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БЪЛГАРСКИ СЪВЕТ ЗА БЕЖАНЦИ И МИГРАНТИ
____________________________________________ BULGARIAN COUNCIL ON REFUGEES AND MIGRANTS
ADVOCACY GUIDELINES
ACCESS TO INTERNATIONAL PROTECTION OF REFUGEE CHILDREN IN BULGARIA
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THE ADVOCACY GUIDELINES HAVE BEEN DEVELOPED BY THE
BULGARIAN COUNCIL ON REFUGEES AND MIGRANTS UNDER A
PROJECT FINANCED BY THE UNHCR REPRESENTATION IN
BULGARIA
Sofia, 2014
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CONTENT
INTRODUCTIONADVOCACY – A KEY ACTIVITY OF THE BULGARIAN COUNCIL ON REFUGEES AND MIGRANTS
BACKGROUND
PART I. STRATEGIC AREA OF ADVOCACY:
ACCESS TO INTERNATIONAL PROTECTION IN BULGARIA – STANDARDS AND
PRACTICES
1. Legal framework
2. Access to territory and procedure of asylum seeking children
3. The rights of children in the status determination procedure
4. Representation and legal guardianship of unaccompanied asylum seeking children
5. Recommendations and guidelines on advocacy
PART ІI. STRATEGIC AREA OF ADVOCACY:
RECEPTION CONDITIONS FOR ASYLUM SEEKING CHILDRENIN BULGARIA
1. General standards
2. Accommodation
3. Medical care and health insurance
4. Social assistance
5. Education and Bulgarian language training
6. Recommendations and guidelines on advocacy
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INTRODUCTION
ADVOCACY – A KEY ACTIVITY OF THE BULGARIAN COUNCIL ON REFUGEES AND MIGRANTS
The Bulgarian Council on Refugees and Migrants (BCRM) is a civil society
organization acting in the field of asylum and migration in Bulgaria. It was founded in 2005
by the Bulgarian Helsinki Committee, the Bulgarian Red Cross and Caritas-Bulgaria; in 2007
it was joined by the Association for Integration of Refugees and Migrants. The Council is a
platform for the activities of the member organizations related to refugee and migration
policies. BCRM’s mission is focused on facilitating and promoting the state policy and
practice aimed at the protection of the rights of refugees and migrants, and the development
of a fair and efficient national policy in the area of asylum and migration.
With the development and implementation of the advocacy guidelines BCRM is
enhancing its role in the design and implementation of the national policy and practice in
terms of access to international protection, reception and integration of refugees in conformity
with the international and European legal acts and standards.
The advocacy guidelines are relevant to all the institutions and organizations working
with asylum seekers and refugees in Bulgaria, as they identify the necessary short-term and
mid-term measures and activities which should be taken for the further development and
improvement of the policies in the area of access, reception and integration of refugees in our
country.
Evidence in support of the above are the Guidelines on Advocacy drafted by BCRM
in 2010 within the framework of the Project “Safeguarding Refugee Protection in Bulgaria”
financed by the Ministry of Foreign Affairs of the Kingdom of the Netherlands under the
Social Transformation Program MATRA. The guidelines on advocacy set forth in this
strategic document have facilitated a better understanding and planning of the activities for
safeguarding refugees’ protection in Bulgaria.
These guidelines on advocacy are a follow-up to the advocacy activities carried out by
BCRM and the member organizations over recent years. The guidelines focus on advocacy
policies and measures in the area of access to international protection, reception and
integration for refugee children in Bulgaria.
The drafting of these guidelines would not have been possible, had it not been for the
cooperation and joint activities among experts from the competent state institutions, the civil
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society organizations, and the UNHCR Representation in the Republic of Bulgaria.
Partnership, the exchange of information and knowledge in the context of a variety of forums,
working meetings, and trainings were of great importance for the elaboration of these
guidelines on advocacy.
Within the framework of BCRM’s annual projects “Advocacy for Refugee
Integration in Bulgaria” financed by UNHCR, in 2012-2014 a number of meetings and
trainings were organized on the topic of refugee protection, including the protection of
refugee children in Bulgaria:
Training: Mental health and risk management related to mental disorders
among refugees, 9 March 2012, Sofia;
Roundtable: Advocacy for the integration of vulnerable refugees and
humanitarian status holders, 14 June 2012, Sofia;
Roundtable: Health insurance and healthcare for refugees and asylum seekers
in Bulgaria, 5 July 2012, Sofia;
A monitoring survey and a monitoring report: Implementation in 2012 of the
2011-2013 National Program for Refugee Integration in the Republic of Bulgaria;
Roundtable: Integration of refugees in Bulgaria in 2012 – challenges, good
practices and prospects for 2013, 4 December 2012, Sofia;
Roundtable: Advocacy for housing of refugees in Bulgaria,28 March 2013, Sofia;
Workshop: Advocacy for the development of the 2014-2016National Program
for Refugee Integration in the Republic of Bulgaria, 25-26 April 2013, Borovetz;
Roundtable: Advocacy for the protection and integration of refugee children in
Bulgaria, 26-27 September 2013, Borovetz;
Monitoring and a report: Implementation in 2013 of the 2011-2013 National
Program for Refugee Integration in the Republic of Bulgaria;
Roundtable: Challenges and achievemtns in the integration of refugees in
Bulgaria in 2013, 3 December 2013, Sofia;
Conference: Networking for prevention of genderbased violence in the context
of international protection, 27 February 2014, Sofia;
Workshop: Training of future teachers of Bulgarian as a foreign language to
refugee children, 28-29 May 2014, Borovetz;
Conference: Partnership for the protection of refugee children in Bulgaria,20
June 2014, Sofia;
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Roundtable: Advocacy for the social protection and integration of vulnerable
asylum seekers and refugees in Bulgaria,17-18 September 2014, Borovetz.
The present paper makes an analysis of the national legal framework and practice in
terms of the protection of children who seek or have been granted international protection,
and provides guidelines and recommendations regarding the applicable standards. The aim of
the document is to facilitate the activity of both state and local administrations, as well as non-
governmental organizations working in the area of child protection in Bulgaria.
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BACKGROUND
Every year thousands of children, third-country nationals, arrive in Europe and seek
international protection. A part of these children seek international protection in Bulgaria,
which, due to its geographic location, is one of the EU member states with an external EU
border. The majority of these children are accompanied by their parents, others are taken care
of by family members/relatives or friends; however, there is yet another group of children
who are unaccompanied and have set out alone on this dangerous journey. Armed conflicts,
violence, violation of human rights, trafficking or exploitation – these are but some of the
reasons for which children seek protection outside their countries of origin.
In the spring of 2014 the civil war in Syria entered into its third year, and the number
of fatalities, casualties, internally displaced people and refugees fleeing the country have been
on the rise. At present 2,000 children who seek or have been granted international protection
are living in Bulgaria – most of these children have fled the atrocities of the civil war.
The national legal framework which regulates the granting of asylum and international
protection to persons in need of such protection is based on the provision of Art. 27 (2) and
(3) of the 1991 Constitution of the Republic of Bulgaria. By virtue of the organic law, our
state shall grant asylum to foreigners persecuted for their opinions or activity in the defense of
internationally recognized rights and freedoms, while the terms and procedure for granting
asylum are laid down in a subsequent law.
A year after the 1991 Constitution, the latest one in the history of the Bulgarian state,
was passed, in 1992 the Republic of Bulgaria signed and ratified the Geneva Convention
Relating to the Status of Refugees of the Organization of the United Nations (prom. SG No 36
of 5 May 1991, amended No 30 of 1991, prom. SG No 88 of 1993), and the New York
Protocol Relating to the Status of Refugees (prom. SG No 36 of 1992). Thus, Bulgaria joined
the international community of states who grant international protection to persons in need of
protection on the grounds of persecution and violation of their fundamental human rights in
their country of origin, citizenship or permanent residence.
As a result of its accession to the European Union in 2007, Bulgaria introduced the
norms of the EU law, including the general rules, legislative measures and practices in the
area of asylum (the so-called asylum acquis). As a result of this, the scope of the national
legislation, as well as the administrative practice and the case law have been broadened and
supplemented with a number of new and binding community legal standards regarding the
treatment of asylum-seekers and their rights and obligations within the territory and
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jurisdiction of the EU. The European countries have a long lasting tradition in terms of
granting asylum to people subject to persecution, while the protection, promotion and
observance of children’s rights are amongst the priorities on the European Union agenda.
The right to asylum in the European Union is enshrined in Article 18 of the Charter of
Fundamental Rights of the European Union (Charter): “The right to asylum shall be
guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the
Protocol of 31 January 1967 relating to the status of refugees and in accordance with the
Treaty on European Union and the Treaty on the Functioning of the European Union
(hereinafter referred to as ‘the Treaties’).” Article 24, paragraph 1 of the Charter focuses on
the children’s right to protection and care by emphasizing that “Children shall have the
right to such protection and care as is necessary for their well-being.”Children are
entitled to express their views freely, and such views shall be taken into consideration on
matters which concern them in accordance with their age and maturity.
Article 24, paragraph 2 of the Charter stipulates that in all actions relating to children,
whether taken by public authorities or private institutions, the child's best interests must be a
primary consideration.
Since 1999 the European Union has been developing the Common European
Asylum System and has taken actions to improve the existing asylum legislation. One of the
objectives of the Common European Asylum System is to develop and guarantee high
standards in order to provide equal and fair treatment for asylum seekers across the European
Union.
Over the period December 2011 and June 2013 a number of legal acts were adopted –
fundamental elements in the Common European Asylum System. For the purpose of this
Report, reference will be made to the three directives in the area of international protection
which specifically focus on the reception, protection, and integration of children who seek or
have been granted protection:
Directive 2011/95/ЕU of the European Parliament and of the Councilof 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(Qualification Directive).
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The deadline for the transposition of this Directive by the member states expired on 21
December 2013; due to a variety of reasons, however, it has not yet been transposed into the
national legislation of the Republic of Bulgaria.
Directive 2013/32/ЕU of the European Parliament and of the Council of 26 June
2013 on common procedures for granting and withdrawing international protection (Asylum
Procedure Directive).
Directive 2013/33/ЕU of the European Parliament and of the Council of 26 June
2013 laying down standards for the reception of applicants for international
protection(Reception Conditions Directive).
Bulgaria is obliged to ensure the transposition of the above two Directives by 20 July
2015 at the latest.
A considerable part of the EU norms regulate the standards for the treatment of
children who seek or have been granted protection. Amongst these standards, there are some
with a special focus on asylum seeking children who enter the territory of Bulgaria and the
European Union without being accompanied by their parents. In parallel with the issues
related to age and all the risks ensuing from the involvement of children in mixed migration
flows and cross-border human trafficking, in the case of unaccompanied children, in
particular, the absence of parental care and control premise a higher risk in terms of their
security and additional difficulties in the exercise of their rights during the status
determination procedure and after being granted a status. In view of the above, the EU legal
norms recognize the need for the state administration to ensure more intensive measures and
care aimed at the protection of the rights and legal interests of these children. In addition, the
EU law lays down explicit and binding rules to be implemented in the national legislations
and practice whereby both legal and practical safeguards will be secured for the protection of
the best interest of these children.
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PART II. STRATEGIC AREA OF ADVOCACY
ACCESS TO INTERNATIONAL PROTECTION IN BULGARIA – STANDARDS
AND PRACTICE
1. Legal framework
The general legal status of children is regulated in several legislative acts.
A child is any natural person who has not reached the age of 18, as defined in Art. 2 of
the Child Protection Act (CPA).
Children are minor till the age of 14, and their legal representatives – parents or legal
guardians – perform legal actions for them and on their behalf, as provided for in Art. 3 of the
Persons and Family Act (PFA).
Children are underage from the age of 14 till 18, and can perform legal actions, though
with the consent of their parents or legal guardians; furthermore, they can make minor deals
in order to meet their current needs and are entitled to dispose of the proceeds of gainful
employment (Art. 4 of PFA).
When children turn 18 they become of age and thus acquire the full capacity to enjoy
rights and assume obligations via their actions (Art. 2 of PFA).
Given the fact that the law does not differentiate between children based on their
nationality, the above legal provisions shall cover and apply to all children, irrespective of
their nationality (citizenship) or habitual residence, and irrespective of the whether they have
a residence permit for the territory of Bulgaria. This approach is in conformity with the
general equality principle laid down in Art. 26 (2) of the Constitution, which stipulates that
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. As the Constitution does not
specify the type of residence, the equality provision regarding the fundamental human rights
shall apply in respect of both legally residing and illegally residing children in Bulgaria who
are third-country nationals. Therefore, it is not only children who seek or have been granted
protection in Bulgaria, but also children who have been refused international protection that
shall be entitled to the protection regulated by both national and international legal norms in
the area of child protection.
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Within the meaning of the above, all general principles of child protection (Art. 3 of
CPA) and, in particular, the principle of the child’s best interest (§1 (5) of the AP of CPA)
apply, without any exception, with respect to children who seek or have been granted
protection in Bulgaria. In terms of asylum seeking children, this principle is also explicitly
laid down in the EU law (Art. 23 of Directive 2013/33/ЕU, the so-called Reception
Conditions Directive1); in addition, other relevant principles are family unity, access to
education and health care – which apply equally to children who either seek or have been
granted protection (Articles 23, 27, and 30 of Directive 2011/95/ЕU, the so-called
Qualification Directive234).
In addition to the general principles, the law regulates yet another principle for the
protection of refugee children by introducing the obligation for the responsible authority, the
State Agency for Refugees, to exercise supervision and take measures for the protection of
aliens who are minors or under the legal age against physical or mental violence, cruel,
inhuman or degrading treatment (Art. 25 (3) of LAR).
In respect of the children who seek or have been granted protection, the special law,
the Law on Asylum and Refugees, does not set forth a different or special definition of the
child, other than the definition in the general legislation. Refugee children are not covered by
individual provisions in LAR; they fall within the scope of the provisions regarding family
members. The reason is that, by way of rule, children are accompanied by either of the parents
or by both of them. Hence, their legal status, rights and obligations, and the outcome from the
procedure are directly dependent on their parents’ claim. Such an approach is based on the
assumption that the reasons why children flee and seek international protection are rarely
different from their parents’ reasons – a fact based also on the argument of cohabitation and
shared destiny.
1The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. Member States shall ensure a standard of living adequate for the minor’s physical, mental, spiritual, moral and social development – Art. 23, paragraph 1 of Directive 2013/33/ЕU.
2Member States shall ensure that family unity can be maintained– Art. 23, paragraph 1 of Directive 2011/95/ЕС.
3Member States shall grant full access to the education system to all minors granted international protection, under the same conditions as nationals – Art. 27, paragraph 1 of Directive 2011/95/ЕU.
4Member States shall ensure that beneficiaries of international protection have access to healthcare under the same eligibility conditions as nationals of the Member State that has granted such protection – Art. 30, paragraph 1 of Directive 2011/95/ЕU.
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The definition of the family of persons who seek or have been granted protection in
LAR, however, has a broader scope compared to the standard understanding of the nuclear
family both in the Bulgarian legislation and by custom – spouses or a man and a woman in
cohabitation and their minor children. Thus, the family members, as defined in refugee law,
include: а) the husband, the wife or the person with whom the individual has a proven stable and long-term relationship, and their children who have not come of the legal age, where the latter are not married; b) the children
who have not come of the legal age and are not married and are not able to ensure their
subsistence on their own due to serious health problems; c) the parents of each spouse who are not able to take care of themselves due to old age or a serious illness and need to live in the same household as their children (§1, item 3 of
the AP of LAR). This definition in the national law is more favorable than the definition in
the European legislation which excludes, under any conditions whatsoever, adult children and
the parents of the wife/husband, i.e. the child’s grandparents. (Art. 2 (j) of Directive
2011/95/ЕU, the so-called Qualification Directive).
In addition to the usual situation of children accompanied by their parents, it often
happens that children who seek or have been granted protection find themselves on the
territory of Bulgaria alone and unaccompanied by their parents. Such a situation is typical for
refugee children – the explanation resides in the coercion, violence or persecution in their
country of origin, which, apart from being the reason for their flight, quite often cause
disruption in family unity and separate children from their parents – either before or during
the flight from the country of origin.
Due to the emergency nature of the situation of such children, the Law allows that
children who are accompanied by other adults – who, even though they are not their parents,
are responsible for them by law or custom – can remain unseparated from these adults and,
thus, be considered as accompanied children. This provision has been introduced for the
benefit of the child’s emotional and psychological balance and with a view to ensuring that
the child is raised and brought up in an environment as close as possible to the family one and
to the language, customs and norms the child was used to in the country of origin. The
Bulgarian law does not set the condition for the child to have been taken into the care of the
accompanying person, as required by the European legislation (Art. 2 (l) of the Qualification
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Directive5), even though this condition is self-understood and is applied by the administrative
authorities in most cases.
There are, however, frequent cases where children who seek or have been granted
protection find themselves entirely alone on the territory of Bulgaria without the protection,
support or care of another adult family member or friend. The Law defines a child in such a
situation as an unaccompanied child, i.e. - an alien who is a minor or under the legal age who
is within the territory of the Republic of Bulgaria and is not accompanied by his/her parent or
another adult responsible for him/her by law or custom.
Within the meaning of the above, unaccompanied children who seek or have been
granted protection meet the definition of children at risk, as they have been left without
parental care, and, in view of the special situation they are in, their physical, mental, ethical,
intellectual, and social development is threatened, and are also at risk of dropping out of
school. (§1, item 11 (a, c, d) of the CPA).
2. Access to territory and procedure for asylum seeking children
The national legislation stipulates that any foreigner can apply for international
protection in the Republic of Bulgaria pursuant to the provisions of the Law on Asylum and
Refugees (Art. 4 (1) of LAR). Hence, the Law does not limit the opportunity for children to
lodge an application for protection on their own behalf in Bulgarian case their reasons differ
from those of their parents or, irrespective of the presence of their parents in case they are
unaccompanied.
However, the national legislation does not explicitly regulate the cases where an
application is lodged by the child on his/her own behalf, and where such application must be
lodged by a representative or an immigration authority acting in the child’s interest, as
required by the EU law. (Art. 7, paragraph 5 of Directive 2013/32/ЕU, the so-called
Procedural Directive).
Insofar as this is an action which does not depend on the child’s will but is in
his/her best interest, the Law on Asylum and Refugees should explicitly regulate this
option within the shortest time possible in view of the principle of the protection of the
5"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 – Art. 2 (l) of Directive 2011/95/ЕU.
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child’s best interest.(§1, item 5 of AP of CPA, and Art. 23 of Directive 2013/33/ЕU, the
so-called Reception Conditions Directive).
3. The rights of children in the status determination procedure
The procedures for assessing the application for protection and taking a decision about
granting or refusing a status in Bulgaria are regulated in the Law on Asylum and Refugees.
The types of international protection granted in Bulgaria are asylum, refugee status,
humanitarian status, and temporary protection (Art. 1 of LAR). The body vested with the
powers to grant asylum is the President of the Republic of Bulgaria (Art. 98, item 10 of the
Constitution). The protection granted on an individual basis is of two types: refugee status and
humanitarian status (Articles 8 and 9 of LAR), while the protection granted on a group basis
is temporary protection granted by virtue of an act of the Council of Ministers in cases of a
mass influx of asylum seekers of 500 people and over, who have crossed the border within 24
hours (Art. 11 of LAR). Third-country nationals who have been recognized as refugees under
the mandate of UNHCR on the territory of another state shall be automatically granted
refugees status. (Art. 10 of LAR).
With a view to ensuring the assessment of the grounds of the protection claim and the
type of protection to be granted, the Law lays down different phases of the status
determination procedure – registration, Dublin procedure, accelerated procedure, and general
procedure. These procedures are conducted by the national authority which is competent to
decide on the individual applications for international protection – the State Agency for
Refugees with the Council of Ministers (SAR).
Throughout the whole procedure, from the opening till the completion thereof with a
final decision, asylum seeking children are entitled to a specific range of rights, some of
which are general and secure their life and subsistence (social rights), while others pertain to
their status as a concerned party in an administrative or court proceedings in relation to their
application for international protection (procedural rights).
In terms of the access and exercise of the social rights prescribed, the Law does not
set explicit limitations with respect to asylum seeking children; therefore, in the course of the
procedure these children are entitled, without any limitations, to the full range of social rights
that adult applicants for protection are entitled to.
These rights are accessible both at the administrative stage – before the State Agency
for Refugees – and at the judicial stage – in cases of an appeal against a refusal. This
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circumstance is based on the fact that even if the applicant is served with a refusal decision,
the procedure under LAR shall not be discontinued if the refusal is appealed before the court.
The stages of the procedure differ in terms of the number of the judicial instances for the
appeal. For example, the refusal in the Dublin or the accelerated procedure can be appealed
against at one single judicial instance: in the Dublin procedure – the Administrative Court of
the city of Sofia (Art. 84 (1) of LAR), and in the accelerated procedure – the administrative
court which has jurisdiction over the applicant’s current address as indicated on their
registration card (Art.84 (2) of LAR). The refusal in the general procedure or the refusal in a
procedure for family reunification of a status holder with his/her family can be appealed
against at two instances – the appeal instance and the cassation instance, the latter being the
Supreme Court of Cassation (Art. 87 of LAR). As regards asylum seeking children, however,
till the completion of the judicial stage with an effective judgment, the children concerned are
in the procedure and avail themselves of the full range of rights which the law prescribes for
the course of the procedure. Moreover, if the court judgment overturns the refusal decision
issued by the State Agency for Refugees, the status determination procedure is remitted to the
administrative stage in order for it to continue with the issuance of a new decision by taking
into consideration the court’s instructions.
The Law also regulates a number of special procedural rights for asylum seeking
children. The European legislation requires that each and every decision of the administrative
body in respect of children shall be guided by the binding principle of assessing the child’s
best interest. This principle has also been implemented in the Bulgarian legislation. In view
of the above principle, the European legislation lists a number of factors to be duly considered
in the assessment of the child’s best interest:
а) family reunification possibilities;
b) the child’s well-being and social development, taking into particular consideration
the child’s background;
c) safety and security considerations, in particular where there is a risk of the child
being a victim of human trafficking;
d) the views of the child in accordance with their age and maturity.
Some of the main procedural rights of asylum seeking children are: The right to temporary residence on the territory during the procedure – asylum
seeking children are entitled to stay on the territory of Bulgaria for the duration of the
procedure.
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The exercise of this right is ensured by means of a registration card issued to each
asylum seeking child depending on his/her age – above the age of 14 for accompanied
children, and under the age of 14 for unaccompanied children. The registration card does not
certify the child’s identity, only his/her status of an applicant for international protection and
the right to stay on the territory of the country till the completion of their status determination
procedure (Art. 40 (3) of LAR).
The right to stay on the territory of Bulgaria during the procedure means that,
irrespective of the lack of an identity document, a visa or a residence permit, a child
shall not be returned to his/her country of origin or permanent residence before his/her
application for international protection has been examined, a decision has been taken,
and this decision has become effective. Yet another principle, the prohibition on the
detention of asylum seeking children, stems from the non-refoulement principle. While
such a prohibition has not been explicitly laid down in the law with respect to all
children, accompanied and unaccompanied, it ensues by analogy from the legal norms
regarding detention which stipulate that detention shall be applied only for the purpose
of deportation. Taking into consideration that the Law does not allow returning
applicants to their country of origin during the status determination procedure (Art. 67
(1) of LAR), detention shall not be applied, either, as such an action does not serve a
legitimate purpose.
Legal safeguards against detention – nevertheless, there is a large-scale practice of
detaining children at the Detention Centers for Illegal Migrants with MOI’s Migration
Directorate, irrespective of the application for protection made by them to the border or
immigration authorities (under the provision of Art. 58 (4) of LAR), during the period till
their personal registration by SAR’s staff (under the provision of Art. 61 (2) of LAR). The
now effective national legislation does not have provisions allowing the detention of asylum
seeking children after their personal registration at a territorial unit of the State Agency for
Refugees, butthe draft amendments to LAR proposed in the autumn of 2013(Law on
Amendments to LAR, ref. No 302-01-42 of 19.11.2013 of the National Assembly of the RB)
contain new provisions allowing the detention of children after they are registered by SAR
and are issued the registration card of an applicant for international protection. Moreover,
the new provisions allow the detention of both accompanied and unaccompanied children
(Art. 45е of Law on Amendments to LAR).As the detention of children, even for a short period
of time, may have a detrimental effect on their immature mental state, the limitation of
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children’s freedom should, by way of rule, be avoided under any form and in any case. The
European legislation lays down strict rules for the detention of minors during the status
determination procedure: minors shall be detained only as a measure of last resort and after it
has been established that other less coercive alternative measures cannot be effectively
applied. Such detention shall be for the shortest period of time and all efforts shall be made to
release the detained minors and place them in accommodation suitable for minors.(Art. 11,
paragraph 2 of the Reception Conditions Directive).
The relevant rules in the European legislation are even stricter in respect of
unaccompanied asylum seeking children. These children are a particularly vulnerable group,
as they are alone in a foreign country where they do not know either the language or the
procedure and are deprived of the psychological and emotional support of their parents;
therefore, the trauma on their mental state caused by detention is considered to be deeper and
more damaging compared to other children. This is why the European legislation has
introduced the rule that unaccompanied children shall be detained only in exceptional
circumstances and the relevant institutions shall make efforts to release them as soon as
possible. Unaccompanied children shall never be detained in a prison. As far as possible,
unaccompanied minors shall be accommodated in institutions provided with personnel and
facilities which take into account the needs of persons of their age by ensuring that they are
accommodated separately from adults. (Art. 11, paragraph 3 of the Reception Conditions
Directive).
Prior to the proposed amendments to the Law on Asylum and Refugees the national
legislation provided for a much more favorable standard against detention with regard not
only to refugee children but also to all alien children. Thus, the now effective Aliens in the
Republic of Bulgaria Act (Art. 44 (9)) explicitly prohibits the detention of unaccompanied
alien children at the Detention Centers for Illegal Migrants, and refugee children shall not be
detained in any circumstances. The deterioration of the detention standards with respect to
refugee children as a result of the proposed amendments to LAR in 2013, which are still being
discussed, are not justified by any specific reasons; they are repressive and constitute an
entirely unjustified restriction on the now effective administrative rules in violation of the
principle of safeguarding the child’s best interest.
Special rules for the status determination procedure –the status determination
procedure does not examine the applications of accompanied children separately from the
applications of their parents or other adults who are responsible for them by law or custom.
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The reason for this is that children’s refugee stories or the reasons for their persecution rarely
differ from those of their parents or close relatives. This is why the Law introduces the
presumption that the minor and underage children of recognized refugees are also considered
as refugees without the need to explicitly establish with respect to them a personal story of
persecution or a threat to their life, personality or freedom(Art. 8 (9)of LAR). The Law
regulates in an identical way the status of the minor and underage children of humanitarian
status holders (Art. 8 (6) of LAR). The only condition set in both cases is for the children
concerned to be unmarried.
The applications of unaccompanied children, however, are examined on their own for
obvious reasons. In view of this the Law stipulates that these applications shall not be
examined and assessed in the accelerated procedures, and requires that all the pertinent facts
and circumstances are established and duly assessed. This is why the Law excludes the
examination of applications for international protection filed by unaccompanied minor and
underage children from the accelerated procedure (Art. 71 (1)of LAR).
Determining the age of unaccompanied children –as unaccompanied children have
some privileges in the status determination procedure, it is assumed that adult children might
claim to be underage in order to benefit from the more favourable treatment of
unaccompanied children. The usual absence of identity documents is conducive to such
abuses of the procedure. The expert examination of the age is a special procedural measure
which the Law lays down for cases where doubts arise as to the age claimed by the child. Out
of the variety of tools and tests for determining the age, the most commonly applied ones are
the various medical examinations in most cases, the assessment of dental development or of
wrist bones development. The medical examination has to be performed with full respect for
the individual’s dignity by means of the least invasive examination, and shall be carried out
by qualified medical professionals allowing, to the extent possible, for a reliable result.
Children shall be informed in a language that they understand of the possibility that their age
may be determined by means of medical examination. This shall include information on the
method of examination and the possible consequences of the result of the medical
examination for the examination of the application for international protection, as well as the
consequences of refusal on the part of the unaccompanied minor to undergo the medical
examination – the consent for the medical examination is given by the unaccompanied minors
and/or their representatives. Where after the medical examination the determining authority
still has some doubts as to the applicant’s age, it shall be assumed that the applicant is
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minor/underage. The fact that an unaccompanied minor has refused to undergo a medical
examination shall not prevent the determining authority from taking a decision on the
application for international protection, and the decision to reject an application for
international protection by an unaccompanied minor who refused to undergo a medical
examination shall not be based solely on that refusal(Art. 61 (3)of LAR, and Art. 25,
paragraph 5 of the Asylum Procedure Directive).
The right to receive assistance from other individuals during the procedure – in the
course of the status determination procedure children, similar to adults, are entitled to an
interpreter who assists in the communication with SAR’s staff. The interpreters’ task is to also
assist in the children’s communication with the other persons involved in the procedure, such
as representatives who ensure the protection of children’s best interest in various procedural
capacities.
Such representatives are usually assigned where children are unaccompanied and their
protection cannot be ensured by the parents who are their traditional legal representatives.
4. Representation and legal guardianship for unaccompanied asylum seeking
children
Considering the importance of representation for the protection of unaccompanied
children’s rights and interests in the procedure, the European legislation has introduced an
explicit and imperative provision which requires that for the purpose of any stage in the status
determination procedure measures shall be taken as soon as possible to ensure that a
representative represents and assists the unaccompanied minor to enable him/her to benefit
from the rights and comply with the obligations(Art. 25, paragraph 1 of the Asylum Procedure
Directive). The unaccompanied child shall be informed immediately of the appointment of a
representative.
The minimum European standards also introduce a number of requirements regarding
the representatives of unaccompanied minors. For example, the representative shall perform
his/her duties in accordance with the principle of the best interest of the child, and shall have
the necessary expertise to that end. The person acting as representative shall be changed only
when necessary. Organizations or individuals whose interests conflict or could potentially
conflict with those of the unaccompanied minor shall not be eligible to become
representatives. Furthermore , the member states shall ensure that the representative is given
the opportunity to inform the unaccompanied minor about the meaning and possible
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consequences of the personal interview and, where appropriate, how to prepare
himself/herself for the personal interview. Finally, the member states shall ensure that a
representative and/or a legal adviser or other counsellor admitted or permitted as such under
national law are present at that interview and have an opportunity to ask questions or make
comments, within the framework set by the person who conducts the interview.
In view of the above, the effective and efficient representation during the status
determination procedure is a basic and imperative standard with regard to unaccompanied
asylum seeking children.
The national asylum legislation requires that any unaccompanied alien who is a minor
or under the legal age, who seeks or has been granted protection, and who is within the
territory of the Republic of Bulgaria shall be assigned a legal guardian under the terms and
following the procedure laid down in the Family Code(Art. 25 (1)of LAR). Pursuant to the
Family Code (FC) the guardianship body – the mayor of the municipality on whose territory
the child resides or a person designated thereby – shall appoint, amongst the family members
or other adults responsible for him/her by law or custom, a legal guardian who is best able to
take care of him/her(Articles 156 and 157 of FC). The requirements of these legal provisions,
however, turn out to be impossible to apply with respect to unaccompanied asylum seeking
children. According to the definition in the Law, if the child has family members or other
adults responsible for him/her by law or custom, he/she is not considered an unaccompanied
child (argument under §1, item 4 of AP of LAR). Hence, the assumption about an
unaccompanied child with family members or other adults responsible for him/her by law or
custom who can be appointed to be his/her legal guardian is excluded.
There is a conflict between the legal norms regarding the situation of unaccompanied
asylum seeking children: a special norm (§1, item 4 of AP of LAR) derogates the applicability
of a general norm (Articles 156 and 157 of FC) - lex specialis derogat legi generali. Thus, the
law itself premises the contradiction, as, if one of the individuals, defined as “other adults
who are responsible for him/her by law or custom”, is appointed as the child’s legal guardian,
the child, pursuant to the provision of §1, item 4 of AP of LAR will cease to be an
unaccompanied child, and, hence, will not need a legal guardian.
In accordance with the national legal provisions, however, such persons do not
have representative powers. The general law (Art. 3 of the Persons and Family Act)
stipulates that in the case of minors aged under 14, their legal actions shall be performed
for them and on their behalf by their legal representatives – their parents or legal
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guardians; while in the case of underage persons aged 14–18, their legal will shall be
expressed and their legal actions shall be performed with the consent of their parents or
legal guardians. Therefore, irrespective of being considered accompanied, these children
cannot be represented or assisted in the status determination procedures by other adults
responsible for them by law or custom. In the context of the procedure, this implies
validation of any actions by means of a signature – the application, the registration, the
interview, the service of decisions, the appeal against a refusal decision, hiring a lawyer for
the court procedure. Where protection and a status are granted, the need for due and lawful
representation of an unaccompanied child arises for the purpose of any actions related to the
exercise of the rights acquired with the status– filing a declaration for the residence address
chosen, an application for receiving a unique civil registration number, the issuing of identity
documents, placement at an institution, enrollment in a school, access to social assistance, etc.
Another outstanding issue is the legal guardianship for asylum seeking children
who are not accompanied by any adults – parents, legal guardians or accompanying
persons within the meaning of §1, item 4 of AP of LAR. The limitation under Articles
156 and 157 of the Family Code cannot be overcome: other persons who are not family
members can be appointed as legal guardians only if an explicit special norm allows
broadening the range of such persons.
This issue was not solved by means of the norm introduced in the special law, LAR, in
2005: if an unaccompanied asylum seeking child has not been assigned a legal guardian,
he/she shall be represented in the proceedings by the authority referred to in Article 15 (7) of
the Child Protection Act. As, pursuant to the legal norm, this authority was a representative
of the Social Assistance Directorate, the unaccompanied child was to be represented in the
procedure by a social worker appointed via the Child Protection Department of the
municipality on whose territory the child resided. The provision of Article 15 (5) of CPA
explicitly stipulates that the administrative authority shall instruct that the interview with the
child is conducted in the presence of a parent, a legal guardian, – a person taking care of the
child or another person whom the child knows. In addition to and irrespective of the above,
Article 5 (4) stipulates that the interview with the child shall also be attended by a social
worker from the Social Assistance Directorate. Thus, Article 15 of CPA defines the whole
range of individuals who shall ensure the protection of the child’s rights and legal interests in
administrative and judicial procedures. The law clearly distinguishes their specific functions
in accordance with the basic principle of guaranteeing the child’s best interest laid down in
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Article 3, item 3 of the same law. This is why the law provides for the participation of the
legal guardian in the procedure, whereby the child has a permanent representative who will
not only represent and assist him/her in the expression of his/her valid will, but will also
ensure the protection of his/her rights and legal interests, irrespective of the involvement of
the social worker as a special representative whose supporting role is clearly defined in the
law.
In addition, the provision of the general law (Art. 15(8)of CPA) stipulates that each
and every child is entitled to legal aid and an appeal in any procedure concerning his/her
rights or interests, while the provision of the special law (Art. 23 (2)of LAR) stipulates that
the state shall ensure the conditions for asylum seekers in Bulgaria to receive legal
representation. Therefore, in addition to being appointed a legal guardian, unaccompanied
asylum seeking children shall be ensured qualified legal aid by the institution providing legal
aid on the territory of Bulgaria – the National Legal Aid Bureau with the Ministry of Justice.
In the context of the above, the discussions on the proposed amendments to LAR
held by the expert group of representatives of all the stakeholders set up at the initiative of the
Parliamentary Committee on Human Rights and Religions reached a consensus and proposed
draft provisions which solve the existing contradictions in the national legislation and the
issue with the lack of safeguards for the representation of unaccompanied children. These
proposals were approved by the members of the Parliamentary Committee and were
submitted to the vote in the second reading of the draft law. Hence, pursuant to the new
regulation, an unaccompanied asylum seeking child who is on the territory of the Republic of
Bulgaria shall be appointed a representative by the Executive Director of the Social
Assistance Agency or an official empowered thereby (§15bof the Law Amending and
Supplementing LAR which amends Art. 25(1)of the now effective law). Where an
unaccompanied minor or underage alien who seeks or has been granted international
protection is accompanied by an adult who is responsible for him/her by law or custom, such
an adult person shall be appointed to be the representative of the minor or underage alien
(§15bamending Art. 25(2)of LAR). Furthermore, entirely new competences are regulated for
the representative with respect to both children who seek protection and those who have been
granted protection:
- shall safeguard his/her legal interests in the procedures for granting international
protection till the completion thereof with a final decision;
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- shall represent him/her before any administrative bodies, including social healthcare,
educational, and other institutions in the Republic of Bulgaria with a view to
safeguarding the child’s best interest;
- shall perform the role of a procedural representative in all the procedures before the
administrative bodies;
- shall take actions for ensuring legal aid.
According to the proposals made by the working group, paragraph 5 of the now
effective article 25 of LAR is deleted: i.e. the possibility for the procedure to be conducted
without due representation, the representative being substituted by a social worker whose
rights are limited under Art. 15 (7) in conjunction with paragraph 4 of the same article of the
Child Protection Act.
5. Recommendations and guidelines on advocacy
Introduce in the law the assumption whereby a representative or an immigration
authority can lodge an application on behalf of an unaccompanied child (pursuant to the
requirement of Art. 7, paragraph 5 of the Asylum Procedure Directive);
Ensure that a written assessments made of the child’s interest where
unaccompanied children are accommodated with adults who, even though they are
responsible for them by law or custom, are not their parents (pursuant to the requirement of
Art. 24 of the Reception Conditions Directive);
Introduce both in the law and in practice an ongoing control and checks by the
authorities in charge of child protection with a view to ensuring that the adults responsible for
the unaccompanied child by law or by custom take due care of the child (pursuant to the
requirements of Art. 2 (l) of the Qualification Directive);
Draft rules on the eligibility conditions and requirements for individuals appointed
as representatives of unaccompanied children (pursuant to the requirement of Art. 25 of the
Asylum Procedure Directive);
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Draft rules regarding the terms and conditions for carrying out expert
examinations for determining the age of unaccompanied asylum seeking children in cases
of doubts as to their age;
Develop information materials for unaccompanied asylum seeking children in
Bulgaria whose content is tailored to their age, and which provide clarifications about the
status determination procedure, the rights and obligations of unaccompanied children,
including the possibilities for receiving legal, psychological and social assistance, and
continuing their education;
Ensure that rulesa re drafted by the Social Assistance Agency jointly with the
National Legal Aid Bureau and the State Agency for Child Protection in relation to the
mandatory provision of legal aid in the status determination procedure (pursuant to the
requirement of Art. 25 (1) (b) of the Asylum Procedure Directive)
Introduce an explicit prohibition on the detention of unaccompanied children
during the status determination procedure (in accordance with the standard under Art. 44 (9)
of the Aliens in the Republic of Bulgaria Act, and the standards set out in Art. 11 (3) of the
Reception Conditions Directive).
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PART ІІ. STRATEGIC AREA OF ADVOCACY:
RECEPTION CONDITIONS FOR ASYLUM SEEKING CHILDREN IN BULGARIA
1. General standards
The Treaty on the European Union, the Charter of Fundamental Rights of the
European Union, and the UN Convention on the Rights of the Child oblige the member states
who have ratified them to ensure, without any discrimination whatsoever, the protection of all
children who are within their jurisdiction. The principle of the child’s best interest shall
prevail over any other consideration in relation to actions concerning children who seek or
have been granted protection.
The Common European Asylum System lays a specific focus on the regulation of the
standards for the reception of applicants for international protection in the member states. One
of the groups of individuals with special needs are children who seek or have been granted
protection, a particularly vulnerable subgroup being unaccompanied children.
As regards unaccompanied children who seek or have been granted protection, the
general rule requires that the reception conditions guarantee a standard of living conducive to
the physical, intellectual, spiritual, ethical, and social development of underage children. The
state authorities are obliged to ensure that each case of an asylum seeking child is assessed on
an individual basis.
In terms of accommodation, children shall be lodged with their parents, their
unmarried minor siblings or with the adult responsible for them whether by law or by custom,
provided it is in the best interests of the minors concerned. The reception conditions provided
by the state shall ensure that minors have access to leisure activities, including play and
recreational activities in the open appropriate to their age within the premises and
accommodation centers. In cases of children who have been victims of any form of abuse,
neglect, exploitation, torture or cruel, inhuman and degrading treatment, or who have suffered
from armed conflicts, the receiving state shall ensure access to rehabilitation and appropriate
services for their mental health, including qualified counselling when needed(Art. 23 of the
Reception Conditions Directive).
In terms of the reception conditions for unaccompanied children who seek or have
been granted protection, the first and foremost rule relates to the appointment of a
representative as the only efficient safeguard for the due care for children and the protection
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of their interests. The representatives are a substitute for the absence of parental care; hence,
the European minimum standards require that the member states shall as soon as possible take
measures to ensure that a representative is appointed who represents, guides and assists the
unaccompanied minor in order to enable him/her to benefit from the rights and comply with
the obligations ensuing from his/her legal status as a child who seeks or has been granted
asylum. In addition to the control over all the requirements to be met by the representative,
and over the performance of the obligations assigned to him/her, the receiving state shall
regularly assess the actions related to the representation, and shall ensure the means for these
actions. Those working with unaccompanied minors shall have had and shall continue to
receive appropriate training concerning their needs, and shall be bound by the confidentiality
rules provided for in national law, in relation to any information they obtain in the course of
their work. This training should be ongoing, and should be provided to individuals acting as
representatives on a regular basis.
Irrespective of the representation ensured, the receiving state shall start tracing the
members of the unaccompanied minor’s family, where necessary with the assistance of
international or other relevant organizations, as soon as possible after an application for
international protection is made. In cases where there may be a threat to the life or integrity of
the minor or his/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 jeopardizing
their safety. (Art. 24 of the Reception Conditions Directive).
2. Accommodation
By virtue of the UN Convention on the Rights of the Child and other international and
national documents on the rights of children and refugees, children who seek or have received
protection shall have the right to a decent standard of living and access to appropriate
housing.
As of today, the legislation of the Republic of Bulgaria has transposed Directive
2003/9/ЕC of the Council of 27 January 2003 laying down minimum standards for the
reception of asylum seekers which requires that the member states shall ensure minimum
material reception condition, including accommodation, food, clothing, etc.
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2.1. General rules and practice
The Law on Asylum and Refugees guarantees the right to shelter and food for asylum
seekers over the course of the status determination procedure (Art. 29(1) item 2 of LAR).
Asylum seekers shall be accommodated at a transit, registration-and-reception centre or
another shelter by the State Agency for Refugees following an assessment of their health
condition, marital status and financial situation.
Due to the drastic increase in the number of asylum seekers in 2013, Bulgaria was
confronted with the need to enhance the capacity of the existing reception centers. In terms of
accommodation conditions, the challenges were:
- urgent provision of buildings for the accommodation of thousands of asylum seekers,
many of whom women and children;
- addressing the attitude of the local population with respect to the presence of asylum
seekers in their area;
- renovation of the buildings;
- provision of basic facilities – beds, bed linen, other necessary consumables;
- urgent provision of more staff at the territorial units.
The capacity of the reception centers turned out to be insufficient, and the living and
sanitary conditions in which most of the asylum seekers, including children, were
accommodated up until early 2014 did not meet the minimum standards. The provision of
food in most of the centers was not ensured by the state till mid February 2014 – food
supplies were entirely secured by UNHCR, BCR, and other organizations and private donors.
Due to the bad conditions in the reception and accommodation centers for asylum
seekers, at the end of last year the 2013 Annual Program of the European Refugee Fund
was revised to include emergency measures; thus, some funds were reallocated for
improving the facilities. As a result of the renovation for enhancing the capacity, as of
June 2014 the material reception conditions were substantially improved and met the
minimum standards.
Pursuant to Article 8 (2), items 1 – 4 of SAR’s Rules of Procedure (prom SG No 34 of
1 April 2008, latest amendments SG No 78 of 19 Sept. 2014), the Agency has four territorial
units for the accommodation of asylum seekers with a total capacity of 6,000 people6:
Transit Center(TC) –village of Pastrogor, Svilengrad municipality, Haskovo region –
300 people;
6According to SAR’s data published at:http://www.aref.government.bg/?cat=8
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Registration-and-Reception Center (RRC) – the town of Harmanli, Haskovo region
3,340 people;
Registration-and-Reception Center (RRC) – the village of Banya, Nova Zagora
municipality –150 people;
Registration-and-Reception Center (RRC) – the city of Sofia, with facilities in:
- Ovcha Kupel neighbourhood–860 people;
- Kremikovtzi district,Vrajdebna neighbourhood –300 people;
- Serdika district,Voenna-rampa-Iztok area–700 people;
- the village of Kovachevtzi, Pernik region –350 people (according to SAR’s data, this
facility has been closed for accommodation and the asylum seekers have been transferred to
other centers).
The actions conducted at the transit centers are: registration, accommodation, medical
screening, and the Dublin procedure for determining the state responsible for the examination
of the asylum application, as well as the accelerated procedure for applicants for international
protection.
The registration-and-reception centers are territorial units of the Agency which serve
the purpose of registration, accommodation, medical screening, social support and medical
care; the Dublin procedure for determining the state responsible for the examination of the
asylum application; and the general procedure for status determination.
The asylum seekers accommodated at SAR’s centers are entitled to a monthly
allowance for food in the amount of 65 BGN, which is also provided for each child in the
family. Since February 2014 SAR has provided two warm meals per day for the asylum
seekers accommodated in the centers, thus meeting the minimum standards (laid down in Art.
13, paragraph 2 of Directive 2003/9/ЕC) according to which the member states shall make
provisions on material reception conditions to ensure a standard of living adequate for the
health of applicants for international protection and capable of ensuring their subsistence.
The applicants for international protection who have at their disposal the means to
sustain their basic necessities may be granted permission to take up accommodation at their
own expense at an address of their choice over the course of the procedure. Pursuant to Art.
29 (6) of LAR, the applicants who have chosen accommodation at an external address, shall
not be entitled to financial and material support from SAR. They shall have the right to:
-stay on the territory of the country and receive a registration card;
- an interpreter;
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- psychological support;
- health insurance, accessible health care and free use of medical services under the
terms and conditions for Bulgarian nationals.
The findings from the visits to the residence premises of the applicants for
international protection who have accommodation outside SAR’s centers show that children
often live in overcrowded rooms, without private space and sufficient food. Many of the
families, who initially declared the availability of the necessary subsistence means,
subsequently find it impossible to secure food and care for their children on their own and ask
for accommodation back in the centers.The Law on Asylum and Refugees does not contain
a provision allowingthose who initially declared the availability of the necessary
subsistence means and got accommodation at external addressesto applyfor
accommodation at the Agency’s centers in the event of a change in their health status,
family and material situation.
The applicants and the families residing at external addresses receivehumanitarian aid
and support from the Refugees and Migrants Service of the Bulgarian Red Cross and other
humanitarian organizations and volunteers, as well as help via the social mediators of the
Council or Refugee Women who visit their homes and provide assistance to the families,
including the children.
2.2. Specifics of the accommodation regime for unaccompanied children
Over the last year the number of unaccompanied asylum seeking children in Bulgaria
has been growing. As of the end of December 2013, a total of 183 unaccompanied children
had lodged applications for international protection. Some of these children flee ongoing
conflicts in various parts of the world, while others seek salvation from poverty, deprivations,
and hardship. Some of these children may be victims of trafficking and social exploitation.
The trauma suffered before reaching Bulgaria, the difficulties in the process of seeking
protection, of coping with an environment of a new culture, language and way of life have an
enormous impact on their state. These children are extremely vulnerable, and it is the
obligation of the receiving state to do its best in order to meet their needs.
The European Commission proposes, by means of Directive 2011/95/ЕU, Directive
2013/33/ЕU, and Directive 2013/32/ЕU, higher standards for the protection of
unaccompanied children by highlighting the need for the transposition of the provisions
pertaining to unaccompanied children. These new requirements set out the obligation for the
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member states to conduct individual assessments of the specific accommodation needs of
unaccompanied children.
The accommodation of unaccompanied children during the procedure or after being
granted protection follows some special rules which safeguard their safety and security. First
and foremost, where possible, the European standards provide for their accommodation with
adult members of their family, as the family-type of environment is more appropriate in view
of the difficulties, the stress and the unknown that these children experience during the status
determination procedure. In the absence of such family members, the second option in the
European rules is accommodation with a foster family, and, where this option is unfeasible in
the specific case, the third one is placement in a specialized institution for minor and underage
children or in other facilities appropriate for the accommodation of minor and underage
children. The children aged 16 and over may be accommodated in centers for adult asylum
seekers, if such accommodation is not contrary to the child’s best interest. As far as possible,
siblings shall be kept together, taking into account the best interests of the minor concerned,
and changes of residence of unaccompanied minors shall be limited to a minimum.
The national law provides for the above options only in respect of accompanied
children. In order to ensure that unaccompanied children who avail themselves of temporary
protection are also covered, proposals have been made to amend paragraph 4 of Article 39 of
LAR by introducing the above minimum legal standards.
All of the above scenarios are placement outside the family. However, the
prerequisites for these scenarios differ from the ones laid down in the general law (Art. 26 and
following of CPA): in the case of asylum seeking children, the lack of parental care results
from the absence of parents on the territory of Bulgaria. Hence, a special assumption of
accommodation outside the family is at hand, which is not regulated in the general law. This
assumption, however, does not exclude the terms and procedure to be followed in the process
of accommodating children who seek or have been granted international protection. The rules
of the general law shall be strictly applied; in any case of accommodation of an
unaccompanied child who seeks or has been granted protection, the procedure shall follow the
rules or placement by administrative order and through the court (respectively, Articles 27
and 28 of the Child Protection Act). Thus, the initial accommodation, regardless of
whether it is with relatives, a foster family or a specialized institution, shall be temporary
placement by administrative order by virtue of an order issued by the head of the Social
Assistance Directorate by the child’s current residence address. In this particular case, the
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current residence address is the address of SAR’s territorial unit where the unaccompanied
child has been registered (by analogy with Art. 84 (2) of LAR).
It should be reiterated that accommodation at a territorial unit of the State
Agency for Refugees is not placement at a specialized institution within the meaning of
the general law (Art. 35 and §1, item 10 of CPA or Art. 173 of FC). This is why the
directors of SAR’s territorial units are not legal guardians for unaccompanied children
who seek or have been granted protection; hence, they do not have the powers to
represent them in the status determination procedure. In addition, this would run
contrary to the prohibition on representation functions to be performed by natural
persons who are or might be in a conflict of interests with the unaccompanied child,
insofar as the directors of SAR’s centers are in direct subordination to the SAR’s
Chairperson who is the competent authority for taking decision on the applications for
international protection lodged by unaccompanied children.
The RRC in the village of Banya is specialized in the accommodation of vulnerable
applicants for protection, including asylum seeking children. The remoteness of the village of
Banya from Sofia, its isolation and the lack of psychological and social support and of
integration possibilities render it inappropriate for the accommodation of unaccompanied
asylum seeking children. Due to the fact that the children accommodated at Banya are isolated
from their ethnic community, attempted run-aways have been on the increase. Such a situation
is a prerequisite for exposing the children concerned to risks of trafficking, exploitation, and
homelessness.
The European Parliament Resolution 12 September 2013 on the situation of
unaccompanied minors in the EU states that “an unaccompanied minor is above all a child
who is potentially in danger and that child protection, rather than immigration policies, must
be the leading principles(…)”. The guidelines set out in the Resolution should take the form
of “common minimum standards” for the member states, and “address each stage in the
process from the arrival of a minor in European territory until a durable solution has been
found for him/her.”
Unaccompanied children are at risk within the meaning of the Child Protection Act:
they find themselves in a foreign country; they are not accompanied by their parents or other
relatives and friends; they do not speak the language of the state; the environment is entirely
unknown to them, and they have dropped out of the education system. Pursuant to the
provisions of the Child Protection Act, where the need be, adequate measures have to be taken
31
to ensure the protection and safety of each and every child on the territory of the Republic of
Bulgaria.
At the beginning of this year a working group was set up with the State Agency
for Child Protection for the purpose of developing a coordination mechanism for
working with unaccompanied children. Such a mechanism, however, has not been
developed yet. Neither is there an integrated database for unaccompanied children with
data input from Border Police, the State Agency for Refugees, MOI’s Migration
Directorate, the State Agency for Refugees, and the Ministry of Labor and Social Policy.
3. Health services and health insurance
The access to healthcare is a fundamental human right. Article 24 of the UN
Convention on the Rights of the Child stipulates that “States Parties recognize the right of the
child to the enjoyment of the highest attainable standard of health and to facilities for the
treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no
child is deprived of his or her right of access to such health care services.”
Directive 2003/9/ЕC laying down minimum standards for the reception of asylum
seekers requires that the member states shall ensure that applicants receive the necessary
health care which shall include, at least, emergency care and essential treatment of illness.
In addition, the Directives stipulates that the member states “shall ensure access to
rehabilitation services for minors who have been victims of any form of abuse, neglect,
exploitation, torture or cruel, inhuman and degrading treatment, or who have suffered from
armed conflicts, and ensure that appropriate mental health care is developed and qualified
counselling is provided when needed.”
Pursuant to Art. 29 (1), items 4 and 5 of LAR asylum seeking children have the right
to health insurance, accessible medical care and free use of medical services under the terms
and following the procedure applicable to Bulgarian nationals, as well as psychological help.
The right to medical services arises as from the date of opening the status determination
procedure, and during the procedure the health insurance contributions are paid by SAR with
state budget funds.
In late 2013, the state did not have the capacity to respond in a timely manner to the
medical needs of asylum seeking children; under these circumstances, the medical
humanitarian organization Médecins Sans Frontières (MSF) set up medical facilities at the
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centers in Harmanli and Sofia – Voenna Rampa. The support by the organization was crucial
to meeting the healthcare needs of children.
The Ministry of Health revised the plans of the regional health inspectorates for
actions related to temporary protection, and provided immunization for all asylum seeking
children up to the age of 15who did not have documents certifying their immunization status;
the vaccines ensured by the Ministry were: diptheritis, tetanus, poliomyelitis, haemophilus
influenza type B depending on the age, and measles, mumps, and rubella.
At present SAR’s territorial units have medical doctors and nurses appointed who
provide the necessary medical services to children. A part of the medical staff speaks the
Arabic language, which facilitates communication during medical examinations, the
subsequent treatment and observation of asylum seekers who have health problems.
According to SAR’s data the centers have been equipped with ambulances and vans with
medical devices for first aid. Emergency medical services are also provided by the local
emergency medical centers, while medical treatment is ensured by the relevant healthcare
establishments.
While the healthcare needs of the children accommodated in the reception centers
have been met, professional psychological and social support is required for these children
due to the trauma suffered by them. Such support is crucial for unaccompanied children for
whom the access to professional help and counselling is vital to their rehabilitation. As of
today there are shortcomings in the provision of social and psychological support to asylum
seeking children.
The access to health services for the children living with their parents outside SAR’s
centers is more complicated. As the parents do not speak the Bulgarian language and are not
familiar with the healthcare system, they have difficulties in ensuring a family doctor. On the
other hand, many pediatricians refuse to accept asylum seeking children as their patients – the
reasons pointed out are the inability to communicate with them and their full patients’ lists.
This results in impediments to the provision of health services to asylum seeking children and
the observance of their immunization schedule. Where needed, SAR lets asylum seekers
accommodated outside the centers to have access to the centers’ medical facilities, but this
practice has not been regulated.
Parents share that it is often difficult, sometimes impossible, for them to buy the
medicines prescribes for the treatment of their children. Such situations are addressed with the
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support of humanitarian organizations or donations; nonetheless, this system is not efficient
due to the large number of children in need.
4. Social assistance
Over the course of the status determination procedure the parents of minor and
underage applicants for international protection in Bulgaria receive for their children a
monthly allowance for food in the same amount as adult asylum seekers do. Relatively few of
the asylum seekers, however, have additional financial means for their subsistence. Asylum
seekers are entitled to social assistance following the procedure and in the amount available to
Bulgarian citizens after an assessment of their health state, marital status, and material
situation(Art. 29(1), item 3 of LAR). The social assistance is granted by SAR on the basis of a
social interview for assessing the individual needs of each applicant. As for the grounds for
the one-time social aid in the amount of BGN 375, these are emerging health, educational and
other vital needs of asylum seekers. The purpose of this support is ensuring protection for the
most vulnerable groups such as children, single mothers, unaccompanied minor and underage
children, etc.
The provision of one-time social aid is confronted with difficulties due to the large
number of the applicants for international protection and the limited financial resources.
5. Education and Bulgarian language training
The UN Convention on the Rights of the Child, the UN Convention relating to the
Status of Refugees of 1951, and the Charter of Fundamental Right of the European Union
guarantee the right of children to education irrespective of their status. Therefore, all children
who are on the territory of Bulgaria, regardless of whether they seek or have been granted
international protection, shall have equal access to education.
In addition to being a fundamental right, education is crucial to the rehabilitation of
children affected by conflicts, and is an invaluable avenue for the integration of children who
are outside their country of origin. High-quality education helps reduce the impact of negative
experiences, provides children with stability and a structured way of living, and restores their
normal daily routine.
The European legislation also reiterates the principle of non-discrimination in the
access to education.
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Pursuant to Article 10, paragraph 2 of Directive 2003/9/ЕC, the member states shall
ensure that access to the education system shall not be postponed for more than three months
from the date the application for asylum was lodged by the minor or the minor's parents.
Article 26 (1) of LAR stipulates that “aliens who are minors or underage shall have
the right to education and vocational training under the terms and following the procedure
applicable to Bulgarian nationals.” While the above provision guarantees equal rights to
education foe asylum seeking children, its practical implementation is hindered by regulatory
barriers. In order to enroll at school, children who seek or have received protection are
required to have successfully completed the Bulgarian language training course at SAR and to
hold a document certifying their previous educational achievements.
The first issue concerns the requirement for children to master the Bulgarian language
before enrolling at school. Up until 2013 it was only the Integration Center in the city of Sofia
that organized the compulsory Bulgarian language training. Since early 2014 none of SAR’s
centers has offered formal Bulgarian language training due to the lack of an integration
program. At present Bulgarian language training is conducted only by volunteers, and as from
mid March 2014 also by Caritas-Sofia under a UNHCR-funded project.
Bulgarian language courses for asylum seekers who have external accommodation are
organized by the Bulgarian Red Cross with UNHCR financing and are conducted at the
Integration Center in Sofia, but they are not attended by children. Due to the absence of an
integration program, the children accommodated at external addresses do not have the
opportunity to learn the Bulgarian language.
The second issue stems from the requirement of Art. 2(2) of the Regulation for the
implementation of the National Education Act which stipulates that the condition for
continuing one’s education is the possession of a document certifying the graduation of either
previous grade or an educational level. However, the parents of most children do not have
with themselves such official documents issued in their country of origin in order to meet this
condition.
The practice so far has been that after completing the Bulgarian language course and
receiving the certificate children apply for enrollment at school and sit for an examination in
the Bulgarian language (for children from the first to the third grade) and an examination in
the Bulgarian Language and other basic subjects (for children after the third grade) before a
commission from the Regional Inspectorate of Education–Sofia for the purpose of
determining the grade for enrollment.
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Several issues can be identified in the current practice:
The lack of a valid regulation, as Ordinance No 3 on the terms and procedure for the
enrollment of refugee children at municipal and state schools applied by the Regional
Inspectorates of Education was repealed in 2007 by the amended article 26 (1) of the Law on
Asylum and Refugees;
Most children do not have documents whereby they can certify the grade or level
completed in their country of origin;
There are no institutionalized Bulgarian language curricula and educational
requirement for children;
There are no standardized criteria for the evaluation of children’s knowledge;
Up until 2013 the Bulgarian language course were conducted only at the Integration
Center in Sofia;
There are no courses that would help children brush up their knowledge in the basic
subject matters and acquire some related terminology in view of their performance at the
examinations before the Regional Inspectorates of Education. This results in poor
performance at the exams and, thus, in the children’s enrollment in lower grades than
appropriate for their age, which causes demotivation and dropping out of the educational
system;
Neither state nor municipal schools have auxiliary programs tailored to the specific
needs of children who seek or have been granted protection;
The lack of financial resources, the children’s age, their families with many
children, single parents or the absence of parents hinder the integration of these children in the
educational system.
At present the provision of Directive 2003/9/ЕC which stipulates that access to the
educational system shall not be postponed by more than three months is not observed; only
10% of the children who seek or have received protection in Bulgaria (according to data of
the Ministry of Education and Science) attend school. In view of the ineffective enrollment
mechanism an urgent change in the regulation is needed, which will ensure that children who
seek or have been granted protection can exercise their right to education.
According to information from the Ministry of Education and Science, proposals have
been made for changes in the Law on Asylum and Refugees, which will address the issue
with the access to education. The changes proposed provide for children who seek or have
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received protection to be enrolled in a certain grade depending on their age, and without
applying the mandatory requirement for Bulgarian language knowledge.
There are challenges in terms of the access to kindergartens for children who seek or
have been granted protection, as Sofia and other big cities apply a special procedure for
enrollment in kindergartens (on-line application once a year), and the capacity of the
kindergartens is insufficient.
6. Recommendations and Guidelines on advocacy:
Develop a system for monitoring the situation of children who seek or have been
granted protection who, together with their parents and other family members, have
accommodation outside SAR’s centers;
Introduce an option in LAR, which will allow applicants for international
protection who initially declared the availability of financial means and got accommodation at
external addresses to subsequently apply for accommodation at SAR’s centers, in the event of
a change in their health state, marital and material situation.
Conduct individual assessments of the needs of unaccompanied children who seek
or have been granted protection in terms of accommodation, clothes, food, health care, access
to Bulgarian language courses and education;
Organize trainings for the staff at SAR’s territorial units regarding the specific
aspects of working with unaccompanied children who seek or have been granted protection;
Provide social and psychological support services for children who seek or have
been granted protection, in particular unaccompanied ones;
Propose amendments to the Family Benefits Act with a view to guaranteeing equal
access to family benefits for refugee and humanitarian status holders;
Develop a mechanism for providing asylum seekers with comprehensible
information about their health insurance rights and obligations;
Involve refugees and migrants who are medical doctors and practice as such in
Bulgaria in the provision of health services to children who seek or have been granted
protection;
Draft rules regarding the purchase of medication or the reimbursement of the
medication costs for the treatment of asylum seeking children via the mechanism of social
assistance, targeted financing, and other options;
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Develop a legal framework regulating the terms and procedure for including
children who seek or have been granted protection in the education system;
Ensure access to Bulgarian language training for asylum seeking children
accommodated at SAR’s centers across the country and for those residing at external
addresses;
Ensure that the parents of children who seek or have been granted protection are
informed about the possibility for their children to learn the Bulgarian language, as well as
about the rights and obligations regarding school education in Bulgaria;
Ensure that SAR informs, via its territorial units, the Regional Inspectorates of
Education about the school-age children accommodated at the relevant unit or at an address in
the relevant settlement;
Implement a database for children who seek or have been granted protection
attending school.
The recommendations and guidelines on advocacy pertain to both reception and
integration of children who seek or have been granted protection. The successful integration
of refugee children in Bulgaria requires that conditions to this end are ensured in the very
process of receiving such children in the country. The provision of reliable and
comprehensible information about the status determination procedure, the rights and
obligations of asylum seekers, and subsequent measures aimed at the integration of those who
have been granted protection are at the basis of success in working with asylum seekers. The
measures for the reception and integration of children who seek or have been granted
protection are closely related to the measures targeting their parents and families.
The growing number of asylum seekers in Bulgaria has raised new challenges in terms
of the integration of those who are granted refugee and humanitarian status.
One of the options for the implementation of sustainable policies in the area of
integration is the development of a legal framework regulating the terms and procedure for
the integration of third-country nationals who have been granted protection in Bulgaria. This
will ensure a comprehensive regulation of the rights and obligation of the stakeholders in the
process, and sustainability in terms of the financial provision for integration activities.
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