Author
An asylum application can be made either before the specialised asylum administration, the SAR, or before any other state authority, which will be obligated to refer it immediately to the SAR.[1] Thus, asylum can be requested on the territory, at the borders before the Border Police staff, or in detention centres before the Migration Directorate staff of the Ministry of Interior. The asylum application should be made within a reasonable time after entering the country, except in cases of irregular entry or residence when it ought to be made immediately.[2] Failure to make an application within a reasonable time or immediately in those cases can be a ground for rejecting it as manifestly unfounded under the Accelerated Procedure.[3]
If the asylum application is made before an authority different than the SAR, then status determination procedures cannot legally start until the asylum seeker is transferred from the border / detention centre and accommodated in any of the SAR’s premises for registration to lodge the claim in person.[4] Under the law, this personal registration is to be implemented in any of the territorial units (see Types of Accommodation) of the SAR and within 3 working days after the making of the asylum application. Exceptions to this deadline are allowed only in cases where the asylum application is lodged before a different government authority or institution, in which case the deadline is set at 6 working days.[5]
No significant delays were noted with respect to the release and registration of asylum seekers who applied while in immigration detention centres. In 2023 the average Duration of Detention was of 7 calendar / 5 working days, within the statutory time-limit.[6] For comparison, in 2022 the average detention duration was of 6 calendar / 4 working days. Registration took place without any delay compared to the established EU minimum standard.[7]
An important improvement, firstly monitored in 2022[8] was maintained in 2023. It relates to the access to procedure of the so called ‘self-reported asylum seekers’, i.e. those who managed to enter and travel in Bulgaria undetected by the police to turn up on their own directly at a SAR reception centre (Sofia, Banya, Harmanli or Pastrogor) and seek protection. Since 2016 the SAR has been refusing to register the self-reported asylum seekers, instead it has been alerting the local police departments. As a result, the asylum seekers subjected to this practice have been arrested and detained in MOI pre-removal centres. For example, in 2021 this affected 196 newly arrived asylum seekers, among whom families with minor children and pregnant women. In 2022, the practice was implemented in a more limited number of instances,[9] as was the case also in 2023[10] when it affected 48 out of 22,518 persons (0.2%) who had lodged an asylum application.[11] The cases in which SAR refused to register self-reported asylum seekers were reported regarding the reception centres in Ovcha Kupel (Sofia) and Harmanli.
Another improvement registered in 2022 and maintained in 2023 relates to registrations and status determinations carried out – in violation of the law – by SAR in MOI immigration detention centres. Under existing legal provisions,[12] while SAR can in fact detain asylum seekers pending the asylum procedure, it has the power to do so only in closed SAR reception centres. Since 2015, SAR began to carry out registrations and asylum procedures in MOI immigration detention centres instead. In 2023, SAR reduced to a minimum this unlawful practice, carrying out only 1 procedure in a MOI immigration detention centre in Lyubimets.[13]
At the end of the process, the asylum seeker receives a registration card (регистрационна карта) in paper format. It should be noted, however, that the registration card is not issued to subsequent applicants.[14]
Under the law,[15] the SAR must inform the State Agency for National Security (SANS – Държавна агенция “Национална сигурност“) of the registration of every asylum application. The SANS then conducts security assessments based on interviews with applicants, which are often held as soon as they are arrested by police, border and immigration officers. In practice, the SAR follows these assessments without conducting further investigations and rejects applications accordingly, even when the information is classified. National courts notoriously refuse to check or verify the facts raised by the SANS as security concerns in individual cases. As a result, in the past the European Court on Human Rights (ECtHR) repeatedly ruled that Bulgaria has been regularly violating the right to an effective remedy.[16] In 2023, a decision[17] of the Supreme Administrative Court referring to CJEU jurisprudence (Országos Idegenrendeszeti Főigazgatóság and Others, C‑159/21, 22 September 2022) upheld that the result of the SANS written opinion considering a certain person a threat to national security should not be mandatorily taken into account in SAR decisions. The court found that the asylum agency not only had the jurisdiction but also the obligation to assess whether the evidence for it was sufficient and satisfactory, and that SAR cannot automatically uphold the SANS opinion, and exclude asylum-seekers from international protection only on this basis.
[1] Article 58(4) LAR.
[2] Article 4(5) LAR.
[3] Article 13(1), items 11-12 LAR.
[4] Article 61a(1) LAR.
[5] Article 61a(1) LAR in conjunction with Article 58(4) LAR.
[6] Article 6(1) recast Asylum Procedures Directive.
[7] Article 6(1) recast Asylum Procedures Directive.
[8] Bulgarian Helsinki Committee, 2022 Annual RSD Monitoring Report, published on 1 March 2023, available at: https://bit.ly/3Jkd3t0.
[9] Ibid.
[10] Bulgarian Helsinki Committee, 2023 Annual Refugee Status Determination Monitoring Report, 31 January 2024, available at: https://bit.ly/3OTqvGv.
[11] Ibid.
[12] Article 45(b) etc. LAR.
[13] Bulgarian Helsinki Committee, 2022 Annual RSD Monitoring Report, published on 1 March 2023, available at: https://bit.ly/3Jkd3t0.
[14] Article 76c(3) LAR.
[15] Article 58 (10) LAR.
[16] ECtHR, Al-Nashif and other v. Bulgaria, Case N50963/99, 20 September 2002; Musa and other v. Bulgaria, Case N61259/00, 11 January 2007; Hassan v. Bulgaria, Case 54323/00, 14 June 2007; Bashir and other v. Bulgaria, Case N65028/01, 14 June 2007; C.G. and other v. Bulgaria, Case N1365/07, 24 April 2008.; Raza v. Bulgaria, Case N31465/2008, 11 February 2010; Kaushal and other v. Bulgaria, Case N1537/08, September 2010; GC and other v. Bulgaria, Case N1365/07, 24 June 2008; O.D. v. Bulgaria, Case N34016/18, 10 October 2019 ; M.A. and other v. Bulgaria, Case N5115/18, 20 June 2020.
[17] Supreme administrative court, Decision №11467 from 22 November 2023, available in Bulgarian at: https://bit.ly/3T9EZER.