Detention of vulnerable applicants

Bulgaria

Country Report: Detention of vulnerable applicants Last updated: 30/11/20

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Bulgarian Helsinki Committee Visit Website

The 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] An exemption had been introduced in the beginning of 2017 to exclude from the detention prohibition unaccompanied children upon condition that it was applied as a last resort and after best interests determination.[2] Never applied in practice and widely criticised, including by UNHCR and UNICEF, the provision was abolished at the end of 2017.[3]

For its part, the 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.[4] 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,[5] 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. Unaccompanied children arrested by the Border Police upon entry or, if arrested during their attempt to exit Bulgaria irregularly, 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 served with a separate detention order, but instead described 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. In order 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.

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 applicable solely in asylum procedures, however.[6] Therefore the application of this definition in immigration procedures in order to substantiate unaccompanied children’s inclusion in the detention orders of adults other than their parents is identified as yet another infringement of the law, additional to the principal violation of the detention prohibition.[7] National jurisprudence has proved controversial and inconsistent in this regard, however.[8] Accordingly, at the end of 2017 the Ombudsperson requested the Supreme Administrative Court to deliver mandatory interpretation of the law in this respect.[9] The case was finally administered in 2019 but still without any scheduled hearing.[10]

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.[11] The reform resulted in almost immediate change in the national police practices on detention of unaccompanied minor children below 14 years of age. Since the end of July 2018, Border and Immigration Police refer unaccompanied children below 14 from mixed migratory groups directly to child care services without detention of any kind. Children are assisted by the police and child care services to apply for asylum, thus ensuring their free and direct access to asylum procedure. However, in the cases of undocumented children from 14 to 18 years, whose age cannot be evidently established by 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[12] 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.[13] 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.

In 2019, 216 children were detained in pre-removal detention centres. Among them, the Bulgarian Helsinki Committee identified 135 unaccompanied children, including children detained as “attached” to an adult or wrongly recorded as adults.[14]

 


[1]  Article 44(9) LARB.

[2]  Article 44(13) in fine LARB.

[3]  Law amending the LARB, State Gazette No 97, 5 December 2017.

[4]  Article 45f(1) LAR.

[5]  Article 44(5) LAR.

[6]  Article 1(4) LAR.

[7]   Article 44(9) LARB.

[8]  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.

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

[10]  Supreme Administrative Court, General Assembly, Case No.1/2019

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

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

[13] 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.

[14] Bulgarian Helsinki Committee, December 2019 UNICEF report, 15 January 2020.

 

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