Background Information on the Situation in the Republic of Bulgaria in the Context of the Return of Asylum Seekers

Introduction

1.      In the interest of avoiding refoulement and orbit situations and promoting international co-operation for the protection of refugees, the return of applicants who have found or could have found protection in another country should take place in accordance with arrangements agreed among the states concerned to determine which state is responsible for considering an application for asylum and for granting the protection required. Agreements providing for the return by states of persons who have entered their territory from another contracting state in an unlawful manner (re-admission agreements) should not be used for this purpose unless they explicitly provide for the protection of refugees.[1] Nevertheless, if applied to asylum-seekers and refugees, the practice of such agreements should have due regard for the special situation faced by refugees.

2.      UNHCR further considers that, in the absence of any formal agreement between States to this effect, the return of a refugee or asylum-seeker to a country where he or she found or could have sought protection, should not take place unless certain conditions relating to the person's safety and treatment in that country are met. UNHCR has identified some factors that should be carefully considered, in each individual case, when determining whether the return of a refugee or an asylum-seeker to a particular country should take place. These factors, which include both, formal aspects and the practice of the State to which return is contemplated, are: observance of basic recognised human rights standards for the treatment of asylum-seekers and refugees, in particular the principle of non-refoulement; readiness to readmit returned asylum-seekers and refugees, consider their claims in a fair manner and provide effective and adequate protection, including treatment in accordance with basic human standards.

International Legal Framework

3.      Bulgaria acceded to the 1951 UN Convention and 1967 Protocol Relating to the Status of Refugees on 12 May 1993; the Convention on Civil and Political Rights in 1970 and to its optional Protocol on 26 March 1992; the Covenant on Economic, Social and Cultural Rights on 21 September 1970; the Convention on the Rights of the Child on 3 June 1991; the Convention on Elimination of all Forms of Racial Discrimination on 8 August 1966; the Convention on the Elimination of All Forms of Discrimination against Women on 8 February 1982; the Convention on the Prevention and Punishment of the Crime of Genocide on 21 July 1950; the Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment on 16 December 1986; the European Convention for the Protection of Human Rights and Fundamental Freedoms on 7 September 1992; the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment on 3 May 1994. Under Article 5(4) of the Bulgarian Constitution, international treaties that have been ratified by the Bulgarian Republic shall supersede any domestic legislation stipulating otherwise.

4.      Bulgaria signed re-admission agreements with the following countries: Republic of Poland (1993), Swiss Confederation (1994), Federal Republic of Germany (1994), Slovak Republic (1995), Hellenic Republic (1995), Republic of Lithuania (1996), Republic of France (1996), Kingdom of Spain (1996), Portugal (1997), Denmark (1997), Finland (1998), Norway (1999). These re-admission agreements generally apply to the return of nationals of the contracting state or third country nationals who entered a contracting state illegally. These agreements do not take into account the special situation of asylum-seekers and do not ensure their access to a refugee status determination procedure.

5.      Generally, asylum-seekers returned to or arriving in Bulgaria experience difficulties in entering Bulgaria and being admitted to the asylum procedure.

Domestic Refugee Legislation and Practice

6.      The 1991 Bulgarian Constitution provides in Article 27 (2) that "the Republic of Bulgaria shall grant asylum to foreigners persecuted for their opinions or activity in the defence of internationally recognised rights and freedom". Article 98 (10) empowers the president to grant asylum and Article 27 (3) provides that the conditions and procedures for the granting of asylum shall be established by a law. The first Bulgarian Refugee Law was passed in Parliament on 27 May 1999 and entered into force with its publication in the State Gazette (No. 53/1999) on 1 August 1999. The Refugee Law explicitly mentions in Paragraph 18 of the additional provisions that it does not apply to the right of asylum granted by the President according to the Constitution. The Decree No. 207 of 23 October 1992 establishing the "National Bureau on Territorial Asylum and Refugees" is replaced by the new refugee law, which renames this previous body responsible for refugees into "Agency for Refugees". The Decree No. 208 of 4 October 1994, regulating the status determination procedure in the past, is replaced by the refugee law, though it is not explicitly abrogated by the new law.

7.      The new Refugee Law includes in Art. 2 (1) the refugee definition of the 1951 Convention, in Art. 6 (3) the principle of non-refoulement and in Art. 6 (4) the principle of non-punishment of asylum seekers and refugees for their illegal entry. It extends the definition of a family not only to minor children and spouses, but according to Paragraph 8 of the additional provisions also to the elderly parents of a refugee who are not able to take care of themselves due to old age or serious illness or otherwise need to live in the same household with their children. The refugee law foresees a refugee status determination procedure distinguishing between an accelerated procedure, mainly at border check points and by border police, and a general procedure taking place in Sofia and carried out by the Agency for Refugees.

8.      The Refugee Law is for the following reasons not in accordance with international law and international standards:

·        There are more exclusion and cessation clauses enumerated than in the 1951 Convention. Refugee status may not be granted if a person who entered the country legally did not apply for refugee status within 72 hours (Art. 14 no. 7), or if the person who entered illegally did not apply for refugee status "forthwith" (Art. 14 no. 8). Furthermore, refugee status may be denied if an asylum seeker has a spouse with refugee status in another country or with nationality of another country (Art. 14 no. 5). Refugee status shall not be granted to asylum seekers who fail to respect obligations in relation to the refugee status determination procedure (Art. 13 II no. 10).

·        Exclusion and cessation clauses are applied in the accelerated procedure for manifestly unfounded claims and by border officials (see Art. 13 & 14 in combination with Art. 49 Refugee Law).

·        Depending on how the law will be implemented there will be either no central authority for the determination of refugee status at first instance, because the border police under the Ministry of Interior will decide on manifestly unfounded claims within the accelerated procedure including all exclusion clauses (Art. 49) and the Agency for Refugees will decide within the general procedure on asylum applications (Art. 51), or

·        the Agency for Refugees will formally also decide within the accelerated procedure on manifestly unfounded claims ; however as the Agency for Refugees is according to Art. 65 deciding on all appeals, no independent second instance would deal with appeals launched within the accelerated procedure, but the same body which decided already in the first instance.

·        In the accelerated procedure appeals have to be filed within 24 hours (Art. 65 (1)), a period which by far too short, in particular taking into account that there is no legal advice service at any of Bulgaria's border points no information available for asylum seekers which would explain the asylum procedure.

9.      The number of asylum applications in Bulgaria is quite low, i.e. 3,921 applications in the period January 1995 to October 1999.[2] This is due to the practical difficulties experienced by applicants when entering the Bulgarian refugee determination procedure; even though the new refugee law foresees in Art. 6 (1) that "any alien may request to be granted refugee status in the Republic of Bulgaria in accordance with the provisions of this law". Difficulties occur because border authorities detain asylum-seekers - especially at Sofia Airport. The length of detention varies from a few days to a few weeks under unacceptable conditions (no basic facilities provided and no outside contact allowed). UNHCR has access to asylum-seekers at the airport and detention centres if it is requested by the detainee. This request has to be made officially through the Agency for Refugees who in turn inform the Ministry of Interior. This procedure lasts several days.

10.  The Government does not provide any reception facilities for asylum-seekers at land border points or at the airport, even though the new refugee law foresees in Art. 36 that there are transit-, registration-, reception- and integration centres in Bulgaria. There is: no permanent (24 hours) presence of the Agency for Refugee's officials neither in Sofia nor at the border, no transport facilities from the border to Sofia, no interpreters available at the border points, no information about the Bulgarian asylum procedure, no legal advice centre. The border authorities continue to confirm that asylum seekers are denied entry because of the lack of the above (in particular the non-existence of reception and transport facilities).  Furthermore, the competent authorities have displayed a certain lack of both, knowledge and political will with regard to the reception of asylum-seekers (it has been repeatedly reported to UNHCR that asylum-seekers who wanted  to register with the Agency for Refugees were not allowed to do so by officials of this agency, who made general statements regarding the safety of the country of origin, the citizenship of the spouse etc.)

11.  In addition, the situation in Bulgaria is complicated by the fact that many asylum-seekers, including those returning from Western countries, do not necessarily wish to apply for asylum in the Republic of Bulgaria. Rather, they explicitly state their desire to seek asylum in Western Europe or the United States and do not avail themselves of the opportunity to lodge an asylum request in the country until they are confronted with the possibility of deportation.

12.  In 1999 two registration-centres for asylum seekers were established; one within the premises of the Agency for Refugees in Sofia (127 asylum seekers) and the other one in the village of Banya near Stara Zagora (40 asylum seekers). Furthermore, the Ministry of Interior with support from UNHCR opened in September 1999 a temporary transit-center at the Turkish/Bulgarian border check point. Simultaneously UNHCR closed the transit centers in Svilengrad (40 km from border point Kapitan Andreevo (Bulgarian/Turkish border) and in Marten (3 Km from border point Rousse at the Bulgarian/Romanian border), which were managed by implementing NGO partners. The third NGO run center in Sandanski (3 km from border point Kulata at the Bulgarian/Greek border) remains open as a number of refugees, who are returned from the Greek border, need assistance with regard to their admission/readmission into the Bulgarian asylum procedure. UNHCR offers through a NGO transport of asylum seekers to Sofia, where the asylum procedure should take place. This transport will however, according to the new law, no longer be needed for all those cases which will be decided in the accelerated procedure at the border (see no. 7 and no. 8).

13.  The refugee status determination process may last several years. The first asylum-seekers were registered with the - then NBTAR - now Agency for Refugees, in 1993 and some of these cases are still pending. However, the speed of decision-making has clearly increased in the past years.   As of September 1999, a total of 595 persons were granted refugee status and 275 persons were denied refugee status, 388 persons were granted humanitarian status (Kosovo refugees) and the procedure of 1,155 persons was discontinued (as they left Bulgaria); –2,797 applications for refugee status remaining remained pending (i.e. a total of 3,852 persons: 2,309 men, 724 women and 819 children).

14.  All first instance decisions could in the past be appealed to the Supreme Administrative Court in Sofia (Article 33 of the Ordinance). According to the new Refugee Law only those cases rejected in the general procedure can, according to Art. 66, be appealed to the Supreme Administrative court within 7 days after serving the decision. The appeal has suspensive effect. There are two judicial instances in the Supreme Administrative Court for refugee cases in the general procedure. The first judicial instance decides in a three judges chamber and the second judicial instance decides in a five judges chamber (the appeal period for the second judicial instance is 14 days)

15.  Cases which are rejected within the accelerated procedure, including all exclusion cases can according to Art. 65 be appealed to the Chairman of the Agency for Refugees within 24 hours from its serving. The Agency for Refugees shall pronounce a final decision on the appeal within 7 days. This decision of the Agency for Refugees has no suspensive effect and can be immediately enforced. Decisions on non-admission of a claimant are according to Art. 49 para 3 made by the Minister of Interior and on the basis of a reasoned proposal from the Chairman of the Agency for Refugees after notification from the interviewing authority (which is the Agency for Refugees, the border police, passport and visa departments or diplomatic and consular services of the Republic of Bulgaria, Art. 44 Refugee Law).

16.  Once registered and admitted to the country and to the refugee status determination procedure, the asylum-seekers are provided with a registration document which serves as an identification document and which has become over the past years gradually more and more known among the police and other relevant authorities. The Agency for Refugees provides each asylum-seeker with financial support equivalent to the social welfare payments in Bulgaria which is 37, 20 Leva[3] per months. In addition asylum seekers receive free accommodation in private lodgings. Furthermore, the Government of Bulgaria provides free of charge primary and secondary school education for children. Asylum-seekers are not allowed to work - with the exception of activities which are organised by the Agency for Refugees, Art. 25 No. 6 refugee law. These activities (vocational training, language classes and other integration measure) are financed by UNHCR and take place in an integration centre at the Agency for Refugees (established 1998). The integration measures (language classes and vocational training) are offered upon request even to asylum-seekers. Recognised refugees may in addition benefit from a small business program and receive scholarships for higher education. Whereas the programs for the asylum-seekers are implemented through the Government with financial support of UNHCR, the latter two programs for recognised refugees are implemented directly by UNHCR and its implementing NGO-partners. Recognised refugees have the same rights as Bulgarian citizens with regard to work, education, medical facilities, social assistance etc. They are provided with a document certifying that they are recognised refugees in the Republic of Bulgaria. Recognised refugees are also provided with a social security number from the Ministry of Social Affairs (they therefore do not have to obtain work permits). Since May 1997 Convention Travel Documents are in addition issued by the Bulgarian Government to recognised refugees.

Conclusions

17.  UNHCR recognises the many other pressing priorities currently facing the Bulgarian Government. In the face of the enormous social and economic difficulties inherent in a restructuring process, effective management of the refugee problem is not an easy task. The situation in Bulgaria, as elsewhere in Central Europe, is further complicated by the fact that many asylum-seekers do not necessarily wish to apply for refugee status in Bulgaria and they do so only when confronted with the risk of deportation.  UNHCR also shares the preoccupation of Bulgaria over the increase in illegal migration, but at the same time the Office is concerned that measures intended to curb illegal migration are frequently applied indiscriminately with the consequence that refugees and asylum-seekers are denied the rights and protection which they should enjoy under international and domestic refugee instruments.

18.  A fair, efficient and accessible refugee status determination procedure is the best mechanism which guarantees respect for the principle of non-refoulement thereby ensuring that international legal obligations are fulfilled.  Bulgaria has taken a number of legislative and administrative initiatives to this end, and UNHCR endeavours to increase its advisory services and support to further enhance the Government's institution and capacity-building efforts to ensure an adequately functioning asylum system with all its essential components ranging from registration procedures and reception facilities to refugee status determination process and integration structures. These efforts should, as a matter of course, be seen in the overall context of the ongoing process of democratic change and legal/administrative reforms.

19.     With respect to the return of asylum-seekers or refugees to Bulgaria UNHCR would, in view of the above considerations, strongly recommend that States carrying out returns whether under a bilateral readmission agreement or any other return arrangements should seek and obtain from the Bulgarian authorities unconditional assurances that they agree

·        to readmit the persons in question to the territory and the general refugee status determination procedure (not the accelerated procedure), as only the general procedure contains the international recognised minimum procedural safeguards;

·        to provide adequate protection, in particular against refoulement during the refugee status determination procedure;

·        to refrain from applying during the refugee status determination exclusion and cessation clauses which are not enshrined in the 1951 Convention Relating to the Status of Refugees;

·         to treat the persons in question in accordance with basic human standards, in particular to avoid unjustified and unduly prolonged periods of detention in transit zones or elsewhere.

19.  In addition to obtaining the above assurances from the Bulgarian authorities, returning States should also inform the asylum-seeker of his/her right to apply for refugee status in Bulgaria and of the practical steps he/she should take to exercise such right immediately upon return to Bulgaria. In this context UNHCR also recommends that the asylum seeker or refugee is informed of the possibilities to contact UNHCR Branch Office in Sofia.

UNHCR Geneva

December 1999

[1] UNHCR notes that bilateral readmission agreements have become the main legal instruments for co-operation among European States to secure the readmission to a Contracting State of its nationals or permanent residents who have entered the territory of another Contracting State in an unlawful manner. However, these agreements do not specifically concern themselves with the special situation and circumstances of asylum-seekers and, as such, do not impose on the Contracting Parties an obligation to ensure that a request for asylum is received and examined by one of them.

[2] During the same period 604 persons were granted refugee status.

[3] 1 Leva = 1 DM