The Belgrade Centre for Human Rights (BCHR) is of the view that the amendments to the laws on foreigners and employment of foreigners currently under debate in the National Assembly facilitate access to the labour market of foreigners, refugees and asylum seekers, but alerts to the necessity of further additionally amending the Foreigners Law in order to align national law with the Constitution of the Republic of Serbia (RS) and international human rights standards.
The draft amendments commendably facilitate access to the labour market of foreigners granted temporary residence on humanitarian grounds, as well as refugees and asylum seekers in Serbia (like EU Member States do) as these individuals will no longer have to obtain a work permit. In addition, asylum seekers will be entitled to access the labour market six months – rather than nine months – after they apply for asylum. Furthermore, asylees will be entitled to apply for permanent residence, grounds for subsequent acquisition of citizenship. Finally, the draft amendments introduce a joint residence/work permit, in compliance with EU practices.
On the other hand, the legislator failed to draft amendments to the provisions of the Foreigners Law directly violating or undermining the fundamental human rights of foreigners, especially refugees, an issue representatives of the Ministry of Internal Affairs and the Government have been alerted to during the public debate. First of all, first-instance police decisions in proceedings that may result in the removal of foreigners from Serbia are enforceable and appeals of such decisions do not have automatic suspensive effect. Such a solution is in contravention of human rights standards emanating from the case-law of the European Court of Human Rights and the UN Committee against Torture concerning the right to an effective legal remedy and the prohibition of refoulement (the prohibition of returning anyone to a country when there are substantial grounds for believing that they would be at risk of irreparable harm upon return, including persecution, torture, other forms of ill-treatment or flagrant denial of justice). Under the Foreigners Law, appeals of decisions denying a foreigner entry into the RS or ordering their return shall not stay the enforcement of the decisions, unless there are grounds prohibiting their removal to a territory where they are at risk of ill-treatment. This solution is unclear and inefficient in practice, given that the first-instance decisions are enforceable from the moment the individuals they concern are notified that they are denied entry or that they must return wherefore they are at risk of expulsion before they file an appeal (or have their appeal reviewed).
The Foreigners Law also lays down that the foreigners must file their appeals – including in proceedings that may result in their removal from RS territory – in Serbian, which is in violation of the fundamental right of all parties to use their own language in the proceedings, as well as in violation of the Serbian Constitution. Furthermore, the decisions served on foreigners in proceedings that may result in their removal are composed only in Serbian and English, i.e. not necessarily in a language they understand and the police hardly ever engage an interpreter when communicating with them (e.g. at the airport).
Due to these legislative shortcomings and illegal police practices, especially at Belgrade Airport “Nikola Tesla”, a large number of foreigners have over the recent years been at risk of expulsion from Serbia to countries where they were at serious risk of torture and other forms of ill-treatment. Only in cases in which BCHR lawyers reacted did the border police decide against expelling foreigners who had expressed the intention to seek asylum and allowed them to enter RS territory and apply for asylum. The current amendments to the Foreigners Law have to be improved if this
practice is to be eradicated and if adequate procedural safeguards against refoulement are to be put in place.
The BCHR calls on all parliamentary caucuses to file adequate amendments and thus eliminate the enumerated deficiencies of the Foreigners Law violating the fundamental human rights of foreigners (protection from torture and other forms of ill-treatment, right to an effective legal remedy and use of one’s language in proceedings).
