Grounds for detention

Bulgaria

Country Report: Grounds for detention Last updated: 21/04/21

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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:

  1. His or her identity is uncertain;
  2. He or she is preventing the execution of the removal order; or
  3. There is a possibility of his or her hiding.

The different grounds are often used in combination to substantiate detention orders in practice. In the Bulgarian Helsinki Committee’s experience, detention orders are issued based on a combination of all three grounds for detention.

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. After the amendments of the LARB in the end of 2016,[1] these 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.

In 2020, the number of persons issued a pre-removal detention order was 3,487. This included 2,781 asylum seekers.

The law does not allow the SAR to conduct any determination procedures in the pre-removal detention centres.[2] However, as of 2018 and presently, the SAR continues to register, fingerprint, and determine asylum seekers in pre-removal detention centres and to keep them there after issuing them asylum registration cards. Their release and access to asylum procedure is usually secured only by an appeal against detention and a court order for their release. In principle, this affected individuals who are deemed deportable for having valid passports or other original national identity documents. Since the beginning of 2020 a total of 11 applicants – 0.4% of all new applicants – had their cases determined by the SAR in the detention centres of Busmantsi and Lyubimets.

All asylum seekers processed in pre-removal detention centres are being determined by the SAR in an Accelerated Procedure, which strips them of the right to an onward appeal and thereby prevents them from challenging the practice further before the Supreme Administrative Court.

For the time being, this malpractice is mostly supported by the courts, which find that the asylum procedure in pre-removal centres is a violation of procedural standards but an insignificant one as the rights of the asylum seekers during the status determination are not severely affected.[3] 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.[4] The Supreme Administrative Court also ruled in 2018 that the lodging of an asylum application entitles the asylum seeker to apply for immediate release from detention,[5] but in just one case of all.

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.[6]

The most negative development in 2020 related to the refoulement implemented by the MOI Migration Directorate with regard to 2 asylum seekers. Despite being first-time applicants in possession of valid documents and cleared from the security services, they were deported to their countries of origin Iraq and Turkey in violation of Article 33 of the Refugee Convention.[7]

Short-term detention

At the end of 2016, the LARB introduced “short-term detention” to be used for security checks, profiling and identification.[8] The law entered into force on 6 June 2018. This did not lead to a change in practice except for the fact that all initial detention orders issued to persons apprehended for irregular entry since then were short-term for 30 days. In practice, after their expiry, the Migration Directorate extends detention to pre-removal detention for up to 6 months. Asylum seekers who applied in detention centres are usually held within the initial short-term duration.

However, this is not applied to the asylum seekers who are deemed to be “deportable” on account of having valid identity documents or to whom the SANS issued expulsion orders and whose asylum claims are determined in immigration detention centres, in violation of the law (see Accelerated Procedure).

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:[9]

  • 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 2020, 9 asylum seekers were placed in asylum detention. The grounds applied were verification of identity or nationality, and protection of national security or public order. In only 1 case, the SAR applied the additionally introduced ground of consecutive violation of designated movement zones.

 

 

[1]  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.

[2] Additional Provision 5 LAR; Article 45b LAR.

[3] Bulgarian Helsinki Committee, 2018 Performance Report, January 2019. See e.g. 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.

[4] Administrative Court of Sofia, Decision No 977, 16 February 2018.

[5]  Supreme Administrative Court, Decision No 77, 4 January 2018.

[6]  European Commission, ‘November infringements package: key decisions’, MEMO/18/6247, 8 November 2018, available at: https://bit.ly/2RETZfR.

[7] Article 58 (10) LAR – all applicants must be vetted by the State Agency for National Security.

[8] Article 44(13) LARB.

[9] Article 45b(1) LAR.

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