going to evade obligation to leave the country (and EEA) he can be detained in the Center his for up to six months (can be extended to 12 month + for several reasons).  Decision on stricter police supervision while in detention For a maximum of saved days, in reality not used. Against Decisions On Detention - As the decision are administrative acts, they are brought according to the General Administrative Procedure Act. - According to Article 12 paragraph 2 of the GAPA, the only available legal remedy is through administrative dispute. - The Foreigners Act does prescribe that administrative dispute is available (Article 216 paragraph 3), but also enacts a very peculiar mean of control of legality of aforementioned decisions through a "quasi" administrative dispute. - The Foreigners Act prescribes that, immediately after delivering the decision to the third country national, the Ministry is obliged to submit to the competent administrative court the case files on detention in the Center, on extension of - The question is whether it is even possible to talk about an administrative dispute, since, basically, in this form of judicial control over the work of the administration, there is no plaintiff, defendant, or interested person. - The Foreigners Act prescribes extremely short deadlines in which the administrative court must make a decision repealing or confirming the contested decision of five days from the date of delivery of the case file to the court (one day for examining stricter police supervision). - There is the question whether there is the right to appeal against the. decision of the administrative court. - Court practice says - yes. Differences FA vs. ADA - It is initiated ex officio, without a lawsuit, i.e. the addressee of the act cannot challenge the act independently, but the body that adopted the act only initiates the procedure for assessing its legality, - There are no parties (plaintiff, defendant and interested person), - As a rule, there is no hearing (except when dealing with a minor), contrary to the express provisions of the ADA, - A number of ADA rules do not apply (on the submission of a claim to an answer, the principle of a party's statement, the principle of helping an ignorant party, the party's right to representation, etc. - It should not be possible to challenge the court decision. Restriction Of Movement Of Asylum Seekers According To The International And Temporary Protection Act - In general, limitation of freedom of movement of asylum seekers should be avoided, but it can be prescribed in certain cases. It should be prescribed by law and justified, taking into account that the duration of such an measure should ne as short as possible. - When discussing such measures the fact that asylum seekers are an vulnerable group must always be taken into account. - There are the following measures for limiting the right of free movement: • prohibition of movement outside the Shelter • prohibition of movement outside a certain area • personally entering the Shelter at a certain time - • depositing travel documents and tickets at the Shelter • detention in a Center for foreigners. These decisions can be brought for a period during the reasons for limiting the right of free movement exist, up to three months total. However, an issued measure can be prolonged for an additional up to three months "for justified. reasons". Legal Protection Against Decisions On Limitation Of The Freedom Of Movement Of AS - All decisions by which freedom of movement of asylum seekers is limited are subject to legal control. - The only legal remedy is administrative dispute in front of the competent administrative court. - Deadline for lawsuit is eight days, the court is to decide within 15 days. - If the court finds the decision unlawful, it will annul it and the asylum seeker must be released at once. - There is an obligation of the competent administrative court to examine, ex offo, or at the request of the asylum seeker, the decision on limiting freedom of movement in reasonable intervals. This especially applies when the limiting freedom of movement exceeds one month in duration. Court's Practice On Detention Of Foreigners And Asylum Seekers - 7115 detention decisions, out of which only 533 were revoked by the courts (only 7.49%). - The courts usually rule within the set deadline of five days. Concluding Remarks - The system regulating the limitations of freedom of movement of foreigners and asylum seekers in Croatian law is aligned with the acquis communautaire and is set up in a way that should guarantee the rights and freedoms of the people on whom it is applied. - The analysis showed that more than 90% of decisions on detention are validated by the administrative courts. - Amendments to the Foreigners Act are needed to clearly prescribe whether the thirdcountry national and the Ministry are parties in such court procedures and whether appeal is allowed or not. - Parallel administrative dispute (plus the ex offo quasi dispute) – ratio? - Rethink the set deadlines in which the courts are to deliver their judgements. - Five days is a extremely little time to put a decision on detention to real scrutiny