Tarek, a stateless person originating from Afghanistan, is counting down the days till 27 November. It's when he will have spent 18 months in immigration detention, the maximum time allowed under Bulgarian and European Union law. At that point he will have to be released. For all the time spent in detention the authorities haven't been able to deport him. He was never identified as stateless prior or during detention, but was registered as an Afghan national. The same happened to Ali: throughout the seven years of his immigration detention in Bulgaria, Russia was "assigned" to him as his country of citizenship, in spite of the fact that the Migration Directorate had received answers by the Ukrainian and the Russian embassies in Bulgaria stating that Ali was not a citizen of any of the two countries.
Tarek and Ali have been some of the stateless people interviewed for the study on protecting stateless persons from arbitrary detention in Bulgaria, conducted by the European Network on Statelessness and its Bulgarian member, the Foundation for Access to Rights. The final report of the study is published today and presented at a press conference in Sofia.
One of the key research findings is that upon issuance of removal and detention orders, stateless immigration detainees are usually "assigned" a country of origin. In other words, in their detention and removal orders they are not identified as stateless. Identification of statelessness is necessary when determining the destination country to which someone is to be removed. In Bulgaria, however, the destination country of removal is determined in the process of enforcing the removal order, after detaining the person. In fact, the need to establish one’s identity is a formal ground for detention under Bulgarian national law. According to Article 44, paragraph 6 of the LFRB, detention is imposed when the foreigner “is unidentified, hampers enforcement of the order or there is a risk of absconding”.
It should be noted that unless detention serves a lawful purpose, it is arbitrary. According to Article 5, paragraph 1(f) of the ECHR, immigration detention should solely be for the administrative purposes of preventing unlawful entry or to enforce removal. The imposition of detention solely for the purpose of administrative convenience is not lawful under international law. The cases of Tarek and Ali are examples of how detention did not serve the purpose for which it was imposed as no removal was possible.
In Bulgaria the authorities frequently refer to the refusal of the detainee to sign a declaration for voluntary return as an impediment to obtaining travel documents necessary for enforcement of removal. This is often interpreted as lack of collaboration by the person and a delay in obtaining the necessary documentation by third countries, both grounds for extension of the period of detention under Article 15.6 of the EU Return Directive. In this relation, it is important to note the Mahdi case before the Sofia City Administrative Court and the Court of Justice of the European Union (CJEU). Following the judgment of the CJEU of 5 June 2014, the Bulgarian court replaced Mr. Mahdi’s detention with the less coercive measure of weekly reporting. The judge based her decision on the lack of a reasonable prospect of removal. Unfortunately, the ruling of the national court in that case is the exception and not the rule in Bulgaria. In the majority of cases the burden of proof is shifted to the detainee to prove that there is no reasonable prospect of removal.
Another issue of concern in Bulgaria is that by law and in practice, in issuing a detention order the Bulgarian authorities do not consider the existence of reasonable prospects to carry out the removal order. Removal and detention orders are issued simultaneously, even in cases of people who have spent their entire lives in Bulgaria, simply because these people were identified as residing irregularly in the country.
Although the law formally stipulates that detention is a measure of last resort that can be imposed only if less coercive measures could not be applied effectively, that provision exists only on paper, if the stateless persons’ right to be heard before imposing detention is not respected in practice. Furthermore, despite of the increase in use of immigration detention, the number of cases that reach the courts for review remain insignificant. This is due to a number of factors: according to Bulgarian law, the term to appeal detention orders runs from the date of the factual detention of the person and not from the date of properly notifying (‘serving’) the detention order. Migrants sign detention orders without knowing the reasons for being detained and the remedies against that. The detention orders are issued in Bulgarian language and are rarely translated. Judicial control of detention orders is not automatic, but the detainee has to submit a written appeal (in Bulgarian) to the court within 14 days from the start of detention. Moreover, detainees have to find and engage a lawyer without any assistance. Although in 2013 the Bulgarian Law on Legal Aid was amended to introduce a right to legal aid for immigration detainees, access has remained an issue and the new legal provisions have not been applied in practice. Even if an appeal against a detention order reaches the court, the Bulgarian law provides that participation of the detainee “is not obligatory”.
In Bulgaria the detention of stateless people and those at risk of statelessness takes place within the general immigration detention regime. While arbitrary detention is a significant area of concern in general, the unique characteristics associated with stateless persons and those at risk of statelessness make them more likely to be detained arbitrarily, for unduly lengthy periods of time.
According to official statistics from the Ministry of Interior, the number of stateless persons in detention varies from one person to 38 persons annually in the period from 2007 until 2016. However, there are significant concerns about the accuracy of official statistical data. According to the official statistics, the average length of detention of stateless persons has been just over 118 days in the Bousmantsi (Sofia) detention centre, 28 days in the Lyubimets detention centre and seven days in the Elhovo detention centre. In comparison, the average length of detention for all detained migrants in the Bousmantsi (Sofia) detention centre in the period from 2012 until April 2016 has been 40 days.
In 2012 Bulgaria acceded to the 1954 and 1961 Statelessness Conventions. However, the wide range of reservations to the 1954 Convention could undermine its very purpose. On 15 June 2016 the Bulgarian Parliament adopted at first reading a draft Law Amending and Supplementing the Law on Foreign Nationals in the Republic of Bulgaria (LFRB), which for the first time introduces a statelessness determination procedure. However, as drafted currently, the status of ‘stateless person’ would be accessible only to persons who were born in or entered legally into Bulgarian territory and who at the same time hold a permanent or long-term residence permit. As such, the scope of the draft law would exclude the vast majority of stateless persons in the country.
This report puts forward clear recommendations to the Bulgarian government on how to revise the proposed statelessness determination procedure and use of detention in order to protect stateless individuals in the Bulgaria. It is important to hear and take action as otherwise stateless persons remain likely to continue counting down the days in detention.