Photo: Victoria Nicolova

The United Nations Committee on the Elimination of Racial Discrimination (CERD)[1] adopted on 11 May 2017 its concluding observations on the combined twentieth to twenty-second periodic reports of Bulgaria.

CERD welcomes some positive amendments of the national legislation, namely the amendments to the Law on Foreigners in 2013 to prohibit the detention of unaccompanied children. However, the Center for Legal Aid – Voice in Bulgaria (CLA)’s 2016 report from the project “Who gets detained?”, found that unaccompanied minors were still being detained. They were being “attached” to randomly selected adults from the group with whom the minors had been arrested, without there being a relation between them. In some cases, several minors were assigned to the same adult.

CERD expressed concerns over the “[p]ersistence of administrative detention of undocumented [sic] asylum seekers, as well as widening the grounds for detaining asylum seekers as of January 2016, combined with substandard material conditions in administrative detention centres and reports of ill treatment”.

The 2016 CLA report also concluded that detention of migrants, including asylum seekers, is practised on a mass basis. As part of the “Who Gets Detained?” project, the CLA reviewed all rulings on cases related to detention rendered in the period 01.01.2012 – 31.12.2015 by the two courts hearing most cases on detention – Administrative Court – Sofia City and the Haskovo Administrative Court. The CLA found that administrative detention orders are almost entirely based on the foreigner’s non-established identity. These findings were confirmed in interviews with officials who expressed alarm at the idea of letting the migrants “roam around freely” (i.e., not to be detained in a closed centre), given that have entered the country in an irregular way and do not have the right to be on the territory, and because “we know nothing about these people” so they must be “placed somewhere”. This clearly showed that detention happens on a mass principle without individualized assessment and that officials see immigration detention as migration management tool rather than a measure ensuring the execution of future acts of return and deportation.

In addition, CERD urged Bulgarian authorities to develop policies and avenues to regularize the status of migrants, in particular those in a situation of vulnerability. The CLA is currently working towards proposing to the Bulgarian legislature and policy-makers a mechanism for regularization and/or according a “tolerance” status for persons with irregular status whose deportation cannot be carried out.

What is regularization and “tolerance” status?

Regularization is defined as “the granting, on the part of the State, of a residence permit to a person of foreign nationality residing illegally within its territory.”[2] The main element of this definition lays in the fact that the foreigner is already residing illegally within the territory of the given state and precisely this illegality is to be regularized. In other words, through regularization procedures a person who is already residing in a given state for a period of time and who the state thus far could not deport acquires legal status and is no longer subject to removal from the territory of the state.

There are numerous benefits from regularization – both for the persons concerned and the society. Regularization grants basic human rights to people who have been living and working in a state for long time. It regulates the underground economy, prevents worker exploitation and increases tax revenues.

On the other hand, there are states who temporary “tolerate” foreigners who are illegally residing for a reason (for instance, their deportation would breach the European Convention on Human Rights). The “tolerance” status does not regularize a person as her/ his stay continues to be illegal but her/ his obligation to leave the country is simply suspended. Therefore, s/he is not subject to detention and forced removal.

There are different forms of regularizations. However, the most distinguishable classification is between permanent regularizations (also known as mechanisms) and one-off regularizations (also known as programs). One-off procedures often target a specific group of people and presuppose the fulfilment of certain conditions – typically related to the date of entry of those concerned or their presence within the territory of the state on a particular date.[3] The permanent regularizations, on the other hand, are continuous, ongoing processes which are part of a regular migration policy framework.[4] They do not target a specific group of migrants or a period of time but rather involve, for instance, humanitarian considerations (e.g. non-deportable rejected asylum-seekers, health condition, family ties etc.) who are not presupposed by the date on which the foreigners entered the territory of the state.[5]

Since 1998, over 5 million people have been regularized in European Union states.[6]

[1] CERD is the body that monitors state parties’ compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination.

[2] See Apap, J., De Bruycker, P., & Schmitter, C. (2000). Regularisation of Illegal Aliens in the European Union-Summary Report of a Comparative Study. Eur. J. Migration & L., 2, 263.

[3] Id.

[4] See Apap, J., De Bruycker, P., & Schmitter, C. (2000). Regularisation of Illegal Aliens in the European Union-Summary Report of a Comparative Study. Eur. J. Migration & L., 2, 263; see also Baldwin-Edwards, M., & Kraler, A. (2009). REGINE Regularisations in Europe. Study on practices in the area of regularisation of illegally staying third-country nationals in the Member States of the EU. ICMPD–International Centre for Migration Policy Development, Ref. JLS B, 4.

[5] Id.

[6] See Baldwin-Edwards, M., & Kraler, A. (2009). REGINE Regularisations in Europe. Study on practices in the area of regularisation of illegally staying third-country nationals in the Member States of the EU. ICMPD–International Centre for Migration Policy Development, Ref. JLS B, 4.