End of visit statement of the UN Special Rapporteur on the human rights of migrants, Felipe González Morales

Bosnia and Herzegovina local version

Bosnia and Herzegovina (24 September – 1 October 2019)

Sarajevo, 1 October 2019

Good afternoon ladies and gentlemen. I would like to start by thanking the Government of Bosnia and Herzegovina for the invitation extended to me for this official visit. Conducting country visits to monitor the human rights situation of migrants and to engage in a dialogue with Governments and civil society is of outmost importance for my mandate. I would also like to express my appreciation to the authorities at all levels for their support and cooperation provided during the visit. I was granted access to all the facilities as requested and had the opportunity to meet with all relevant authorities. During my visits to immigration facilities throughout the country, I was able to conduct private interviews with migrants. In this regard, I extend my gratitude to every migrant who has shared his or her personal testimony with me.

The objective of my visit was to assess existing laws, policies, and practices in relation to migration governance and their impact on the human rights of migrants of all categories, including asylum seekers and migrants in an irregular situation.

During my eight-day visit, I met with relevant authorities, representatives from the judiciary, UN agencies, funds and programmes, the delegation of the European Union, civil society, volunteers as well as migrants. In Sarajevo, I met with the Minister of Security, representatives from the Ministry of Foreign Affairs, the Ministry of Human Rights and Refugees, the Ministry of Justice, the Ministry of Civil Affairs, the Coordination Body for Migration, and judges from the Court of Bosnia and Herzegovina. I also had a chance to meet with the Ombudspersons. In Banja Luka, I met with representatives from the Ministry of Interior of the Republika Srpska and members of the Coordination Body for Monitoring the Movement of Migrants. In Bihac, I met with Prime Minister and the Police Commissioner of Una-Sana Canton, as well as the mayor of Bihac.

In addition to meetings with relevant interlocutors, I conducted visits to facilities for migrants. These include the Immigration Detention Centre in Sarajevo, the Asylum Centre in Delijas, Usivak temporary reception centre, Miral temporary emergency site, Bira temporary reception centre, Sedra temporary reception centre, Borici temporary emergency site, as well as Vucjak site. During these visits, I met and spoke in private with migrant women, men, girls and boys.

General observations

Based on available statistical information, an estimate of 2 million persons have emigrated from BiH. This makes approximately 56% of the total population of the country. Regarding the number of emigrants, it is important to emphasize the lack of updated data in BiH.

In the meantime, the number of migrants including asylum seekers arriving in BiH significantly increased in 2018 and 2019. According to the statistics provided by the authorities, between January 2018 and August 2019, approximately 40,000 migrants entered the country irregularly. Most of them crossed Bosnia’s eastern border with Serbia, some entered from the southern border with Montenegro. They travelled through the territory of the Republika Srpska to Una-Sana Canton of the Federation of Bosnia and Herzegovina. Currently, there are approximately7,300 migrants in the country, most of them in Una-Sana Canton, bordering Croatia.

In my exchanges with government officials, I noted with appreciation that despite having different points of view on various issues, authorities at all levels have mentioned the humanitarian aspect of their approach to the migration situation in the country. It is equally hopeful to know that ordinary citizens have demonstrated their sympathy and solidarity towards migrants. Having experienced an atrocious war, many citizens of BiH relate themselves to the plight of migrants. It is remarkable that people generously distribute food, clothes and basic goods to migrants transiting through their towns. Some also sheltered migrants in their private homes. In areas where reception centres are located, local residents came forward to work with UN agencies and civil society organizations providing a wide range of services and assistance to migrants.

However, to my great regret, the increased flow of migrants has exposed the significant institutional and coordination weakness of relevant authorities at different levels of BiH. The State level Coordination Body on Migration was established in May 2018 as an operational headquarters following a decision of the Council of Ministers. Until now, the Coordination Body has not yet adopted a comprehensive strategy providing durable solution to the current migration situation. Despite being aware of the arrival of migrants including asylum seekers, the lack of preparedness and strategy of the State level authorities has generated frustrations. While the Coordination Body does not seem to have sufficient power to fully enforce its decisions at the entity, cantonal and municipal levels, additional efforts should be made at the State level. For instance, the Coordination Body has failed to allocate in a timely manner suitable premises as reception centres for accommodating asylum seekers and migrants. The political deadlock and negative rhetoric against migration, has undermined the capacity of the State to respond to the migration situation in line with international human rights standards.

I strongly urge the authorities at all levels in BiH to work together towards a State-led response to the migration situation, with the support from national and international stakeholders, particularly those with strong human rights protection mandate. Considering the nature of migration and the specific regional context, BiH may benefit from a meaningful regional consultation with neighbouring countries in seeking constructive solutions.

Legal and institutional framework

From the outset, I would like to recognise that the domestic normative framework of the country is generally aligned with the international human rights treaties ratified by Bosnia and Herzegovina, including the Convention on the rights of migrant workers and their families. The Law on Foreigners of 2015 upholds the principles of non-refoulement and non-discrimination. It also prohibits collective expulsion. Under the current normative framework, irregular entry and stay are not considered criminal offences. Immigration detention is not used in connection with irregular entry into the country or breaching the conditions of stay. Once an expulsion decision is adopted, irregular migrants are allowed to leave the country voluntarily within the deadline for execution.

Provided by the Law on Foreigners, detention is only used as a last resort for as long as deportation or extradition proceedings are in progress. Detention cannot be imposed for a period longer than 90 days. Exceptionally, this decision can be extended up to another maximum 90 days. If the migrant cannot be removed to a third safe country, then the detention could last up to 18 consecutive months, and afterwards a measure of restricted movement to a specific area or location with an obligation to report can be applied. This could be the case for countries with which BiH has not signed readmission agreements, such as Afghanistan, Algeria, Pakistan and Syria.

Access to asylum procedures

Under the Law on Asylum of 2016, to claim asylum in BiH, a person first needs to express intention to seek asylum with the Service for Foreigners’ Affairs (SFA); then within 14 days, to submit an asylum claim to the Sector for Asylum. Among the 40,000 arrivals between January 2018 and August 2019, 93% expressed their intention to seek asylum in BiH. Only 5.4% of those who had expressed intention were able to formally lodge an asylum claim with the Sector for Asylum due to multiple barriers in law and in practice that hinder fair and efficient access to asylum procedures. 14 days is a very short period for asylum seekers to submit formally a claim considering that the Ministry of Security has not allocated sufficient resources to process registration during mass influx. While most migrants are located in Una-Sana Canton, the Sector for Asylum does not have an office there. The first registration exercise in Una-Sana Canton of 2019 took place only in July, when 110 individuals were registered. There remains approximately 1,200 individuals awaiting asylum registration in the country. Other factors hindering fair and efficient access to asylum include, inter alia, the requirement of an officially registered address, which is not feasible for the majority of asylum seekers in the country who live outside the 2 official reception centres; the requirement of a BAM 10.00 (approximately 5 euros) administrative fee; lack of legal aid and interpretation service; and lack of capacity of the Ministry of Security to process asylum claims.

While individuals who have expressed intention to seek asylum in BiH are entitled to accommodation, free legal aid, primary health care, access to labour market, etc., in practice the enjoyment of these rights is conditioned to where they are accommodated and the willingness of competent authorities in charge of relevant services at different levels. Moreover, while the State should be primarily responsible, BiH has been heavily relying on the international community and the civil society in providing essential services to migrants, including asylum seekers.

In this regard, I urge the State of Bosnia and Herzegovina to assume State responsibility for migration governance, improve access to asylum, and enhance the efficiency of asylum procedure. The Ministry of Security should set up outreach teams to identify and refer asylum seekers at the border areas and within the country, including in the Republika Srpska. Claims for asylum should be registered and assessed within a reasonable timeframe. Asylum seekers whose claims are pending for evaluation should be provided with necessary identification and other administrative documentations to enable their access to work and other services without undue delay. Legal aid and interpretation service, which are recognized in the legislation, should be effectively provided by the State to asylum seekers. BiH should also waive the mandatory address and the administrative fee required for registration.

Accommodation capacity and conditions at reception centres

Migrants including asylum seekers in BiH are generally accommodated in open reception centres. There are 2 official reception centres for asylum seekers in BiH. In response to the influx of migrants, 5 temporary reception centres have been established through the funding of the European Union. More precisely, Usivak reception centre is jointly run by SFA and IOM since the beginning. The other 4 temporary reception centres are initially managed by IOM while the takeover procedures are ongoing. All reception centres receive operational support from a number of UN agencies and civil society organizations. All 5 temporary reception centres are located in the Federation of BiH.

I visited 6 reception facilities and I am most impressed by the efforts made by staff of UN agencies and civil society organizations to create dignified, child friendly and gender sensitive living conditions for families with children as much as resources allow. In Sedra and Borici temporary reception centres, there are a wide range of activities and services provided to the families living there. However, in general terms, existing reception capacities for migrants including asylum seekers and the condition of some reception centres do not meet the current needs. There is a lack of appropriate alternative housing for unaccompanied or separated children and victims of abuse and exploitation. For instance, due to lack of alternatives, Bira temporary reception centre, designed for accommodating single men, is currently housing mixed populations of single men, unaccompanied minors, and families with children. While I note with appreciation that UN agencies as well as civil society organizations are providing a wide range of educational, psychosocial and legal services to the children living there, the living conditions in the centre are not adequate or suitable for children. Although families with children and unaccompanied minors are lodged at designated areas, the lack of possibility to fully separate different populations increases protection risks. Although victims of gender based violence and other abuses have been identified in different centres, due to lack of safe houses available in BiH, victims can not be effectively separated from the alleged perpetrators.

Vucjak site

Throughout 2018 and 2019, there has been a big discrepancy between the maximum capacities for accommodation in reception centres and the estimated number of migrants including asylum seekers in the country. Besides those accommodated in private houses and civil society-run accommodations, a great number of individuals have stayed without shelter, mostly in Una-Sana Canton. While individuals have different protection needs, no one should be left behind. Since June 2019, the Bihac local authorities have decided to relocate migrants including asylum seekers staying outside reception centres to Vucjak site. This decision was later endorsed by relevant authorities at the State level. Vucjak site is located very close to landmine-infected areas and there is a high fire and explosion risk as the site was formerly a landfill.

On the day of my visit to Vucjak, I learned that there were approximately 800 adult men and around 20 minors. Migrants at the site mainly come from Pakistan, Afghanistan and Iran. Many of them were escorted to the site by the local police. There is no running water. Drinking water is provided by the city and 2 meals a day delivered by the Red Cross in Bihac. The condition of the site is inhuman. There is no electricity, very few sanitation facilities, no warm water for shower and no medical care. I concur with the assessment made by the United Nations Country Team on the site and share my concerns over the significant safety and health risks at Vucjak. The location of the site is absolutely inappropriate and inadequate for accommodating human beings. I hereby urge the Government of Bosnia and Herzegovina to cease forcible escorting of migrants to this site and urgently identify an alternative location to accommodate these migrants, prioritizing minors. In addition, as winter is approaching, to avoid any loss of life, there is a pressing need for the authorities to identify additional accommodation for single men who are currently without shelter. I want to stress that there are shared responsibilities of authorities at different levels. The State level authorities should play a key role in this regard.

Unaccompanied and separated children

Nearly 20% of the people on the move in BiH are children, among which more than one third are unaccompanied minors. In addition to the lack of adequate reception condition for minors, especially unaccompanied and separated minors, I have observed several other issues of concern during my visit. First, the Ministry of Security does not conduct age assessment. The age of the applicant is systematically taken as claimed without any evaluation. There are cases of unaccompanied minors who claimed to be older than their real age in order to be accommodated with adults for various reasons, including trying to get closer to sources of information about smugglers or smuggling routes. The lack of age assessment may result in minors being exposed to manipulation, exploitation and other abuses.

I have also learned about a worrying trend of “pretending families”. Due to the lack of accommodation, many single men are left outside reception centres. There are over 40 cases of single men pretending to be family of an unaccompanied child in order to access services and abandon the child afterwards.

Migrant children, including asylum-seeking children, are not provided with family-based care, e.g. foster care, or community-based care, independent living units or other alternatives. There is hardly any shelter or safe house for child victim of violence or abuse except one shelter in Bihac run by a local NGO. Unaccompanied children face difficulties in timely obtaining access to guardians, as provided for them by law, which further delays their access to asylum procedure. In addition, the process of determining the best interest of the child is flawed. The centres for social assistance and welfare need to improve their working methods to avoid unnecessary delays in providing migrant children with the necessary protection.

Access to education

The Law on Asylum foresees that asylum-seeking children have the right to elementary and secondary education. I am pleased to learn that since January 2019, asylum-seeking children aged between 6 and 15 are enrolled in formal education system in Sarajevo and Una-Sana Cantons. It is unfortunately not a countrywide practice due to the complex and highly fragmented education system in BiH. For instance, asylum-seeking children accommodated in Salakovac do not have access to formal education. A decision on this matter is pending before relevant authorities in Herzegovina-Neretva Canton. I hope to see positive development soon. In the meantime, I understand that civil society organizations, UN agencies and relevant authorities are working together to facilitate the enrolment of asylum-seeking children between 15 and 18 to formal education.

Immigration detention

As mentioned, I am pleased to learn that immigration detention is not automatic or mandatary and that it is used as a last resort in BiH. I visited the immigration detention facility and was disturbed by several issues I found there. On the day of my visit, one migrant was put in solitary confinement through an administrative decision for a period of 7 days because of violent behaviour. At least 2 migrants detained at the facility claimed to be minors and that their claims had allegedly been dismissed by relevant authorities without any age assessment. I also learned that some detainees were deprived of outdoor activities for over months. Detainees at the facility virtually do not have access to free legal aid. Information on how to request legal aid was not provided. I encourage competent monitoring bodies to conduct regular visits in order to prevent and protect migrants deprived of liberty from any human rights violations.

Restrictions on the movement of migrants

Authorities do not recognize any limitation to freedom of movement of migrants. However, there is ample evidence proving that such limitations exist and are extensive. On the one hand, according to the Coordination Body for Monitoring Movement of Migrants established by the Republika Srpska, their mandate is to monitor the movement of irregular migrants and provide humanitarian transit. I have however received allegations of restrictions of movement of migrants including asylum seekers imposed by the police of the Republika Srpska. Migrants on the train from Sarajevo via Banja Luka to Bihac are not allowed to disembark on the territory of the entity. This confirms the position of the Republika Srpska not willing to accept any migrant reception centre on its territory but only providing a corridor to the territory of the Federation.

On the other hand, while in fact the authorities of Una-Sana Canton have been shouldering the responsibility of the influx of migrants with limited support from other parts of the country, they also imposed restrictions on the movement of migrants including asylum seekers. These restrictions were enacted without any legal basis since October 2018. The restrictions have resulted in migrants including duly registered asylum seekers being disembarked from public transportation at the entry of the Canton and left with no choice but to walk for hours to reach reception centres. Migrants are also in practice mostly interdicted to use taxi or public transportation within Una-Sana Canton.

Hate speech

As demonstrated above, in the context of BiH, decisions on migration issues have been increasingly motivated by political agendas. While incidents of hate speech by high-level authorities are not frequent, I am concerned that some politicians are using media to disseminate racist and xenophobic rhetoric against migrants. It is crucial that political leaders refrain from making inflammatory statements about migrants and instead work together to find solutions that are in the interest of both migrants and the local population. In this respect, I would like to stress that public officials and government authorities, especially those in senior positions, bear a particular responsibility to act against racial discrimination, intolerance and incitement to discrimination and hatred.

Pushbacks

As most of the migrants in BiH have attempted to cross the border to Croatia, I have received reliable information about violent pushbacks of migrants and asylum seekers by Croatian border police into the territory of BiH. According to the testimonies that I received, many migrants were forcibly escorted back to BiH without going through any official procedure. The concrete tactics vary; however, common patterns include the capture of people on the move, confiscation of their properties, especially communication equipment, beating with batons and chasing by dogs with the purpose of physically exhausting them and prevent them from attempting another crossing. A number of male migrants were reportedly stripped, beaten and forced to walk back to BiH barefoot. The abusive actions by the Croatian border police clearly violate the human rights of these individuals. In reality, this pushback approach has not deterred people on the move from advancing towards the European Union territory. Instead, it has led to a flourishing network of smugglers and organised criminal activities, which require immediate attention and action by all countries in the region.

I had an opportunity to address my concerns with the Ambassador of Croatia in Sarajevo. I understood that these concerns will be communicated to relevant authorities. During the meeting, I also learned that Croatian border police are receiving human rights trainings. I will continue the dialogue with the Croatian authorities and look forward to receiving soon information on positive improvement in this regard.

Closing remarks

Let me conclude by reiterating my gratitude to the Government of Bosnia and Herzegovina for having invited me to conduct the official visit and the opportunity for meeting with all relevant interlocutors. While acknowledging the political and practical challenges, I remain hopeful that BiH will assume its State responsibility for the migration situation and uphold its human rights obligations. In this regard, I am encouraged to know that the Ministry of Security is stepping up its efforts in taking over the management of the reception centres. I count on the continuous support from international community to enhance the migration governance and the capacity of BiH to uphold human rights standards. Winter is approaching I reiterate my call for a timely solution for those without an appropriate shelter.