Background Information on the Situation in Bulgaria in the Context of the "Safe Third Country" Concept
|Publisher||UN High Commissioner for Refugees|
|Publication Date||1 September 1995|
|Cite as||UN High Commissioner for Refugees, Background Information on the Situation in Bulgaria in the Context of the "Safe Third Country" Concept, 1 September 1995, available at: http://www.refworld.org/docid/3ae6b31d73.html [accessed 20 May 2013]|
|Comments||Bulgaria; Central Europe; Balkans|
1. The Office of the United Nations High Commissioner for Refugees (UNHCR) considers the notion of safe, or first, country of asylum as a useful basis for agreements between States. Such agreements provide for the return of refugees and asylum seekers to countries where they have had or could have sought asylum and where their safety would not be jeopardized, either within that country or by an act of refoulement. The Office is concerned to ensure that refugees receive effective and adequate protection in a country of asylum, and welcomes and promotes cooperation among States to this end.
2. The Office has identified some factors for consideration in 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 practice of the State concerned, are: ratification of and compliance with the international refugee instruments, in particular compliance with the principle of non-refoulement; ratification of and compliance with international and regional human rights instruments; readiness to permit asylum seekers to remain while their claims are being examined; adherence to recognized basic human rights standards for the treatment of asylum seekers and refugees; and notably the State's willingness and practice to accept returned asylum seekers and refugees, consider their asylum claims in a fair manner and provide effective and adequate protection.
3. Bulgaria acceded to the 1951 Convention and 1967 Protocol relating to the Status of Refugees on 12 May 1993. It ratified both 1966 Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights on 21 September 1970, as well as the 1965 Convention on the Elimination of All Forms of Racial Discrimination on 8 August 1966, and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 16 December 1986. At the regional level, Bulgaria is a State Party to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms since 7 September 1992.
4. Bulgaria signed readmission agreements with Poland (signed 24 September 1993, entered into force on 4 February 1994), Germany (signed 9 September 1994, entered into force on 15 January 1995) and Switzerland (signed 18 July 1994, entered into force on 1 September 1994). It should, however, be noted that these readmission agreements appear to apply to the return of nationals of the contracting States and/or of third country nationals who entered illegally. They do not necessarily take into account the special situation of asylum seekers.
5. The 1991 Bulgarian Constitution provides in article 27(2) that "the Republic of Bulgaria shall grant asylum to foreigners persecuted for their opinion and activity in the defense of internationally recognized rights and freedoms". Art. 98 foresees that the President is empowered to grant asylum. However, these constitutional rights are not easily exercised as no national refugee legislation establishing an appropriate refugee status determination procedure has so far been adopted. In the absence of such legislation, the refugee status determination is governed by administrative regulations, mainly: Decree No. 207 of 23 October 1992 on the establishment of a National Bureau for Territorial Asylum and Refugees (thereafter NBTAR), and Decree No. 208 of 4 October 1994 for the adoption of the Ordinance for Granting and Regulating the Refugee Status (thereafter the Ordinance); both were issued by the Council of Ministers. The Council of Ministers is reported to be considering certain amendments to the Ordinance. UNHCR expressed concern regarding the lack of compatibility of provisions of the Ordinance with international refugee law. It should be noted, for instance, that the Ordinance does not provide sufficient legal safeguards for respecting the principle of non-refoulement in the national context.
6. Under the terms of this Ordinance, an asylum seeker may apply for refugee status at or within 48 hours of arriving, at one of the Bulgarian border points. Applicants to refugee status are requested to provide a written statement outlining the basis for their claims. The initial screening and interviewing of asylum seekers are carried out by the "Interviewing Department" of the NBTAR. A recommendation is then forwarded to the Director of the Bureau who will take the decision. Decisions of the Director can be appealed in court. While their application is examined, applicants receive a document which identifies them as asylum seekers before the NBTAR. According to the Ordinance, UNHCR can participate at any stage of the refugee status determination procedure by counseling the applicants directly or by presenting information to the Bulgarian authorities.
7. The Office notes, however, that many of the provisions set forth in the Ordinance either have yet to be implemented or are not followed in practice by the Bulgarian authorities. Due to the lack of instructions (statutes or regulations) concerning asylum seekers at border points and training on refugee law, border officials still continue to apply the Law on the Stay of Foreigners (which governs immigration and status of foreign residents in Bulgaria) when an asylum seeker commits a border violation (being undocumented, fraudulent travel documents, no (valid) visa). As a consequence, they routinely detain these persons, and reportedly, there have been cases of asylum seekers whose claims were rejected summarily and immediately deported. The Office has also experienced instances where even persons with valid visas who have requested asylum have been denied entry and access to the refugee status determination procedure, if they cannot show sufficient financial means for the duration of their stay. As for returned asylum seekers, border officials do not consider them as bona fide applicants if they previously failed to request asylum in Bulgaria and then traveled on to a third country.
8. The Office is particularly concerned by the detention of asylum seekers and returned asylum seekers who are confined for long periods (often several weeks) in the transit zone of Sofia Airport under conditions unacceptable by international standards (no basic facilities, inappropriate food, alleged mistreatment, impossibility to contact the Office). The Office has no regular nor guaranteed access to the detainees; in most instances it is unable to see or interview them and in addition, it has faced difficulties to obtain from the Bulgarian authorities confirmation of their actual presence in the transit zone. Deportations come to the knowledge of the Office often too late. Furthermore, the Office is aware of numerous instances where asylum seekers have been forcibly returned to their country of origin either directly or through a third country from Sofia airport.
9. With regard to the registration process, it has been reported to the Office that asylum seekers have been told without further explanation they could not apply for refugee status. Persons who have been transiting through another country while en route to Bulgaria were refused registration when transit through an alleged "safe country" should be adjudicated during the examination of the claim itself. The Office is aware that summary decisions have been taken about the merit of a particular claim solely on the basis of the applicant's country of origin. Notwithstanding the asylum request and while awaiting a decision on their case, there have been instances where asylum seekers have received a deportation order issued by the Ministry of the Interior. Asylum seekers have complained that, when stopped by the police, they are told they are "illegally" in Bulgaria despite the presentation of their NBTAR registration documents and sometimes were ordered to pay a fine.
10. So far, Bulgaria has not established any reception centres, although the NBTAR is actively seeking appropriate premises. Whereas the Ordinance guarantees that all asylum seekers will be provided with food and accommodation, not all of them have received these services, especially with regard to food and medical care. According to the Ordinance, recognized refugees shall enjoy all the rights set forth by the 1951 Convention. However, many of the concerned ministries have yet to enact implementing regulations to guarantee social rights for persons holding refugee status, in particular in the field of employment and medical assistance. More successful has been the promulgation of regulations relating to education, which enable recognized refugees to have access to the whole educational system as Bulgarian citizens.
11. The Office recognizes the many other pressing priorities of the Bulgarian Government. In the face of enormous social and economic difficulties inherent in a restructuring process, effective management of the refugee problem is not an easy task. The situation is further complicated by the fact that Bulgaria, as many other countries in Central and Eastern Europe, is being used by asylum seekers rather as a transit stop than as a country where they wish to seek protection and stay.
12. The Office has urged the Bulgarian Government to enact appropriate refugee legislation and regulations, to fully respect registration and refugee status procedures, and to establish appropriate reception and integration structures. Until this happens, the Office is concerned that denial of access to asylum procedure and the serious shortcomings of the procedure itself may expose persons genuinely in need of international protection to a risk of return to a place where their life or freedom would be endangered.
13. As a result of the above considerations, the Office would recommend that the return of asylum seekers and refugees to Bulgaria, on the basis of their stay or transit there, be carried out on the basis of bilateral readmission negotiations aimed at obtaining from the Bulgarian authorities assurances that they agree to readmit the person(s) in question, consider their asylum claim(s) in a fair procedure and provide adequate protection. In the absence of such assurances from the competent Bulgarian authorities, the Office would, at present, advise against the return to Bulgaria, on the basis of their stay or transit there, of asylum seekers and refugees who have arrived in third countries.