Fundamental rights and access to them
Short introduction:The review of your application is a process that takes place in parallel to your adaptation to the host society. Knowing your rights and how to exercise them is an important investment in your successful integration.
If you are a minor (an individual below the age of 18 years), you have certain special rights. Please, consult the end of the brochure.
Access to the asylum procedure
1) Each individual has the right to seek asylum (international protection) when persecuted or when there is a threat to his/her life or safety.
You can exercise this right by submitting an application, which explicitly contains a request for protection (asylum) in Bulgaria. An application can be made verbally by stating that you seek protection or asylum before a state official. Alternatively, you can submit a written application. Written applications can be drawn up in your native language. When an application has been submitted to another body, that body must immediately send it to the State Agency for Refugees (if you have requested international protection) or to the President of the Republic (if you have requested asylum).
In Bulgaria, the principal competent body responsible for applications for protection is the Head of the State Agency for Refugees (hereinafter SAR). The Head of SAR grants refugee status in accordance with the Geneva Convention on the Status of Refugees and humanitarian protection where there is a real risk of the applicant suffering serious harm. Refugee and humanitarian protection are commonly referred to as ‘international protection’. The decisions of the Head of the SAR must be reasoned and may be appealed before a court.
Another competent body is the President of the Republic and the Asylum Committee operating under the jurisdiction of the President’s Office. The Bulgarian President grants asylum to foreign nationals persecuted because of their beliefs or actions upholding internationally recognised rights and liberties or when granting asylum is considered to be in line with national interests or when other special circumstances require so. An important distinction is that the decisions of the Head of the Asylum Committee under the jurisdiction of the President cannot be appealed before a court.
2) You are an asylum seeker from the time of lodging an application for protection. From that moment onwards you are entitled to remain in Bulgaria until a final decision is made on your application.
In order to have proof of submitting an application you may request a reference number from the official to whom you handed your application. If your application was submitted to the SAR and 3 days later the Agency has not yet registered you (by interviewing and fingerprinting you and giving you a registration card), you have the right to file a lawsuit with the competent court in respect of an omission on the part of the Head of the SAR. You may also file a lawsuit when you have submitted your application to another body and 6 days following that date the SAR has not yet registered your application for protection. The legal ground for the lawsuit is Article 257 of the Administrative Procedure Code in conjunction with Article 6 of Directive 2013/32/EU.
3) A person who enters the country in order to seek asylum(protection) shall not be punished
If criminal charges are brought against you in a court of law in respect of an illegal border crossing, you must know that according to Article 279(5) of the Bulgarian Criminal Code border crossing is not a criminal offence, if undertaken with the goal of seeking asylum (protection). When taken to stand trial before a judge, you may cite this provision and refuse to plead guilty.
If you are sentenced for illegal border crossing, the sentence is usually ‘suspended’, meaning that you have been given a punishment of several months of imprisonment but that punishment will not be enforced on the condition that you do not commit the same crime again during a certain period of time determined by the judge. If during the period in question you attempt another illegal border crossing (for example you try to leave Bulgaria), you will be sent to prison where you will serve the sentences you received for both crimes.
While your application for protection is under review
4) At your registration as an individual seeking protection, the SAR will take your fingerprints and collect your personal data
This is a standard procedure. You may request that the officials introduce themselves as SAR employees. Your fingerprints and personal data are necessary in order to be able to identify you and ascertain your citizenship (country of origin) and determine the country competent to review your application for protection according to the Dublin Regulation. You cannot refuse to be fingerprinted.
Your ID documents will be retained and kept by the SAR. If you have a justifiable reason to temporarily request your national passport back, you must file an application.
5) Right to information
Not later than 15 days after submitting an application for protection (asylum), you shall receive written guidance, in a language that you understand, about the application review procedure, your rights and obligations, and organisations that provide legal and social assistance to foreign nationals. That information may also be requested and received verbally.
6) Reception conditions
During the asylum procedure you are entitled to accommodation and food, social assistance provided in accordance with the procedure that applies to Bulgarian nationals, healthcare insurance, access to medical assistance and free healthcare and medical aid upon the same conditions as those that apply to Bulgarian nationals. You are also entitled to psychological assistance, a foreign language or sign language interpreter, and you must receive a registration card.
Important note!No one may force you to live at a so-called ‘external address’ instead of the Registration and Reception Centre (RRC) of the SAR and expect you to cover the accommodation and living costs out of your own pocket. Presenting proof of living at an ‘external address’ (outside of the camp) is not a requirement for your registration or for the issuance of a registration card. You have the right to receive a registration card within three days from submitting an application for international protection.
Important note!If you observe the internal rules of the Registration and Reception Centre at which you have been accommodated (‘camp rules’), no one may force you to leave due to belonging to a particular national group or ‘not having a chance’ to be granted protection. If the SAR refuses your application but you file an appeal against that decision in a timely manner, you have a right to remain at the camp during the lawsuit.
You acquire the right to work in Bulgaria 3 months after the date on which you submitted an application for international protection at the latest. Since legislation is expected to be shortly amended, keep yourself informed about the up-to-date period, which must elapse before you are legally entitled to work in Bulgaria.
The SAR can organise Bulgarian language and vocational training courses. Seek out information about available training courses.
7) Belonging to a vulnerable group
You belong to a vulnerable group if you are a minor (an individual below the age of 18 years), an unaccompanied minor, a disabled person, an elderly person (an individual aged more than 65 years), a pregnant woman, a single parent with a minor child (children), a victim of human trafficking, a person with serious health problems, a mentally handicapped person, or a victim of torture, rape and other severe forms of mental, physical or sexual violence, for example, female genital mutilation.
Persons belonging to vulnerable groups may have special needs. The government has a duty to take these special needs into account when deciding on your living and accommodation conditions (see above) and the procedure for reviewing your application for international protection (see below). If you believe that you have special needs, insist before the competent official that they be taken into consideration and that you receive appropriate support.
8) Procedure for the review and adoption of a decision on your application for international protection
The first step in the procedure is the so-called Dublin procedure, which should decide whether Bulgaria or another country applying the Dublin Regulation (Regulation (EU) No 604/2013) is responsible for reviewing and making a decision on your application, which will then become binding on all countries participating in the so-called Dublin mechanism for allocation of applications for international protection. You will be interviewed and most questions asked will focus on the itinerary and the way you reached Bulgaria. If members of your family already legally reside or have submitted applications for protection in another EU Member State, say this during the interview. In the typical case it takes three months to examine the evidence and decide whether to send a request to transfer your application to another country, in which case the process may take an additional two months to receive a reply to the request sent. If no Dublin request is sent three months following your registration, Bulgaria becomes responsible for reviewing your application for protection. You will receive a Decision, which you may appeal before a court of law within 7 days from the date of receipt. The decision of the judge will be final and cannot be further appealed.
After the elapse of the 7-day period from the receipt of the Decision under the Dublin Regulation to review your application in Bulgaria, ‘a fast-track procedure’ for review of your application on its substance automatically commences. This procedure takes place during the first 3 days after the 7-day period for appeal of the Decision under the Dublin Regulation has elapsed.
Important note!The interview is very important for you. During the interview you must convince the SAR official that you satisfy the criteria for protection (see below). Describe in detail all facts and evidence concerning the reasons for seeking protection. This may be the only occasion on which you will be interviewed before a decision is made on your application. If the interviewer decides that your application is manifestly unfounded, your application will be rejected within the above indicated 3 days and you will receive a decision stating so. You can appeal that decision before a court within 7 days from the date on which it is notified to you. The decision of the judge will be final and cannot be further appealed. Prepare well for the court hearing, keep in touch and assist your lawyer (the right to a lawyer is explained below). If the court rules in your favour, the SAR will be required to grant you access to the ‘general procedure’.
If, during the three-day period mentioned above, no decision is made on your application or if the court revokes the decision issued during the ‘fast track procedure’, you are automatically granted access to the so-called ‘general procedure’for review of your application on its substance. The interview (see Tips about the Interview below) and the evidence you will present are vitally important for the decision that the Head of the SAR will make on your application. The timeframe for obtaining a decision under the general procedure is three months, but it can be extended by an additional three months at most. If the time period for review is extended, you have the right to be notified. These timeframes are indicative and not mandatory by law, so in individual cases the process may take longer. If the Decision of the Head of the SAR is to refuse your application, you may appeal the refusal within 14 days from the date of receipt of the decision. The ruling of the lower court may be appealed before the Supreme Administrative Court. During the appeal you have the same rights as those enjoyed during the procedure before SAR for review of your application for protection. This is so because the refusal has not yet entered into force. If you win the case in court and your application is sent back to the SAR for reassessment and a new decision, the Head of the SAR is required to adopt a new decision within 14 days, taking into account the instructions received from the court. A failure on the part of the Head of the SAR to do so carries a fine for breach of obligatory duty arising from a court act, which enables you to file a claim with the same court pursuant to Article 304 of the Administrative Procedure Code in order for the Head of SAR to be sanctioned with a fine.
If the new decision contradicts the instructions of the court, it is null and void and must be appealed within the time period specified in it.
Important note!The SAR sends all notices addressed to you to the address indicated on your registration card. Make sure that you have access to your mail and regularly check it. Even if a notice fails to be delivered, you will be considered properly notified and may miss an important deadline or time period for appeal. If you change your address, you must notify the SAR so that the address details on your registration card can be modified.
9) Suspension and termination of proceedings
The review of applications for international protection is most often suspended and terminated due to the failure of the asylum seeker to attend an interview with SAR officials when invited to do so. If you fail to respond to an invitation, proceedings will be suspended. If within three months from the suspension you do not present yourself before the official of SAR in order to provide a justifiable cause for earlier non-attendance, proceedings will be terminated and you will no longer have the rights of an asylum seeker.
Another common reason for termination of proceedings is the voluntary withdrawal of submitted applications. It is important to carefully consider this step because once a decision is made to terminate the procedure it becomes final and cannot be reversed.
10) The interview
Your interview with SAR officials is vital! Make sure you attend it well prepared.
The interview is based on a questionnaire, which the interviewer fills in according to your answers during the interview and then you are invited to sign. The first questions in the questionnaire are ‘Do you feel well (in good health) at the time of the interview?’, ‘Do you understand the translation?’ and ‘Do you agree for this official to be your interviewer?’. If the answer to any of these questions is ‘No’, you have a right to postpone the interview to a later date.
Important note!You have the right to request an interviewer and translator of the same gender (i.e. if you are a woman/man you may ask for a female/male interviewer and translator, respectively). You must clearly state your preference and make sure that it is written in the notes (transcript) from the interview.
During the interview draw attention to those points that you consider important (see the criteria and requirements for obtaining protection below). In particular, pay attention to ensure that your words are accurately reflected in the interview transcript. If you fail to share important details or information during the interview, use the last question (‘Do you have anything else to add?’) to make sure that you present all relevant facts and have them written in the transcript.
The transcript (protocol) from the interview must be read and translated to you before you are asked to sign it. You have the right to refuse to sign the transcript (protocol), if it has not been read or translated to you in its entirety or if it is incomplete or inaccurate. Make sure that there are no mistakes and that your account has been recorded in full. Minor discrepancies such as non-corresponding dates and years may be used as a reason to refuse your application.
At the beginning of the interview you will be asked to sign a statement as to whether you agree or refuse to have the interview tape recorded. Our advice is to agree to an audio recording because it is an additional guarantee for your rights. In case a discrepancy is subsequently established between your statements and the written transcript from the interview, the court may listen to the audio recording and use it as evidence in your favour.
During the interview you have the right to have a lawyer or a defender present (See ‘Right to a lawyer and legal aid’). If you insist on his/her presence, ask that the interviewer and translator toagreeon a date for the interview that is convenient to all participants.
11) Expert opinions
Sometimes clarifying a situation requires special expert knowledge, which the case manager may not have. For example, recognising the mental and physical signs of violence requires special knowledge in the field of psychology and medicine. In this case, ask the institution to appoint an expert who has the requisite professional competence to make a judgment. Expert reports can be used as evidence should a need arise to clarify a point and can help you prove your statements.
12) Criteria and conditions for obtaining international protection
Refugee status is granted to persons who have a well-founded fear of being persecuted (violation of their fundamental human rights) in the country of which they are citizens or in which they previously habitually resided due to any of the following five reasons: their race, religion, nationality, membership of a particular social group or political opinion.
Sometimes, governments may interpret a certain conduct as criticism towards the regime, causing you to be unreasonably regarded as having a political, religious or other affiliation although this is not the case. This is important and must be mentioned during the interview.
Important note!International protection is granted solely if you are able to prove that you cannot receive protection in your country of origin. This is why during the interview you will be asked whether you have complained to the police and, if you have not, why you did not do so.
Subsidiary (humanitarian) protection is granted to persons for whom a real risk of serious harm, including a death penalty or execution, torture, inhumane or degrading treatment or punishment, or a serious and personal threat of violence in the case of an internal or international armed conflict, exists in their country of origin.
The fact that you have already been subjected to persecution, have sustained serious harm or received direct threats may be a serious indication of justified concerns of a similar situation arising upon your return. You should also bear in mind that an episode of violence that involved your friends and relatives or members of the same group may indicate that your concerns are well-foundd. The laws of the country of origin, and more specifically the way in which they are applied, are also relevant.
International protection may be refused if there is no threat of persecution or serious harm in certain parts of your country of origin. This is why one of the questions you may be asked during the interview is whether there is an internal displacement alternative within your country.
Humanitarian protection may also be granted on other humanitarian grounds.
13) Safe third country – a reason to refuse international protection
The competent body may refuse your application for protection on the grounds of the so-called safe third country criterion, even if you satisfy the requirements for international protection on account of well-founded fear of persecution or sustaining serious harm in your country of origin. This may happen when a link is established between you and a safe third country, on the basis of which you might be reasonably expected to go to that country.
Important note!Turkey does not meetthe safe third country criteria because it does not apply the Geneva Convention on the Status of Refugees to persons arriving from countries outside of Europe.
The competent body may refuse your application for protection if it discovers that you have committed serious, non-political crimes, or acts of extreme cruelty. An application may also be refused if there are reasons to believe that you present a threat to national security or pose another threat to society.
15) Role of the Representative of the United Nations High Commissioner for Refugees (UNHCR)
In Bulgaria refugee protection is granted also to foreign nationals physically present in the territory of the country, who have been recognized as refugees under the mandate of UNHCR. If you have been recognized as a refugee and have a document confirming your standing, you must submit it to the SAR without delay or turn to the UNHCR Office in Bulgaria.
Through its Representative in Bulgaria, UNHCR has the right to information and access to all stages of your procedure for examining your application for international protection. UNHCR is competent toget acquainted with your case and submit written or verbal opinions on it.
16) Your asylum application and the procedure for its examination
As explained at point 1 above, the procedure takes place before the Administrative Office of the Bulgarian President, and in particular the Asylum Committee. If you file a written application directly to the Committee, you will immediately receive a case reference number. Several days later you will receive a letter from the Chairperson of the Committee at the address you have indicated, which will confirm that your application for asylum will be examined and inform you of your rights and obligations. The letter must be taken to the SAR where you will be registered and interviewed.
You will receive a registration card and have the same rights and obligations as an individual seeking international protection (see above).
Submit all evidence that supports your application directly to the Administrative Office of the President of the Republic. You will receive a letter notifying you of the outcome of the review at the address you have indicated. The decision is final and cannot be appealed before a court of law.
17) Right to an attorney and legal aid
There are different non-governmental organisations in Bulgaria that couldprovide you free legal aid. Although you do not pay for the legal services used, you have the right to be treated with respect and receive information about all legal actions taken on your behalf. When appealing a refusal for protection, ask whether the organisation will provide you with a lawyer who will represent you before the court. Before signing any documents, ask that they be translated or that their content be explained to you and request the contact details of your lawyer.
A National Legal Aid Bureau operates under the jurisdiction of the Ministry of Justice, which can appoint a lawyer to represent you free of charge: http://www.nbpp.government.bg/en/
Important note!Keep in touch with your lawyer—your collaboration is essential for the successful outcome of your court case.
You have the right to dismiss your lawyer and have another one appointed. If you wish to do so, give a written notice to the lawyer and the body before which the lawyer represented you.
If your application for protection is refused by a decision that you cannot appeal
If you do not manage to revoke the refusal to be granted protection or asylum (by the President’s Office), you lose your right to remain in Bulgaria. If you do not leave the country voluntarily and do not take further steps to address your situation, you may be detainedwith the aim to beforcibly returned to your country of origin.
18) Subsequent application for protection
If new circumstances that are relevant to your case or to the situation in your country of origin arise, you have the right to submit a new application for protection (see ‘Access to the procedure’ above). If you submit a subsequent application for protection, you will have a more limited scope of rights. Unless you are a member of a vulnerable group (see above), you are not entitled to accommodation, food and social assistance. Despite this, you are entitled to healthcare insurance and free use of medical assistance upon the same conditions that apply to Bulgarian nationals. It is very important that you present the new circumstances and evidence convincingly in your application to ensure that it is not rejected during the course of the fast-track procedure (see above).
Minor persons (aged less than 18 years) – special rights:
In addition to the rights mentioned above, children (individuals below the age of 18 years) have the following special rights:
19) Priority of your best interestand taking your special situation into account
Due to being at a vulnerable age, the law imposes an obligation on all government bodies to take your special circumstances into consideration, always giving priority to your best interest. If you need something, do not hesitate to ask for special consideration.
20) Right to be heard
Although the law regards you as vulnerable individual, you have the right to be heard and have your opinion taken into consideration during all procedures. Prior to your hearing, the government body must provide you with the information you need in order to have an informed opinion and explain the potential consequences of your choices.
21) Right to be reunited with your family
If you are accompanied by other members of your family, you have the right to insist that you are not separated from your family. You also have the right to have a parent, another caregiver or close relative or acquaintance you know, present at the hearing before the government bodies, except in cases where this is not in your best interest.
22) If you are in Bulgaria unaccompanied by your parents
If a member of your family is in a European country, which applies the Dublin Regulation, you have the right to join them, if you declare this in Bulgaria within the shortest possible period and Bulgaria sends an enquiry to the respective country in a timely manner (see Procedure under the Dublin Regulation above).
Although not accompanied by your parents, the Bulgarian authorities can consider you ‘accompanied’ by another person responsible for you by law or custom. Make sure that you really know the person who ‘accompanies’ you and that the individual in question is indeed responsible for you because his/her signature will be required to sign on your behalf until your turn 18 years.
If the Bulgarian authorities consider you to be unaccompanied, during the procedure for examining your application for protection you will be represented by a social worker who will accompany you during the interviews at the SAR. Request an introduction to the social worker responsible for your case and obtain his/her contact details.
Furthermore, if you are unaccompanied, according to the law the mayor of the municipality in the territory of which you reside should appoint you a guardian with whom you shall live in one accommodation and who shall look after you and provide his/her consent for your actions in principle. Although this possibility is envisaged by law, it is currently rarely used. If you are given accommodation at a special establishment for children and minors, your guardian is the director of that institution.
You have the right to legal aid not only in order to write an appeal, but also during all stages of the proceedings before government bodies that affect your rights and interests. For example, you may request the presence of a lawyer at the time of your registration and interviews at the SAR. You can bring your own lawyer, if you have one, or submit a request to the SAR that a lawyer be appointed to you by the National Legal Aid Bureau.
24) Right to education. Bulgarian language course
In order to be able to exercise your right to commence or continue your education at a Bulgarian school, you need to know Bulgarian language. Bulgarian language courses are organised by the SAR and some non-governmental organisations can also help you learn the language. Seek out information about the available options.Request that you receive a learning aid and a Bulgarian phrase book for refugees, which should be provided free of charge (such aids have been published by the organisations Caritas and Council of Women Refugees with assistance from the UNHCR).
The content of this brochure reflects the law and its practical application as at June 2015.
The author of the brochure is Valeria Ilareva, an attorney-at-law, and a team of professionals on a commission from the Foundation for Access to Rights – FAR (www.farbg.eu) within the framework of the project ‘Improving the access to rights of refugees in Bulgaria by raising awareness and knowledge’ (www.refugees.farbg.eu)