Legal representation of unaccompanied children

Author

Bulgarian Helsinki Committee Visit Website

The 2015 reform mandated the local municipalities to act as legal representatives of unaccompanied children.[1] Highly criticised when adopted, this approach of the law proved to be more inadequate than previous arrangements. The municipalities lacked not only qualified staff, but also basic experience and expertise in child protection. 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.[2] 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.[3] It aimed to address 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 these lawyers was carried out in June 2021. 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.[4] As a result these unaccompanied children had no access to credible information about the asylum procedure and their rights, and 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 drastically improved. NLAB agreed[5] 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. Thus, in 2022 the appointment of a representative to unaccompanied children was carried out in 14 calendar days on average.[6] In total, 3,382 unaccompanied children[7] were appointed legal aid and representation, although due to the high rates of absconding in practice just 245 unaccompanied children were represented in practice during asylum procedure or after recognition.

Another improvement related to provision of information to unaccompanied children regarding the appointment of the respective representative and their contact details. Under the law,[8] SAR has the obligation to provide this information to unaccompanied children immediately and in written form. 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 2022 96% of monitored children were duly and timely informed about the appointment of their representative.[9]

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.[10] As a result of this positive practice, a total of 26 unaccompanied children were accommodated during the course of the year in specialized childcare centres, of whom 2 were asylum seeking children and 24 children granted international protection. Altogether ten 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 center’s staff to work with unaccompanied children seeking or granted protection should be acknowledged and taken into account.

The number of unaccompanied child applicants rose to 3,348 unaccompanied children in 2022, compared to 3,127 in 2021, 799 in 2020, 524 in 2019, 481 in 2018, 440 in 2017 and 2,772 in 2016:

Source: SAR.

Despite unaccompanied children being better informed about their rights and the asylum procedure, the vast majority still abandoned the asylum procedure and moved  irregularly to the countries of their final destination.[11]

[1] Former Article 25(1) LAR.

[2] 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.

[3] Article 25 LAR.

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

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

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

[7] 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.

[8]  Article 25(5) LAR.

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

[10] 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.

[11] SAR statistics: a total of 3,103 unaccompanied children terminated their procedures, i.e. 91% of all 3,382 children (3,348 children who applied in 2022 and 34 children pending from 2021).