By Radostina Pavlova
(Originally published in Legal World on 20.10.2015, in Bulgarian)
Amendments of the Law on the Asylum and Refugees (LAR), published in the State Gazette on 16.10.2015, grant the State Agency for the Refugees (SAR) the power to place asylum seekers in closed centres. Currently, the Registration and Reception Centres (RCC), managed by the SAR, have an open regime of entry and exit. The new law also enables the Chair of the SAR to determine zones on the territory of the country, which asylum seekers may not leave without permission.
At the moment, there are six open camps (RCC) functioning on the territory of the country: three in the region of Sofia (in the neighbourhoods of Vrazhdebna, Voenna Rampa and Ovcha Kupel) and one in each of the village of Banya near Nova Zagora, the village of Pastrogor and the town of Harmanli. The centre in Harmanli is the largest, with a capacity of 2710 places. The total capacity of the six centres is 5130 places. According to the SAR, as of the end of September, 2015, the centres were full to just about 50% of their total capacity. This is not due to a decrease in the flow of people, seeking asylum in Bulgaria, as their number from the beginning of the year up to the end of August, nearly 11,500, according to the SAR, exceeds significantly the number for the corresponding periods in previous years; it is, rather, the result of the trend of more and more of the registered asylum seekers, placed in the open centres, to leave Bulgaria before the completion of their asylum procedures.
The Registration and Reception Centres, run by the SAR, are currently of an open type, which means that their inhabitants may come and go without requiring permission from the centre’s management or from the SAR. They may also move out of the centre and live at an external address, at their own expense, by filing a request to the SAR Chair, in which they declare that they give up the right to food and shelter while their claim is being processed. By law, extended unauthorized absences from the centre may lead to suspension and termination of the asylum procedure. In addition, in late January 2015, curfew was introduced in the Harmanli centre: 8.00 p.m. in the winter and 10.00 p.m. in the summer.
Prior to the change in the law, only the centres for foreigners without the right to be on the territory of Bulgaria and with pending deportation orders could be closed-type. The Special Homes for Placing Foreigners in the neighbourhood of Busmantsi near Sofia and in the town of Lyubimtes, which are managed by the Migration Directorate of the Ministry of the Interior (MoI), are closed centres and are used for the administrative detention of foreigners who have been issued a deportation order and obstruct its execution or present a risk of absconding or whose identity is undetermined. The foreigners may not be detained in the closed centres for more than 18 months in total, where a court reviews the detention decision every six months and makes a decision on whether to order release or extension. As a rule, registered asylum seekers may not be placed in closed centres, as they have the right to be on the territory of Bulgaria for the duration of their procedure, and are thus not subject to deportation.
The bill to amend the LAR, adopted by the National Assembly in early October 2015, allows the SAR to run closed centres, so it could open new centres of a closed type or make its existing ones, or parts of them, closed. The decisions to place an asylum seeker in a closed camp will be made on the basis of explicit criteria listed in the law: for establishing the identity of the asylum seeker, for determining the facts of his or her refugee story, if this cannot be accomplished in another way and there is a risk of absconding, or if he or she poses a danger to national security or public order. The law provides for the right to appeal the order; in addition the decision for placement in a closed centre must be motivated. The amendments come into force on January 1, 2016, which would allow the SAR to build capacity to operate closed centres, which it currently lacks.
As evident from the minutes of the meeting of the Parliamentary Committee on Legal Matters from April 29, 2015, the holder of the new detention powers, the State Agency for the Refugees, not only did not ask for them, but objected to being charged with “detaining and convoying” functions. On the other hand, the MoI representative participating in the Committee meeting defended the introduction of the restrictive measures, describing them as proportionate and necessary in the context of a worsened migratory environment and in the name of preserving public order. At the same meeting, a representative of the Bulgarian Helsinki Committee pointed out that it is unacceptable to put foreigners, who are not asylum seekers, in more favourable conditions when it comes to detention, compared to asylum seekers. The bill does not specify a maximum period of detention of asylum seekers like the one applicable to foreigners detained in closed centres (18 months). In its statement submitted to the Committee on January 15, 2015, the UNHCR points out that the detention of asylum seekers has “long-term harmful effects on them,” erodes their human dignity and causes “unnecessary suffering, with serious consequences for their health and well-being.” For this reason, the UNHCR recommends that detention of asylum seekers is used only as a measure of last resort, and calls for the instituting of regular judicial oversight over their detention.
The other new measure restricting the free movement of asylum seekers, which the SAR will be able to impose after the changes in the law come into force, are the so-called zones of movement: administrative areas, set by the Chair of the SAR, which the asylum seeker may not leave without the explicit permission of the SAR. Leaving the zone without such permission would represent a violation of the obligations of the asylum seekers, as determined in the LAR, and can be considered evidence that the asylum seeker has the intention to abscond – accordingly, this would serve as a reason to place him or her in a closed centre. Some other countries have established such zones – for example, Germany has a federal regulation, which does so, but the results are rather controversial, if not negative. According to Denise Garcia Bergt from the Berlin-based organisation International Women Space, which supports refugee women, restricting the movement of refugees in Germany through the creation of special zones has a devastating effect on them. Life in a small, remote area, where the support of ethnic and cultural communities and opportunities for work and integration are lacking, affects people negatively. “Many of our clients, women refugees in Germany, have had depression and some have even tried to commit suicide, due to the isolation, to which they are subjected,” shares Bergt. The decisions for the distribution of the asylum seekers are made arbitrarily, she claims, and appealing them, even though allowed in law, requires significant resources to hire a lawyer, and is successful only if the case manages to attract the attention of the media.
The bill introducing these restrictions of the freedom of movement of asylum seekers in Bulgaria transposes into Bulgarian legislation two European directives: Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection (the Qualification Directive) and Directive 2013/33/EU laying down standards for the reception of applicants for international protection (the Reception Conditions Directive). According to the provisions of EU law, which Bulgaria must respect, the fact that a person has asked for international protection is not sufficient grounds for restricting his or her freedom and placing him or her in a closed centre. On the other hand, the Reception Conditions Directive allows the detention of asylum seekers, but only when this is necessary as a measure of last resort in exceptional circumstances, while providing a number of legal guarantees of the rights of the detainee. It is also allowed to create zones of movement as the newly adopted Bulgarian law does, but this is only a possibility, not a requirement. Similarly, EU law allows, but does not require the detention of asylum seekers in closed centres. EU Member States are always free to provide more favourable reception conditions to asylum seekers than the minimum standards set by European law.
Even though the adopted provisions do not, on their face, contradict the requirements of EU law, there is a risk for them to be applied arbitrarily by the state authorities wanting to have control over the asylum seekers in Bulgaria. For example, the decision that it is in the interest of public order for somebody to be placed in a closed centre as a matter of prevention – i.e., when he or she has not committed an infraction of public order – is left entirely to the discretion of the respective official. These broad discretionary powers represent a serious risk factor for corruption. Regarding zones of movement, their introduction in a relatively small country like Bulgaria, which, unlike Germany, has a centralized model of government, and in which economic opportunities are concentrated in several big cities, appears unjustified, especially considering that the same bill aims at helping asylum seekers participate in the labour market by giving them the right to work after three months from the beginning of their asylum procedure.