Detention of vulnerable applicants

Bulgaria

Author

Bulgarian Helsinki Committee

In March 2013, the LARB was amended to prohibit the detention of unaccompanied children in general and to introduce a maximum period of 3 months for the detention of accompanied children who are detained with their parents.1

In practice, however, unaccompanied children continue to be detained, both asylum-seeking and migrant children. Unaccompanied children arrested by the Border Police upon entry, or, if arrested during their attempt to exit Bulgaria irregularly, are assigned (“attached”) to any of the adults present in the group with which the children travelled, which has been a steady practice ongoing for last couple of years. Thus, the arrested unaccompanied children are not served with a separate detention order, but instead described as an “accompanying child” in the detention order of the adult to whom they have been assigned.

The same treatment is applied by the regular police services to those unaccompanied children, who were captured inside the Bulgarian territory and considered to be irregular due to the lack of identity documents. All of them without exception were transferred to the detention centres for irregular migrants in Elhovo (a triage centre), Busmantsi or Lyubimets (pre-removal detention centres). In order to do this, the regular police authorities, identical to the approach of the Border Police, assigned (“attached”) the children to adults without collecting any evidence or statements for a family link or relation between them. The so-called ”attachment” is implemented on the basis of a legal definition on extended relatives’ circle, who could be considered as “accompanying adults”; this definition however is applicable solely in asylum procedures.2 Therefore, the application of this definition in immigration procedures in order to substantiate unaccompanied children’s inclusion in the detention orders of adults other than their parents, is identified as yet another infringement of the law, additional to the principal violation of the detention prohibition.3

In 2016, BHC identified 1,821 unaccompanied children detained in the national immigration detention centres.4

Otherwise, under the general immigration legislation, the detention of accompanied children is allowed, as a matter of exception for up to 3 months.5 The law currently envisages only one alternative to detention – weekly reporting duties to the police office in the area where the individual is residing, which may not be appropriate for new arrivals who do not have a place of residence. UNHCR and UNICEF both stand behind the position that there is no requirement to consider the principles of necessity, proportionality and reasonableness as well as to examine alternatives to detention prior to issuing the decision.6 The law does not contain sufficient guarantees to ensure the detention of children is a measure of last resort, for the shortest possible period and subject to best interests’ assessment. Detention is also not subject to a prompt judicial review of the initial decision to detain and a regular review thereafter. There is also a lack of legal aid ensured to challenge the detention order despite the provisions in this respect in general child protection legislation.7

Additionally, the LAR provides for the possibility to detain accompanied children for asylum purposes as a last resort, in view of ensuring family unity or ensuring their protection and safety, for the shortest period of time.8 The position of UNHCR is that the respective provisions do not explicitly refer to the primacy of the best interests of the child when ordering detention. They also do not incorporate sufficient guarantees to ensure speedy judicial review of the initial decision to detain and a regular review thereafter. Apart from bi-weekly reporting to the authorities,9 the law does not envisage specific alternatives to detention appropriate for children such as alternative reception / care arrangements for unaccompanied children and families with children.

  • 1. Article 44(9) LARB.
  • 2. Article 1(4) LAR.
  • 3. Article 44(9) LARB.
  • 4. BHC, 2016 Project performance report, 15 January 2017.
  • 5. Article 44(9) LARB.
  • 6. UNHCR, Protection of Refugee and Migrant Children in Bulgaria: Gaps analysis, November 2016, available at: XXX; UNICEF, Strengthening of the Protection of Migrant Children in Bulgaria, May 2016, available at: http://bit.ly/2kJtrZZ.
  • 7. Article 15(8) Law on Child Protection.
  • 8. Article 45f(1) LAR.
  • 9. Article 45a LAR.

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