By Radostina Pavlova
Just two months after the coming into force of the changes in the Law on the Asylum and Refugees (LAR), which granted powers to the Bulgarian State Agency for the Refugees (SAR) to place asylum seekers in closed centres (see Law allows detention of asylum seekers in Bulgaria), the LAR was amended one more time. The new provisions, devised by the Ministry of Interior without public consultation or meaningful opportunity for stakeholder input, and discussed and voted quickly in Parliament, contain both positive and negative changes for the migrants who may be subject to detention in Bulgaria.
On the positive side, the new LAR grants access of non-governmental organizations and persons providing legal aid to foreigners at the border checkpoints. On the other hand, by altering the procedure for reviewing second and subsequent asylum claims, it makes it much easier for an asylum seeker to lose the right to be on the territory of Bulgaria, and thus become subject to detention and deportation.
The bill amending the LAR, which came into force with its publication in the State Gazette on December 22, 2015, transposes Directive 2013/32/EU on common procedures for granting and withdrawing international protection in EU Member States (the “Procedures Directive”). The effective access of the United Nations High Commissioner for the Refugees (UNHCR), non-governmental and governmental organizations, as well as persons providing legal aid to border checkpoints, including transit zones, granted by the new Art. 23(3) of the LAR, ensures the compliance of the law with Art. 8 (1) of the Procedures Directive.
Research currently being conducted by the Center for Legal Aid – Voice in Bulgaria within the “Who Gets Detained” project indicates that deportation and detention orders are very commonly issued by the Bulgarian Border Police, and that the migrants are often unaware of their rights at that moment, including the right not to be detained arbitrarily and the right to appeal. Thus, allowing NGO workers to counsel the migrants would help some of them to avoid detention and others to shorten the period they would spend in the Busmantsi or Lyubimets closed centres. It would also help Border Police officers improve their practices and comply with the requirements of national and international law. However, a limitation to this expanding of access would be that many of the NGOs working with migrants are based in the capital Sofia, and may not have the resources to send representatives to the border on a regular basis and utilize the opportunity effectively.
In addition, for access to asylum seekers and other migrants needing counseling to be effectively improved, it should go beyond the border checkpoints and include the closed centres run by the Migration Directorate of the Ministry of Interior, where migrants are detained in anticipation of the execution of their detention orders, and the closed redistribution centre in the town of Elhovo. Granting such access is beyond the scope of the LAR, as the LAR applies only to asylum seekers, and, at least in theory, no asylum seeker should kept be in a Migration Directorate’s closed centre for any length of time. It can be regulated through an amendment of the Law of the Foreigners in the Republic of Bulgaria or through passing a special ordinance.
Another significant change in the LAR is the introduction of a new set of provisions for “preliminary assessment” of subsequent asylum claims – essentially, an admissibility stage at which the asylum seeker can be rejected summarily, without an examination of their refugee story. Before the amendments, a person applying for refugee status in Bulgaria for a second, third or subsequent time would be registered and granted the right to remain on the territory of Bulgaria for the duration of the procedure, just as first-time asylum seekers. The application could be reviewed and rejected in an accelerated procedure as “patently unjustified,” if it was not based on new circumstances significant for the asylum seeker’s personal situation or country of origin.
With the amendments from December 22, 2015, the reviewing officer will have 14 days to assess, only on the basis of written evidence (without an interview), whether the asylum claim is admissible to be reviewed on its substance. Thus, if it is not accompanied with documentation showing new circumstances, the application can be deemed inadmissible and the claimant would lose the right to remain in the country. Considering the difficulty of collecting written evidence from a country of origin with an ongoing conflict, especially after the lapse of a longer period of time since fleeing, and Bulgaria’s very low rates of acceptance of refugee claims, initial or subsequent, of non-Syrian nationals, we can expect that the number of undocumented persons who are failed refugee claimants and are subject to detention and deportation will increase.
Submitting yet another asylum application as a way to temporarily regularize their status would no longer be a viable option. The amended LAR, while not limiting the number of subsequent claims that may be filed, specifies that the right to remain in the country is not granted to an asylum seeker whose subsequent application is being assessed for admissibility, when the previous such application has been deemed inadmissible or has been rejected on the substance. For the asylum seekers in Bulgaria whose claims are seem as a priori unjustified, this will mean that the moment to live the precarious life of an undocumented migrant would come much sooner.
 The project “Who Gets Detained, launched in August 2015, aims to increase the accountability and transparency of decision-making in the administrative detention of migrants in Bulgaria in closed-type centres. It is funded by the European Programme for Integration and Migration (EPIM) of the Network of European Foundations (NEF) (http://www.epim.info).