by Radostina Pavlova, email@example.com
On April 12, 2019, the Bulgarian National Assembly voted in second reading to adopt a Bill to Amend and Complement the Law on Foreigners in R. Bulgaria (LFRB) (in Bulgarian). In addition to the LFRB, the Bill will see changes of some of the provisions of the Law on Asylum and Refugees (LAR), among several other connected pieces of legislation.
The Bill makes a number of amendments related to the residence regimes for foreign nationals. The key among those include a clarification of the status of persons who have been recognized as stateless, but do not meet the requirements for the granting of long-term or permanent residence permit, and a path to temporary regularized status for unaccompanied minors who have had they asylum claims rejected or never applied for asylum. On the other hand, the passing of refugee and humanitarian status to family members, such as spouses, will now be limited to family relations that existed before they came to Bulgaria.
Possibility of residence permit until the reaching of adulthood for unaccompanied minors
Under the amended provisions of Art. 28a of the LFRB, foreign nationals under the age of 18 years, who entered Bulgaria without an accompanying adult, or were accompanied, but subsequently abandoned, and who did not apply for international protection, or did so, but were refused and the refusal has come into force, may be granted a single-time permission to remain on the territory of the country until they reach the majority age of 18 years. Afterwards, they may be allowed to stay on the basis of a “continuous” (up to one year long) residence permit, if there are humanitarian reasons for this.
A significant change compared to the previously existing provisions regarding a residence permit for unaccompanied minors is that there will no longer be a requirement that the minor entered the country in a regular manner. This is a positive development, since the majority, if not all, recent asylum seekers, minors included, have come into the country in an irregular manner, through the green border with Turkey. It is also significant that the category of failed asylum seekers is included explicitly, as most incoming foreign nationals file an application in Bulgaria, and very few are successful.
The decision to allow the stay in these situations will be based on the discretion of the Migration Directorate of the Ministry of Interior, who will first asses the possibility to return the child or young adult to a member of their family, to a guardian, to a foster family or to a reception centre in their country of origin or in a third country, provided that this does not entail danger to their life and liberty, or risk of persecution, torture or inhuman treatment. If it is deemed that they can be returned, a refusal to grant a residence permit will be issued. If a residence permit is granted, then the Social Assistance authorities will conduct a Best Interest of the Child assessment and formulate specific protection measures, and the Child Protection Agency will coordinate and monitor the implementations of the measures in view of respecting of the child’s rights, until the issue of his or her residence status in Bulgaria is resolved, but not longer than the time he or she reaches majority age.
The newly adopted provisions specifically forbid family reunification for the children or young adults benefitting from the possibility of a temporary residence permit.
Clarification of the residency regime for stateless foreign nationals
Changes were adopted also to Art. 21e of the LFRB, which relates to the status of stateless persons – a legal category added relatively recently to the Bulgarian legislative framework, in late 2016.
The amendments appear to partly fill in an evident gap in the legislation, which did not specify what type of residence permit (i.e., “long-term” or “permanent”), if any, would a person obtain, if the Bulgarian authorities grant them the status of stateless person. Possibly, given the discretionary requirement to have resided lawfully for 5 continuous years – which the present amendments rescind – presumed that the person already held such permit, and merely a travel document would be issued (Art. 21i LFRB) after the grant of stateless status. The new Paragraph 4 under Art. 21e clarifies that if the holder of stateless status does not qualify for “long-term” or “permanent” residence permit, then they may be granted “continuous” residence permission for the period of one year.
While this change, on one hand, may provide a solution for those stateless persons in Bulgaria who have at one time entered the country in a regular manner and are present at the moment also regularly, but do not qualify for long-term or permanent stay, it does not solve the legal impasse for many others. Some those have lived in the country for nearly all their lives and are de facto stateless, but not recognized as such (see the cases of Narek and David). Others who are, for example, stateless persons who have come to Bulgaria more recently, in an irregular manner, as part of the increased migration flows related to the conflicts in the Middle East, will also remain in limbo, and even be in a more difficult situation. This is because the newly implemented changes remove the element of discretion in Art. 21e of the LFRB, that the application for stateless status may be refused if the applicant has entered the country or has attempted to leave it irregularly, or has irregular status at the time of application, and stipulates that the application shall be refused in these situations and if the applicant does not fulfil the requirements of the LFRB and the regulation for its implementation.
Limitation of the rights of family members of refugees to acquire refugee or humanitarian status
Prior to the changes adopted by the National Assembly in April 2019, the LAR stipulated that the family members of persons granted refugee and humanitarian status in Bulgaria shall also be deemed to be refugee or humanitarian status holders, respectively (Art. 8, para. 9 and Art. 9, para. 6 of the LAR). With the amendments, the international protection status will be extended to these family members only if the family relations – e.g., a marriage – started prior to the primary status holder entering the country. This would mean, for example, that a couple of asylum seekers who have formed a family during their procedures for international protection in Bulgaria could be separated, if only one is granted status, as the second spouse would not have an automatic right to remain. The justification provided by the Council of Ministers, who tabled the Bill, is that the aim of these amendments is to prevent abuse of the international protection system through fake marriages and other familial-type relationships. It points out that they may still apply for “continuous” (one-year-long) residence permit, but does not address the problem with the general rule that applicants for such permits must leave the country to apply for a visa at a Bulgarian consulate abroad – something often unfeasible for asylum seekers.
The Bill introduces a number of other amendments; some of the potentially significant ones are briefly discussed here.
Firstly, the Bill rescinds the provisions of the LAR relating to the role of the State Agency for the Refugees (SAR) in the integration of refugees after the receiving of international protection status. While previously the LAR stipulated that the SAR would organize the receiving of social, medical and psychological support by asylum seekers and holders of international protection status (Art. 53, para. 4 of the LAR) and that it would develop programmes for their integration into Bulgarian society (Art. 53, para. 6 of the LAR), the amended LAR will not contain these texts, delineating the role of the SAR as strictly limited to period of the duration of the international protection procedure.
Secondly, the arguably contradictory to EU and international law punitive nature of the possibility to detain asylum seekers, introduced in the LAR in 2016, is reinforced by the recent changes. The amended Art. 58, para. 8 of the LAR states that when the asylum seeker is being informed of the procedure that will be followed and of his or her rights and obligations, they will also be informed of the “consequences of not complying with the obligations or the refusal to cooperate with the officials from the State Agency for the Refugees, as well as of the consequences of their silent or explicit withdrawal of the application.” The mention of rights and obligations is a clear reference to Art. 95a and Art. 30 of the LAR, under which an asylum seeker will be detained for the duration of their procedure if they violate twice one of their obligations under Art. 30, such as not to leave their assigned zone of movement (Art. 30, para. 1, indent 11) and to participate in the upkeep of the reception centre (Art. 30, para. 1, indent 4). More puzzling is the term “silent withdrawal”, introduced in the LAR by the amendments, since there is no legal possibility in Bulgarian law to silently withdraw an application for international protection.
Finally, the Bill adds to the LFRB the requirement that the Migration Directorate keep a register of detained persons, applicable both to pre-removal detention under Art. 44, para. 8 of the LFRB and short-term detention under Art. 8, para. 13. This is a positive and necessary step towards more transparency in the detention practices of the authorities, and should allow for better and more informed decision-making, including the ability to follow the individual cases of the detainees and to assess the need for detention, and, respectively, the possibility to apply alternatives.