Detention of vulnerable applicants

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Bulgarian Helsinki Committee Visit Website

The general immigration law, LARB, prohibits the detention of unaccompanied children in general and imposes a maximum period of 3 months for the detention of accompanied children who are detained with their parents.[1]

The asylum law, LAR, provides for the possibility to detain accompanied children for asylum purposes as a last resort, in view of ensuring family unity or ensuring their protection and safety, for the shortest period of time.[2] The position of UNHCR is that the respective provisions do not expressly refer to the primacy of the best interests of the child when ordering detention. They also do not incorporate sufficient guarantees to ensure speedy judicial review of the initial decision to detain and a regular review thereafter. Although presently expanded with additional alternative arrangements,[3] the law still does not envisage specific alternatives to detention appropriate for children such as alternative reception / care arrangements for unaccompanied children and families with children.

In practice, both asylum-seeking and other migrant unaccompanied children continue to be detained in pre-removal detention centres, managed by the Ministry of Interior. Unaccompanied children arrested by the Border or Immigration Police are assigned (“attached”) to any of the adults present in the group with which the children travelled, which has been a steady practice ongoing for last couple of years. Thus, the arrested unaccompanied children are not issued a separate detention order, but instead listed as an “accompanying child” in the detention order of the adult to whom they have been assigned. The same treatment is applied by the regular police services to those unaccompanied children who are captured inside the Bulgarian territory and considered to be irregular due to the lack of identity documents. All of them without exception are transferred to the pre-removal detention centres in Busmantsi or Lyubimets. To do this, identical to the approach of the Border Police, the regular police authorities assigned (“attached”) the children to adults without collecting any evidence or statements for a family link or relation between them. In 2023, the Border Police referred 35 children to respective child protection services with the Agency for Social Assistance, while in the same period 823 children were identified as unaccompanied in both national detention centre.[4]

The so-called ”attachment” is implemented on the basis of a legal definition on extended relatives’ circle, who could be considered as “accompanying adults”; this definition is presently applicable only in immigration procedures.[5] National jurisprudence has however proved inconsistent in this regard.[6] Accordingly, at the end of 2017 the Ombudsperson assisted by the Bulgarian Helsinki Committee requested the Supreme Administrative Court to deliver mandatory interpretation of the law on this matter.[7] The Court started the examination of the case in 2019, and a decision was issued on 29 March 2021. In its decision, the Supreme Administrative Court noted that children detained as a result of the detention of their accompanying adult have their own right to appeal against the detention decision. The court also clarified that the information provided by the police on the relationship between children and accompanying adults is not binding, and that the authorities ordering the detention can further assess the relationship.[8]

In 2021, the UN CAT Subcommittee expressed concerns about the detention of children highlighting the need to ensure humane conditions for detained migrants, especially children, and that detention should only be used when strictly necessary.[9]

An amendment to the LARB Regulations entered into force on 10 July 2018 to introduce rules and procedures for immediate and direct referral of unaccompanied migrant children from the police to the child protection services in order to avoid their detention.[10] The reform resulted in almost immediate change in the national police practices on detention of unaccompanied minor children below 14 years of age. In 2023, 35 unaccompanied children[11] were referred to child protection services without detention, all by the Border Police and 0 by the Immigration Police. Children are assisted by the police and child care services to apply for asylum, thus ensuring their free and direct access to asylum procedure. This was also acknowledged by the UN CAT Subcommittee’s report in 2021.[12]

In the cases of undocumented children from 14 to 18 years, whose age cannot be evidently established just through their appearance, the police continue to employ detention through “attachment” to unrelated adults or registration as adults. The child protection services have refused to credit their statements about their age and commenced implementation of age assessment based solely on X-ray wrist expertise prior to any referral to child care services. Therefore, in 2019, amendments of the primary and secondary immigration legislation were adopted creating additional safeguards for a legally binding referral mechanism[13] New procedures allowing regularisation of rejected and migrant unaccompanied children were also introduced with the possibility to extend their ‘leave to remain’ (i.e. their residence permit) on humanitarian grounds beyond adulthood.[14] The amendments are thus expected to put an end to detention of unaccompanied children, but it remains to be seen how and whether these new provision will be applied in practice. At the end of 2019 an expert group representing both governmental and non-governmental organisations was established to create a national age assessment procedure based on a multidisciplinary approach. Some of these legal safeguards were thus included by the SAR to its LAR amendments.[15] The draft methodology on age assessments was finalised and referred for adoption to the government. However, due to the political instability and repeated general elections during 2021 to 2023 the national legislative agenda was significantly congested, which prevented the endorsement of the draft. In 2023, the age assessment methodology was finally adopted in as a formal Age Assessment Instruction.[16] However, it will be applicable only to children in asylum procedures as the MOI opted out and was not included in the age assessment procedure or arrangements.

In 2023, 1,538 children were detained in pre-removal detention centres. Among them, the Bulgarian Helsinki Committee identified 823 unaccompanied children, including children detained as “attached” to an adult or wrongly registered as adults. However, another 2,305 unaccompanied children were safeguarded from detention due to the gradual improvement in the implementation of the referral mechanism, regulated in the law. Thus, 78% of all unaccompanied children, who arrived in the country, were safeguarded from detention vs. 22% who unduly suffered it (2022: 24% detained vs. 76% who avoided detention; 2021: 28% detained vs. 72% who avoided detention; 2020: 37% detained vs. 63% who avoided detention). [17]

[1] Article 44(9) LARB.

[2] Article 45f(1) LAR.

[3] Article 44(5) LARB.

[4] Bulgarian Helsinki Committee, 2023 December 2023 UNICEF Progress report, 10 January 2024.

[5] Additional clauses § 2 LARB Regulations.

[6] See e.g. Supreme Administrative Court, 7th Department, Decision No 12271, 14 November 2016; Decision No 2842, 8 March 2017; Decision No 10789, 4 September 2017; Decision No 12116, 11 October 2017.

[7] Ombudsperson, Request No 11-78, 8 December 2017, available in Bulgarian at: http://bit.ly/2DSflva.

[8] Supreme Administrative Court, General Assembly, Case No.1/2019, 29 March 2021, available in Bulgarian at: https://bit.ly/3FMWPUm.

[9] OHCHR, Bulgaria torture prevention: UN experts concerned about migrant children in detention, published on 5 November 2021, available at: https://bit.ly/423qKUI.

[10] Council of Ministers, Decision No 129 of 5 July 2018, available in Bulgarian at: https://bit.ly/2DpJHHK.

[11] MOI statistics, December 2023, available in Bulgarian at: https://bit.ly/48C57wC.

[12] UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Comments of Bulgaria on the recommendations and observations addressed to it in connection with the Subcommittee visit undertaken from 24 to 30 October 2021, published on 25 October 2022, available at: https://bit.ly/3uMsZ2T, § 99.

[13] Article 28a LARB, St.G. №34/2019, enforced on 24 October 2019.

[14] Article 63k and 63l Regulations for Implementation of the Law on Aliens in the Republic of Bulgaria (LARB Regulations), St.G. №23/2019, enforced on 26 November 2019.

[15] LAR amendments, State Gazette No.89 from 16 October 2020, available in Bulgarian at: https://bit.ly/2M5pyh6.

[16] State Agency for Refugees and State Agency for Child Protection, Age Assessment Instruction, published on 1 December 2023, enforced on 1 March 2024, available in Bulgarian at: https://bit.ly/4ctn0AN.

[17] Bulgarian Helsinki Committee, December 2023 UNICEF report, 10 January 2024.