Author
Pre-removal detention upon arrival
Under Article 44(6) of the Law on Aliens in the Republic of Bulgaria (LARB), a third-country national may be detained where:
- Their identity is uncertain;
- They are preventing the execution of the removal order; or
- There is a possibility of absconding.
The different grounds are often used in combination to substantiate detention orders in practice. In practice, detention of third-country nationals is ordered by the Border or Immigration Police on account of their unauthorised entry, irregular residence or lack of valid identity documents.
Short-term detention
At the end of 2016, the LARB introduced “short-term detention” to be used for security checks, profiling and identification.[1] The law entered into force on 6 June 2018.[2] After the amendments, police authorities can initially order a detention of 30 calendar days within which period the Immigration Police should decide on following detention grounds and period or on referral of the individual to an open reception centre, if he or she has applied for asylum.
Short-term detention orders were frequently issued by the police until the summer of 2022 when, in attempt to give proof to EU institutions of the readiness of Bulgaria to join the Schengen zone, the caretaker cabinet’s MOI management instructed on direct application of long-term detention orders – with initial period of 6 months – without any prior consideration of personal circumstances or submitted asylum claim.
In general, the immigration police implement very few removals of detained third country nationals on an annual basis. In 2023, out of 18,554 third country nationals issued a detention orders the MOI carried out 565 removals, which represented just 3% implementation rate.[3] The rest of the detainees had to be released either on account of submitted first asylum applications, or because the ordered initial 6 months detention duration has expired. The inability of MOI to implement the removals is attributed to the fact that the overwhelming majority of the third country nationals originate from Syria or Afghanistan,[4] to which removal or return are legally and/or practically impossible. These circumstances made the majority of the detention orders not only issued without a legitimate purpose, but also pointless from a practical point of view.
In May 2022, the European Court on Human Rights issued a judgment which found the Bulgarian authorities in violation of Article 5(1) of the ECHR relating the length of the detention as it did not appear that the authorities took any active steps to check the realistic prospects of the removal; and that the reasons which initially justified the detention were no longer valid throughout the period of the applicant’s deprivation of liberty in light of the authorities’ failure to exercise sufficient diligence in carrying out that measure, therefore giving rise to a violation of Article 5(1).[5]
Registration and determination of asylum seekers in immigration detention
The law does not allow the SAR to conduct any determination procedures in the pre-removal detention centres.[6]
However, as of 2018 the SAR began to register, fingerprint, and determine asylum seekers in pre-removal detention centres and to keep them there after issuing them asylum registration cards. The applicants release and access to asylum procedure was usually secured only by an appeal against detention and a court order for their release. In principle, this practice affected individuals who were deemed deportable for having valid passports or other original national identity documents. With the exception of subsequent applicants who are excluded by law from the right to remain in Bulgaria pending the admissibility assessment of their subsequent claims,[7] the asylum seekers processed in pre-removal detention centres were being determined by the SAR in an Accelerated Procedure, which stripped them of the right to an onward appeal and thereby prevents them from challenging the practice further before the Supreme Administrative Court. This malpractice was mostly supported by the courts, which found asylum procedures in pre-removal centres in violation of procedural standards, though this violation was considered insignificant one as the rights of asylum seekers were not severely affected.[8] In some limited cases, courts have ruled that the conduct of the personal interview in an immigration detention centre amounts to a serious breach of procedural rules.[9]
The detention of asylum seekers and failure to observe procedural safeguards form part of the concerns expressed by the European Commission in the letter of formal notice sent to Bulgaria on 8 November 2018 relating to non-compliance with the EU asylum acquis.[10]
In 2022, SAR management reversed and almost completely abandoned this malpractice,[11] with only 1 registration and only 1 determination conducted in Busmantsi detention centre. The approach was maintained in 2023, with just 1 procedure conducted in Lyubimets detention centre.[12]
Asylum detention
Asylum seekers can also be placed in closed reception facilities i.e. detention centres under the jurisdiction of the SAR during the determination of their claim. The national grounds transpose Article 8(3)(a), (b), (d) and (f) of the recast Reception Conditions Directive, according to which an applicant may be detained:[13]
- In order to determine or verify his or her identity or nationality;
- In order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;
- When protection of national security or public order so requires;
- For determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person.
In 2023, 32 asylum seekers were detained in the asylum closed facility, situated at the premises of the closed reception ward (ПЗТ) in the Busmantsi pre-removal detention centre, the only closed reception facility for that purpose. 4 asylum seekers were held there at the end of the year 2023. The grounds applied were verification of identity or nationality, and protection of national security or public order.
[1] Article 44(13) LARB.
[2] Law amending the Law on Aliens in the republic of Bulgaria, No 97/2016, 2 December 2016, available in Bulgarian at: http://bit.ly/2kJoYpi.
[3] MOI statistics, December 2023, available in Bulgarian at: https://bit.ly/48C57wC.
[4] Ibid.
[5] European Court on Human Rights and Fundamental Freedoms, application No.35422/16 Ali Reza v. Bulgaria, Judgement from 17 May 2022, available at: https://bit.ly/3kYRu8a.
[6] Additional Provision 5 LAR; Article 45b LAR.
[7] Article 76c(2) LAR.
[8] Administrative Court of Sofia, Decision No 5378, 17 September 2017; Decision No 4740, 14 July 2017; Decision No 5105, 2 August 2017, Decision No 193, 14 March 2017; Administrative Court of Haskovo, Decision No 187, 16 March 2017; Administrative Court of Haskovo, Decision No 93, Case No 1322/2017, 29 January 2018; Administrative Court of Sofia, 21st Division, Decision No 806, Case No 4161/2017, 12 February 2018; Administrative Court of Haskovo, Decision No 996, Case No 14229/2017, 19 February 2018; Administrative Court of Sofia, 57th Division, Decision No 7499, Case No 11273/2018, 11 December 2018.
[9] Administrative Court of Sofia, Decision No 977, 16 February 2018.
[10] European Commission, ‘November infringements package: key decisions’, MEMO/18/6247, 8 November 2018, available at: https://bit.ly/2RETZfR.
[11] Bulgarian Helsinki Committee, 2022 Annual RSD Monitoring report, 1.1.2. Procedure at the police detention centers, page 6, available at: https://bit.ly/3Y3WzJJ.
[12] Bulgarian Helsinki Committee, 2023 Annual Refugee Status Determination Monitoring Report, 31 January 2024, available at: https://bit.ly/48C57wC.
[13] Article 45b(1) LAR.