BHC: Position on the Law on Asylum and Refugees Draft Amendments

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The Bulgarian government stated in their reasoning that the purpose for the draft is to fulfill obligations of the Republic of Bulgaria to transpose into domestic law the recast European asylum directives, specifically, Directive 2011/95/EU (Qualification Directive) and Directive 2013/33/ES (Reception Conditions Directive), which settle the grounds for granting protection and the conditions of admission of third-country nationals seeking protection.

The government also stated that the amendments regulate (meaning they "introduce") high standards for the treatment of asylum seekers in accordance with the fundamental rights and also stated that this is especially valid with respect to detention. It is proclaimed that severe restrictions of the freedom of movement will only be applied when they are necessary and proportionate and accompanied by the necessary legal guarantees. Furthermore, it is stated that the detention is not settled as a measure of deterrence, but as a possibility to determine the residence and temporary accommodation of the applicant for international protection in a closed-type center under the conditions prescribed in law.

In its majority the proposed amendments relating the introduction of rules and conditions for detention of asylum seekers contravene to the draft's stated objective as well as the standards for the protection of fundamental human rights, particularly in regard to the scope, duration and conditions for the detention.

In their essence, the proposals introduce a general detention regime for all categories of asylum seekers, regardless of their individual characteristics, vulnerability, age, health status, special needs or other relevant circumstances and irrespective of the stage of their status determination procedure as set in the Law on the Asylum and Refugees (LAR). As a rule all persons seeking protection are being subjected to wide, overall and unconditional detention in closed-type centers. Accommodation in centers of an open type is done on the principle of the exception (argument as per Art.45v , paragraph 2 of the draft). Thus, the priniciple enshrined in Article 8, paragraph 1 of Directive 2013/32/ES is turned completely cotrariwise, namely that Member States may not detain a person solely because she is an applicant for international protection.

This approach is essentially an almost identical duplication of the regime set out in Section I, Chapter V of the Law on Foreigners in the Republic of Bulgaria - namely, the compulsory administrative measures imposed on irregular immigrants against whom are taken deportation measures. In this wording, the draft assigns the State Agency for Refugees with security and police functions that are contrary to the basic purpose of this agency - namely, to implement the international obligations of the Republic of Bulgaria and provide fair and efficient status determination to persons in need of international protection for their basic human rights and freedoms.

By the new detention measures relating the applicants for international protection, the bill introduces the provisions of Article 8, paragraph 3 of Directive 2013/32/EU, but the grounds for detention are transposed verbatim, mechanically and without taking into account the specificities of national status determonation arrangements as set in the LAR at its various stages. The European directives on asylum set a common minimum standards to allow Member States to introduce them into their domestic legislation taking into account the legal traditions, national circumstances and existing administrative arrangements in each country. The correlation between the provisions of Article 8, paragraph 3 of the Reception Conditions Directive with existing national legislation on asylum indicates at what the stage of the proceedings in LAR detention can legitimately be applied in accordance with the legal standards of the Directive, namely:

  • in order for a decision to be made in the course of proceedings on the question of the applicant’s right to enter the territory (Article 8, paragraph 3 (c) of Directive 2013/32/EU). In the context of the national status determination proceedings that could be proceedings conducted at border checkpoints. Such procedures are not provided for, nor they are regulated in the LAR. Therefore, the introduction of this hypothesis into the national law as the basis for the detention of asylum seekers does not have a clear procedural purpose, it is emptied of sunstance and doomed to fall into disuse (in desuetudo) after its adoption;
  • in order to establish or verify their identity or nationality (Article 8, paragraph 3 (a) of Directive 2013/32/EU). In the context of the national legislation these are the proceedings done by the State Agency for Refugees for the purposes of the registration of the asylum seeker under Article 61, paragraph 2 of LAR.      
  • in accordance with Article 28 of Regulation (EU) № 604/2013 of 26 June 2013, in order to determine the Member State responsible for examining an application for international protection (Article 8, paragraph 3 (f) of Directive 2013/32/ES). In the context of the national legislation, these are the actions at the phase of implementation of the Dublin procedure under Chapter Six, Section Ia, Articles 67a - 67k of the LAR.
  • in order to establish the elements on which the application for international protection is based, that is - whether the application falls within or outside the scope of the law (Article 8, paragraph 3 (b) of Directive 2013/32/EU). In the context of national legislation these are the actions carried out on the stage of the "accelerated procedure" under Chapter Six, Section II, Article 68-71 of the LAR - relating the asmissibility or manisfestly illfounded assesment of asylum applications. It should be however noted, that the Directive puts forward an explicit condition for the detention at this phase of asylum seekers, during which the elements of the application are established. The condition that those elements on which the application for international protection is based could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant. This implies that even at this phase any detention would be lawful and applicable only when the risk of absconding is duly substantiated and justified. The lack of established identity in itself does not constitute a risk of absconding.
  • when protection of national security or public order so requires (Article 8, paragraph 3 (e) of the Directive 2013/32/ES). In the context of national legislation that would mean the possibility of detention at every stage of the production for providing protection, including the phase of the general procedure in Chapter Six, Section II, Articles 72 -76 of the LAR. The objective of "protection of national security or public order" however, should also be justified and proven in each individual case, and not with regard to the status of the person as an asylum seeker - due to the prohibition of Article 8, paragraph 1 of Directive 2013/32 / EU - but only if there are serious grounds. Under the LAR such grounds are laid down in Article 12 of the national law vis-à-vis the application of exclusion clauses in Article 1F of the 1951 Geneva Convention relating to the Status of Refugees. Therefore, during the general procedure as set in the LAR, the detention can only be used in exceptional cases and in cases where any of the grounds under Article 12 of the LAR are established.
  • when he or she is subjected to a return procedure under Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008. (Article 8, paragraph 3, letter (d) the Directive 2013/32/EU). In the context of domestic proceedings under the provisions of Article 67, paragraphs 1 and 2 of LAR it also means that on this ground the detention can be applied to finally rejected asylum seekers. Therefore, in this case the detention is permissible with regard to individuals whose proceedings under LAR were finished and who have lost their asylum seeker's quality. Therefore, any detention of such persons should not be undertaken in the context of the Law on Asylum and Refugees, but under the general provisions of the Law on Foreigners in the Republic of Bulgaria, and, in particular, its Chapter Five, Section I. In this situation, this particular ground for detention has no systematic place in the LAR, but it should be implemented under the rules and conditions of the Law on Foreigners in the Republic of Bulgaria by the authorities of the Migration Directorate of the Ministry of Interior (MOI) and it should be carried out in detention centers for irregular immigrants.

In conclusion, detention of applicants for international protection is permissible under the grounds outlined in Article 8, paragraph 3 of Directive 2013/32/EU only when it is targeted and only for the short terms of achieving the statutory purpose in each of the listed hypotheses (argument as per Article 9, paragraph 1 of Directive 2013/32/EU). In view of the national asylum system, this means that the detention of applicants for international protection is permissible at the stages of registration, Dublin and accelerated procedures under the LAR, or, in other words, prior to the initiation of the general procedure under the LAR .

At the general procedure's stage detention is not and should not be permitted, except in exceptional cases, where there are serious grounds to believe that a person constitutes a threat to national security or public order. Any other detention of persons who have entered the territory of the Republic of Bulgaria to seek asylum and protection will be unacceptable and in violation of the common European norms and standards on asylum and international protection.

In relation to the introduction of a system of detention the draft also provides regulation, under which detention shall be assigned by an order issued by the chairperson of the State Agency for Refugees for accommodation in a closed-type center (Article 45v, paragraph 1 of the draft). First of all, instead of overcoming the present administrative delays in status determination procedures, the issuing of warrants for the arrest of nearly 10,000 people by the Chairman of the SAR will further complicate and aggravate the refugee procedures. Furthermore, the proposal does not comply with the current legal framework under which orders for the accommodation in the territorial divisions of the SAR shall be issued by the directors of the respective reception centers (Article 51, paragraph 2 in conjunction with Article 29 , paragraph 4 - 7 of the LAR).

Additionally, by alteration of the decision-making authority with respect to accomodation, one also changes the jurisdiction for the judicial review of these decisions, which should go entirely under the jurisdiction of the Administrative Court Sofia City under Article 132, paragraph 2 of the Administrative Procedures Code. Current numbers of nearly 10,000 people seeking asylum in the country as well as the legal standard for a regular review of the detention by a court at every third month, will result in excessive and overwhelming concentration of cases in a single administrative court within the entire country and imposes a real risk of blocking detention's judicial revision.

Objections are the most strongly raised by the provision of Article 45e of the dratf, according to which children seeking asylum may be detained in the closed centers, despite the envidaged condition that it should only be done as a last resort and after it was ensured that the lighter measures cannot be effectively implemented.

The deprivation of freedom of movement and the detention of children in closed centers violates basic legal standards for child protection under Article 10, paragraph 3 of the Child Protection Act and Article 37 (b) of the Convention on the Rights of the Child. It can have an extremely adverse effects on the normal physical, mental, moral and social development of the children, especially given that detaining children will deprive them of their right of access to education, otherwise guaranteed under Article 26, paragraph 1 of the LAR.

The proposed amendments would also allow detention in closed-type centers of unaccompanied asylum seekeing children (Article 45e, paragraph 3). Such arrangement is absolutely unacceptable as it establishes a less favorable legal standard than the one under Article 44, paragraph 9 of the Law on Foreigners, which sets a prohibition for the detention of unaccompanied irregular immigrant children. There is no any legal or circumstantial justification and rationale for such less favorable treatment of unaccompanied asylum seeking children, who by definition should enjoy more favorable measures and standards of treatment.

There are no objections with regard to the measures for mandatory reporting put forward in Article 45a, paragraph 1, item 1 of the draft. However, bail measures proposed in Article 45a, paragraph 1, item 2 are inadmissible as the draft provision does not introduce any grounds for its application or any terms and/or conditions by which to determine the bail amount in each individual case. Thus, preconditions for absolute administrative arbitrariness are created, both relating the imposition of the bail in general and, in particular, in determining its amount.

Also, the judicial control over the bail measure is not arranged in any way as the provision is drafted to provide for wide administrative discretion of the decision-maker. In this sense, the proposed text is completely discriminatory and unacceptable due to proposed conditions allowing a different treatment of asylum seekers based of their social status, as well as due to the absence of any effective means of protection against administrative arbitrariness when determining such bail. It is recommended that the text be deleted entirety as far as there is an apparent lack of a clear legislative concept how this measure will be applied for the purposes pursued by its introduction, besides the creation of legal preconditions for corruption and arbitrariness.

It is recommended to comprehensively redraft the wording of Article 45e - 45f of the draft and to ensure their compliance with the procedures under the LAR.

The draft proposes to introduce a new type of document for applicants for international protection (new section 10 in Article 40, Paragraph 1; new Article 40 and an amendment of item 11 of Article 44, paragraph 1 of the LAR). It is envisaged that this document, also called "document establishing the status", will be issued within 3 working days of the submission of the application for international protection. The document will establish the applicant's right to remain in the territory of the Republic of Bulgaria. The validity of this document is not bound by any clear and specific time period. It is determined by a condition - the issuing of a registration card.

At the same time there is no clear definition when one should be issued the said registration card as per the current law in Article 29, paragraph 1, item 6 in conjunction with Article 44 of the LAR. First of all, the introduced schedule for issuing the new document within 3 working days of asylum application's submission does not conform to the minimum standards set out in Article 6 of Directive 2013/33/ES where the deadline is set for 3 days without specifying "working" i.e., Directive sets a deadline of 3 calendar days.

Furthermore, it is evident from the proposals that the introduction of this new status-attesting document would only certify the right to remain on the territory of Bulgaria, but would not provide any other legally required contents and effect of the asylum documents. Therefore, per argumentum a contrario, documents certifying the status will not contain a personal identifivation number. Personal i.d. number is a prerequisite for access to all other rights during status determination procedures afforded to the asylum applicants under Article 29 of the LAR.

This means that until the issuing of a registration card it would not be legally possible for asylum seekers to be covered by a health insurance, as set in Article 31, paragraph 1, item 3 of the Health Insurance Act in conjunction with Article 29, paragraph 1, item 4 of the LAR. By having only a document that just certifies one’s status, asylum seekers would not be able to enjoy their rights under Article 2, paragraph 1 of the Social Assistance Act in conjunction with Article 29 , paragraph 1, 3 of the LAR and receive a social support of BGN 65 per month.

Thus, by replacing the registration card with another status-attesting document the draft entirely deprives asylum seekers from exercising and enforcing their legal rights during status determination procedures, moreover, they do so for an indefinite period. Such comprehensive and flagrant deprivation of all social rights is inadmissible, in violation of international protection standards and implies inhuman and degrading treatment, since it puts asylum seekers in situations of legally predetermined destitution without securing their most basic rights to food, medical and social assistance.

2013/32/EU Directive explicitly requires that these basic rights should be secured without a possibility to limit them, let alone to abolish them altogether - Article 17, paragraph 2 (material reception conditions that provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health); Article 11 (care for applicants with special needs); Article 19 (medical care); Article 18 (minimum standards for in kind housing); Article 14 (access to education) and Article 15 (right to employment). The total annulment of these rights is absolutely unacceptable.

The draft introduces new exclusion clauses in violation of Article 1F of the 1951 Geneva Convention. By adding two new paragraphs 6 and 7 in Article 12 of the LAR, the drafters introduce additional grounds for refusal of refugee status in cases where there are serious reasons for someone to be considered a threat to national security, or relating an individual who was convicted for a serious crime, which constitutes a threat to society.

Introduction of these additional exclusion clauses is unacceptable. According to the national case law, Bulgaria as a state party to the 1951 Convention may not narrow down the scope of refugee protection, citing new restrictions, excluding or cessation clauses, which are not envisaged in the Geneva Convention on the Status of Refugees of 1951 and its Protocol of 1967. (Decision № 272 of 21.01.2000, case № 2038/1999, Supreme Administrative Court, Third Division).

The “threat to national security or public order” conditions cannot constitute a ground for exclusion from international protection in general, but solely for the exclusion from the prohibition of refoulement (non-refoulement prinicple) under Article 33, paragraph 2 of the Geneva Convention and Article 4, paragraph 4 of the national Law on Asylum and Refugees. The additional exclusion clauses put forward in the draft are in violation of Article 44 provisions of the Law on Foreigners in the Republic of Bulgaria, the latter being adopted to reflect Articles 2 and 3 of the European Convention on Human Rights and Fundamental Freedoms.

Finally, the draft provides for the amendment of Article 29, paragraph 3 of LAR, which reduces the suspension period for access to the labor market for asylum seekers during the production from one year to nine months. The proposal is entirely consistent with Article 15, paragraph 1 of Directive 2013/33/EU whereby Member States shall ensure that applicants have access to the labour market no later than 9 months from the date when the application for international protection was lodged if a first instance decision by the competent authority has not been taken and the delay cannot be attributed to the applicant.

Access to the labor market allows self-support and legitimate income to asylum seekers and reduces the burden on the national social support system; it is also a prerequisite for the succesful integration of asylum seekers at a later stage, when they are recognised. European asylum acquis create minimum standards and the Member States may introduce more favorable measures. According to Article 75, paragraph 1 in conjunction with paragraph 3 of the LAR, the general procedure should be initiated and completed within a total of 4 months. Given that, it is recommended that the reduction of the access to the labour market deadline have to be reduced from proposed 9 to 3 months.

Bulgarian Helsinki Committee urges the government to organise a discussion of the amendments to the Law on Asylum and Refugees before putting it forward for voting in the plenary of the National Assembly.

The discussion should be held with the participation of a wide range of experts in refugee law - judges, lawyers, members of the academia, as well as representatives of the UN High Commissioner for Refugees and its partner NGOs to eliminate the serious violations of national and international legislation on asylum and human rights.

November 25th, 2013

Legal Programme for Protection of Refugees and Migrants

Bulgarian Helsinki Committee