Regular procedure

Bulgaria

Country Report: Regular procedure Last updated: 30/11/20

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Bulgarian Helsinki Committee Visit Website

General (scope, time limits)

The LAR sets a 6-month time limit for deciding on an asylum application admitted to the regular procedure.[1] The LAR requires that, within 4 months of the beginning of the procedure,[2] caseworkers draft a proposal for a decision on the asylum application concerned. The asylum application should firstly be assessed on its eligibility for refugee status. If the answer is negative, the need for subsidiary protection on account of a general risk to the applicant’s human rights should also be considered and decided upon. The interviewer's position is reported to the decision-maker, who has another 2 months for consideration and decision.

If evidence is insufficient for taking a decision within 6 months, the law allows for the deadline to be extended for another 9 months, but it requires the whole procedure to be limited to a maximum duration of 21 months. Determination deadlines are not mandatory, but only indicative. Therefore even if these deadlines are exceeded, this does not affect the validity of the decision.

According to monitoring activities in 2019, the general decision-taking 6 months deadline was observed in 89% of the cases, leaving 11% of the cases with prolonged determination duration.[3] According to the SAR, the average duration of asylum procedures on the merits ranges from 3 to 6 months, including for nationalities such as Syria, Afghanistan and Iraq.[4]

Whereas the number of asylum applications has constantly decreased in recent years,[5] the percentage of already registered asylum seekers who abandoned their asylum procedures in Bulgaria continued to be high in 2019, reaching 64% of all decisions[6] and 72% of all caseloads.[7] Out of the decisions taken, 40% of asylum procedures were terminated (discontinued) and 24% suspended in absentia:

 

First instance SAR decisions on asylum applications: 2019

In-merit decisions

Refugee status

181

1,694

Subsidiary protection

300

Unfounded

306

Manifestly unfounded

828

Inadmissible

79

Abandoned applications

Terminated

1, 041

1,858

Suspended

817

Total

3,552

 

Source: SAR.

 

Prioritised examination and fast-track processing

 

Prioritised examination is applied neither in law nor in practice in Bulgaria, although a specific procedure is applied with respect to Subsequent Applications.

 

Personal interview

 

After registration has been completed, a date for an interview shall be set. The law requires that asylum seekers whose applications were admitted to the regular procedure be interviewed at least once with regard to the facts and circumstances of their applications.[8] The law requires that the applicant be notified in due time of the date of any subsequent interviews. Decisions cannot be considered in accordance with the law if the interview is omitted, unless it concerns a medically established case of insanity or other mental disorder.[9] In practice, all asylum seekers are interviewed at least once in order to determine their eligibility for refugee or subsidiary protection (“humanitarian status”). Further interviews are usually only conducted if there are contradictions in the statements or if some facts need to be clarified. No particular issues have been reported in 2019.

Interpretation

The presence of an interpreter ensuring interpretation into a language that the asylum seeker understands is mandatory according to the LAR. The law provides for a gender-sensitive approach as interviews can be conducted by an interviewer and interpreter of the same sex as the asylum seeker interviewed upon request.[10] In practice, all asylum seekers are asked explicitly whether they would like to have an interviewer or interpreter of the same sex in the beginning of each interview.

Both at first and second instance, interpretation continued to be difficult in 2019, and its quality was often poor and unsatisfactory. Interpretation in determination procedures remains one of the most serious, persistent and unsolved problems for a number of years. Interpretation is secured only from English, French and Arabic languages, and mainly in the reception centres in the capital Sofia. Interpreters from other key languages such as Kurdish (Sorani or Pehlewani), Pashto, Urdu, Tamil, Ethiopian and Swahili are largely unavailable.

With respect to those who speak languages without interpreters available in Bulgaria, the communication takes place in a language chosen by the decision-maker, not the applicant. Cases where the determination was conducted with the assistance of another asylum seeker are still monitored, although extremely rare. In both cases it is done without the asylum seeker’s consent or evidence that he or she understands it or is able to communicate clearly in that language. It has to be noted however that, in 2019, this represented only 1% of the cases.[11]

27% of the monitored court hearings were assisted by interpreters. However; national courts continued to omit conducting a verification of interpreter’s qualifications in such cases, which created serious problems with respect to the level of understanding and communication between the court and the appellants, and thus seriously undermined this legal safeguard.[12]

The quality of interpretation is insufficient. Interpreters’ Code of Conduct rules adopted in 2009 are not applied in practice. As a result, quite often the statements of asylum seekers are summarised or the interpreters provide comments on their authenticity or likelihood. This problem is exacerbated by the fact that interview protocols are not based on the audio recording of the interview but on the caseworker’s notes. Therefore the interpreters encounter difficulties to provide a full report of applicants’ statements and answers.

Since January 2019, the SAR abandoned the standard set of questions used during eligibility interviews and relied entirely on caseworkers’ ability to structure the interview on open questions. However, there are no guidelines or a code of conduct for asylum caseworkers to elaborate on the methodology for conducting interviews specifically. Similarly, there are currently no gender-sensitive mechanisms in place in relation to the conduct of interviews, except for the asylum seekers’ right to ask for an interpreter of the same gender.[13] This has resulted in a poor quality of examination of asylum claims; i.e. little investigation of the individuals’ statements and refugee stories.

Moreover, while interviewers used to have the opportunity to ask applicants open questions and to allow them to clarify potential contradictions, a unified interviewing process was put in place in 2019, limiting to a great extent the possibility for the caseworker to investigate in depth the grounds for their applications.[14]

 

Recording and report

 

The law provides for mandatory audio or audio-video tape-recording of all eligibility interviews as the best safeguard against corruption and for unbiased claim assessment.[15] The practice in this regard continued to improve in 2019, as 100% of all monitored interviews were tape-recorded. This being said, the benefits of such a procedure are biased by the fact that, in practice, caseworkers take a decision based on their own notes rather than the actual audio recording.

Videoconference interpretation is also used, usually in Pastrogor, Harmanli and Banya, the reception centres outside the capital Sofia, where interpreters are harder to find and employ, in which case interviews are conducted with the assistance of the interpreters who work in Ovcha Kupel, Vrazhdebna and Voenna Rampa, the reception centres and shelters in Sofia. The Bulgarian Helsinki Committee’s experience finds this type of interpretation to create additional difficulties for the applicants to make their statements, as video communication is often disrupted or unclear due to connection problems.

All interviews are conducted by staff members of the SAR, whose competences include interviewing, case assessment and preparing a draft decision on the claim. In practice, almost all interviews continue to be recorded also in writing by interviewers by summarising and typing questions / answers in the official protocol. A report of the interview is prepared and it shall be read to, and then signed by the applicant, the interpreter and by the caseworker.

However, in 46% of the procedures monitored, the interview or the registration reports were not read out to asylum seekers before being served for signature,[16] in clear violation of EU standards.[17] Therefore practices in 2019 continue to worsen in comparison with previous years, as this omission was made in 36% of monitored cases in 2018 and in 26% of the cases in 2017. Under such circumstances, the information recorded in the report of the interview could be prone to potential manipulation, and the applicant would require a phonetic expertise requested in eventual appeal proceedings in order to validly contest the content of the report in case of inaccuracies. Court expertise expenses in asylum cases have to be met by the appellants, however.[18]

Notwithstanding the small number of asylum seekers who presented any evidence to support their claims, caseworkers continued to omit their obligation to collect these pieces of evidence with a separate protocol, a copy of which should be served to the applicant. In 20% of the monitored cases in 2019, the evidence submission was not properly protocoled as one of the safeguards for proper credibility assessment.

 

Appeal

 

A negative decision taken in the regular procedure on the merits of the asylum application can be appealed within 14 days from its notification. In general, this time limit has proved sufficient for rejected asylum seekers to get legal advice, prepare and submit the appeal within the deadline. The SAR is obligated to, and actually does, provide information to rejected asylum seekers as to where and how they can receive legal aid when serving a negative decision, in the form of a list (see Regular Procedure: Legal Assistance).

The law establishes two appeal instances in the regular procedure, in contrast to appeal procedures for contesting decisions taken in Dublin: Appeal, Accelerated Procedure: Appeal and inadmissibility of Subsequent Applications procedures, where first instance decisions are reviewed in only one court appeal instance.[19]

Appeal procedures are only judicial; the law does not envisage an administrative review of asylum determination decisions. Since a 2014 reform, competence for appeals in the regular procedure is distributed among all Regional Administrative Courts, designated as per the residence of the asylum seeker who has submitted the appeal.[20] Six years later, however, the reform has not succeeded in significantly redistributing the caseloads among the national courts, as the majority of asylum seekers reside predominantly in reception centres or at external addresses in Sofia and Harmanli. Therefore the Sofia and Haskovo Regional Administrative Courts continue to be the busiest ones, dealing with the appeals against negative first-instance decisions.

Both appeals before the first and second-instance appeal courts have automatic suspensive effect.

The first appeal instance conducts a full review of the case, both on the facts and the points of law. Asylum seekers are summoned and questioned in a public hearing as to the reasons they applied for asylum. Decisions are published,[21] but also served personally to the appellant.

If the first instance appeal decision is negative, asylum seekers can bring their case to the second (final) appeal court, the Supreme Administrative Court (3rd Department) but only with regard to points of law. In September 2018, amendments were made to the Administrative Procedure Code,[22] which, if not abolished by the Constitutional Court in the pending conformity procedure,[23] would subject the access to this highest instance of all individuals, including asylum seekers, to the unfettered and sole discretion of the judge rapporteur. These amendments were strongly criticised by the National Bar Association, the Judges Union, the Ombudsperson, the President and many opposition parties and members of the academia as evidently anti-constitutional and undermining core democratic and judicial principles.

Both appeal courts have to issue their decisions within one month. However, this deadline is indicative and therefore regularly not respected. The average duration of an appeal procedure before the court at both judicial instances is 15 months, although in more complex cases it can last up to 18 months. If the court finally reverts the first instance decision back, the SAR has 10 to 14 days to issue a new decision, complying with the court's instructions on the application of the law. As in previous years however, SAR continues to disregard these deadlines, and in many cases refuses again the asylum application despite the court's instructions. Repeated appeal procedures against the second negative decision can cause some asylum procedures to extend for over 2-3 years. This duration can be shortened, but unduly, if the access to the Supreme Administrative Court remains conditioned upon the sole discretion of the judge rapporteur.

 

Legal assistance

 

The legal aid system was introduced in Bulgaria in 2005, extending it to court representation beyond the criminal, child protection and tort disputes. Since 2013, the Law on Legal Aid provides mandatory legal aid for asylum seekers at all stages of the status determination procedure, sponsored under the state budget.[24] In the law, the provision of legal aid to asylum seekers is subject to the condition that legal aid is not already provided on another basis. This “means” test is fulfilled on the basis of an applicant’s declaration that he or she does not work and does not have sufficient resources.

Legal assistance at first instance

Asylum seekers have the right to ask for the appointment of a legal aid lawyer from the moment of the registration of their asylum application. However, legal aid in first-instance procedures had still not been implemented.

At the end of 2017, the National Legal Aid Bureau, the national body assigned to provide state sponsored legal aid, received funding under the AMIF national programme to commence for the first time ever in Bulgaria the provision of legal aid to asylum seekers during the administrative phase of the asylum procedure.[25] Legal aid under this 80,000 € pilot project had to be implemented until 31 January 2020 and is limited to the vulnerable categories among applicants for international protection.[26] The project was extended until 31 January 2021.

The National Legal Aid Bureau and the SAR agreed and adopted formal rules and conditions for the provision of legal aid in practice, including individual and third-party complaint mechanisms, anti-discrimination and anti-corruption measures, which took effect on 31 December 2017.

The provision of legal aid for vulnerable asylum applicants commenced in March 2018 and was secured to 507 asylum seekers until the end of 2019 at first instance.[27] Other asylum seekers did not enjoy access to legal aid at the first instance of the asylum procedure.

Legal assistance in appeals

The aforementioned AMIF-funded pilot project on legal aid also covered assistance in the preparation of appeals before the court. Otherwise, for regular applicants on appeal, national legal aid arrangements only provide for state-funded legal assistance and representation after a court case has been initiated, i.e. after the appeal has been drafted and lodged. As a result, asylum seekers rely entirely on NGOs for their access to the court, namely for drafting and lodging the appeal. Presently, the Bulgarian Helsinki Committee provides this type of assistance independently of EU funding.[28] In 2019, BHC assisted 3,974 asylum seekers during their status determination procedures, of whom 2,152 were new applicants in 2019 and 1,822 were asylum seekers with cases pending from previous years.

 


[1] Article 75(1) LAR.

[2] Article 74 LAR.

[3]  Bulgarian Helsinki Committee, 2019 Annual RSD Report, 31 January 2020, based on a statistical quota of 90 cases examined on the merits.

[4] SAR, Exh. No. РД05-28/14.01.2020

[5] From 20,391 in 2015, to 19,418 in 2016, to 3,700 in 2017, to 2,536 in 2018, to 2,152 in 2019.

[6]  This is calculated on the basis of a total of 3,552 decisions taken in 2019 i.e. 1,694 decisions (181 refugee statuses, 300 humanitarian statuses, 306 refusals, 828 manifestly unfounded, 79 inadmissible) and 1858 suspended and terminated (817 suspensions and 1,041 terminations).

[7] This is calculated on the basis of a total of 2,873 cases i.e. 1,822 persons with pending claims at the end of 2018 plus 2,152 new applicants, minus 1,101 persons with pending claims at the end of 2019.

[8] Article 63a(3) LAR.

[9]  Article 63a(6) LAR in conjunction with Article 61(3) LAR.

[10] Article 58(8) LAR.

[11] Bulgarian Helsinki Committee, 2019 Annual RSD Monitoring Report, 31 January 2020.

[12]Ibid.

[13] Article 63a(4) LAR.

[14] Bulgarian Helsinki Committee, 2019 Annual RSD Monitoring Report, 31 January 2020.

[15] Article 63a(3) LAR.

[16] Bulgarian Helsinki Committee, 2019 Annual RSD Monitoring Report, 31 January 2020.

[17]  See Court of Justice of the European Union (CJEU), Case C-348/16 Sacko, Judgment of 26 July 2017, para 35; Case C-249/13 Boudjlida, Judgment of 11 December 2014, para 37; Case C-166/13 Mukarubega, Judgment of 5 November 2014, para 47.

[18] Article 92 LAR.

[19] Article 90(3) LAR; Article 85(4) LAR.

[20] Article 133 Administrative Procedure Code.

[21] The Court decisions are available at: https://bit.ly/2OZU62r.

[22] Law amending the Administrative Procedure Code, State Gazette № 77, 18 September 2018, available in Bulgarian at: https://bit.ly/2Hqlrcr.

[23] Constitutional Court, Case No 12/2018.

[24] Article 22(8) Law on Legal Aid.

[25] National Legal Aid Bureau, ‘Обява за конкурс за адвокати за работа по проект’, 29 January 2018, available in Bulgarian at: http://bit.ly/2DP376C.

[26] Ibid.

[27] SAR, Exh. No. РД05-28/14.01.2020.

[28] Since 1994, UNHCR has supported and partnered with the Bulgarian Helsinki Committee with regard to protection and legal assistance to asylum seekers in Bulgaria.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX – Transposition of the CEAS in national legislation