Center for Legal Aid – Voice in Bulgaria and BLHR with a Joint Statement on a Proposed Bill Regarding Detention of Foreign Nationals

Photo by Victoria Nicolova

On 14.07.2017, Center for Legal Aid – Voice in Bulgaria (CLA) and Bulgarian Lawyers for Human Rights (BLHR) submitted to the Council of Ministers of Bulgaria a joint statement on the Bill to Amend and Complement the Ministry of Interior Act (the Bill), which was posted on the public discussion Internet portal, www.strategy.bg. The Bill envisions also important changes in the Law on the Foreigners in Bulgaria (LFRB) that concern the detention of foreign nationals in the country, and new alternatives to detention.

In the short 14-day period in which statements could be submitted, the two organizations managed to make a contribution based on their expertise to the debate on some the key proposed amendments.

In the first place, the CLA and BLHR welcomed the proposed introduction of additional alternatives to the detention (or, to “accommodation”, as formulated in Bulgarian legislation) in the so-called Special Homes for Temporary Accommodation of Foreigners (SHTAF) for the purpose of organizing their return. As of the present moment, the only alternative to detention in a SHTAF provided for in the LFRB, is weekly reporting to the respective district police office. Based on research it conducted in 2016, however, the CLA established that this measure is not applied in practice, or is applied in a very small number of cases.[1] In general, the negative effect of detention on the detainees, its ineffectiveness to increase the number of carried out returns, as well as the significant funds from the national budget needed for the accommodation and surveillance of a large number of people, have been determined in a number of studies, and also represent arguments in support of the new alternatives to detention proposed in the Bill.

The CLA and BLHR recommended that, in addition to the new alternative measures proposed in the Bill, an additional “measure” should be introduced – community-based alternatives to detention and that it be required to assess their suitability and applicability to the case at hand first – before the proposed set of measures of reporting, money bond and/or depositing of travel documents, and definitely before imposing the measure of detaining in a SHTAF. These alternatives would allow the foreign national, provided that s/he demonstrates community connections and/or integration (a place to live, access to services and support provided by the NGO sector, etc.), to continue to live in the community, without the need to impose restrictive measures on him/her until the effecting of the return. This method has been applied successfully in a number of countries, and it has been determined that it delivers better results concerning respecting of the law on the part of the foreign national, compliance with the migration regime, and resolving his or her status – acquiring the right to reside legally, or informed return to the country of origin, if this is possible. The two organizations also welcome the Bill’s intent to remove from the LFRB “identity not established” as ground for detention. The presence, currently, of this ground, contravenes the provisions of the applicable European law. Directive 2008/115/EC on the common standards and procedures applicable in the member states for the return of illegally residing third-country nationals does not include such ground for detention.

Another positive aspect of the Bill is that it proposes that if a foreign national is determined to be an unaccompanied minor, s/he is to be handed over to the responsible “Social Assistance” directorate for immediate taking of the requisite measures, rather that the current requirement of only notifying the institution (with the comment that, in the opinion of the two organizations, it would be necessary to make respective amendments to the regulations so that this is accomplished in practice).

In spite of these unarguably positive changes proposed in the Bill, the CLA and BLHR are of the opinion that it also contains a number of proposed amendments that are in violation of international and European legal standards, and raise serious concerns.

For instance, the proposed repealing of the requirement for individual assessment and proportionality in making the decisions on short-term immigration detention in specially designated parts of the SHTAF under Art. 44, para. 13 of the LFRB, is particularly concerning. According to European legislation (Directive 2008/115/EC; Directive 2013/33/EU), the national authorities are required to conduct an individual assessment and a proportionality assessment for the decisions to place foreign nationals in detention. Even if the Bill passes as is, and thus removes the obligation to conduct such assessment from Art. 44, para. 13 of the LFRB, the supranational legal standards of the EU will be imperative for the courts reviewing detention order appeals.

Extremely concerning for the CLA and BLHR are also the changes proposed in the Bill regarding the short-term immigration detention of minors. They repeal the requirement for an assessment of the best interest of the child and presume that every child is accompanied (“Foreign nationals who are deemed to be minors shall be placed together with the adults who are accompanying thememphasis added). According to a number of international organizations, detention is never in the best interest of the child. [2] The practice of “attaching” unaccompanied minors to adults from the same group in which they arrive, whom they often do not know and in some documented cases are even of a different nationality, in order to evade the LFRB prohibition of detaining unaccompanied minors, is known and well-documented in the reports of monitoring organizations.[3] The proposed text allows, and legitimizes, the continuation of this unlawful practice. The suggested provisions even envision the accommodation of the children in separate spaces together with the “accompanying” adults – a clear exposure of the minors to serious risks of abuse. We propose the provision explicitly prohibiting the placement of minors in SHTAF and requiring their handing over to the respective “Social Assistance” directorate, to be applied also to the short-term immigration detention, and respective provisions to be included in Art. 44, para. 12 of the LFRB.

The two organizations object strongly to the Bill’s proposal to remove the obligatory ex officio judicial review of the detention under Art. 46a of the LFRB. According to Art. 15, para. 3 of Directive 2008/115/EC, the member states are required to ensure the review of the detention with reasonable regularity, or at the request of the affected third-country national, or ex officio. In its present version, the LFRB satisfies the requirement of Directive 2008/115/EC through the requirement for ex officio judicial review in Art. 46a, paras. 3 and 4 – the “Migration” Directorate’s proposal to continue the detention by another six months, up to the maximum of 18 months, to be reviewed by the court in all cases. We believe that the ex officio judicial control of the detention should not be repealed. An important reason for this is the fact that the access of the detained foreign nationals to legal aid is very restricted, for reasons of lack of a sufficient number of specialists in the area of refugee law in Bulgaria, the small number of non-governmental organizations having effective access to the detainees, and the limited capacity of the organizations providing such legal aid pro bono.

The lack of ex officio judicial review would shift the entire burden of the judicial review of the detention on the foreign national and on his/her ability to request to be released when the grounds for detention under Art. 44, para. 8 of the LFRB are no longer present. This, on its end, brings the attention to the obligation of the state under Art. 13 of Directive 2008/115/EC to “ensure that the necessary legal assistance and/or representation is granted on request free of charge […]” Presently, it appears that the state is not able to guarantee effective access to legal aid free of charge to all detained foreign nationals. This fact, together with the proposed repealing of the requirement for ex officio judicial review, would lead to a violation of the provisions of Directive 2008/115/EC on the part of the state.

The full text of the statement is available here (in Bulgarian)

[1] Center for Legal Aid – Voice in Bulgaria, final report from the project “Who Gets Detained? Increasing the Transparency and Accountability of Bulgaria’s Detention Practices of Asylum Seekers and Migrants”, Septermber 2016, http://detainedinbg.com/blog/2016/09/22/final-report-who-gets-detained-increasing-the-transparency-and-accountability-of-bulgarias-detention-practices-of-asylum-seekers-and-migrants/

[2] See “UNICEF and UNHCR welcome EU policy to protect migrant and refugee children”, Brussels, Belgium, 12 April 2017, http://www.unhcr.org/en-us/news/press/2017/4/58edf87b4/unicef-unhcr-welcome-eu-policy-protect-migrant-refugee-children.html

[3] See, for instance, Ombudsman of R. Bulgaria, “Annual Report of the Ombudsman as a National Preventive Mechanism – 2016”, 15 February 2017, Sofia, Bulgaria, http://www.ombudsman.bg/pictures/Report_NPM_2016_ENG.pdf; Center for Legal Aid – Voice in Bulgaria, final report from the project “Who Gets Detained? Increasing the Transparency and Accountability of Bulgaria’s Detention Practices of Asylum Seekers and Migrants”, Septermber 2016, http://detainedinbg.com/blog/2016/09/22/final-report-who-gets-detained-increasing-the-transparency-and-accountability-of-bulgarias-detention-practices-of-asylum-seekers-and-migrants/