Legal representation of unaccompanied children

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Since 2015, local municipalities are mandated to act as legal representatives of unaccompanied children.[1] Highly criticised when adopted, this approach proved to be more inadequate than previous arrangements. The municipalities lacked not only qualified staff, but also basic experience and expertise in child protection.[2] In addition to that, the number of legal representatives appointed – one or two per reception facility – was insufficient to meet the need of the population of unaccompanied children who, remained considerable in number.

At the end of 2020, amendments to the law introduced a major change in the legal representation of unaccompanied asylum seeking and refugee children.[3] The obligation to represent these children not only in the procedure, but also after the recognition and before all agencies and institutions regarding their rights and entitlements, was shifted from the municipalities to the National Legal Aid Bureau. It includes requirements related to the qualification of the appointed legal aid lawyers and representation implemented in the child’s best interest.[4] It aimed at addressing the absence of guardians, and ensure proper legal representation and care for the best interests of unaccompanied children in asylum procedures to mitigate high rates of absconding and related protection and safety risks.

The selection of the lawyers was carried out in June 2021. A report, published in 2022 by the non-governmental organisation, Foundation Access to Rights, indicated that the main challenges in this respect were the low number of representatives in practice and the legal framework allowing one representative to be responsible for more than 50 children.[5] In December 2023, NLAB conducted training of 18 additional lawyers vis-à-vis its planned expansion of Article 25 limited list of representatives. In September 2023, the non-governmental organisation Bulgarian Helsinki Committee communicated its first annual report assessing the quality of the representation provided by Article 25 legal aid lawyers. The report was based on a formal agreement,[6] endorsed by UNHCR and funded by UNICEF. It covered the period from 1 July 2022 until 31 August 2023 with feedback collected from 215 interviews with unaccompanied children at Sofia and Harmanli reception centres. The report provided both general findings about the overall quality of the legal representation as well as individual assessment of each 23 acting legal aid lawyers from the limited NLAB list. The general feedback from children remained predominantly positive with respect to legal aid lawyers acting in Sofia reception centres and predominantly reserved to negative with respect to legal aid lawyers acting in Harmanli reception centre.[7] On 14 March 2023 the NLAB Executive Committee will hold a review of the report to consider amendment of its internal rules to allow striking of underperforming representatives out of the limited Article 25 list.

In the past, the SAR used to significantly delay the notification to the National Legal Aid Bureau of the necessity to appoint a representative, reaching a period longer than 1 month in certain cases.[8] As a result, unaccompanied children left without a representative had no access to credible information on the asylum procedure and their rights, especially the right to be legally transferred under the Dublin III Regulation to other EU countries to reunite with their family members. In 2022 however, the practice in this respect improved significantly. NLAB agreed[9] with SAR to provide the latter with access to its automated individual database, which could be used not only to send an immediate notification by SAR to NLAB about requested new representative’s appointments, but also allowing the SAR to obtain immediately and directly information about the appointed representative. However, in 2023 the timely appointment of a representative to unaccompanied children was again delayed, this time due to delays by SAR in sending of the appointment requests to NLAB. Monitoring established[10] that in 46% of the cases SAR requested the appointment within a week from the registration date, however in 22% of the cases this request was made within two weeks from the registration and in the rest 32% – after more than two weeks. It represented a significant retreat from practice in 2022[11] , when in 100% of the monitored cases SAR made this request within two weeks. In total, 3,081 out of all 3,843 unaccompanied children who applied in 2023 plus 413 unaccompanied children, registered in December 2022 (72%)[12] were appointed legal aid and representation, although due to the high rates of absconding in practice just 388 unaccompanied children were represented in practice during asylum procedure or after recognition.

The immediate and written provision of information to unaccompanied children regarding the appointment of the respective representative and their contact details is a legal obligation of the SAR.[13] Fully omitted until the very end of 2021, when such information began to be partially provided in Ovcha Kupel and Voenna Rampa safe-zones, in 2023 81% of monitored children were duly and timely informed about the appointment of their representative.[14] This represented a retreat from the practice in 2022 when 96% of unaccompanied children were duly provided this information.[15]

Since mid-2022 the SAR began to actively search for opportunities to accommodate unaccompanied children in licensed family-type children’s centres (ЦНСТ). During the procedure such efforts were undertaken with regard mainly to minor asylum-seeking children, children with special needs or such identified as being at increased risk of trafficking or harm. After the recognition, these efforts targeted all unaccompanied children, excluding those in family reunification procedures, whom were allowed to wait the reunification with their parents or other family members in SAR reception centres.[16] As a result of this positive practice, in 2023 a total of 43 unaccompanied children were accommodated during the course of the year in specialized childcare centres, of whom 2 were asylum seeking children and 41 children granted international protection[17]. Altogether eleven licensed childcare centers have engaged in this practice in localities across the country, namely in Sofia, Burgas, Vidin, Ruse, Kardzhali, Novo Selo and Zvanichevo. At the same time the lack of specialized training of the childcare centre’s staff to work with unaccompanied children seeking or granted protection should be acknowledged and taken into account as well as the lack of secured interpretation at least for the initial period of accommodation and adjustment.

The number of unaccompanied child applicants rose to 3,843 unaccompanied children in 2023, compared to 3,483 in 2022; 3,127 in 2021; 799 in 2020; 524 in 2019; 481 in 201; 440 in 2017 and 2,772 in 2016:

Source: SAR.

Out of all unaccompanied children whose asylum claims were assessed in 2023, 3 children were recognised as refugees, 297 were granted subsidiary protection, 297 were rejected international protection and 3,868 children absconded prior their decision, therefore their procedures were terminated.

Despite unaccompanied children being better informed about their rights and the asylum procedure, the vast majority (91%) still abandoned the asylum procedure and moved irregularly to the countries of their final destination.[18]

[1] Former Article 25(1) LAR.

[2] Bulgarian Helsinki Committee, 2012, 2013, 2015 and 2016 Annual Refugee Status Determination Monitoring Reports, available at: https://bit.ly/49TvJdp. 

[3] National Parliament, Amendments on the Law on Asylum and Refugees (LAR), State Gazette No.89 from 16 October 2020, available at: https://bit.ly/2LoUMiG.

[4] Article 25 LAR.

[5] Foundation Access to Rights, Ролята на представителя в процедурите по предоставяне на закрила на непридружените деца, published on 15 June 2022, available in Bulgarian at: https://bit.ly/3TPH5u5.

[6] Tri-Partite Note of Understanding on the Provision of Legal Assistance to Persons in Need of International Protection in Status Determination Procedures, signed on 3 May 2017 among the National Bureau for Legal Aid, UNHCR and Bulgarian Helsinki Committee.

[7] Bulgarian Helsinki Committee/UNICEF, Monthly Progress Report on child protection, 10 January 2024.

[8] Bulgarian Helsinki Committee, 2021 Annual RSD Monitoring Report, available at: https://bit.ly/3Ad4wlt.

[9] Teleconference with NLAB Chair Natalia Ilieva on 22 December 2022.

[10] Bulgarian Helsinki Committee, 2023 Annual Refugee Status Determination Monitoring Report, 31 January 2024, available at: https://bit.ly/3SX3ST7.

[11] Bulgarian Helsinki Committee, 2022 Annual RSD Monitoring Report, published on 1 March 2023, available at: https://bit.ly/3Jkd3t0.

[12] Teleconference with NLAB Chair Natalia Ilieva on 22 December 2022: 3,348 children in 2022 and 34 children pending from 2021, of whom to 3,103 children the appointed legal aid was abolished due to absconding.

[13] Article 25(5) LAR.

[14] Bulgarian Helsinki Committee, 2012, 2013, 2015 and 2016 Annual Refugee Status Determination Monitoring Reports, available at: https://bit.ly/49TvJdp.

[15] Bulgarian Helsinki Committee, 2022 Annual RSD Monitoring Report, published on 1 March 2023, available at: https://bit.ly/3Jkd3t0.

[16] SAR, Rules and procedures on the accommodation of unaccompanied children granted international protection in foster families, social or integrated socio-medical care facilities for children of a residential type, adopted in October 2022.

[17] SAR reg.№ЦУ-РД05-123/27.02.2024.

[18] SAR statistics: out of 4,256 unaccompanied children dealt in 2023 (3,843 children in 2023, plus 413 children, with cases pending from 2022) a total of 3,868 unaccompanied children absconded with their procedures terminated.