Background Information on the Situation in the Slovak Republic in the Context of the "Safe Third Country" Concept

1.         The Office of the United Nations High Commissioner for Refugees (UNHCR) considers the notion of safe, or first, country of asylum as a useful basis for agreements between States. Such agreements provide for the return of refugees and asylum seekers to countries where they have had or could have sought asylum and where their safety would not be jeopardized, either within that country or by an act of refoulement. The Office is concerned to ensure that refugees receive effective and adequate protection in a country of asylum, and welcomes and promotes cooperation among States to this end.

2.         The Office has identified the following factors for consideration in determining whether returns to a particular country can take place. These factors, which include both formal aspects and the practice of the Government concerned, are : ratification of and compliance with the international refugee instruments, in particular the principle of non-refoulement, ratification of and compliance with international human rights instruments, readiness to permit asylum seekers to remain while their claims are being examined, adherence to recognized basic human rights standards for the treatment of asylum seekers and refugees, and, above all, its willingness to accept, and practice of accepting returned asylum seekers and refugees, consider their asylum claims and provide effective and adequate protection.

3.         In the case of the Slovak Republic, the Office notes that the Slovak Republic succeeded to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, which took effect on 1 January 1993, the date on which the Slovak Republic assumed responsibility for its international relations. The notification of succession was deposited with the Secretary-General of the United Nations on 4 February 1993. The Slovak Republic succeeded also to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.

4.         National refugee legislation is mainly contained in the Refugee Act No. 498 of 16 November 1990 and the Aliens Act No. 123 of 4 March 1992. Amendments to both laws are currently under discussion. There is concern as to the full compatibility of existing national legislation, measures and planned amendments thereto with the provisions and principles of international refugee law. Similar concerns have been raised also in regard to the Decree on Temporary Protection, Government Decree No. 35 of 19 January 1993, most recently renewed by Government Decree No. 1136 of 15 November 1994, which does not foresee a review or appeal possibility for the refusal or withdrawal of temporary protected status.

5.         Theoretically, any asylum seeker (i.e. a refugee applicant or a person applying for temporary protection) can apply for refugee status or for temporary protection without delay at the border upon arrival/return at/to the Slovak Republic. If the person's application is being registered, he/she will automatically be granted the right to stay in the Slovak Republic pending the determination of his/her status. Registered asylum seekers and refugees are treated in accordance with basic human rights standards as guaranteed by the Slovak Constitution, the Refugee Act, the Basic Charter on Human Rights and the Government Decrees on Temporary Protection.

The Office notes, however, the particular circumstances and difficulties faced by the authorities due to the lack of sufficient and qualified personnel with the necessary knowledge and experience in interviewing asylum seekers and determining their status. This has sometimes led to erroneous negative decisions which the Office has noted with concern. The Office is therefore providing training to the Slovak authorities to meet the needs for technical advisory services in this area.

6.         In practice, a number of cases has also come to the attention of the Office which documents that access to the asylum procedure is not necessarily guaranteed, especially at border points. The Office is aware that asylum seekers face tremendous difficulties in lodging asylum applications at Bratislava airport and are often not able to do so. This is in particular the case with insufficiently documented asylum seekers arriving at Slovak borders (including the airport) who are in many instances even denied access to Slovak territory. They are denied access to the asylum procedure, to interpreters and are issued a "prohibition to stay" stamp in their passports. They are then automatically returned to Hungary or Ukraine if their passports indicate that they entered the Slovak Republic from either neighbouring country. While the Office does not know of direct refoulement situations, there is no assurance that return of asylum applicants to Ukraine, Hungary or other third countries would not lead, in effect, to so-called "chain deportations" which carry the risk of the return of persons who may be refugees, to a place where their life or freedom would be threatened or where they would not be granted effective and adequate protection.

7.         The Office is also aware of numerous instances where undocumented asylum seekers or those without valid visas being returned to Slovakia's borders are refused re-admission by the Slovak border guards. In addition, refugees leaving the Slovak Republic illegally may lose their legal status on the basis of a specific interpretation of Arts. 12 and/or 14 of the Refugee Act.

8.         Despite sometimes extreme scarcity of resources, the establishment of adequate overall social, legal and economic structures is vital for any appropriate and functioning protection structure. The needs for technical, material and financial assistance (training) as well as political support from the international community are immediate and far-reaching. In view of social and economic difficulties inherent in a restructuring process prospects for local integration of refugees remain, at present, slim in the Slovak Republic despite the Office's assistance programmes.

9.         The situation in the Slovak Republic and elsewhere in Central and Eastern Europe is further complicated by the fact that most asylum seekers do not wish to apply for asylum in the country where they are, but instead state explicitly their desire to reach Western Europe to seek asylum there. The protection situation in Central and Eastern Europe has to be seen therefore in the broader context of transit migration and irregular movements, which demand great efforts of the States concerned as well as of the international community to provide a comprehensive regional protection package as a response.

10.        The Office is aware of the fact that irregular movements have a destabilizing effect and measures should be taken by Governments and international organizations to solve problems arising from them.

11.        It would clearly be highly desirable if formal agreements could be concluded, which include commitments by the States Parties to deal with the applications for asylum for which they are responsible in accordance with obligations deriving from the international refugee instruments. To ensure that one of the States Parties will give the asylum application due consideration within its own status determination procedure, the provisions of such agreements should, furthermore, explicitly relate to the responsibility of that country to examine asylum requests and of the sending State to advise the authorities of that country of the basis of the removal decisions. The latter responsibility is intended to avoid the possibility that the receiving State believes the application to have been rejected on its merits.

12.        With respect to the return of asylum seekers and refugees to the Slovak Republic, on the basis of their transit/stay there, UNHCR would, in view of the considerations above and in the absence of such formal arrangements, recommend bilateral readmission negotiations to obtain from the Slovak authorities assurances that the Slovak Republic agrees to readmit the person(s) in question, consider their asylum claim(s) and provide effective protection. The Office remains ready to facilitate the negotiation of such arrangements. In the absence of such assurances from the competent Slovak authorities, the Office would at present advise against the return of asylum seekers and refugees to the Slovak Republic, on the basis of their transit/stay there.

UNHCR, Geneva, April 1995