Regular procedure

Bulgaria

Author

Bulgarian Helsinki Committee

General (scope, time limits)

SAR is competent for deciding on all individual asylum applications and for granting or rejecting either of the two types of international protection; refugee status or subsidiary protection (“humanitarian status”). In case of mass influx where individual asylum applications cannot be processed, a temporary protection status is granted by the government following a collective decision made by the EU Council.1 SAR has an advisory role to the government in this respect when it decides whether to communicate to EU Council a request for temporary protection decision to be taken on a group basis in cases of a mass influx of asylum seekers who flee from a war-like situation, gross abuse of human rights or indiscriminate violence. These forms of individual or collective protection can be applied without prejudice to the authority of the Bulgarian President to grant asylum to any foreigner based on the national constitution if he or she is persecuted for convictions or activities undertaken in order to protect internationally recognised rights or freedoms.2

The LAR sets a 6 month time-limit for deciding on an asylum application admitted to the regular procedure.3 The LAR requires that, within 4 months of the beginning of the procedure,4 caseworkers draft a proposal for a decision on the asylum application concerned. The asylum application should firstly be assessed on its eligibility for refugee status. If the answer is negative, the need for subsidiary protection on account of a general risk to the applicant's human rights should be also considered and decided upon. The interviewer's position is reported to the decision-maker, who has another 2 months for consideration and decision.

If evidence is insufficient for taking a decision within 6 months, the law allows for the deadline to be extended for another 9 months, but it requires the whole procedure to be limited to a maximum duration of 21 months. The non-governmental organisations have criticised the transposition of this particular provision of the recast Asylum Procedures Directive, stating that, if adopted, the proposed extension of determination time-limits will lower the present national procedural standards as it will prolong without any objective necessity the period of legal insecurity for asylum seekers, thus creating susceptibility to extortion and conditions for corruption practices.5

Determination deadlines are not mandatory, but only indicative. Therefore if these deadlines are exceeded, this does not affect the validity of the decision. While the number of first arrivals and asylum applications decreased in 2016,6 the percentage of already registered asylum seekers who abandoned their asylum procedures in Bulgaria rose immensely to reach 85% at the end of 2016, with 44% of asylum procedures being terminated (discontinued) and 41% suspended in absentia. Just 15% of asylum seekers remained in the country long enough to be delivered decisions on the substance:











First instance SAR decisions on asylum applications: 2016

In-merit decisions

Refugee status

764

3,083 (15%)

Subsidiary protection

587

Unfounded

1,027

Manifestly unfounded

705

Abandoned applications

Terminated

8,932

17,199 (85%)

Suspended

8,267

Total

 

20,282

Source: SAR, Statistics December 2016.

 

Prioritised examination and fast-track processing

 

Prioritised examination is applied neither in law nor in practice in Bulgaria. After the amendments to the LAR introduced in the end of 2015, a fast-track processing is applied with respect to subsequent applications (see Subsequent Applications)

 

Personal interview

After registration has been completed, a date for an interview shall be set. The law requires that asylum seekers whose applications were admitted to the regular procedure be interviewed at least once with regard to the facts and circumstances of their applications.7 The law requires that the applicant be notified in due time of the date of any subsequent interviews. Decisions cannot be considered in accordance with the law if the interview is omitted, unless it concerns a medically established case of insanity or other mental disorder.8 In practice, all asylum seekers are interviewed at least once in order to determine their eligibility for refugee or subsidiary protection (“humanitarian status”). In practice, further interviews are usually only conducted if there are contradictions in the statements or if some facts need to be clarified.

The presence of an interpreter ensuring interpretation into a language that the asylum seeker understands is mandatory according to the LAR. The law provides for a gender sensitive approach as interviews can be conducted by an interviewer and interpreter of the same sex as the asylum seeker interviewed upon request. In practice, all asylum seekers are asked explicitly whether they would like to have an interviewer or interpreter of the same sex in the beginning of each interview.

Interpretation in determination procedures remains one of the most serious, persistent and unsolved problems for a number of years. After the failure of the SAR in 2015 to cover the costs for interpretation for a period longer than 11 months and the subsequent decrease of hourly rates, many interpreters from key languages have withdrawn from asylum procedures in 2016. Interpretation is secured only from English, French and Arabic languages, and mainly in the reception centres in the capital Sofia. Interpreters from other key languages such as Pashto, Farsi, Dari, Kurdish (Sorani), Urdu, Tamil, Ethiopian and Swahili are largely unavailable.

Both at administrative and court stages, interpretation continued to be difficult, and its quality poor and entirely unsatisfactory. In 5% of the cases monitored by BHC, the determination was conducted in a language which was not spoken by the applicant or conducted with the assistance of another asylum seeker, who was the only one to speak the language in question.9 This malpractice could result in gross miscommunication, inaccurate personal data registration and overall failure to understand the implemented procedures. 74% of the monitored court hearings were assisted by interpreters. However, in 11% of the cases before the court the interpreters demonstrated insufficient Bulgarian language knowledge. In principle, the court continued not to verify the qualifications of appointed interpreters, which created serious problems with respect to the level of understanding and communication between the court and the appellants, thus seriously undermining this legal safeguard.

Training of interpreters and monitoring on application of Interpreters’ Code of Conduct rules are not applied in practice.10 As a result, quite often the statements of asylum seekers are summarised or the interpreters provide comments on their authenticity or likelihood. There are no guidelines or a code of conduct for asylum officers, elaborating on the manner interviews should be conducted. There are currently no gender sensitive mechanisms in place in relation to the conduct of interviews, except the asylum seekers' right to ask for an interpreter of the same gender.11

After long lobbying, the law introduced a mandatory audio or audio-video tape-recording of all eligibility interviews as the best safeguard against corruption and for unbiased claim assessment.12 The practice in this respect improved quite significantly in 2016, as 89% of all monitored interviews were tape-recorded.  Videoconference interpretation is also used, usually in reception centres outside the capital Sofia,13 where interpreters are harder to find and employ, in which case interviews are conducted with the assistance of the interpreters who work in the reception centres and shelters in Sofia.14

All interviews are conducted by staff members of the SAR, whose competences include interviewing, case assessment and preparing a draft decision on the claim. A protocol of the interview is prepared and it shall be read to, and then signed by the applicants, the interpreter and by the case worker. In practice almost all interviews continue to be recorded also in writing by interviewers by summarising and typing questions / answers in the official protocol.

It has to be noted that in practice most of the transcripts, even if properly recorded, are not read and interpreted to the asylum seeker, but simply presented for signing. Hence an interview report is created, printed immediately after the end of the interview and served to asylum seekers for signing without reading and opportunity to make corrections, if necessary. Concerns remain also with regard to the oral reading of the protocols from the eligibility interviews, where in 84 monitored cases (38% of the total) they were either not read or not interpreted for verification to interviewed asylum seekers before being served for signing. Despite the tape-recording, it could still enable manipulation of the information in the protocol and it would require a phonetic expertise requested in eventual appeal proceedings in order to validly contest their content, if inaccurate. Court expertise expenses in asylum cases have to be met by the appellants, however.15

Notwithstanding the small number of asylum seekers who presented any evidence to support their claims, the caseworkers continued to omit their obligation to collect these pieces of evidence with a separate protocol, a copy of which should be served to the applicant. In 20% of the monitored cases in 2016, the evidence submission was not properly protocoled as one of the safeguards for proper credibility assessment.

Legal aid is not provided in general. In none of the BHC monitored cases in 2016 did asylum seekers have an appointed legal aid lawyer (see section on Regular Procedure: Legal Assistance).

 

Appeal

The negative decision taken in the regular procedure on the merits of the asylum application can be appealed within 14 days from its notification. In general, this time-limit has proved sufficient for rejected asylum seekers to get legal advice, prepare and submit the appeal within the deadline. The SAR is obligated to, and actually does, provide information to rejected asylum seekers as to where and how they can receive legal aid (see Regular Procedure: Legal Assistance) when serving a negative decision, in the form of a list. Presently, however, such legal aid and assistance is provided solely by non-governmental organisations sponsored by donors other than the government and the EU / Asylum, Migration and Integration Fund (AMIF).

The law establishes two appeal instances in the regular procedure, in contrast to appeal procedures for contesting decisions taken in Dublin: Appeal, Accelerated Procedure: Appeal and inadmissibility of Subsequent Applications procedures, where first instance decisions are reviewed in only one court appeal instance.16

Appeal procedures are only judicial; the law does not envisage an administrative review of asylum determination decisions. In an attempt to reduce the workload of the Administrative Court of Sofia, previously responsible for handling all Dublin appeals as well as all appeals in the regular procedure as the first instance of appeal, in 2014 the law was changed to distribute the competence for the latter among all regional administrative courts, designated as per the residence of the asylum seeker who has submitted the appeal.17 Two years after its adoption, however, the amendment did not succeed in significantly redistributing the caseloads among the national courts, as the majority of asylum seekers reside predominantly in reception centres or at external addresses in Sofia and Harmanli. Therefore the Sofia and Haskovo Regional Administrative Courts continue to be the busiest ones, dealing with the appeals against negative first instance determination decisions.

Both appeals before the first and second-instance appeal courts have suspensive effect.

The first appeal instance conducts a full review of the case, both on the facts and the points of law. Asylum seekers are summoned and questioned in a public hearing as to the reasons they applied for asylum. Decisions are published, but also served personally to the appellant.

If the first instance appeal decision is negative, the asylum seekers can bring their case to the second (final) appeal court, the Supreme Administrative Court (3rd Department) but only with regard to points of law.

Both appeal courts have to issue their decisions within one month. However, this deadline is indicative, not mandatory and therefore regularly not respected. The average duration of an appeal procedure before the court at both judicial instances is 15 months, although in more complex cases it can last up to 18 months. If the court finally reverts the first instance decision back, the determining authority SAR has 10 to 14 days to issue a new decision, complying with the court's instructions on the application of the law. In 2016, however, SAR continues to disregard these deadlines, and in many cases refuses again the asylum application despite the court's instructions. Repeated appeal procedures against the second negative decision can cause some asylum procedures to extend for over 2-3 years.

 

Legal assistance

In 2013, Law on Legal Aid was amended to introduce mandatory legal aid for asylum seekers at all stages of the status determination procedure, sponsored under the state budget.18 In the law, the provision of legal aid to asylum seekers is subject to the condition that legal aid is not already provided on another basis. According to the amendment, asylum seekers have the right to ask for the appointment of a legal aid lawyer from the moment of the registration of their asylum application. Before 2013, state funded legal aid was only available to asylum seekers at the appeal stage before the Administrative Court or Supreme Court, according to the Law on Legal Aid.

However, the National Legal Aid Bureau (NLAB), an institution within the Ministry of Justice designated to manage legal aid funding, does not have any resources planned for legal aid to asylum seekers during status determination at first instance. The Bureau had applied for funding for these activities from European Refugee Fund (ERF), but the application was rejected by SAR in its capacity as ERF responsible authority on account of other private legal aid providers.19 ERF funding for legal aid ended on 30 June 2015, but the new AMIF funding was made available just for a short period and limited services, only for 6 months in 2016.

Hence, as of 1 July 2015 and until the end of 2016, asylum seekers were generally left without regular state-provided legal aid (advice and representation) at first instance status determination procedures. At the end of 2016, the government re-introduced legal aid to asylum seekers both under the AMIF 2017 annual programme and the AMIF Emergency Assistance programme.20 The plan envisages the assistance to be provided starting from January 2017 by the National Legal Aid Bureau, but it remains to be seen whether it will be applied in practice.

On appeal, national legal aid arrangements only provide for state-funded legal assistance and representation after a court case has been initiated, i.e. after the appeal has been drafted and lodged. As a result, asylum seekers rely entirely on NGOs for their access to the court, i.e. for drafting and lodging the appeal. Presently, only one NGO, BHC, provides this type of assistance independently of EU funding.21

  • 1. Article 2(2) LAR.
  • 2. Article 27(1) in conjunction with Article 98(10) Bulgarian Constitution.
  • 3. Article 75(1) LAR.
  • 4. Article 74 LAR.
  • 5. BHC, Comments on LAR draft proposal to transpose recast Asylum Procedures Directive, Exh. №Б-21/22 May 2015, insert link.
  • 6. In 2014, 11,080 irregular arrivals and 11,081 applications. In 2015, 31,281 irregular arrivals and 20,391 applications. In 2016, 18,802 irregular arrivals and 19,418 applications.
  • 7. Article 63a(3) LAR.
  • 8. Article 63a(6) LAR in conjunction with Article 61(3) LAR.
  • 9. For the following statistics: BHC, 2016 RSD monitoring report, January 2017.
  • 10. Adopted in 2009.
  • 11. Article 63a(4) LAR.
  • 12. Article 63a(3) LAR.
  • 13. Pastrogor transit centre (near Bulgarian-Turkish border), Harmanli reception centre (South-Eastern Bulgaria) and Banya reception centre (Central Bulgaria).
  • 14. In fact, in Sofia there is just one asylum reception administration, Sofia Reception Centre, which however manages three shelters, where asylum seekers are accommodated, namely Ovcha Kupel, Vrazhdebna and Voenna Rampa.
  • 15. Article 92 LAR.
  • 16. Article 90(3) LAR; Article 85(4) LAR.
  • 17. Article 133 Administrative Procedure Code, State Gazette №104 of 2013, in force on 1 January 2014.
  • 18. Article 22(8) Law on Legal Aid, State Gazette №28/13, in force on 23 March 2013.
  • 19. See SAR, Information Notes, 1 July 2013, available in Bulgarian at: http://bit.ly/1IJrVHG; Information Notes, 5 July 2014, available in Bulgarian at: http://bit.ly/1jMnyGY.
  • 20. See European Commission, ‘European Commission announces up to €108 million in emergency funding to Bulgaria to improve border and migration management’, IP/16/3088, 16 September 2016, available at: http://bit.ly/2cfhJ5D.
  • 21. Since 1994, UNHCR supported and partnered with BHC with regard to protection and legal assistance to asylum seekers in Bulgaria.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti