Author
Asylum can be claimed on the territory, at borders before the Border Police staff, or in detention centres before the Migration Directorate staff, either of which are obligated to refer it immediately to the SAR.[1] The SAR is required to formally register the referred applications no later than 6 working days from their initial submission before another authority. The asylum application should be made within a reasonable time after entering the country, except in the case of irregular entry / residence when it ought to be made immediately,[2] otherwise it could be ruled out as manifestly unfounded.[3] The law does not foresee a maximum time limit for lodging the asylum application. If the asylum application is made before a state authority other than the SAR, status determination procedures cannot legally start until the asylum seeker is physically transferred from the border or detention centre to any of the SAR’s reception centres for the so-called registration “in person” or “personal registration”.[4]
The asylum procedure stages are unified in one, single regular procedure. Dublin and accelerated procedures are now considered as non-mandatory phases of the status determination, applied only by a decision of the respective caseworker, if and when information or indications are available to either engage the responsibility of another Member State to determine the asylum application in question,[5] or to consider the asylum application as manifestly unfounded respectively.[6]
Admissibility procedure: An application can be deemed inadmissible if the applicant has been granted protection or a permanent residence permit in another EU Member State or “safe third country.[7] An admissibility assessment is also conducted with respect to subsequent applications which provides the opportunity to consider their admissibility based on a preliminary examination whether new elements or findings have arisen or been presented by the applicant relating to his personal situation or country of origin.[8] In the upcoming amendment of the national asylum law,[9] following recommendations by the Commission, provided during the negotiations and implementation[10] of the EC-Bulgaria pilot project on accelerated procedure, both admissibility and accelerated procedure’s grounds were re-worded and reorganized in the text of the law to fully correspond to the respective provisions of the APD.
Accelerated procedure: The accelerated procedure is presently applied by a decision of the respective caseworker, if and when there is information or indications to consider the application as manifestly unfounded based on a number of different grounds.[11] A decision should be taken within 14 working days from lodging, otherwise the application has to be examined under the regular procedure. The accelerated procedure is not applicable to unaccompanied children. In the upcoming amendment of the national asylum law[12] following the recommendations from the European Commission both admissibility and accelerated procedure’s grounds were re-worded and re-structured to correspond to the respective provisions of the APD.
Regular procedure: The regular procedure (titled under the law as a “Procedure for granting of an international protection”) requires detailed examination of the asylum application on its merits. A decision should be taken within 4 months from the lodging of the asylum application but this deadline is indicative, not mandatory. The deadline can be extended by 9 additional months with an explicit decision in this respect by the Head of the SAR,[13] but in any case the SAR must conclude the examination procedure within a maximum time limit of 21 months from the lodging of the application.[14]
Appeal: The appeal procedure mirrors the non-mandatory stages of administrative status determination:
- Dublin / Subsequent application: A non-suspensive appeal must be submitted within 7 days to the Administrative Court of Sofia, which has exclusive competence, in one instance;[15]
- Accelerated procedure: A suspensive appeal must be submitted within 7 days to the territorially competent Regional Administrative Court, in one instance.
- Inadmissibility / Regular procedure: A suspensive appeal must be submitted within 14 days to the territorially competent Regional Administrative Court.
An onward appeal to the Supreme Administrative Court is possible for inadmissibility decisions and negative decisions taken in the regular procedure. In Dublin cases, subsequent applications and decisions taken under the accelerated procedure, only one appeal instance is applicable.
Legal aid can be granted by the court, if requested. All courts in all types of appeal procedures can revoke entirely the appealed administrative decisions and give mandatory instructions as to how the case must be decided at the first instance by the SAR. However, the courts do not have powers to grant protection directly or to sanction the SAR, if their instructions are not observed while reverted asylum applications are re-considered. The courts can only proclaim the re-issued decision as null and void after a new appeal procedure, if it ignores the previous instructions of the court.
Return decision: Bulgaria’s approach regarding return decisions for unsuccessful applicants for international protection is that police authorities are obliged to automatically issue a return order to all irregular third country nationals (hereafter referred to as TCNs), apprehended at the border or inside the country’s territory.[16] If the TCN applies for international protection, the implementation of the return order is suspended until the decision of the asylum authority becomes final.[17] If the asylum applicant is granted a positive decision, the return order is cancelled, and if in case of a negative decision, the return can be implemented immediately.
[1] Article 58(4) Law on Asylum and Refugees (LAR).
[2] Article 4(5) LAR.
[3] Article 13(1), items 11-12 LAR.
[4] Article 61a(1) in conjunction with Article 68(1) item 1 LAR.
[5] Article 67c(2) LAR.
[6] Article 70(1) LAR.
[7] Article 15 LAR.
[8] Articles 76a to 76c LAR; Article 76d in conjunction with Article 13(2)-(4) LAR.
[9] Law on Asylum and Refugees draft amendments, published for public consultations on 5 January 2024, available in Bulgarian at: https://bit.ly/3TbGP8m.
[10] SAR, Annual report on procedures for international protection in 2023, available in Bulgarian at: https://bit.ly/3IgTCjm.
[11] Article 70(1) LAR. The 14 applicable grounds are set out in Article 13(1) LAR.
[12] Law on Asylum and Refugees draft amendments, published for public consultations on 5 January 2024, available in Bulgarian at: https://bit.ly/3TbGP8m.
[13] The State Agency for Refugees is managed by a Chairperson: Article 46 et seq. LAR.
[14] Article 75(5) LAR.
[15] Article 84(4) LAR.
[16] Article 41 LARB.
[17] Article 67 LAR.