AnAlysis
of legal and administrative barriers to the operation
of a Coordination mechanism ensuring interaction
among institutions and organisations involved in
guaranteeing the rights of unaccompanied minor aliens
staying in the Republic of Bulgaria, including those
who seek or have been granted international protection
Analysis
of legal and administrative barriers to the operation
of a Coordination mechanism ensuring interaction
among institutions and organisations involved in
guaranteeing the rights of unaccompanied minor aliens
staying in the Republic of Bulgaria, including those who
seek or have been granted international protection
This publication was prepared by Attorney Valeria Ilareva as per UNICEF Bulgaria assignment.
The opinions expressed in this publication are those of the contributors, and do not necessarily
reflect the policies or views of UNICEF. This publication should be quoted in any reprint, in
whole or in part.
Analysis of legal and administrative barriers to the operation of a Coordination mechanism
ensuring interaction among institutions and organisations involved in guaranteeing the
rights of unaccompanied minor aliens staying in the Republic of Bulgaria, including
those who seek or have been granted international protection
© 2016 United Nations Children’s Fund (UNICEF)
Permission is required to reproduce the text of this publication. Please contact the Communication
section of UNICEF Bulgaria, tel. +359 2/ 9696 208.
United Nations Children’s Fund (UNICEF)
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Sofi a 1054, Bulgaria
Cover photo: © UNICEF/UN05568/Georgiev
For further information, please visit the UNICEF Bulgaria website at www.unicef.bg.
Table of Contents:
List of acronyms...........................................................................................................................1
Introduction...................................................................................................................................3
Main body of the analysis
1. Access to the territory of the Republic of Bulgaria The principle of non-refoulement.................3
2. Initial screening and identification of the unaccompanied child..................................................3
3. Access to the procedure of examination of the application for international protection.
The right of the child to seek asylum by lodging an application for international protection.......5
4. Appointment of a legal representative.........................................................................................7
5. Tracing family members and family reunification......................................................................11
6. Placement of the unaccompanied child....................................................................................13
7. Other rights of children..............................................................................................................15
• The right to education.............................................................................................................15
• Access to healthcare services.................................................................................................16
• The right to legal aid...............................................................................................................17
• Certainty of the administrative legal status.............................................................................17
Summary of recommendations.................................................................................................18
Conclusion..................................................................................................................................21
Annex 1: Correlation table.........................................................................................................23
Списък на използваните съкращения
САТ Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
GDBP
General Directorate of the Border Police
Directive 2003/86/EC
Council Directive 2003/86/EC of 22 September 2003 on the right to family
reunification
Directive 2004/81/EC Council Directive 2004/81/EC of 29 April 2004 on the residence permit
issued to third-country nationals who are victims of trafficking in human
beings or who have been the subject of an action to facilitate illegal
immigration, who cooperate with the competent authorities
Directive 2008/115/EC
Directive 2008/115/EC of the European Parliament and of the Council of 16
December 2008 on common standards and procedures in Member States
for returning illegally staying third-country nationals
Directive 2011/36/EU
Directive 2011/36/EU of the European Parliament and of the Council of 5
April 2011 on preventing and combating trafficking in human beings and
protecting its victims, and replacing Council Framework Decision 2002/629/
JHA
Directive 2011/95/EU
Directive 2011/95/EU of the European Parliament and of the Council of 13
December 2011 on standards for the qualification of third-country nationals
or stateless persons as beneficiaries of international protection, for a
uniform status for refugees or for persons eligible for subsidiary protection,
and for the content of the protection granted
Directive 2013/32/EU Directive 2013/32/EU of the European Parliament and of the Council
of 26 June 2013 on common procedures for granting and withdrawing
international protection
Directive 2013/33/EU
Directive 2013/33/EU of the European Parliament and of the Council of
26 June 2013 laying down standards for the reception of applicants for
international protection (recast)
CPA
Child Protection Act
PFA
Persons and Family Act
ARA
Asylum and Refugees Act
1
2
FRBA
Foreigners in the Republic of Bulgaria Act
CM
Coordination mechanism ensuring interaction among institutions and
organisations involved in guaranteeing the rights of unaccompanied minor
aliens staying in the Republic of Bulgaria, including those who seek or
have been granted international protection (draft)
CRC
Convention on the Rights of the Child (UN, 1989)
CSR
Convention relating to the Status of Refugees (Geneva, 1951)
GC 6
General Comment No.6, Treatment of Unaccompanied and Separated
Children Outside Their Country of Origin, CRC/GC/2005/6, 1 September
2005, Committee on the Rights of the Child
EUL
European Union Law
RAFRBA
Regulations for Application of the Foreigners in the Republic of Bulgaria
Act
Dublin III Regulation
Regulation (EU) No 604/2013 of the European Parliament and of the
Council of 26 June 2013 establishing the criteria and mechanisms for
determining the Member State responsible for examining an application
for international protection lodged in one of the Member States by a thirdcountry national or a stateless person
LPS
Local Police Station
Tariff No.4
Tariff No.4 of fees collected within the system of the Ministry of Interior
pursuant to the Stamp Duty Act
CFREU
Charter of Fundamental Rights of the European Union
Introduction
This report contains an analysis of key legal provisions that govern the national system providing
protection and care to unaccompanied minor aliens in the Republic of Bulgaria, taking into consideration
applicable European Union Law and International Law (UN standards). The objective of the study
is to identify the main legal and administrative barriers to the operation of the draft Coordination
mechanism ensuring interaction among institutions and organisations involved in guaranteeing the
rights of unaccompanied minor aliens staying in the Republic of Bulgaria, including those who seek
or have been granted international protection. This report provides a set of recommendations to
overcome those barriers and effectively put in place the aforementioned Coordination Mechanism.
The report highlights the most prominent issues that need to be resolved in order for the Coordination
Mechanism to become operational. The issues of utmost importance include the early and proper
identification of unaccompanied minors, the appointment of a legal representative and the placement
of children in an environment that is suitable for their age and special needs. This report does not
strive to achieve any academic level of exhaustiveness but is rather a practically oriented document
which presents the most significant pieces of information in a succinct and accessible form.
For the sake of completeness of the analysis, the key issues discussed in sections 1 through 6 are
accompanied by a Correlation Table attached to this report. The Correlation Table includes applicable
international legal standards, standards enshrined in European Union Law, provisions of the national
transposing law, and legal comment on the Coordination Mechanism.
1.
Access to the territory of the Republic of Bulgaria the principle of non-refoulement
The full name of the Coordination Mechanism and its description contain the element of guaranteeing
the rights of unaccompanied minor aliens “staying in the Republic of Bulgaria”. In that context, it should
be noted that unaccompanied minors are part of mixed flows of refugees and economic immigrants
who resort to illegal border crossing because in most cases they have no other method of gaining
access to the territory. It is important not to push them back at the border and in that sense they should
be guaranteed the right to seek asylum and to have respect for the best interest of both minors who
are already staying on the territory of Bulgaria and minors who do not belong to the category of those
staying on the territory of Bulgaria and yet are under Bulgarian jurisdiction as a result of the actions of
Bulgarian competent authorities (such as the General Directorate of the Border Police).
2.
Initial screening and identification of the unaccompanied child
Identifying the child as a minor (a person under the age of 18 years) and as an unaccompanied minor,
i.e. not accompanied by his/her parents or relatives, at the earliest possible stage, during the very
first encounter of government authorities with that person, has a decisive positive impact on the child’s
3
access to the rights and guarantees that are specially recognised to unaccompanied minors. Vice
versa, if no effort is made to identify the person as a minor or if the child is “attached“ by virtue of a
document to an adult who does not accompany him/her in reality, this virtually releases competent
authorities from the responsibility to ensure special procedural guarantees to unaccompanied
minors and, therefore, exposes those children to huge risks. CM should, therefore, set out special
guarantees for initial screening and identification of unaccompanied minors at the earliest
stage, at the time of crossing the state border. Those guarantees should include the availability
of a qualified interpreter and careful listening to the alien during the registration procedure in order to
hear his/her date of birth, as well as careful verification of facts and recording of explicit reasons for
pointing someone as a person accompanying a child.
Who qualifies as an accompanying person?
The answer to the question of which adult individual qualifies as the child’s “accompanying person“
is contained in the legal definition for an “unaccompanied child“. According to paragraph 1(4) of the
Additional Provisions of the Asylum and Refugees Act (ARA):
„Unaccompanied“ shall mean a minor or underage alien who is on the territory of the Republic of
Bulgaria and is unaccompanied by a parent or another adult who is responsible, by law or custom
for him/her.”
This prompts the question whose law or custom does this provision refer to. The ARA definition
quoted above refers to the law or custom of both the child’s country of origin and the host country. This
interpretation, although allowed by Bulgarian law (paragraph 1(4) of the Additional Provisions and
article 25(2) of ARA) and the repealed article 2(h) of Directive 2005/851, is in conflict with the recast
directives of the European Union. According to the legal definition in article 2(l) of Directive 2011/95/
EU2 and article 2(e) of Directive 2013/33/EU3:
‘Unaccompanied minor’ means a minor who arrives on the territory of the Member States
unaccompanied by an adult responsible for him or her whether by law or by the practice of the
Member State concerned, and for as long as he or she is not effectively taken into the care of such
a person; it includes a minor who is left unaccompanied after he or she has entered the territory of
the Member States.
Therefore, European Union Law explicitly states that if an accompanying adult is present, they qualify
as such only if they meet the requirements of the law or practice of the host Member State. It means
that such a law or proven custom (by the administrative authority) should be in place in Bulgaria
in order to ascertain that an adult qualifies as the child’s accompanying person.
1 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing
refugee status
2 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of thirdcountry nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons
eligible for subsidiary protection, and for the content of the protection granted
3 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of
applicants for international protection (recast)
4
In that context and by analogy to the provisions governing legal representatives4, Bulgarian law needs
to provide specific criteria that would qualify an accompanying person as such in conformity with the
applicable Bulgarian legislation and administrative custom. A key criterion in that respect is also the
child being effectively taken into the care of such an accompanying person, in conformity with article
2(l) of Directive 2011/95/EU and article 2(e) of Directive 2013/33/EU. When those criteria are being
developed, it is recommended to take into consideration the distinction between ‘unaccompanied’ and
‘separated’ children made in paragraphs 7 and 8 of General Comment No.6 of the UN Committee
on the Rights of the Child5.
The child must be heard and listened to. This is a procedural rule that applies to all administrative
and court proceedings affecting a child6. It is unacceptable to designate an adult to accompany the
child without having first listened to the child. For that purpose, it is required to have a professional
interpreter available who can interpret the language spoken by the child.
Within the Coordination Mechanism, guarantees for the identification of unaccompanied minors must
be explicitly described and stated as part of the powers of the GDBP (Part I, point 1) to “provide
policing according to the Bulgarian legislation and approved procedures“; as part of the powers of the
Migration Directorate related to the methods of confirming that a person is an unaccompanied minor
(point 1); and as part of the powers of the officers of local police stations and local migration units
subsumed within the regional directorates of the Ministry of Interior.
3.
Access to the procedure of examination of the application for international protection.
The right of the child to seek asylum by lodging an application for international
protection.
The text of the CM reads as follows (phase I, point 5 in the section on the powers of the GDBP and
local migration units subsumed within the regional directorates of the Ministry of Interior):
“Lodging an application for international protection shall be done in person by the unaccompanied
minor alien and out of their free will; the application may be made orally or in writing.”
However, Bulgarian law does not provide an explicit legal basis whereby an unaccompanied minor
can personally lodge an application for protection. The general national piece of legislation, i.e. the
Persons and Family Act (PFA), in its article 3, provides that minors (below the age of 14 years) cannot
undertake legal action and their parents or guardians act for and on behalf of them. With respect to
underage persons (aged between 14 and 18 years), PFA article 4 provides that they shall undertake
legal action with the consent of their parents or custodians.
4 See point 4 below
5 Committee on the Rights of the Child, General Comment No.6, Treatment of Unaccompanied and Separated Children Outside Their
Country of Origin, CRC/GC/2005/6, 1 September 2005
6 Article 12 of the UN Convention on the Rights of the Child, article 14(1) of Directive 2011/36/EU, article 6(3)(d) of the Dublin III
Regulation, article 23(2)(d) of Directive 2013/33/EU, article 15, paragraphs 1-3 of the Child Protection Act
5
According to article 7(5) of Directive 2013/32/EU7:
“5. Member States may determine in national legislation:
(а) the cases in which a minor can make an application on his or her own behalf;
(b) the cases in which the application of an unaccompanied minor has to be lodged by a
representative as provided for in Article 25(1)(a);
(c) the cases in which the lodging of an application for international protection is deemed to
constitute also the lodging of an application for international protection for any unmarried minor.”
The Bulgarian special piece of legislation, i.e. the Asylum and Refugees Act (ARA), does not specify
the cases in which an underage person can lodge an application on their own behalf, nor does it specify
the cases where the application must be lodged by a representative. In that sense, it is necessary
to supplement the ARA in order to explicitly guarantee the access of unaccompanied children to the
procedure of examination or their applications for protection. In addition, article 7(4) of Directive
2013/32/EU should also be transposed:
“4. Member States shall ensure that the appropriate bodies referred to in Article 10 of Directive
2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common
standards and procedures in Member States for returning illegally staying third-country nationals
have the right to lodge an application for international protection on behalf of an unaccompanied
minor if, on the basis of an individual assessment of his or her personal situation, those bodies
are of the opinion that the minor may have protection needs pursuant to Directive 2011/95/
EU.”
Article 10 of Directive 2008/115/EC reads as follows:
“Return and removal of unaccompanied minors
1. Before deciding to issue a return decision in respect of an unaccompanied minor, assistance
by appropriate bodies other than the authorities enforcing return shall be granted with due
consideration being given to the best interests of the child.
2. Before removing an unaccompanied minor from the territory of a Member State, the authorities
of that Member State shall be satisfied that he or she will be returned to a member of his or her
family, a nominated guardian or adequate reception facilities in the State of return.”
Therefore, the “appropriate bodies“ providing assistance to the unaccompanied child in the sense of
article 10 of Directive 2008/115/EC should have the right given to them by law to lodge an application
for international protection on behalf of an unaccompanied minor if, on the basis of an individual
assessment of his or her personal situation, those bodies are of the opinion that the minor may need
international protection. According to article 15(7) of the Child Protection Act, the “appropriate body“
according to Bulgarian law is the Social Assistance Directorate.
7 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and
withdrawing international protection
6
According to the most recent version of article 44(9), fourth sentence of the Foreigners in the Republic
of Bulgaria Act (FRBA), the authority that has issued the order to impose an administrative enforcement
measure shall notify the relevant Social Assistance directorate, which shall take protection measures
in accordance with the Child Protection Act. According to article 10 of Directive 2008/115/EC, however,
this notification/referral must be done before (not after) the issue of the return order (forced removal to
the border) of the unaccompanied child. FRBA and CM should stipulate obligations for the bodies
under FRBA article 44(1) issuing orders for forced removal to the border to refer those cases
to the Social Assistance Directorate in order for the latter to be able to provide assistance to
unaccompanied children pursuant to article 10 of Directive 2008/115/EC before the issue of
the order imposing administrative enforcement measures (i.e. before the return decision is
made). In this way, the Social Assistance Directorate will be guaranteed the actual right to lodge an
application for international protection on behalf of the unaccompanied child in conformity with article
7(4) of Directive 2013/32/EU.
If the above-mentioned provisions of European Union law are introduced in Bulgarian law, this
will also provide guarantees against arbitrary immigration detention of unaccompanied minors as
illegal immigrants. The sole purpose of immigration detention is to ensure that the return order can
be executed but if children are guaranteed the possibility to lodge an application for international
protection before the issue of the order for forced removal to the border, they will not be wrongfully
detained for the purposes of return.
4.
Appointment of a legal representative
A legal representative of the unaccompanied child should be appointed as early as possible,
immediately upon identification of the child, to guarantee determination and respect for the child’s
best interest and access of the child to his/her rights. The institutions that are currently included in
the CM have explicit functions to notify the Social Assistance Directorate in order for the latter to
dispatch a representative. Those functions should be transformed into an explicit urgent obligation to
refer the case to the Social Assistance Directorate (Child Protection Department) and that obligation
should be reciprocated at the Social Assistance Directorate which should be required to dispatch a
representative.
If the child is accompanied by an adult who is not a parent but there are sufficient grounds to
ascertain that said adult is responsible for the child by law or custom/proven practice of the Bulgarian
state8, this accompanying person should be given representation powers by appointing him/her as
the child’s legal representative, unless this would go against the child’s best interest9. The power of
representation given to accompanying persons is explicitly set out with respect to persons seeking
protection in accordance with ARA article 25(2), which should be implemented in conformity with
article 7(3) of Directive 2013/32/EU. The power of representation given to accompanying persons
should be introduced in Bulgarian law not only in respect of persons accompanying children who seek
protection but in respect of accompanying persons of all children. The formalisation of the appointment
8 In relation to that, Bulgarian law should be harmonised with the legal definition for an “unaccompanied minor“ given in article 2(l) of
Directive 2011/95/EU and article 2(e) of Directive 2013/33/EU.
9 According to article 20(3) of the Convention on the Rights of the Child, “due regard shall be paid to the desirability of continuity in a
child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background”.
7
of the accompanying person as the legal representative of the child allows inter alia to include the
accompanying person in the system of continuous monitoring and supervision over the activities of
legal representatives. According to paragraph 34 of General Comment No.6 of the UN Committee
on the Rights of the Child, in cases where a child is accompanied by a non-family adult or caretaker
who is able and willing to provide day-to-day care to the child, but is unable to adequately represent
the child’s best interests in all spheres, supplementary measures, such as the appointment of an
adviser or legal representative, must be secured.
When the child is not accompanied by anyone and was identified after having crossed the state
border illegally or qualifies as a person staying on the territory of Bulgaria without any legal
grounds, article 10(1) of Directive 2008/115 is applicable:
“1. Before deciding to issue a return decision in respect of an unaccompanied minor, assistance
by appropriate bodies other than the authorities enforcing return shall be granted with due
consideration being given to the best interests of the child.”
As discussed in point 3 above, this means that bodies authorised to impose administrative enforcement
measures in accordance with FRBA article 44(1)10, should refer the case to the Social Assistance
Directorate in conformity with CPA article 15(7) before issuing an order for the forced removal of
the child to the border. According to article 10(1) of Directive 2008/115/EC, the Social Assistance
Directorate provides assistance while giving due consideration to the best interests of the child. In
that context, the joint national system for the protection of children at risk11 shall apply. According
to CPA article 15(7), the Social Assistance Directorate may represent the child in cases provided for
by law. FRBA needs to contain an explicit provision regarding the appointment of a representative of
the Social Assistance Directorate in conjunction with CPA article 15(7) and article 10(1) of Directive
2008/115 and article 7(4) of Directive 2013/32.
With respect to unaccompanied minors who seek or have been granted international protection,
ARA article 25 provides for the appointment of a “representative from the municipal administration,
designated by the mayor of the municipality or by an official empowered thereby“. ARA is not explicit
about who appoints the representative designated by the mayor of the municipality: is it the mayor him/
herself (or an official empowered thereby) or another body. Phases 1 and 2 in the current CM draft do
not involve mayors of municipalities and representatives from the municipal administrations included
in the new version of ARA article 25 (State Gazette, issue 80/2015, effective from 16 October 2015).
Therefore, an update must be introduced in the responsibilities of the State Agency for Refugees
listed in point 3 of Part/Phase 2 of the CM draft.
To be able to protect the child’s interests, it is crucial that at the time of registration pursuant to
ARA articles 61(2) and 63(2) the unaccompanied child should already have an appointed legal
representative. Registration pursuant to ARA is the crucial time to elicit and record information about
the name, nationality, date and place of birth, gender, marital status and kinship, identity papers and
10 According to FRBA article 44(1): “Administrative enforcement measures shall be imposed by an order of the Chairperson of the State
Agency for National Security, the Directors of the National Police, Border Police and the Combat against Organised Crime Directorates
General, the Directors of the Sofia Directorate and the Regional Directorates, the Director of the Migration Directorate and the Directors
of the Border Police Regional Directorates of the Ministry of Interior, or of officials authorised thereby.”
11 This can also be inferred from the general anti-discrimination clause in the Constitution of the Republic of Bulgaria enshrined in article
26(2): “Foreigners residing in the Republic of Bulgaria shall be vested with all rights and obligations proceeding from this Constitution,
except those rights and duties for which Bulgarian citizenship is required by this Constitution or by another law.”
8
other documents in the possession of aliens seeking protection; those are facts and evidence that
have great significance for the reception conditions and the overall procedure that the asylum seeker
needs to go through. General Comment No.14 to the UN Convention on the Rights of the Child
considers those facts related to the child as the starting point for the assessment of the child’s best
interest.
In conformity with article 25(1)(a) of Directive 2013/32/EU and article 24(1) of Directive 2013/33/EU,
the unaccompanied minor shall be informed immediately of the appointment of a representative.
In accordance with article 25(4) of Directive 2013/32/EU, not only unaccompanied minors but
also their representatives shall be provided with legal and procedural information. The abovementioned provisions of EU law have not been transposed in Bulgarian law but should be taken on
board in the CM due to EU directives’ direct effect.
The legal representative should meet specific requirements and perform duties in accordance with
the principle of the best interests of the child. According to article 24(1) of Directive 2013/33/EU: “The
representative shall perform his or her duties in accordance with the principle of the best interests
of the child, as prescribed in Article 23(2), and shall have the necessary expertise to that end.” We
find a similar provision in article 25(1)(a) of Directive 2013/32/EU: “The representative shall perform
his or her duties in accordance with the principle of the best interests of the child and shall have the
necessary expertise to that end.“ To ensure the well-being and social progress of the underage person,
his/her representative should not be replaced, unless there is a need to do so. Explicit guarantees
to prevent conflict of interest are envisaged. In addition, according to article 25(1)(b) of Directive
2013/32/EU, Member States shall “ensure that the representative is given the opportunity to inform
the unaccompanied minor about the meaning and possible consequences of the personal interview
and, where appropriate, how to prepare himself or herself for the personal interview”.
The above-listed requirements/duties of the legal representative have not been explicitly introduced
in Bulgarian legislation.
It is important to build a system for monitoring and supervision of the quality of work of legal
representatives. According to article 31(2) of Directive 2011/95/EU:
“2. Member States shall ensure that the minor’s needs are duly met in the implementation of this
Directive by the appointed guardian or representative. The appropriate authorities shall make
regular assessments.”
According to article 24(1) of Directive 2013/33/EU:
“Regular assessments shall be made by the appropriate authorities, including as regards the
availability of the necessary means for representing the unaccompanied minor.“
In view of the legal obligation of the representative to cater for the child’s legal interests and to
represent him/her in a way to safeguard his/her best interest (ARA article 25(3)), it is advised to discuss
the potential introduction of a procedure to determine the child’s best interest. In that context,
consideration can be given to the UNHCR and UNICEF joint document “Safe and Sound: what States
can do to ensure respect for the best interests of unaccompanied and separated children in Europe”
9
(2014)12. By way of example, Judgment No.190/11.01.2016 on administrative case No.5015/2015
in the inventory of the Sofia City Administrative Court, the court ruled that the administrative body
had declared having adhered to the principle of protecting the child’s best interest but had not taken
into account the elements that need to be considered when the child’s best interest is assessed, in
accordance with the requirement in ARA article 6a and § 1(5) of the Additional Provisions to the
Child Protection Act.
Practical implementation of ARA article 25 related to the appointment of a representative from
the municipal administration
In view of the principle of appointing a legal representative at the earliest possible stage, even before
the registration of the person seeking protection pursuant to ARA, the law and CM should be refined
to make it clearer who appoints the representative designated by the mayor of the municipality
according to ARA article 25(1): is it the mayor him/herself (or an official authorised thereby) or is
it a different body. By analogy to the legal obligation to notify/refer according to CPA article 40,
there should be a similar explicit mechanism for referral and appointment of a representative from
the municipal administration as a legal representative of the child seeking protection. Consideration
should be given to the different scenarios, i.e. the child may have lodged an application for protection in
person or the application may have been lodged on his/her behalf by the body specified in article 7(4)
of Directive 2013/32/EU in conjunction with CPA article 15(7), i.e. the Social Assistance Directorate.
In the Analysis of legal barriers to the application of article 25 of the Asylum and Refugees Act and
suggestions on how to tackle them compiled by attorney Aneta Genova, commissioned by UNICEF
in 2016, two main pools of potential representatives have been described: (a) experts (civil servants)
of the municipal administration whose job description is modified to include the function of a legal
representative of unaccompanied children seeking protection and (b) experts from non-governmental
organisations which have signed cooperation agreements with the relevant municipalities. Each of
the two options has its advantages and drawbacks which must be taken into account in view of the
need of a personalised approach to the needs of each child and access to legal representatives on
the territory of each self-governed municipality where such children are staying.
What is the role of the social worker from the Child Protection Department in the ARA
procedure?
This is a particularly interesting question, especially after the provision of ARA article 25(5)
was repealed; that provision stated that if there were no custodian or guardian appointed to the
unaccompanied minor or underage alien, then that child would be represented by the body specified
in article 15(7) of the Child Protection Act (i.e. the Social Assistance Directorate). In the version of
ARA after the amendments published in the State Gazette, issue 80/2015, effective as of 16 October
2015, representation of unaccompanied minors can only be provided by representatives of the
12 This document is available online in Bulgarian at http://www.unhcr-centraleurope.org/_assets/files/unhcr-safe_and_sound-bul.pdf See
box 12, in particular: “Non-exhaustive list of best interest elements“, page 42, as well as boxes 13 and 14.
10
municipal administration. In the currently applicable legal framework, there is a clear distinction
between the powers of representation given to the expert from the municipal administration
and the functions of social workers from Child Protection Departments. This is a way to ensure
independent monitoring by social workers over the work done by legal representatives appointed
by virtue of ARA article 25(1).
In this context, social workers from Child Protection Departments have the right to be present at the
hearings during ARA proceedings together with legal representatives. Although this is not a requirement
under EU law, the CPA sets a higher standard for child protection in Bulgarian law. According to CPA
article 15(1), all cases of administrative or judicial proceedings affecting the rights and interests of a
child should provide for a mandatory hearing of the child, provided he or she has reached the age of
10, unless this proves harmful to his or her interests. According to CPA article 15(2), in cases where
the child has not reached the age of 10, he or she may be given a hearing depending on the level
of his or her development. The decision to hear the child shall be substantiated. According to CPA
article 15(4), the hearing of a child shall mandatorily take place in the presence of a social worker
from the Social Assistance Directorate. Therefore, CM must be harmonised with the requirement of
CPA article 15(4), i.e. that interviews with unaccompanied minors must be attended by a social worker
from the Social Assistance Directorate.
5.
Tracing family members and family reunification
The aspect of tracing parents and family reunification is an element of establishing the child’s best
interest that should be assessed and deserves hard work in parallel with the appointment of a legal
representative. Article 5 of Directive 2008/115/EC enshrines the principles of the child’s best interests
and integrity of the family, while article 10(2) is explicit that:
“2. Before removing an unaccompanied minor from the territory of a Member State, the authorities
of that Member State shall be satisfied that he or she will be returned to a member of his or her
family, a nominated guardian or adequate reception facilities in the State of return.”
According to article 24(3) of Directive 2013/33/EU:
“3. Member States shall start tracing the members of the unaccompanied minor’s family, where
necessary with the assistance of international or other relevant organisations, as soon as possible
after an application for international protection is made, whilst protecting his or her best interests.
In cases where there may be a threat to the life or integrity of the minor or his or her close relatives,
particularly if they have remained in the country of origin, care must be taken to ensure that the
collection, processing and circulation of information concerning those persons is undertaken on a
confidential basis, so as to avoid jeopardising their safety.”
Article 31(5) of Directive 2011/95/EU has the same meaning.
According to article 6(4) of the Dublin III Regulation, for the purpose of identifying family members,
siblings or relatives of the unaccompanied minor on the territory of Member States, the Member State
11
where the unaccompanied minor lodged an application for international protection “may call for the
assistance of international or other relevant organisations, and may facilitate the minor’s access to the
tracing services of such organisations“.
In terms of practical implementation of those provisions to cater for the child’s best interest, the child
needs to be heard and listened to when it comes to his/her motives to leave the country of origin and
the reasons for separating from his/her family environment/parents. This is a transparent process of
building trust with the child whereby the child is also informed of his/her options to restore or maintain
relations with the family.13 At the backdrop of strong influences exerted by smugglers and/or the
ambient environment, accurate information and understanding should be at the core of the child’s
views as to whether he/she wishes to have his/her parents traced and at the basis of the assessment
of the child’s opinion. According to paragraph 1(5)(e) of the Supplementary Provisions of the
Child Protection Act, the ability of the parents to care for the child is also a component of the
multi-faceted assessment of the child’s best interest.
The obligation to trace family members and reunite the unaccompanied child with them is part of the
Coordination Mechanism as late as Phase 3, Long-term care for unaccompanied minor aliens.
Thus, the action taken by Bulgarian competent authorities does not meet the “as soon as possible”
standard before the return decision is made or after lodging an application for protection as stipulated
in the provisions of EU law quoted above.
In addition, the powers of CM institutions to trace the family members of an unaccompanied child
need to be refined. CM sets out the following prerogative for the Social Assistance Directorate in point
2 of Phase 3: “2. If during the social interview or subsequent meetings with the unaccompanied minor
information is found about his/her family members being in other countries, the Social Assistance
Directorate shall notify promptly the State Agency for Child Protection in view of taking action to trace
and verify those family members.“ In that context, it should be noted that the Child Protection Act ,
the Implementing Regulation to the Child Protection Act, and the Rules of Organisation of the State
Agency for Child Protection contain no provisions whatsoever related to any powers to undertake
steps to trace family members. In CM Phase 3, the list of responsibilities of the State Agency for Child
Protection contains language that if information is found about family members of the unaccompanied
minor in another country, the State Agency for Child Protection shall notify the Ministry of Interior
Directorate on International Operational Cooperation so that they can verify the available information
through the channels of international police cooperation. Based on the available texts, it is not clear if
the State Agency for Child Protection will have its own independent steps related to tracing of family
members or it will only be required to notify the Ministry of Interior.
13 You can find details about this process, including the role of interpreting, in: “Safe and Sound. What States can do to ensure respect for
the best interests of unaccompanied and separated children in Europe“, UNHCR and UNICEF, 2014, Box 7 “Family tracing“, page 32
12
6.
Placement of the unaccompanied child
With respect to unaccompanied children who have crossed the state border illegally and/or are
staying without legal grounds on the territory of the Republic of Bulgaria, FRBA article 44(9) provides
as follows: “Forcible placement shall not apply to unaccompanied minor or underage individuals. The
authority that has issued the order to impose an administrative enforcement measure shall notify the
relevant Social Assistance directorate, which shall take protection measures in accordance with the
Child Protection Act.” In view of the provision of article 10(1) of Directive 2008/115/EC, the power
given to the competent authorities under FRBA article 44(1) to refer the case to the Social Assistance
Directorate must be exercised before the issue of the order for forced removal of the child to the
border. With respect to the placement of an unaccompanied child, the general system of placement
outside the family according to CPA article 26 et seq. should apply.
With respect to unaccompanied children seeking protection, ARA article 29(10) provides for two
types of placement. The first type of placement corresponds to the placement procedure set out in
the Child Protection Act:
(a) Placement with the family of relatives or close friends;
(b) Placement with a foster family;
(c) A residential-type social service;
(d) A specialised institution.
In view of the different nationality of children seeking protection compared to the nationality of the
receiving community and in view of the fact that most of those minors are above the age of 10 years,
it is advised to invest in a separate study of the applicability of the residential type of social service and
more specifically the applicability of family type placement centers for children/adolescents without
disabilities according to article 36(2), item 7(аа) of the Implementing Regulation to the Social
assistance Act. This social service may be used as a model with the potential to be adapted to the
specific needs of unaccompanied children (special training will need to be provided to the staff to work
with foreign nationals and arrangements should be made to overcome the language barrier).
The second type of placement according to ARA is “at other places for special accommodation of
minor and underage persons“. There is no legal definition of the concept of special accommodation of
minor and underage persons. ARA does not provide explicitly for the option of placing a child with a
territorial unit of the State Agency for Refugees. In fact, this second option provided by law, in particular
ARA article 29(10), item 2, is the legal basis for the prevailing situation at present, i.e. unaccompanied
children being placed with the local units of the State Agency for Refugees. The same approach is
reflected in CM, point 2 of the list of prerogatives for the State Agency for Refugees presented at the
beginning of the document where general introductions of the institutions involved are made.
It should be noted, however, that in both types of placement, there must be compliance with the
standards set out in Chapter 5 of the Ordinance on the criteria and standards for social services
provided to children entitled “Standards for provision of social services to children at special
care institutions and residential type services”. A key standard in this context is the development of
13
individual care plans adapted to children’s specific needs; every child placed with an institutional or
residential type of service has his/her own dedicated staff member who sees to the execution of the
individual care plan and provides personalised support and guidance to the child14.
The individual approach plays a key role in addressing the issue of the overwhelming percentage of
children who have escaped from the accommodations provided by the local units of the State Agency
for Refugees where the above-mentioned standards have not been ensured. This overwhelming
percentage of missing children should not be taken as a normal occurrence; instead, an in-depth
analysis is needed to identify the root causes of the problem and take appropriate corrective actions.
According to the Monitoring report on Reception Conditions and Social Protection Provided to
Unaccompanied Asylum-seeking and Refugee Children in Bulgaria15: “The conditions in the childraising facilities where unaccompanied minors are currently accommodated are considerably better
than the ones in the SAR reception centers since they are specifically established and organised for
the purpose of bringing up children at risk“.
It is equally important to discuss the food given to children in placement facilities. An up-to-date
evaluation of the quantity and quality of food served at SAR’s territorial centers should be made in
order to find out if they comply with physiological standards of nutrition for children and adolescents
as per the requirements set out in the Ordinance on the physiological standards of nutrition of
the population16.
The current Draft Coordination Mechanism does not fully reflect the legal provisions referred to
earlier. It provides three placement scenarios upon a person’s identification as an unaccompanied
minor:
A) If the child seeks international protection, he/she should be transferred directly to the State Agency
for Refugees that takes over the process, including the process of placement, which automatically
excludes placement options provided for in ARA article 29(10), item 1 in conformity with the
procedure for placement outside the family set out in CPA article 26 et. seq.17. In this way, CM does
not include in its scope the first option for placement of unaccompanied minors seeking protection
provided for by ARA. If ARA article 29(10), item 1 were to apply, that would entail notification to the
Social Assistance Directorate so that the latter could issue an order for temporary administrative
placement of the child in one the following placement options: with the family of relatives or close
friends, a foster family, a social service – a residential-type institution (the most feasible option), or
a specialised institution. Of course, that would require preliminary preparation, such as adapting
regular family-type placement centers to meet the needs of unaccompanied minors.
B) In the case of children “who did not wish to seek international protection” on the territory of the
Republic of Bulgaria, CM has a procedure to “clarify“ with the local officer of the Social Assistance
Directorate if it is “possible to immediately trigger a protection measure pursuant to the Child
14 For more information see: Standard 3, Annex 3 to article 48 of the Ordinance on the criteria and standards for social services provided
to children
15 Monitoring report on Reception Conditions and Social Protection Provided to Unaccompanied Asylum-seeking and Refugee Children in
Bulgaria, January 2015, commissioned by UNHCR, p.18-22 http://www.unhcr-centraleurope.org/_assets/files/2015-uams-report-finalfinal.pdf In that regard, see also points 7.3. “Living conditions“, and 7.4. “Security and surveillance”, p.24-28
16 See the Monitoring Report referred to in the previous note, p. 22-24
17 See CM Phase 1, point 7 of the prerogatives of GDBP under the Ministry of Interior, point 4 of the prerogatives of the Migration Directorate
under the Ministry of Interior, and point 3 of the prerogatives of local migration units subsumed within the regional directorates of the
Ministry of Interior. The current list of prerogatives for the Social Assistance Directorate does not contain a clear mechanism for
placement of children in conformity with CPA article 27 in conjunction with ARA article 29(10), item 1.
14
Protection Act“. To ensure compliance with the applicable legal framework and the principles of
effectiveness and protection of the child’s best interest, the verb “clarify“ should be replaced by “notify
the locally competent Social Assistance Directorate for the latter to undertake protection measures
pursuant to the Child Protection Act“. This comes as a result of the fact that unaccompanied
minor aliens are by definition children at risk for the purposes of §1(11) of the Additional
Provisions of the Child Protection Act.
C) „If time is needed to identify a suitable protection measure and a placement for the unaccompanied
child”, CM will transfer the child to the local police station to be placed under “police protection“
pursuant to the Ordinance on the terms and conditions for provision of police protection
to children. This option, however, has a very narrow scope of application due to the exhaustive
list of scenarios that trigger the police protection measure. The list is provided in article 3 of the
Ordinance:
“Article 3. Police protection is provided when:
1. the child is a crime victim;
2. there is an imminent threat to the life or health of the child;
3. there is a risk that the child will be involved in a crime;
4. the child is lost or helpless;
5. the child was left unattended.”
In view of the above, it follows that the lawful implementation of activities related to the identification
of unaccompanied minors always requires notification to the competent local Social Assistance
Directorate. CPA protection measures are not an alternative to applying for international protection;
they apply equally well to children seeking protection. The subsidiary role given to them in the current
CM draft does not comply with Bulgarian and EU law.
7.
Other rights of children
The principles and rights discussed above, if properly followed and respected, would lay a good
foundation and provide proper guarantees for the exercise of other important rights that children are
entitled to. They include the right to education, access to healthcare services, access to legal aid, and
certainty of the administrative legal status. I will discuss them briefly below from the point of view of
their impact on the Coordination Mechanism.
●● The right to education
Every child’s right to education is enshrined in article 53 of the Constitution of the Republic of
Bulgaria, according to which school attendance up to the age of 16 shall be compulsory and primary
and secondary education in state and municipal schools shall be free. This right can be exercised
unconditionally and does not depend on the administrative legal status of the child, whether the
child seeks protection or stays in the country illegally. According to article 2 of Protocol No.1 to the
Convention for the Protection of Human Rights and Fundamental Freedoms, no person shall
15
be denied the right to education. In that sense, article 14(1)(c) of Directive 2008/115/EC provides
that illegally staying “minors are granted access [by the Member States] to the basic education
system subject to the length of their stay”. Article 9(1) of the recently adopted Preschool and School
Education Act18 does not place any restriction either, in terms of the personal scope of the right to
education: “Compulsory preschool and school education in state and municipal kindergartens and
schools is free for children and students.”
With respect to persons seeking protection, ARA article 26 stipulates that children’s access to the
educational system shall not be delayed by more than three months as from the date of lodging the
application for international protection. According to ARA article 26(4), the Minister of Education
and Science in coordination with the Chairperson of the State Agency for Refugees shall
determine the terms and procedure according to which the right to education of aliens who seek or
have been granted international protection shall be exercised. The Coordination Mechanism should
be harmonised with this secondary piece of legislation whose publication is still pending.
Bulgarian language courses are an important prerequisite for the successful integration of underage
aliens in the education system. Therefore, the applicable legal framework and CM should set out
special measures to achieve that objective.
●● Access to healthcare services
As a general rule, when placed in accommodation, children must have a medical exam. In addition,
specialised legislation applicable to asylum-seekers and refugees sets out explicit obligations to
identify the special needs of vulnerable groups, including children, victims of extreme violence, or
victims of human trafficking19. The concept of “health“ comprises both mental and physical health.
CM points out the following, in relation to the prerogatives of the Ministry of Health (point 2): “until the
launch of the application procedure, the child may be hospitalised, if that was deemed necessary;
hospital treatment shall be paid for by the national budget”. The exemption of fees for children who
do not fall within the personal scope of ARA is legally based on article 37(4) in conjunction with
paragraph 1 of the same article of the Health Insurance Act. With respect to children seeking
protection, the provision of ARA article 29(1), item 5 applies.
Effective access to healthcare services is also related to the possibility of the medical staff to
communicate with the child. Therefore, social mediation and interpretation services should also be
procured, especially when the child is an unaccompanied minor. A full solution to this issue could be
sought in the child’s placement arrangements.
18 The act enters into force on August 1st, 2016.
19 See, for example, Guidelines on Identifying and Addressing Reception Needs and Procedures for Vulnerable Asylum-seekers.
Bulgaria, UNHCR, December 2013; PROTECT The Process of Reception and Referral of Victims of Torture in European countries to
facilitate access to care and therapy, http://protect-able.eu/wp-content/uploads/2013/01/protect-global-bulgarian.pdf; EASO Tool for
identification of persons with special needs (IPSN), 2016, https://ipsn.easo.europa.eu
16
●● The right to legal aid
According to article 15(8) of the Child Protection Act, “[t]he child has a right to legal aid and appeal
in all proceedings, affecting his or her rights or interests“. Unaccompanied children’s access to legal
aid and justice is in direct correlation with the availability of a legal representative who is able to
authorise a counsel.
It is key that legal aid be provided by qualified counsels who are versed in refugee and immigration
law. This requirement deserves particular attention in view of the fact that refugee and migration law
is still not part of the curriculum in Bulgarian law schools.
CM should ensure conformity with CPA article 15(8).
●● Certainty of the administrative legal status
The Foreigners in the Republic of Bulgaria Act (FRBA) does not provide a clear and certain legal
possibility for unaccompanied minors who have entered the country illegally (and have been refused
international protection or have not applied for such protection) to obtain a legal residence permit.
FRBA article 28а allows extension of the duration of residence to a child who has entered Bulgaria
on a legal ground.
The provisions in FRBA article 25(1), items 14 and 15 stipulate the possibility to grant permanent
residence permits to minors who have been abandoned by their parents but the condition to grant
such permits is for the children to be accommodated in a child care institution or another alternative
social service residence facility.
In that context, CM provisions are ahead of the existing legal framework that needs to be supplemented.
The fact that those children entered illegally and have no identity papers on them represent barriers
to their access to rights.
In relation to the permanent residence permit provided for in FRBA article 25, we need to pay attention
to the fact that the existing legal framework does not exempt children from the following stamp duties:
●● BGN 10 (ten) to lodge the application for permanent residence payable pursuant to article 12(4) of
Tariff No.4 of fees collected within the system of the Ministry of Interior pursuant to the Stamp Duty
Act in conjunction with article 44a(1), item 5 of the Regulations for Application of the Foreigners in
the Republic of Bulgaria Act (RAFRBA);
●● BGN 1,000 (one thousand) upon obtaining the residence permit payable pursuant to RAFRBA
article 12(1) of Tariff No.4 in conjunction with RAFRBA article 58. According to article 58 of the
Regulations for Application of the Foreigners in the Republic of Bulgaria Act, any failure to pay such
stamp duty shall serve as grounds for abandoning the procedure.
In view of the fact that unaccompanied minors are subject to CPA protection measures provided
by the state and it is the state that pays for all related expenses, there is a need to introduce
17
some amendments in the applicable legislation in order to exempt those children from paying the
aforementioned stamp duties.
On the other hand, in the case of children whose best interest means for them to be returned to their
country of origin in conformity with article 10(2) of Directive 2008/115, CM and the applicable legal
framework need to provide a clear mechanism and procedural guarantees for the proper execution
of that return.
Summary of recommendations:
1. In order to comply with the principle of non-refoulement and primacy of the child’s best
interest, CM should state explicitly that the right to seek asylum is guaranteed and respect is
ensured for the best interest of both minors who are already staying on the territory of Bulgaria and
minors who do not belong to the category of those staying on the territory of Bulgaria and yet are
under Bulgarian jurisdiction as a result of the actions of Bulgarian competent authorities (such as
the General Directorate of the Border Police).
2. CM should set out special guarantees for initial screening and identification of unaccompanied
minors at the earliest possible stage. Within the Coordination Mechanism, guarantees for the
identification of unaccompanied minors must be explicitly described and stated as part of the powers
of the GDBP (Part I, point 1) to “provide policing according to the Bulgarian legislation and approved
procedures“; as part of the powers of the Migration Directorate related to the methods of confirming
that a person is an unaccompanied minor (point 1); and as part of the powers of the officers of local
police stations and local migration units subsumed within the regional directorates of the Ministry
of Interior. Those guarantees should include the availability of a qualified interpreter and careful
listening to the alien during the registration procedure in order to hear his/her date of birth, as well
as careful verification of facts and recording of explicit reasons for pointing someone as a person
accompanying a child. Bulgarian law should introduce a list of concrete criteria to be met by the
accompanying person in order to qualify as such, in conformity with article 2(l) of Directive 2011/95/
EU and article 2(e) of Directive 2013/33/EU. The legal definition of “unaccompanied minor“ in §1(4)
of the Additional Provisions of the Asylum and Refugees Act should be amended to conform to the
legal definition provided in the recast EU directives.
3. In order to guarantee unaccompanied children’s right to lodge applications for international
protection, ARA should be supplemented in conformity with article 7(5) of Directive 2013/32/EU
so as to define the cases where the child can lodge the application for international protection in
person as well as the cases where the application must be lodged by a representative. In addition,
the provision of article 7(4) of Directive 2013/32 must be transposed in conjunction with article
10 of Directive 2008/115 and article 15(7) of the Child Protection Act to the effect that the Social
Assistance Directorate will, in no uncertain terms, be given the right to lodge an application for
international protection on behalf of an unaccompanied minor, and that is before the order for
forced removal to the border is issued.
FRBA should stipulate obligations for the bodies under FRBA article 44(1) issuing return orders (orders
for forced removal to the border) to notify/refer those cases to the Social Assistance Directorate in
18
order for the latter to be able to provide assistance to unaccompanied children pursuant to article 10 of
Directive 2008/115, before the return decision is made. In this way, the Social Assistance Directorate
will be guaranteed the actual right to lodge an application for international protection on behalf of the
unaccompanied child in conformity with article 7(4) of Directive 2013/32.
4. A legal representative should be appointed immediately upon the identification of the person as
a minor. If there is an accompanying adult who is not the child’s parent but is responsible for him/
her by law or custom, that adult should be appointed as the child’s legal representative, unless
that would be against the child’s best interest. The power of representation given to accompanying
persons should be introduced explicitly in Bulgarian law not only in respect of persons accompanying
children who seek protection, in conformity with ARA article 25(2), but in respect of accompanying
persons of all children.
With respect to unaccompanied minors staying illegally on the territory of the Republic
of Bulgaria, FRBA should explicitly require a member of the Social Assistance Directorate to be
appointed as the child’s representative in conjunction with CPA article 15(7) and article 10(1) of
Directive 2008/115/EC and article 7(4) of Directive 2013/32/EU.
With respect to unaccompanied minors who seek or have been granted international protection,
ARA article 25 should be amended and supplemented so as to introduce clearly and fully all
requirements that must be met by the representative as well as his/her duties in accordance with
Directives 2013/32/EU and 2013/33/EU and the related procedural guarantees discussed in the body
of the analysis above. The law and CM must specify who appoints the representative designated by
the mayor of the municipality pursuant to ARA article 25(1): is it the mayor him/herself (or an official
authorised thereby) or a different body; it should also be specified who is in the pool of potential
designated representatives (are those individuals civil servants and/or will an agreement with an NGO
be chosen).
In addition to the requirement for a legal representative to be present, CM must also be harmonised
with the requirement of CPA article 15(4), i.e. that hearings of unaccompanied minors in administrative
and/or court proceedings must also be attended by a social worker from the Social Assistance
Directorate.
5. Tracing family members and family reunification
Bulgarian law should be amended to introduce the provisions of EU law that impose an obligation on
authorities to start tracing the members of the unaccompanied minor’s family, where necessary with
the assistance of international or other relevant organisations, as soon as possible. The obligation
to trace family members of the unaccompanied child and reunite them should be reflected in CM not
only in Phase 3 on Long-term care for unaccompanied minor aliens but also in Phases 1 and 2 before
a return decision is made or after lodging an application for international protection.
Prerogatives of CM institutions in relation to tracing family members of unaccompanied children must
be made more specific in view of the fact that currently the State Agency for Child Protection does not
have explicit prerogatives by law to trace family members.
19
6. In relation to placement of unaccompanied minors, CM should not exclude from its scope the first
option for placement of unaccompanied minors seeking protection provided by ARA article 29(10),
item 1 in conformity with the CPA procedure. The list of prerogatives for the Social Assistance
Directorate stated in CM Phase 1 should contain a clear mechanism for placement of children in
conformity with CPA article 27 in conjunction with ARA article 29(10), item 1. In general, CM needs
to be revised in order to reflect the legal provisions according to which the lawful implementation of
activities related to the identification of unaccompanied minors always requires notification to the
competent local Social Assistance Directorate.
An in-depth analysis needs to be made of the accommodation conditions provided to children by the
local units of the State Agency for Refugees and whether those facilities meet the Bulgarian legal
standards applicable to children. There is a need of focused preparatory work in order to properly
execute the provisions of the Child Protection Act regarding temporary administrative placement; for
instance, regular family-type placement centers will have to be adapted to the needs of unaccompanied
minors.
7. In relation to the right to education, according to ARA article 26(4), the Minister of Education and
Science in coordination with the Chairperson of the State Agency for Refugees shall determine
the terms and procedure according to which the right to education of aliens who seek or have
been granted international protection shall be exercised. The Coordination Mechanism should be
harmonised with this secondary piece of legislation whose publication is still pending.
Bulgarian language courses are an important prerequisite for the successful integration of underage
aliens in the education system. Therefore, the applicable legal framework and CM should set out
special measures to achieve that objective.
8. CM should make arrangements to ensure compliance with article 15(8) of the Child Protection Act,
according to which the child has a right to legal aid and appeal in all proceedings, affecting his or
her rights or interests.
9. With respect to the right of stay according to FRBA, the language included in the CM is ahead
of the existing legal framework that should be modified so as to provide clear and certain legal
possibility for unaccompanied minors who have illegally entered the country (and have been
refused international protection or have not applied for such protection) to obtain a legal residence
permit. With respect to stamp duties payable in the process of obtaining a permanent residence
permit in conformity with article 12 of Tariff No.4, amendments need to be made in the existing legal
framework in order to exempt unaccompanied minors from those payments.
On the other hand, in the case of children whose best interest means for them to be returned to their
country of origin in conformity with article 10(2) of Directive 2008/115/EC, CM and the applicable legal
framework need to provide a clear mechanism and procedural guarantees for the proper execution
of that return.
20
Conclusion
The launch and operation of a Coordination mechanism ensuring interaction among institutions
and organisations involved in guaranteeing the rights of unaccompanied minor aliens staying in the
Republic of Bulgaria, including those who seek or have been granted international protection is not
mission impossible. The currently existing draft is a good basis for refining and supplementing the
powers of competent authorities and making steps to improve the national legal framework. In the
process of approval of the draft CM, consideration should be given to the amendments in national
legislation, as well as the European Union Acquis and International Law. An important factor for the
practical feasibility of CM is the availability of additional human and material/financial resources,
which will, in a targeted manner, increase the capacity of Bulgarian competent institutions
involved in providing protection and respect for the rights of unaccompanied minor aliens.
That will require political will to take upon that responsibility and some courage to face the new
challenges ahead.
21
Annex 1:
„Analysis of legal and administrative barriers to the operation of a Coordination mechanism
ensuring interaction among institutions and organisations involved in guaranteeing the rights
of unaccompanied minor aliens staying in the Republic of Bulgaria, including those who seek
or have been granted international protection“
Correlation table
Principle/ Right
22
International
legal standards
Standards according National transposing law
to EU Law
Legal comment related to
the Coordination Mechanism
1. Non-refoulement Article 33 CSR,
article 3 САТ,
articles 6 and 37
CRC, paras 2628 GC 6
Articles 18 and 19
CFREU
Article 24 CFREU
Article 4(3) ARA
Article 6a ARA
Article 23(3) ARA
CM only guarantees the rights of children
“staying in the Republic of Bulgaria”.
2. Identification
as a minor/
unaccompanied
minor
(including Age
Determination
guarantees)
Article 2(l) of
Directive 2011/95/
EU and article 2(m) of
Directive 2013/32 (cf.
article 2(h) of Directive
2005/85)
Article 2(e); articles
21 and 22 of Directive
2013/33
Article 10(c) of
Directive 2004/81
Recital 23 and article
14(1) of Directive
2011/36/EU
Article 25(5) of
Directive 2013/32
§1 (4) of the Additional
Provisions to ARA
Article 25(2) ARA
Article 28а(1) FRBA
Article 61(3) and (5) ARA
Article 15(1)-(3) CPA
Article 8 CRC
Article 12 CRC
Guarantees for the identification of
unaccompanied minors are not explicitly
described and stated as part of the
powers of the GDBP (Part I, point 1)
to “provide policing according to the
Bulgarian legislation and approved
procedures“; as part of the powers of
the Migration Directorate related to the
methods of confirming that a person is
Issues:
an unaccompanied minor (point 1); and
The legal definition for
as part of the powers of the officers of
unaccompanied child/
local police stations and local migration
accompanying person in
units subsumed within the regional
Bulgarian law is in conflict
directorates of the Ministry of Interior.
with the recast directives
Bulgarian legislation must be amended
of the EU;
ARA does not introduce all and supplemented with respect to the
legal definition for “unaccompanied child”
the guarantees provided
and the criteria that must be met by the
for in article 25(5) of
Directive 2013/32 regarding “accompanying person“ in order to
qualify as such.
the age determination
In the list of prerogatives of the State
medical examination,
Agency for Refugees related to the ARA
including the requirement
procedure (Part 2, point 5), an expert
to provide information and
the principle of interpreting medical examination is organised in case
doubt in favour of the child. of “doubt“ as to the declared age. Expert
medical examinations must be organised
only in case of reasonable doubt,
according to ARA.
Correlation table
Principle/ Right
International
legal standards
Standards according National transposing law
to EU Law
3. The right of
the child to lodge
an application
for international
protection
Article 22 CRC,
Article 7( 3), (4)
paras 64-67 GC 6 and (5) of Directive
2013/32
Article 10 of Directive
2008/115
Articles 3, 6 and
8 of the Dublin III
Regulation
Articles 3 and 4 PFA
Article 15(7) CPA
Article 4(1) ARA
Article 44(9), fourth
sentence FRBA
Issue:
provisions of EU law
on lodging an application
for protection by
unaccompanied minors
have not been explicitly
transposed
FRBA must introduce
explicitly the provision
of article 10 of Directive
2008/115
ARA must introduce
explicitly the provisions of
article 7(3)-(5) of Directive
2013/32
Legal comment related to
the Coordination Mechanism
Bulgarian law does not contain an explicit
legal basis allowing unaccompanied
minors to personally lodge applications for
international protection, as specified in CM
Part 1, point 5, in the list of prerogatives
for the GDBP and local migration units
subsumed within the Regional Directorates
of the Ministry of Interior.
The prerogatives of the Social Assistance
Directorate, in the current CM version,
do not include the power to lodge an
application for international protection
on behalf of the unaccompanied child in
conformity with article 7(4) of Directive
2013/32.
CM should stipulate obligations for the
bodies under FRBA article 44(1) issuing
return orders (orders for forced removal
to the border) to refer those cases to the
Social Assistance Directorate in order for
the latter to be able to provide assistance
to unaccompanied children pursuant to
article 10 of Directive 2008/115, before
the return decision is made. In this way,
the Social Assistance Directorate will be
guaranteed the actual right to lodge an
application for international protection
on behalf of the unaccompanied child in
conformity with article 7(4) of Directive
2013/32.
23
Correlation table
24
Principle/ Right
International
legal standards
Standards according National transposing law
to EU Law
4. Appointment
of a legal
representative
Article 18(1) and
article 20 CRC
Para 34 GC 6
Article 10(1) of
Directive 2008/115
Article 7( 3) of
Directive 2013/32
Article 24(1) of
Directive 2013/33
Article 25 of Directive
2013/32
Article 31 of Directive
2011/95
Article 6(2) of the
Dublin III Regulation
Article 16(3) of
Directive 2011/36
Article 15(7) CPA
Article 44(9), fourth
sentence FRBA
Article 25 ARA
Legal comment related to
the Coordination Mechanism
The institutions that are currently included
in the CM have functions to notify the
Social Assistance Directorate in order for
the latter to dispatch a representative.
Those functions should be transformed
into an explicit urgent obligation to
Issues:
refer the case to the Social Assistance
FRBA does not contain an Directorate and that obligation should
explicit provision regarding be reciprocated by the Social Assistance
the appointment of a
Directorate which should be required to
representative of the Social dispatch a representative. FRBA needs
Assistance Directorate
to contain an explicit provision regarding
in conjunction with CPA
the appointment of a representative
article 15(7), article 10(1)
of the Social Assistance Directorate in
of Directive 2008/115 and
conjunction with CPA article 15(7), article
article 7(4) of Directive
10(1) of Directive 2008/115 and article 7(4)
2013/32
of Directive 2013/32.
ARA article 25(1) is
The power of representation given
not explicit about who
to accompanying persons should be
appoints the representative introduced explicitly in Bulgarian law not
designated by the mayor
only in respect of persons accompanying
of the municipality: is it the children who seek protection, in conformity
mayor him/herself (or an
with ARA article 25(2), but in respect of
official empowered thereby) accompanying persons of all children.
or another body.
Phases 1 and 2 in the current CM do
Article 25 does not
not involve mayors of municipalities
introduce clearly and/or
and representatives from the municipal
fully all the requirements
administrations included in the new version
that must be met by the
of ARA article 25 (State Gazette, issue
representative and his/
80/2015). The prerogatives of the State
her duties pursuant to
Agency for Refugees should be updated,
Directives 2013/32 and
particularly CM Phase 2, point 3.
2013/33
The law and/or CM must specify who
appoints the representative designated
by the mayor of the municipality pursuant
to ARA article 25(1): is it the mayor him/
herself (or an official authorised thereby) or
a different body; it should also be specified
who is in the pool of potential designated
representatives (are those individuals civil
servants and/or will an agreement with an
NGO be chosen).
Procedural guarantees enshrined in
article 25 of Directive 2013/32 and article
24 of Directive 2013/33, which have not
been transposed in Bulgarian law, have
direct effect and must be included in CM.
Meanwhile, a legislative initiative should be
launched to fill in the gaps in the existing
Bulgarian legislation.
Correlation table
Principle/ Right
International
legal standards
Standards according National transposing law
to EU Law
5. Tracing family
Article 10 and
Article 5, article 14(1)
members and
article 22(2) CRC (a) and article 10(2) of
family reunification
Directive 2008/115
Article 6(4) and article
8 of the Dublin III
Regulation
Article 24(3) of
Directive 2013/33
Article 31(5) of
Directive 2011/95
Articles 4 and 10(3) of
Directive 2003/86/EC
Article 34 ARA
Article 25b(2) FRBA
Issues:
Provisions of EU law have
not been transposed in
Bulgarian law with the
exception of provisions
regarding family
reunification for aliens
who have been granted
international protection.
Legal comment related to
the Coordination Mechanism
The obligation to trace family members and
reunite the unaccompanied child with them
is part of CM as late as Phase 3, Longterm care for unaccompanied minor aliens.
Actions taken by Bulgarian competent
authorities do not, therefore, comply
with the “as soon as possible” standard
provided for in EU law.
Prerogatives of CM institutions in
relation to tracing family members of
unaccompanied children must be made
more specific in view of the fact that the
State Agency for Child Protection does not
have explicit prerogatives by law to trace
family members.
25
Correlation table
Principle/ Right
International
legal standards
Standards according National transposing law
to EU Law
Legal comment related to
the Coordination Mechanism
6. Placement
(including
guarantees against
detention)
Article 27( 1)-(3)
CRC
Article 37 CRC
and para 61 GC 6
Article 10(1) of
Directive 2008/115
Article 24(2) in
conjunction with
articles 21 and 22 of
Directive 2013/33
Articles 31(3) and 32
of Directive 2011/95
Article 11(5) of
Directive 2011/36
Article 9 and article
11(2)-(3) of Directive
2013/33
Articles 8(1) and 26 of
Directive 2013/32
Article 28(4) of the
Dublin III Regulation
The current version of CM does not
include in its scope the first option for
placement of unaccompanied minors
seeking protection provided by ARA article
29(10), item 1 in conformity with the CPA
procedure. CM Phase 1, point 7 of the
prerogatives of GDBP under the Ministry of
Interior, point 4 of the prerogatives of the
Migration Directorate under the Ministry
of Interior, and point 3 of the prerogatives
of local migration units subsumed within
the regional directorates of the Ministry of
Interior set out the option of direct transfer
of persons seeking protection to the State
Agency for Refugees which takes over
the process, including the process of
placement. The current list of prerogatives
for the Social Assistance Directorate
stated in CM Phase 1 does not contain
a clear mechanism for placement of
children in conformity with CPA article 27 in
conjunction with ARA article 29(10), item 1.
The protection measure provided for in the
Child Protection Act should not be viewed
solely as an alternative to the application
for international protection, as it is now
formulated in CM (e.g., point 3, GDBP,
Phase 1). The subsidiary role given to CPA
protection measures in the current CM
draft does not comply with Bulgarian and
EU law.
CM needs to be revised in order to reflect
the legal provisions according to which the
lawful implementation of activities related
to the identification of unaccompanied
minors always requires notification to
the competent local Social Assistance
Directorate.
Article 44(9) FRBA
Article 29(10) and (11) ARA
Article 26 et. seq. CPA
Article 45f ARA
Implementing Regulation to
the Social Assistance Act,
article 36
Ordinance on the criteria
and standards for social
services provided to
children, Chapter 5
Ordinance on the
physiological standards of
nutrition of the population,
Annex 1 to article 5(1)
Ordinance on the terms and
conditions for provision of
police protection to children
Issues:
in general, there are
no issues with the legal
framework per se; issues
are related to attempts at
circumventing the law and
the lack of motivation to
implement it in practice.
Only FRBA article 44(9)
should be amended to
comply with article 10(1) of
Directive 2008/115
26