Analytical report on the exercise by detained immigrants of the right to be heard in Bulgaria

I. METHODOLOGY

II. INTRODUCTION OF THE INTERVIEWEES

III. STAGES IN THE EXERCISE OF THE RIGHT TO BE HEARD

Hearing before an initial decision on immigration detention is adopted
The right to be heard as a remedy after the issuance of an immigration detention order. The right to appeal and to a speedy and fair judicial review
The right to be heard during immigration detention

3.1 Conditions of detention

– The right to be heard in the context of disciplinary punishment

3.2 Hearing with regard to the proper preparation or carrying out of removal

3.3. Review of detention at regular intervals

The right to be heard upon extension of the length of immigration detention:

4.1 Right to be heard by the administrative body prior to the decision to extend detention

4.2 Right to be heard by a court of law in the context of judicial review

IV. INTERDISCIPLINARY CONCLUSIONS

List of abbreviations

APC — Bulgarian Administrative Procedure Code

APIA — Access to Public Information Act

BPD — Border Police Department

The Charter — Charter of Fundamental Rights of the European Union

CJEU —Court of Justice of the European Union

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 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 of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection

DGBP — Directorate-General ‘Border Police’

ECHR — European Convention for the Protection of Human Rights and Fundamental Freedoms

ECtHR — European Court of Human Rights

EU — European Union

FNBA – Foreign Nationals in Bulgaria Act

ICCPR — International Covenant on Civil and Political Rights

LAA — Legal Aid Act

MIAA — Ministry of Internal Affairs Act

Ordinance on SCTAF — Ordinance No Іz-1201 of 1 June 2010 laying down the rules and procedure for the temporary accommodation of foreign nationals and the organisation and operation of the Special Centres for the Temporary Accommodation of Foreign Nationals

PCIA — Protection of Classified Information Act

RC — Redistribution Centre

Return Directive — Directive 2008/115/ЕC 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

RDBP — Regional Directorate ‘Border Police’

RRC of the SAR — Registration and Reception Centre of the State Agency for Refugees

SAC — Bulgarian Supreme Administrative Court

SANS — State Agency for National Security

SCAC — Sofia City Administrative Court

SCDIA — Sofia City Directorate of Internal Affairs

SCTAF — Special Centre for the Temporary Accommodation of Foreign Nationals

TC — Transit Centre

I. METHODOLOGY

The report contains a summary and an analysis of gathered evidence and documented practices relating to the application of the right of immigration detainees in Bulgaria to be heard. The evidence collection was conducted within the framework of the project HEAR: Hearing Entails Awareness and Rights, which aims to promote the exercise of the right to be heard by raising awareness and knowledge in this area.

The data contained in the report is firstly based on thirty in-depth interviews conducted with immigrants detained at the Special Centre for the Temporary Accommodation of Foreign Nationals (SCTAF)[1] in Sofia. The interviews were conducted by the senior lawyer of the Foundation for Access to Rights (FAR), taking into account available legal documents in each case. The respondents were selected naturally from the applications for legal aid received from foreign nationals detained at the Sofia SCTAF[2]. The interviews have a semi-structured format, which compiles information about the right of immigration detainees to good administration (including respect for the right to be heard before the adoption of the initial decision on immigration detention, during detention and before extension of the period of detention), and the right to effective remedies (including the right to be heard by a court of law regarding the lawfulness of detention and/or its extension). In addition to the legal issues explored, the interviews contain core questions that look at the link between the exercise of the right to be heard and the psychological functioning of detained immigrants. The semi-structured questions were developed by a multidisciplinary team consisting of a lawyer, a psychologist and a sociologist with a wealth of experience in the field of detention on immigration grounds. The interviewing technique (semi-structured interview) provides detainees with an opportunity to express other thoughts and considerations relating to the exercise of the right to be heard in the context of immigration detention. The interviews were conducted with the assistance of a professional interpreter. The in-depth interviews were conducted during a series of weekly attorney visits during which legal assistance was provided to the detained foreign nationals. The detainees who agreed to participate in the study were asked to sign an informed consent translated by an interpreter. In the informed consent form, they were able to indicate whether they wished their real names to be used. The interviews were conducted during the period October 2015 – April 2016.

After completion of field work, the expert team of the project submitted several requests for information under the Access to Public Information Act in order to be able to compare the interview findings and the information available at national level. We wold like to thank the Ministry of Internal Affairs, the Sofia City Directorate of Internal Affairs and the Haskovo Administrative Court, which provided exhaustive answers to our questions, thereby facilitating the study.

The structure of the report mirrors the stages in the exercise of the right to be heard in the context of detention on immigration grounds. The first part explores the right of foreign nationals to be heard before a decision on detention is first adopted. The second part examines the right to be heard as a remedy after an immigration detention order has been issued: the right to appeal and to a speedy and fair judicial review. The third part concerns the right to be heard during detention. It explores issues relating to the conditions of detention and the right to be heard in the context of disciplinary punishments, the right to be heard in connection with the preparation for carrying out a return and the periodic review of detention. The fourth part explores the right to be heard in the context of extension of the detention period.

Recommendations for achieving compliance with national law and the recognised EU and international standards described in the Handbook on the right of immigration detainees to be heard are set out at the end of each section.

In the report, the decisions and judgments of administrative and judicial bodies, which are typically addressed in expert analyses, encounter the views of the affected detainees. The most valuable aspect of the report is the centrality it accords to the words and testimony of the detained persons. The reader is able to ‘hear them out’ and draw their own conclusions on that basis.

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II. INTRODUCTION OF THE INTERVIEWEES

Each case is uniquely different, hence our decision to ‘summarise’ gathered data individually for each interviewed person (see Table).

Table: Detained immigrants interviewed under the HEAR Project

[table id=7 /]

As regards the hearing, collected evidence does not indicate any difference in treatment on the part of the authorities depending on the age, family or marital status and the absence of accompanying adults in the case of children. The authorities appear to be applying a uniform approach that does not allow for any differentiation. On the other hand, two factors appear to be a strong predictor as regards the length of the detention period — being a single male and the country of origin. The longest period of detention among interviewed detainees was approximately nine and a half months. Four men from Pakistan, aged between 21 and 33 years, were detained for the period in question.Eighteen out of the thirty case studies involve a person belonging to one of the following vulnerable groups: accompanied children; unaccompanied children; persons with disabilities; elderly persons, single parents with minor children and victims of torture or other serious mental or physical violence. In two cases, children aged 7 and 9, respectively, were detained with their parents, and a further seven cases involved unaccompanied minors. However, the administrative body had failed to identify the unaccompanied minors as such. At the Busmantsi Detention Centre they were detained along with adult individuals. For example, Muhammad Hussain, aged 12, tells us that he and Bilal Ali, aged 16, shared a room with adult Afghanis (with whom they could not communicate as they don’t speak Pashtu). A total of 45 detainees shared the room.

The significant number of respondents from Pakistan is also due to the fact that at the beginning of the HEAR project, they belonged to the group of ‘forgotten’ immigrants at the Busmantsi Detention Centre in Sofia.

‘Even when I’ve taken the initiative to talk to the officials – I’ve been told to my face that it wouldn’t do any good because the Pakistanis don’t stand a chance’. Mehmud

‘We submitted applications for protection at the very beginning, and they’re not letting us in. We have the impression that this is a special attitude to Pakistanis. We have not done anything different from the others here, but we are being discriminated’. Zayn

Although such suspicions were also encountered among other nationalities, during the course of attorney visits it became apparent that Pakistanis are indeed fully excluded and marginalised on account of the language barrier and the fact that their country of origin is regarded as being safe. In addition to evidence gathering, one of the aims of the HEAR Project was to restore justice by providing legal aid to detained individuals.

Out of the thirty cases explored under the HEAR Project, twenty-nine involved males. In one case, legal aid was provided to a family — a husband and wife, and their nine-year old daughter. During the interview with the family, the wife was given a leading role as regards the response to the questions asked[4]. However, the strongly prevalent male point of view of the study, as a whole, is due to the natural selection of respondents, which corresponded to the applications or referrals for legal aid received from the detainees. Most detainees at the Detention Centre are men. According to available official statistics[5], in 2015 there were 490 women detained as compared to 5 558 men[6]. Despite this, the author of the report considers it necessary to make a dedicated effort to include more women respondents in future studies.

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III. STAGES IN THE EXERCISE OF THE RIGHT TO BE HEARD

**1. Hearing before an initial decision on immigration detention is adopted**

In the context of the administrative process for the issuance of a detention order on immigration grounds, the procedural guarantees for the right of an interested foreign national to be granted an effective hearing are the appointment of an interpreter from and into a language that the detained foreign national understands, notifying the commencement of proceedings for the issuance of a detention order, opportunity to use the services of a lawyer of defence attorney, possibility to consult the file, opportunity to make a statement on collected evidence, make written applications and raise objections, ascertainment by the administrative body of all relevant facts and circumstances of the case, and taking into proper consideration of the explanations and objections raised by the interested foreign national. This ensures compliance with the stated requirement of the Directive for return decisions to be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay[7].

As regards the lawful aim of detention, notably to prepare the return and/or carry out the removal process^[8], the administrative body must correctly note down the key particulars of the immigrant and grant him/her a hearing in connection with the legality of their stay and potential issuance of a return decision, including ascertain whether the individuals seeks protection, granting an adequate period for voluntary compliance with the obligation to return, taking into consideration any individual reasons for detention as a measure of last resort in line with the principle of proportionality[9].

In Bulgaria, decisions on detention on immigration grounds are issued by the administrative authorities in an administrative process. Out of the thirty cases studied under the HEAR Project, in 21 cases the foreign nationals were detained for 24 hours pursuant to Article 72(1)(4) of the Ministry of Internal Affairs Act (MIAA) immediately prior to their detention on immigration grounds. The cited provision allows the police to detain and hold individuals for up to 24 hours in order to establish their identity. In three cases, the foreign nationals were returned under the Dublin Regulation^[10] and taken into detention at the Busmantsi Centre immediately after landing at Sofia Airport. In two cases, the foreign nationals were transferred to Busmantsi after being kept in detention or serving effective prison sentences on account of illegal border crossing at the Central Sofia Prison. In one case the foreign national was invited to visit the State Agency for Refugees (SAR) from where, instead of being interviewed, he was taken to the Busmantsi Detention Centre pursuant to an order issued by the Head of the State Agency for National Security (SANS). In another case the foreign national was stopped in front of his house and taken into detention at Busmantsi. In two other cases, the decisions on detention on immigration grounds were adopted by the administrative authorities in other circumstances. None of the detained immigrants interviewed under the HEAR Project were granted a hearing during the administrative process prior to the adoption of a decision on their detention on immigration grounds.

In connection with the substantive law content of the right to be heard, all foreign nationals interviewed under the HEAR Project stated that the administrative body did not ask any questions to establish the legality of their stay or ascertain whether they were seeking protection. Likewise, none of the interviewees were granted a period for voluntary compliance with the return obligation prior to ordering detention. Furthermore, the administrative body failed to consider the presence of any circumstances justifying detention as a measure of last resort as compared to other available alternatives in each case. None of the decisions on detention on immigration grounds contain an analysis or reasons for the choice of detention as compared to less coercive alternatives nor an explanation why such alternatives would not be effective. The foreign nationals have shared, time and again, testimony that is substantially the same of their key particulars (names, dates of birth and citizenship) being noted down incorrectly. Asked by the interviewer under the Hear Project whether they were advised, ahead of being detained at the Busmantsi Centre, that they would be detained/deported and whether they were given an opportunity to make a statement or be heard, we consistently received explanations along the following lines:

‘We were at the police station; no such questions were asked. They only wanted our names, date of birth, the name of the trafficker, money’. Mehmud, a Pakistani (the authorities wrongly noted him down as a national of India)[11].

‘No such questions were asked and I didn’t get the impression that [the official] was trying to come up with a less restrictive alternative. (…) When I arrived at the airport, two people took me straight to the police station at the airport. There they asked me questions in English—and I have very little English—about how I had entered Bulgaria and who helped me. About three hours later they took me to Busmantsi in a car’. Safar, returned to Bulgaria under the Dublin Regulation

‘All seven of us had our personal data wrongly noted down’. Naveed who had his names, date of birth and nationality wrongly noted down (Naveed is a national of Pakistan, not India).

We were two Pakistanis and two Afghanis. The Afghanis said that we were Syrian. This is why they first called an interpreter from Arabic. We tried to tell them that we were Pakistani and then an interpreter from Urdu arrived. Still, when we arrived in Busmantsi we learned that our file still said that we were Syrians’. Ali who had his nationality noted down incorrectly (Syria instead of Pakistan). His names and date of birth were also noted down incorrectly.

‘No one at the police station asked about our dates of birth, only the year. With me, they didn’t even bother asking that. Only how old I was. I told them that I was 29. The interpreter at the police station must have made his own calculations’, Ali.

‘The Afghani at the police station wrote down the dates of birth himself. He was one of those detained’, Akmal who had his date of birth and names noted down incorrectly.

‘They registered me as a Syrian, with 1 January as my date of birth, because I was captured with Syrians. I did tell then that I am Iraqi’, Aras.

‘On 21 May 2015, the interpreter from Farsi at the SAR called me to invite me to an interview at 9 am on the following day. When I turned up at the SAR, my blue card^[12] was taken away from me and I was told that I no longer had a chance in Bulgaria and must choose between being deported or going to Busmantsi. They asked me what I was doing for 4 years in Bulgaria and why I hadn’t travelled to another country — France. I told them that I didn’t have any money. There was no interpreter. I speak very little Bulgarian’, Musab.

‘When I arrived at the airport no one spoke to me. They just beat me up. There was an ashtray and cigarettes in the room and took one to have a smoke. A policeman then entered the room, hit me in the face, spalled me once on both sides, and said: ‘This is Bulgaria. Understand?’

He hit me across the hands. The cigarette fell. (…) I didn’t say anything after that. I was afraid to speak’, Faramarz, returned under the Dublin Regulation.

In nineteen out of a total of thirty cases studied under the HEAR Project, the orders on detention on immigration grounds contained material errors in the names, dates of birth and/or nationality of the respective foreign nationals. Where there were no errors, the foreign nationals had typically been returned under the Dublin Regulation, transferred to the Busmantsi Detention Centre for the Central Sofia Prison or had been granted subsidiary protection, had already been registered as asylum seekers by the SAR or entered Bulgaria legally. In nine out of a total of thirty cases studied under the HEAR Project, the authorities noted down the names and citizenship of the foreign nationals incorrectly. In four cases, the foreign nationals were incorrectly registered as citizens of India, and not Pakistan; in two cases foreign nationals were incorrectly registered as citizens of Syria, whereas they were Iraqi and Pakistani, respectively; in one case a Turkish citizen was registered as an Iraqi; in a further case of mistaken identity, a family was registered as citizens of Afghanistan, whereas they were Iranian; the list is further compounded by a stateless individual who was registered as a citizen of Bosnia and Herzegovina. In eight out these nine cases, the foreign nationals provided the authorities with the requisite correct data, but failed to be heard. In only one case – that of the family with the 9-year old child—the family intentionally mislead the authorities by stating that they were from Afghanistan, and not Iran, for fear of being expelled. After receiving detailed explanations and advice from the lawyer under the HEAR Project, the family declared their true nationality and citizenship before the SAR.

Attention should also be given to the cases of unaccompanied minors detained at the Busmantsi Detention Centre. National law^[13] prohibits the detention of unaccompanied minors. By way of exception, the law allows the detention of accompanied minors for up to 3 months. In the seven cases of unaccompanied minors studied under the HEAR Project the authorities circumvented the statutory prohibition of detention by incorrectly noting down the children’s age to make them appear older. Thus, on account of being registered as adults, some of them were detained for a period that exceeds even the maximum permissible period for the detention of accompanied minors of three months[14]. Muhammad Hussain (12 years old), Bilal Ali (16 years old) and Yassar (13 years old) were initially detained for 24 hours at the Fifth Police Station of Sofia ‘in order to establish their identity’. Yassar has a copy of the order on detention for 24 hours, which he signed without an interpreter being present. Asked ‘How come they put down your birthdate as 1 January 1997?’, Yassar said:

‘There was no interpreter. This is what the Afghani wrote down’.

Muhammad Hussain was born in 2003 but according to the detention order his birthdate is also 1 January 1997 (i.e. the authorities registered him as an adult and not a 12-year old minor). Furthermore, according to the order he accompanies the minor Bilal Ali (16 years old).

‘There was no interpreter present when we were detained. We were just Pakistanis and Afghanis. There was this one Afghani guy who wrote down how old we were. He was moved to an open camp 2 months ago. He didn’t ask any questions — we could not understand him because he spoke Pashtu. He only asked my name and then wrote down my age. When I tried to say that I was 12, the officer replied that I didn’t look it (…) There are other 12 and 13-year old children at the Busmantsi Detention Centre who have been put down as adults, i.e. as 18-year olds individuals’. Muhammad Hussain

Asif, 14 years old, also had his birth date noted down as 1 January 1997.

‘There was this boy from Afghanistan, we were detained together. He interpreted at the police station, speaking English to the police officers. He asked us how old we were and we told him. He then said: ‘No, no, no, this is going to be very difficult’. And they registered us all with the same date of birth. We were five children together and they put down that we were born on the same date: 1 January 1997’, Asif.

Faysal, 17 years old, also had his birthdate noted down as 1 January 1997. Before being transferred to the Busmantsi Detention Centre, he spent 55 days in detention at the Central Sofia Prison for ‘illegal border crossing’.

‘There was an official interpreter at the police station – he was not one of the detainees. I told him my date of birth, but he made me sign something – I don’t really know what it was. Told me to sit and be quiet. I told the border police at the prison how old I was, but they just looked at the original police document’, Faysal

In the case of 16-year old Milad there was no interview at all. At the police station, his details were copied from the passport he was carrying at the time of detention according to which he was 23 years old and could travel unaccompanied.

Sixteen-year old Ali had his names and age noted down incorrectly (the entry showed him to be 18 years old).

‘They wrote down my name at the police station. I told them it was wrong, but nobody would listen. There were a lot of people. At the police station there was only an interpreter from English. I don’t speak English. The interpreter made up with the dates of birth, so he could be rid of us as soon as possible’, Ali.

The authorities failed to observe the procedural guarantees for the right to be heard in all of the above cases. Often there would be no interpreter present or the interpreter and the foreign nationals spoke different languages. The police sometimes used other detained foreign nationals as ‘interpreters’. None of the detainees were notified of the commencement of an administrative process for their detention on immigration grounds of their right to be heard. Similarly, none of the detained foreign nationals whose cases were studied under the HEAR Project received assistance from a lawyer during the administrative process for the issuance of orders on detention on immigration grounds. The foreign nationals did not have an opportunity to exercise their right to consult the file or make a statement. Respectively, the detention orders issued are, as a rule, substantially the same (referring to illegal entry or stay and the related presumption of a risk of absconding) and do not contain an analysis of any objections raised, reasons as to why no period for voluntary compliance with the obligation to return was granted or an assessment of the feasibility of less restrictive measures[15]. The orders on detention on immigration grounds are typically based on a memorandum drawn up by a police officer, which contains details of when and how the foreign national was apprehended after an illegal border crossing or stay. For example, all orders on detention on immigration grounds were issued by the Head of the Metropolitan Migration Directorate of the Ministry of Internal Affairs. Each order contains a reference to a memo drawn up by the Head of the Control of the Stay of Foreign Nationals Unit of the Migration Directorate. The orders on the detention of two Syrian nationals who were interviewed under the HEAR Project (who come from a country that is universally considered unsafe) were issued by the Dragoman Regional Directorate of the MIA on the following grounds: ‘the person does not have an identity document, sufficient funds to leave Bulgaria and may abscond’ (in the case of Ahmad and further citing barriers to the expulsion on account of the ‘foreign national not having the requisite funds to leave Bulgaria while coming from a country affected by a serious armed conflict, which is a barrier to the enforcement of the [return] order’ (in the case of Halil).

None of the detention orders issued on immigration grounds examined under the HEAR Project shows an attempt on the part of the administrative body to take into account whether the foreign national in question belongs to a vulnerable group[16]. For example, 51-year old Mr. Faramarz, was the victim of torture in his country of origin and had a spinal deformity (Behterev’s disease). Approximately one month after he was placed in detention, a report drawn up by a physician from the Medical Institute of the MIA for the attention of the Head of the Busmantsi Detention Centre in respect of Mr. Faramarz, states that extended detention at the Centre is inadvisable on account of presenting a risk for his health and life. The sole reason for continued detention given in the order is that ‘in light of the circumstances, it is necessary to make arrangements for the transportation and purchasing a ticket for the detainee to his country of origin, which is an obstacle to the immediate enforcement of the coercive administrative measures imposed[17]’. The administrative body issued the order on Mr. Faramarz’s detention before his arrival in Bulgaria following a return from another EU member State under the Dublin Regulation[18].

The legal definition of vulnerable persons laid down in national law^[19] includes multiple categories of vulnerable individuals, such as children (minor or underage), unaccompanied children, persons with disabilities, elderly persons, pregnant women, single parents with minor or underage children and victims of torture, rape or other serious mental, physical or sexual violence. Official MIO statistics, however, contain data only about the following five categories of detained foreign nationals: ‘minor, underage, elderly, sick and pregnant’ individuals. These groups were disclosed by the MIA^[20] in response to the question ‘Representatives of which groups of vulnerable individuals were placed in Detention Centres for Immigrants in the period January 2007 until May 2016 per year and what is their respective number per group pursuant to §(1)(4)(b) of the Supplementary provisions of the Foreign Nationals in Bulgaria Act?’ The number of detained immigrants is set out in the table below. As there are no data for other vulnerable groups, we can conclude that no other types of vulnerability have been identified upon or during immigration detention.

Table: Type and number of vulnerable detainees in Bulgaria

[table id=8 /]

The number of detained children is strikingly high and confirms the findings of the HEAR Project, making it a representative sample rather than an exception.

Recommendations

The analysis of the information summarised in this section warrants the following recommendations in relation to the right to be heard before a decision on detention is first adopted:

When detaining foreign nationals for up to 24 hours pursuant to the MIAA, the relevant bodies must observe the statutory provisions on the right of detainees who do not understand Bulgarian to be notified of the reasons for their detention, in each case, and with their rights and the procedure to be followed in a language that the detainee understands with the assistance of an interpreter.
Foreign nationals must be made familiar and exercise their right to an attorney in the case of detention for up to 24 hours pursuant to the MIAA. The 24-hoir detention period coincides with the administrative process for the issuance of a detention decision on immigration grounds for up to six months. The MIA must observe applicable statutory provisions^[21] and apprise foreign nations of their right to an attorney specified by the detainees, at his/her expense, or to legal counsel appointed in accordance with the Legal Aid Act (LAA). Where a foreign national states that they wish to have an attorney appointed pursuant to the LAA, the police officer on duty must immediately notify the selected lawyer or notify a representative of the Bar Association without delay^[22].
In all cases, the administrative bodies must follow a case-by-case approach and ensure that each foreign national is granted a hearing, enjoying all procedural guarantees put in place[23]. A dedicated effort is necessary to discontinue the current practice of detention as a measure of first resort solely on the grounds of illegal border crossing in contravention of Recital 6 of the Preamble of the Return Directive.
Further efforts are also necessary to build trust in public institutions. For this purpose, the staff of the State Agency for Refugees and the Migration Directorate of the MIA must not abuse the trust of foreign nationals by intentionally misleading them in order to facilitate their detention and effective return[24].
The administrative bodies must take proper care and ‘listen to’ and correctly note down the key particulars of foreign nationals, notably their citizenship (if any), names and dates of birth. If these are incorrectly noted, return will not be possible and will not serve a lawful aim.
Where there are barriers to the enforcement of a return order, the authorities remain under an obligation to comply with the law (Article 44(5) of the FNBA[25]) and firstly examine the feasibility of the alternative and, where that is inapplicable, state their reasons for the conclusion in the decision on detention as a measure of last resort. For this purpose, the administrative body must grant the foreign national concerned a hearing to determine the feasibility of less coercive measures.
One of the questions to be asked of a foreign national as part of the screening by the administrative authorities must include is whether he/she belongs to a vulnerable group within the meaning of the full list of vulnerable persons envisaged in 1(4)(b) of the Supplementary Provisions of the FNBA.
Legal representatives must be appointed to unaccompanied minors. To ensure that this is so, the FNBA must be amended to incorporate an express provision on the appointment of a representative from the Social Assistance Directorate in connection Article 15(7) of the Child Protection Act, Article 10(1) of the Return Directive (2008/115) and Article 7(4) of Directive 2013/32/EU.
The administrative bodies must make an honest and good faith analysis of the reasons for the incorrect entry of the children’s age or for their ’attachment’ to individuals who are not accompanying adults. The MIA should demonstrate political will to discontinue this practice of circumventing the prohibition of detention on immigration grounds of unaccompanied minors and ensure compliance with Article 44(9) of the FNBA, according to which the body that issued the decision must notify the competent Social Assistance Directorate, which takes appropriate protection measures in accordance with the Child Protection Act.

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2. The right to be heard as a remedy after the issuance of an immigration detention order. The right to appeal and to a speedy and fair judicial review.

The guarantees for the exercise of the right to a complaint is essential because it is a remedy in cases of unlawful detention (including a breach of the right to be heard). This section sets out a summary and analysis of available gathered information about the exercise of the right to challenge the detention on immigration grounds and related guarantees (the right to consult the file and the right to an attorney). We have also examined whether detained foreign nationals in Bulgaria can rely on speedy and fair judicial review of detention.

In Bulgaria, access to judicial review of detention orders issued on immigration grounds is not an automatic option[26] but depends on whether or not the affected foreign national challenges the decision within 14 days as from the date of being physically detained at an Immigrant Detention Centre. A failure to do so precludes the right to a complaint. Article 46a(1) of the FNBA introduces an exception from the general rule[27] in administrative trials, which stipulates that the time period for challenging administrative decisions commences on the date on which a decision is notified[28] to the party to whom it is addressed. The FNBA places detained foreign nationals in a less favourable position, despite their vulnerability, because (as a general rule) they do not know Bulgarian or the national legal system whilst spending the period for appeal in detention.

Out of the thirty individual cases explored under the HEAR Project, only three interviewees were able to challenge the decisions on their detention. In one of these cases the decision was challenged with legal assistance provided under the HEAR Project, and in the other two cases the parties had resided in Bulgaria for a long time (4 and 16 years, respectively).

In order to establish the percentage of detention orders issued on immigration grounds the lawfulness of which was challenged before a court of law, we submitted several requests for access to public information under the relevant Act both to the issuing administrative bodies and the Administrative Courts in Sofia and Haskovo and the Supreme Administrative Court. Of all courts addressed information was received only from the Haskovo Administrative Court. The Sofia Administrative Court[29] and the Supreme Administrative Court[30] replied that they do not gather statistical information on the judicial review of detention on immigration grounds pursuant to Article 46a(1) and (4) of the FNBA. According to the information received from the Haskovo Administrative Court[31] six lawsuits were filed pursuant to Article 46a(1) of the FNBA (against detention orders issued on immigration grounds) in 2015, respectively seven in the period 1 January – 30 July 2016. In addition, during the period 1 January – 30 July 2016 a total of 68 lawsuits were files pursuant to Article 250 of the APC in conjunction with Article 46a of the FNBA.

According to the reply received from the Head of the Metropolitan Directorate of Internal Affairs, the following detention orders issued on immigration grounds were challenged:

Table: Number of issued and appealed orders on detention on immigration grounds (Source: Metropolitan Directorate of Internal Affairs[32])

[table id=10 /]

The official statistical data indicates that in 2015 the percentage of challenged orders out of the total number issued by the Migration Directorate of the MIA, the Head of the Metropolitan Directorate of Police, and the Head of the Migration Department of the Metropolitan Directorate of Police stood at 0.2% (7 contested orders out of a total of 3 780 issued). According to available statistical data, during the first six months of 2016 out of the total of604 orders issued by the Head of the Migration Department of the Metropolitan Directorate of Police forty-five were contested, i.e. 7.5% of the total number.

According to the reply received from the Ministry of Internal Affairs[33], the Migration Directorate of the MIA ‘does not keep a register’ of the detention orders issued on immigration grounds. The MIA provided the following data for the Directorate-General Border Police[34]:

[table id=11 /]

‘All they told me was that this was my six-months detention and to sign^[35]’, Mehmud, detained for 9 months and 12 daysOfficial statistical data warrants the conclusion that countrywide the number of detention orders challenged before a court of law is even lower that the project sample. Although the law provides a possibility to challenge detention orders issued on immigration grounds, the right is exercised in a very small number of cases. The interviewed detainees under the HEAR Project were not aware of their right to file a complaint.

‘While they were taking us from the police station here, we thought we were going to an open access camp. (…) It is now from you that I understand how things should have happened. We thought people, everyone, was forced to live like animals’, Zayn, detained for 9 months and 12 days.

‘I thought that the document explained who I was and what problems I had in Pakistan, why I had escaped. I think it says here that I am from Pakistan’, Ali, detained for 2 months and 11 days in a response to the question whether he knew what the order on his detention on immigration grounds said. According to his explanation, he told the authorities that was Syrian.

‘They didn’t tell me anything. They just said ‘Sign!’[36] There was no interpreter. I think I signed four sheets. They told me ‘They told me first sign, then you will take it to a translator’. They think we have no idea what being civilised means’, Abdel, detained for 2 months and 3 days.

‘No one gave me anything or explained anything’, Safar, detained for 4 months and 20 days.

‘I don’t remember an interpreter. Nothing was ever translated’. On learning that one of the orders make provisions for his return to Iraq: ‘I wasn’t aware of such an order. We sold everything and took all the money with us. There is no way back to Iraq for us’. ‘They told us they will release the children from prison in six days, but we’ve been here for more than a month’, Fuad, detained with his four children for about 2 months.

‘The problem is that when they brought us to Busmantsi there was no information. They don’t give you any information, for example why you are there and when they are going to release you. I was told what this place was by other detainees’.

All they said was ‘Sign and Go!’^[37] Many people are in a hurry and sign. They just say ‘Go! Go! Go!’^[38] I don’t know what they need our signatures for. We want to know why we’re here’, Majid, detained for 5 months and 20 days.

‘How could you even think that I didn’t want a lawyer? Nobody told me I had the right to one!’

‘Never in my life have I thought that there was such terrible punishment. Evil punishment!’, Christof, detained for 4 months.

In order to be effective the right to file an appeal must be backed up by the following procedural guarantees put in place by the State: the right to information (without delay and in a language that the respective party understands) and the right to legal counsel[39]. The right to information includes information about the reasons for detention and the available remedies. The interviews conducted under the HEAR Project strongly indicate that the immigrants do not know the reasons for their detention or perceive detention as a punishment for a crime.

‘If the government is accusing me of anything, I would like to know what it is. I don’t know what they’re accusing me of’, Hamid.

‘I have no idea. No one has explained a thing. I submitted an application for protection and really cannot understand why they put me in prison. I have not committed any crime’, Abdel.

‘I am not a criminal. I have never done any harm to anyone in my life. I have simply worked to make ends meet’, Christof

In none of the cases studied under the HEAR Project did detained immigrants receive information about their right to receive information or file a complaint against it, and about the applicable time periods and rules for doing so. An interpreter was present in only 3 out of 30 cases: at the time of serving an order issued by the Border Police Department in Dragoman; the Head of the Local Police Department in Dragoman and the head of the Border Crossing Point in Svilengrad. The orders issued contain the key particulars of the appointed interpreters. Despite this, the detained immigrants were not able to challenge the orders because they did not understand their rights and were not informed that they had the right to receive legal aid.

In the vast majority of cases the detention orders on immigration grounds were served without an interpreter being present, against the signature of the foreign national detained under a blanket text ‘I was advised of the content of the order in a language that I understand’ (see picture below). The orders issued by the Head of the Migration Department of the metropolitan Directorate of Police and by the Head of the Migration Directorate of the MIA were issued in the manner described above.

We relied on the Access to Public Information Act (APIA) to enquire about the procedures put in place to provide interpreters in the languages spoken by detainees at the time of serving issued orders on compulsory detention under the FNBA (detention orders on immigration grounds). The Metropolitan Directorate of Police replied that orders ‘are served to migrants at the time of being physically placed in detention in the presence of an interpreter from the respective Immigrant Detention Centre’[40]. Immigrant Detention Centres operate under the jurisdiction of the Migration Directorate of the MIA[41]. Forwarding the enquiry to the Migration Directorate, we learned that detention orders issued on immigration grounds are served by the body responsible for issuing the order[42]. Asked to indicate the number of interpreters the directorate employs on full/part-time basis for the MIA or its departments, and particularly the Immigrant Detention Centres in Sofia, Lyubimets and Elhovo, and what languages are covered, the MIA replied as follows: ‘There are no interpreters working on a full-part-time contractual basis at the Immigrant Detention Centres in Sofia, Lyubimets and Elhovo. The communication between the Migration Directorate of the MIA and detained immigrants is facilitated by the Frontex Agency and other international organisations working with the foreign nationals placed in detention[43]’. The fact that no interpreters have been appointed by the Immigrant Detention Centres[44] is corroborated by both the interviews with the detained foreign nationals and other monitoring reports[45]. In view of the lack of interpreters and translators the shift of the responsibility for the provision of information to the Migration Directorate under whose jurisdiction the Immigrant Detention Centres operate means that at present foreign nationals are not provided with any information about the reasons for their detention and the available remedies in a language that they understand.

As regards the interpreting arrangements at the time of serving orders issued by the Directorate-General Border Control, the MIA reply refers to Order No 8121z-166 of 13 February 2015[46] issued by the Minister of Internal Affairs, which has not been published. Information has been provided about the interpreters used and languages covered by the Directorate-General Border Police. According to publicly available information[47] in order to ensure compliance with the right of to use an interpreter, in 2015 individual seeking protection at the national borders, who have entered Bulgaria through a Border Crossing Point the services of a translation agency is used under a public procurement contract. The amount spent on interpreting and translation services to date is BGN 364 936. Indeed, in the three cases of interviewed detainees who were served detention orders issued on immigration grounds, indeed contain the key particulars of interpreters (these are the orders served by the Border Police).

In only one out of the thirty cases studied did the foreign national refuse to sign the order on his detention on immigration grounds on account of the failure of the authorities to provide an interpreter. The order in question was issued by the Head of the Migration Directorate. This meant that he did not receive a copy of the order, which created additional barriers too his defense. Despite this, with assistance from his lawyer under the HEAR project the foreign national successfully challenged the order within the 14-day preclusive period. However, this remains an exception and vividly demonstrates the importance of the access to an attorney for the effective exercise of the right to file a complaint.

In addition to the case described above in which during the 14-day time period from detention, the detainee received legal assistance, two other interviewees, out of the total of thirty, did so and appealed the decisions on their detention. This is how they answered our question whether they had been given the opportunity to consult a lawyer:

‘No. A guy from the open camp came about 2 weeks ago and said that he would try to have us transferred there in about a week. I think he was from the UN, but he said that he came from the open camp’.

‘We had a lawyer. Each of us gave her 500 EUR, a total of 1 500 EUR. Of course, there was no trust. We don’t know her. This is why we gave her the money. After she took the money, she visited only once. We had her telephone number from the card she gave us and spoke to her once. She said she’d had to pay a lot of money and that we had to pay an additional 500 EUR. We told her that we don’t have any money left. She had to help us. She never spoke to us again. She hasn’t given us any documents that she’d filed. This was 5 months ago’.

The information gathered and its analysis demonstrates that detained immigrants in Bulgaria do not exercise their right to file an appeal. This is due to the failure to provide the procedural guarantees for access to that right: making information available without delay, including the reasons for the detention and the available remedies in a language which the foreign national understands, and the lack of effective access to a lawyer.

In three of the total number of cases studied, the foreign nationals successfully filed appeals within the preclusive period stipulated by law[48]. An analysis is therefore called for to establish the individuals in question were able to exercise their right to speedy and fair judicial review[49]. In the first case, Mr. Musab was detained on 22 May 2015 and the court hearings relating to his complaint took part on 28 October 2015 and 25 November 2015 and the court published the judgment on 28 December 2015. The court judgment was published more than 7 months after the detention order was contested and 6 days after the foreign national was released by reason of another judgment of the same bench in respect of the application submitted by the Head of the Migration Directorate for an extension of the period of detention, which was dismissed. Instead the court ruled that a less coercive measure should be imposed. In connection with this, we should note that the Court failed to observe Article 46a(2) of the FNBA, which stipulates that the Court examines the complaint in an open hearing and decide the case within 1 months from the commencement of proceedings. The Supreme Administrative Court also failed to adjudicate the case on appeal within the prescribed statutory period. The SAC published the judgment on 11 May 2015, whereas according to Article 46a(2) of the FNBA this should have been done within a period of 2 months. In practice the timeframes for dispute adjudication are perceived as indicative and not mandatory.

In the second case, Mr. Hamid was detained on 30 June 2015; the Sofia Administrative Court[50] published its judgment on the appeal against his detention on immigration grounds on 6 October 2015; and the Supreme Administrative Court[51] – on 15 March 2016. This is a clear case of failure to observe the stipulated time periods for speedy trial proceedings.

In the third case, Mr. Faramarz was detained on 20 January 2016 and the Sofia Administrative Court adopted a judgment[52] on his appeal against the detention order on 12 July 2016, i.e. after the one-month statutory period had elapsed. As at the date of this report, we are expecting the Supreme Administrative Court to schedule a hearing on the appeal of the judgment delivered by the lower court.

The above warrants the conclusion that despite the fact that the three foreign nationals were able to exercise their right to file an appeal, the requirement for speedy proceedings was not observed. A positive aspect in all three cases of being granted access to judicial review is that the courts held open hearings in full compliance with the procedural guarantees for granting a hearing to be assisted by an interpreter and a defense counsel[53].

Recommendations

On the basis of an analysis of the information summarised in this section, we have the following recommendations in respect of the right to be heard as a remedy after the issuance of a detention order on immigration grounds:

Article 46a(1) of the FNBA should be amended so as to provide for the commencement of the period for filing a complaint from the date on which the party is properly notified of the detention order (and not from the date on which the individual is placed in detention);
With a view to improving transparency and analysis, the Migration Directorate of the MIA should compile statistical data on the number of detention orders issued on immigration grounds by the Head of the Migration Directorate and the number of orders challenged before a court of law^[54]. This is even more pressing on account of the Head of the Migration Directorate having general and universal competence to issue detention orders on immigration grounds^[55] and the fact that Immigrant Detention Centres operate under the jurisdiction of the Migration Directorate^[56];
the Sofia Administrative Court and the Supreme Administrative Court (SAC) should collect key statistical data about the number of lawsuits filed in respect of the coercive placement of foreign nationals in Immigrant Detention Centres in connection with Article 46a(1) and (4) of the FNBA and the percentage rate of cases in which the complaints were found meritorious;
The administrative bodies competent to issue a detention order on immigration grounds must immediately notify foreign nationals of the reasons for their detention and the available remedies (the right to file an appeal and the relevant procedure) in a language that they understand;
The administrative bodies competent to issue detention orders on immigration grounds must immediately notify detained foreign nationals of their right to a lawyer and legal assistance. An efficient mechanism for referral and application of Article 22(1)(9) of the Legal Aid Act (LAA) should be developed in respect of persons detained under a police order for a period of up to 24 hours;
the courts must comply with the provision laid down in Article 46a92) of the FNBA, which stipulates that court judgments should be adopted within 1 months from the commencement of proceedings. With regard to appeals before the Supreme Administrative Court the stipulated time period of 2 months should be similarly observed. The speed of trial proceedings should not be at the expense of the fairness of the trial: detained foreign nationals must be heard by a court of law with the assistance of an interpreter and in the presence of an attorney.

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**3. The right to be heard during immigration detention**

3.1 Conditions of detention

There are several standard forms, which all foreign nationals detained at Immigrant Detention Centres in Bulgaria, are required to sign:

(1) Protocol in respect of the safe storage of items, money and valuables of a detainee at the Centre[57], which detained individuals are required to sign on arrival. At the bottom of the second page of the protocol the foreign nationals must place their signature under the blanket statement: ‘I have been advised of the in-house rules and have received materials relating to my stay at the Detention Centre. I have received a copy of the protocol’. This ensures formal compliance with the requirement laid down in Article 14 of the Regulation on Immigrant Detention Centres, which stipulates as follows: ‘The competent official shall advise the foreign national of his/her rights and obligations as provided for in the In-house rules of the Centre’. In the 30 cases studied under the HEAR Project, however, the foreign nationals had signed the statement without an interpreter being present and the competent official had failed to advise them of their rights and obligations in respect of their stay at the Immigrant Detention Centre.

(2) An identity form in Bulgarian and English, which foreign nationals are required to (preferably) complete in their own hand. The form contains key particulars, such as their names and citizenship.

(3) A survey form setting out a transcript of the interviews conducted with the foreign nations placed in detention at the Immigrant Detention Centres, which contains an indication of the languages spoken (including the level of proficiency, which is usually left blank) and the dates of the respective interviews.

As already noted in the previous section, there are no interpreters at Immigrant Detention Centres in Bulgaria:

‘All they do is shove documents to sign in front of us. There are no introductions. (…) The biggest problem is that all documents are in Bulgarian. Some of us already understand a bit of Bulgarian, but can’t read’, Parvez

‘This is the first time an interpreter has come to speak with us.[58] There was a young guy a while ago who knew Bulgarian, but now I try to help interpreting from English’, Mehmud

‘At my interview at Busmantsi, Mr. Mehmud interpreted for us in English’, Parvez.

‘The next day after we arrived at Busmantsi, we had an interview with the people there – questions like who I was and where I had come from. I told them I was from Pakistan and that I am seeking protection. There was no interpreter. They gave me a document in English – the lady from the Centre filled half of it and the other half I filled in myself’. Did you have any questions? Did you try to say anything? ‘Yes, I wanted to ask them how long the procedure at the Centre was going to take, but they wouldn’t let us. As soon as the form has been completed, they tell us to get up and go’. Did you understand why you were here? – ‘No, no explanations were given. I have not spoken to anyone else’, Ali from Pakistan (a Syrian according to the registers of the Immigrant Detention Centre).

‘Some women came at the very beginning and told us to sign some documents’. I only signed, I’ve not written anything. There was no interpreter’, Faysal

According to foreigners from different nationalities the scarce communication between the officials and the detainees, the services of other detainees are used. Hence the rumour that those detainees who speak foreign languages get to spend more time in detention:

‘People who speak languages are generally kept in longer, so they could use them as translators. I have some Arabic, and some English and Turkish’, Halil

‘Sometimes a police officer would wake me up and tell me to get out of bed because I had an interview. But when I got to the room, I learned that others were being interviewed and I was there to translate’, Majid

On the whole, detainees feel that there is no one they can turn to at the Detention Centre (for information or with other requests). There is no communication with the officials:

‘I don’t feel safe because I don’t know whether they are going to send us back or not. No one would listen at the Embassy either. Here [at the detention Centre] there’s no one we can talk to’, Imran

‘We don’t talk to anyone. Sometimes someone manages to find a way to call home and say that we’re OK’, Naveed

‘Before we met you we were totally abandoned. No one paid us any attention’, Safar

‘Not even when I took the initiative to talk to one of the officials – I’ve been told to my face that it wouldn’t do any good because the Pakistanis do not have a chance of asylum’, Mehmud

‘They don’t see you as a human being. They see you as a criminal’, Majid

‘If I went to beg for a newspaper, for example, they always chased us away as if we had some horrible disease and they had to keep away at all costs. They just humiliate us’, Faramarz

The lack of communication with the detainees results in their ultimate defacement. This is the reason why detainees have shared—time and again—a feeling of the ‘watchers’ perceiving them as ‘animals’. In this vacuum, the weaker party fears and the stronger party easily finds an excuse for unwarranted aggression. In the abyss of silence at the detention centre police violence thrives:

‘There is this guy here—Pervez—about six weeks ago he was buying something from the canteen. The woman who works there is hysterical, she shouts at people all the time. It’s normal. But this time, a policeman turned up. He didn’t say anything, he just grabbed the boy forcefully. Just him. I saw him drag the boy outside, on the stairs in front of the canteen. He knows where the cameras are and all the blind spots. He grabbed him by the neck and beat him up badly, hitting him with his fists. It lasted about 10 minutes. He beat him up to a pulp, like an animal. We and many guards saw this. Because Pervez suffered so badly, the officials tried to cover up what had happened. All Pakistanis, we decided to go on a hunger strike in solidarity. Dancho asked what was going on and the guards told him that it was all business as usual. We then asked Dancho whether he knew why they had beaten Pervez up. He then said that if we didn’t discontinue the hunger strike we’d be deported immediately. We then asked Dancho to at least make sure that the policeman apologizes. The final word was that if we brought up the matter once more, we’d be deported’, Mehmud

‘I tried to ask what I had done? What were they accusing me of? I said, beat me as much as you like. Just tell me why?’, Pervez

Regrettably, the only good practice encountered under the HEAR Project as regards the right of detained foreign nationals to be heard during the period of detention was the hearing granted to Pervez as detained in an interview memo. The interview most likely took place after Pervez was beaten up and Pakistanis went on a hunger strike in protest. According to the memo, addressed to the Head of the Detention Centre, Mr. Pervez recounted his story of being persecuted in Pakistan and received explanations about the time periods for his removal. He also agreed to be transferred to the Detention Centre in Lyubimets, thinking that this would facilitate his transfer to the State Agency for Refugees. He also said that he needed clothes.

We have heard multiple other accounts of police violence[59] Within the framework of the HEAR Project we have been shown wounds from alleged police violence against a child detained at the Centre.[60] In all such cases police violence is prohibited because it does not comply with the standard of absolute necessity postulated in Article 85 et seq. of the MIAA. Physical force and other implements are to be used solely to give warning and their use must be discontinued immediately after the lawful aim has been achieved[61].

The main source of information at the Detention Centre are other detained foreign nationals, which draw on their own observations and experience. Sometimes there is more than a grain of truth in these rumours. It is commonly believed by detained immigrants that ‘All people interviewed with a transcript being taken on a laptop, are subsequently freed’. This is why Ali and one of his friends wrote an application in English, which they could not submit themselves and asked the lawyer under the HEAR Project to so on their behalf. In the application they state that they are not Syrians, but Pakistanis; tat during the detention period they have been interviewed twice, but no record of those interviews was produced by using a laptop. In the application, they state (see image below): ‘We want a laptop interview so that we can complete our procedure. We have a lot of problems in Pakistan. Please, hear us out, we would like to be transferred to an open camp. We would like to stay in Bulgaria. Please, let us stay in Bulgaria. Thank you!’

Asked why he wanted to submit a written application, Ali responds:

‘So that we finally see progress in the procedure and have an interview. We want to be heard. We don’t know how to get to the Director. We tried to give the application to the security, but they won’t even let us go one floor down’.

In their meetings with a lawyer and interpreter detained foreign nationals see an opportunity to be heard by the authorities. The lawyer’s attention serves to partially restore their hope that they are in a country that respects the principle of the rule of law. However, another worsening trend observed during the implementation of the HEAR Project is the restriction of the spaces used for lawyer’s visits to the Busmantsi Immigrant Detention Centre. The three rooms dedicated to lawyer’s visits at the Sofia Detention Camp are permanently occupied by various administrative bodies – the State Agency for Refugees; the State Agency for National Security and the Migration Directorate. For this reason, lawyer’s meetings frequently overlap or take place in the common room or the fingerprinting room, the security guards’ restroom or in the corridor… Furthermore, the meetings are frequently interrupted by staff who need the respective space. Such interruptions are abrupt and uncourteous — a projection of the attitude toward the detainees.

‘On 16 October 2015, they first told us to come into this room. It was probably the room of one of the lady officers. She came in and started shouting, asking who had told us to use her room. She told us to leave immediately and find someone else to talk to. When we went upstairs, some other guy helped us find a room. We didn’t go in because we decided to. As soon as we had sat down, some other guy waltzes in—without as much as a word. He then told us that this was his room. I don’t understand the language, but from his demeanour and tone of voice, I knew he was angry. He asked me who had allowed me to sit down. The lawyer explained that we had been shown in by one of his colleagues and that we didn’t do it on our own initiative. Then this guy also takes a seat in the room. He started making a lot of noise with his mouse and computer, just making it very difficult for everyone. This kept on for 10-20 minutes I suppose. Then they moved us to yet another room. The whole time I spent with the lawyer, we kept going from room to room. They don’t treat us like human beings, but like animals’.

The demonstration of disrespect to the lawyer compounds the humiliation and debasement of detainees. That is why here we also give space for what the lawyer had to say:

‘At first I thought that this was some lame joke — I mean seeing the police officer from Migration come closer, asking why I was sitting in his place! But then…the two detainees I had gone to visit at the Sofia Detention Centre, rose to their feet and froze and the ‘policeman’, a really big guy, started shouting that they were dirty and that this was his seat and I couldn’t possibly sit in it, finally ordering me to stand up. She (referring to the lawyer) may remain seated, but you will stand up! My smile froze. I weakly protested that I couldn’t possibly be sitting while they were standing. The policeman, raising his voice even more, said. No way! This is my seat. If you want them to be sitting down, take them to your house and do as you please’.

– This is not your home!

– Indeed, it is not. But it is my workplace!

I felt really scared, my heart was racing, but without thinking I saw myself getting to my feet and saying, in a sufficiently loud voice, in the face of this towering and overweight police officer:

– No, this now MY workplace, because there is a lawyer’s visit in progress! Your colleagues brought us here. If you have any objections, please raise them with your superior officer.

Surprising even myself, the bulk of a man took a step back and left the room. The two clients I had come to visit remained standing and ill at ease. Naturally, so did I.

– Take a seat, don’t worry. Let us continue.

In a while, the police officer returned to the room. He saw that the three of us were seated and made for his desk where he also sat down, starting to make as much noise as he could with the computer mouse. We would take a sneak peek at his from time to time and saw that he was staring at us the whole time – menacingly so. Twenty minutes into the visit, we got used to this and started to relax, largely ignoring him. He got up and made for the door for the second time. We were relieved. Peace. No more threats or an immediate danger of retaliation. I asked the detainees whether they were afraid; whether he could do anything to them after I left. Mr. K., a teacher in his country of origin, said: ‘No. We’ve been here for eight months now. We’re used to it’[62].

The total disconnectedness of the authorities from the image of detained immigrants as human beings whom it worth to hear, is projected onto the living conditions at the Centre — poor hygiene and lack of any meaningful recreation for either the adults or the children.

‘Nothing is right here—the food, the bathrooms and toilets. We don’t know what’s going on. We live in a state of permanent stress’, Naveed.

‘We have people on duty who are responsible for cleaning. They have a single broom, but no cleaning detergents. There is CCTV, but the security guards don’t do anything to those who break the rules’.

‘They don’t give us razors. They used to give us razors, taking them back after, but they no longer do. We cannot eat because we are so dirty’, one of Akmal’s friends who has spent 17 months in detention.

‘In 2013 there were weights here, table tennis, a library. It was much better than it is now’, Safar.

‘There are woodworms, roaches and lice. The blankets stink—we only use them to cover our feet. We all got sick. The doctor gave us antibiotic. ‘There is hot water for only 2 hours a day. We are eighty people sharing 2 bathrooms. The bathroom is open at all times, it has not door, so my husband has to stand in the doorway with a blanket when I take a shower’. We do the washing at the sink. There are no wash basins. We buy the soap ourselves too’, Hafizeh, detained with her 9-year old child and her husband.

‘I feel a tightness in the heart area. I have high blood pressure. We are not allowed to go out for a breath of fresh air. I wish they would treat the adults here like human beings. There are many good people here, and then there are those who are thoroughly bad’, Christof

Faysal compares the Central Sofia Prison, where he spent 55 days, and the Sofia Immigrant Detention Centre, where he has spent almost 2 months:

‘I think both places are bad. But in prison they at least treated me properly, they were kind, although there were five of us sharing a small room. This is worse than a prison. The toilet is so dirty. There are bed bugs everywhere. You have to get up 2-3 times each night to shake them off the blankets. It’s impossible to sleep’.

In four cases studied under the HEAR Project our lawyer assisted the detainees access to the physician at the Busmantsi Detention Centre. Access to the doctor depends on the assessment of the security guards:

‘I have this throbbing pain on the right-hand side of my head, but the policeman wouldn’t allow me to see a doctor. The sergeant gave me a pill from his pocket, but I haven’t taken it. I don’t know whether I can trust him’, Ali, an unaccompanied minor and victim of violence in his country of origin.

‘When someone wants to see the doctor, the security guards say that the doctor is busy’^[63], Mehmud.

Mehmud also tells us that he needs to go to the doctor’s surgery for pills that he takes for his heart condition every day in the morning and in the evening. One of the security guards has been harassing him:

‘He tells me to go away’. Even follows me into the doctor’s surgery and tells me to shut up. Tries to hit me every time. There is no place for me here’.

Asked whether he wished his lawyer under the HEAR Project to file a complaint he declined, saying that no one would stand up for him or protect him against worse abuse. No effective mechanism for filing and reviewing complaints has been set up at the Centre.

One of the most frequent grievances of detainees at the Busmantsi Detention Centre is the lack of a telephone (the only payphone on the premises is out of order) and that detainees are not allowed to use their own mobile phones. Only telephones without a camera are allowed.

‘Even for the older phones, it depends on the policeman. They can make trouble regardless and take your phone. A telephone is an instrument to stay in touch with the outside world. If they don’t allow phones, they’re cutting us off from the world’, Safar.

For example, Imran complains that his telephone was confiscated without explanation, although it did not have a camera. He has a copy of the protocol for safekeeping of personal belongings. Under his signature he has written in Urdu: ‘This is my telephone. When I go to Sofia, please return it to me’.

‘They took our telephones about a month ago. We had bought it from the older Pakistanis. It does have a camera in principle, but it’s broken. We are worried because we can’t talk to our families’.

‘They won’t let us use the telephone. On the ‘black’ market, 5 minutes cost 25 BGN. We use the Internet to talk to our families’.

‘I have no idea why they took our telephones. There’s nothing else to do here anyway. A minute on the phone costs 5 BGN. The police officers just shrug their shoulders and say ‘Sorry’…’.

According to Article 30(5) of the Bulgarian Constitution persons deprived of liberty must be provided with an opportunity to exercise their fundamental rights, which are not restricted by the effect of the sentence. Per argumentum fortiori, in view of the fact that detention on immigration grounds is administrative in nature, the provision in question should apply to immigrants detained for the purpose of removal.

In connection with the in-house rules to be observed at the Detention Centre, we should also note the right to be heard in disciplinary proceedings initiated in respect of violations of the rules in question. One of the foreign nationals interviewed under the HEAR Project — Musab — was subjected to solitary confinement (SC) as disciplinary action on two occasions, meaning that he was placed in a room, which detainees and Detention Centre staff call the ’isolator’. On the first occasion he was released from solitary detention after 12 days. The second time, Musab made a suicide attempt shortly after being placed in solitary confinement. He was never given a hearing nor did he receive a decision that he could appeal[64]. The case of Musab is not the first or only one of its kind at the Busmantsi Detention Centre[65]. Musab’s punishment was ordered on the grounds of Article 14(3) of the Regulation on the in-house rules of Detention Centres, which stipulated as follows: ‘A foreign national responsible for a serious breach or disruption of in-house rules, shall be placed in solitary confinement under special security measures, for a period that does not exceed 15 days’. Pursuant to Judgment No 164 of 7 January 2016 in Case No 973/2015 on the record of the SAC, the court repealed the provision on disciplinary punishments laid down in Article 14(3) of Regulation on the grounds of being unlawful (the FNBA does not contain a provision providing for disciplinary actions in the case of breach of in-house rules at detention centres).

Recommendations

The analysis of the information summarised in this section warrants the following conclusions relating to the conditions of detention and the right to be heard during detention on immigration grounds:

Detention Centre staff should be trained in interpersonal communication, taking into account intercultural differences and recognition of vulnerabilities;
Dedicated members of staff and full-time interpreters should be available at detention centres to facilitate communication in the main languages spoken by the detainees;
Detainees should be provided with accessible information about their rights and obligations during detention in a language that they understand;
A mechanism should be put in place at detention centres that enables the filing of complaints relating to police violence. The complainants and the victims must be protected from subsequent retaliation or threats[66];
Detained foreign nationals must be provided with access to a lawyer (including an opportunity to consult their defense attorneys in private). The same applies to access to medical doctors;
the premises in which detained foreign nationals are accommodated should be adequately furnished, treated for parasites and cleaned. Access to fresh air should be ensured;
a possibility should be provided for daily recreational activities for both children and adults detained at the centre. Detained foreign nationals should have access to a telephone;
The initial stage of preparation for return (so-called pre-return), which is subject to monitoring within the meaning of paragraph 8(6) of the Return Directive, should not commence at the time of issuance of a temporary travel document by the diplomatic mission of a detained individual’s country of origin[67], but from the date of issuance of the return decision on the grounds of which detention of the individual concerned was ordered. Detention on immigration grounds is allowable solely for the purpose of preparing the process of return, meaning that it should be monitored as part of the return process;
Immigrant Detention Centres should be monitored on a regular basis, including by judges, members of parliament and other government bodies to ensure a balance of the different branches of government. A set of transparent, uniform rules for access of non-governmental organisations to detention centres should also be developed;
Disciplinary actions and the procedure for their enforcement should be governed by the provisions of a law. Such provisions should be non-discriminatory and comply with the minimum standard for disciplinary punishments set out in Article 100 et seq. of the Enforcement of Punishments and Detention Act.

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3.2 Hearing with regard to the proper preparation or carrying out of removal

Detention on immigration grounds should seek to achieve the lawful aim of preparing and enforcing detention orders. This means that government bodies[68] have an interest and should take a proactive stance in the hearing of foreign nationals in connection with the return process[69]. Regrettably, our study warrants the conclusion of a pervasive lack of such interest:

‘Our biggest problem is that the authorities are not asking us questions. In the case of Pakistanis, there is only one procedure: return. Just deport. If we are going to be simply deported anyway, why don’t they do it? They keep us in detention for 8 months instead. They are not interested in our consent anyway, Naveed.

We have been here for eight months. No one has asked us any questions’, Mehmud.

‘It has been three months now and there have been neither questions nor explanations. My friends have already been transferred into an open camp (…) It’s been six weeks now. It’s becoming really difficult. My mother is crying all the time, now that she knows I’m in prison. She wants me to go back. I want to be deported, but no one’s listening’, Giamodin, 19 years-old

The study conducted under the project ascertained non-compliance with the statutory requirement for the monthly checks[70] to be conducted on an ex officio basis by the Head of the Migration Directorate on the continued existence of the reasons for detention on immigration grounds and the actual instructions given by the administrative body in detention order. For example, the order on the detention of Mr. Faramarz on immigration grounds issued by the Head of the Migration Directorate on 18 January 2016 contains the following instructions: ‘Not later than six months the Head of the Combat against Illegal Immigration Department must take the appropriate action to overcome the barriers to the enforcement of the deportation. At the end of the stipulated period, the competent officials are to draw up a report, setting out a chronological account of the steps taken, to be submitted to the Deputy Head or the Head of the Migration Directorate’. In other words, instead of the one-month period envisaged by law, the administrative body has lowered the intensity of control and provided the competent officials with a period of six months to prepare and enforce the return.

There have been cases in which even after an initial six-month detention on immigration grounds, the authorities have failed to correct manifest errors in the citizenship and country of origin of detained immigrants. For example, the detention order issued in respect of Mr. Mehmud wrongly identifies him as a citizen of India, and not Pakistan. He was detained on 26 February 2015 and by the time the first six months of his detention elapsed officials from the Migration Directorate had only met with him once on 4 March 2015 (as evident from his interview record). In the identity form dated March 2015, which Mr. Mehmud completed in his own hand, he correctly stated his nationality and country of origin as Pakistan. In the interview record dated 4 March 2015, the textbox containing the question ‘Location of other family members’, Mr. Mehmud has again indicated Pakistan as the answer. Despite this, he continued to be considered a citizen of India, including in the order on the extension of his detention by a further six months issued on 26 August 2015 — a striking failure on the part of the competent administrative body to correct a simple manifest error. A failure to correctly determine the country of destination, dooms return to failure and renders detention on immigration grounds arbitrary[71].

Christof, a stateless person, was in a similar situation after the authorities entered him into their records as a citizen of Bosnia and Herzegovina and issued corresponding return orders.

‘I am talking 24 years, not a few hours or months — years’.

Since his detention Christof there has been no reasonable option for his return because he is a stateless individual and has no country to be returned to. Despite this, by the time his detention on immigration grounds was lifted and replaced by a less restrictive measure (with assistance from his lawyer under the HEAR Project) he had spent four months in detention:

‘We count hours, minutes and even seconds here — it is so hard. Because you are not a criminal[72]’.

Mr. Imran wishes to return to his country of origin. Having established that there was no one he could turn to, he made efforts to arrange his return by communicating directly with the Pakistani Embassy in Sofia:

‘We called the Pakistani Embassy yesterday. There was this guy—second or third secretary who tells us something different every time’. – Why are you talking to the Embassy? – ‘Because in Busmantsi they told us we had to produce our passports. From the Embassy they told us it is illegal to send passports. I received my passport by DHL, but the package was stopped in Karachi (Pakistan). Then from Busmantsi they tell is: go to your Embassy. The Embassy says ‘OK, give me your names and I will give your passport to Busmantsi’. Next day I called him and the story had changed ‘you are waiting for a decision’ … He hung up. (…) There are now rumours that in December there will be a flight to Pakistan, but they have only 12 verifications for 30 Pakistanis. Next time: The Minister had said that Pakistanis will not be deported. I spoke to him only yesterday. We had a fight. I said to him: ‘Why are you lying to us? You say different things every time. I don’t feel safe because I don’t know whether they are going to return us or not. No one listens at the Embassy. Here [at the Detention Centre] there is no one to turn to either’.

Mr. Imran needs information and clarity about the preparation of his return. He can actively assist the Bulgarian authorities, if given a chance to do so.

Recommendations:

The analysis of the information set out in summary in this section with regard to the right to be hear and the proper preparation and execution of return warrants the following conclusions:

The Head of the Migration Directorate should observe the requirement laid down in Article 44(8) of the FNBA in respect of the monthly checks to be carried out to ascertain the continued existence of the reasons for detention on immigration grounds and instruct the officials reporting to him/her of the statutory timeframes and actions to be taken in order to remove the barriers to removal and its proper execution, along with the need to draw up written reports to the management on a regular basis;
The authorities must make a dedicated effort in order to grant hearing and taken into account the replies of foreign nationals in order to be able to properly determine the country of destination for return purposes at the earliest possible stage of preparation. Bulgaria should further comply with the instructions of the ECHR set out in the Judgment in Case Awad v. Bulgaria and ‘always state in the legally binding decision the country of destination’; ‘remedies must be put in place enabling the appeal of a change in the country of destination’[73].
Detained foreign nationals should be informed of the progress in and the process of their return. They can actively assist the Bulgarian authorities in cases of return, provided they have a possibility to do so through proper communication with them. This will raise the efficiency of the execution of return orders issued in Bulgaria.

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3.3 Review of detention at regular intervals

The one-month time period stipulated in Article 44(8) of the Law on Foreign Nationals in the Republic of Bulgaria (LFRB) applies to the checks to be ex officio conducted on a monthly basis to ascertain continued presence of the grounds for immigration detention. If these grounds are no longer present or ‘when in light of the circumstances of the case at hand, it is established that there is no longer a reasonable possibility, for legal or technical reasons, to carry out the return of the foreign national, the individual shall be released without delay’[74].

It is ex officio known to the Bulgarian authorities that the refusal of the detained foreign national to sign the requisite document for voluntary return often entails a refusal of the diplomatic mission of the country of citizenship to issue the documents for return / re-entry of that country. For example, in the case of Mr. Faramarz, the Head of the Detention Centre wrote in a memo addressed to the Head of the Migration Directorate: ‘The practice of the Iranian Embassy to Sofia to refuse the issuance of travel documents to its citizens, when they are unwilling to return, is well known’. This is a further argument, which the Head of the Detention Centre put forth in the decision to release the migrant concerned[75].

Migrants report that they have been put under psychological pressure to sign the document for return under threat of extended detention:

‘When I came to Busmantsi, they told me that I had to go back to Iran. I said I couldn’t because I have so many problems there. This made them nervous and angry and they replied that I would then have to spend two and a half years and even longer at Busmantsi’, Safar.

‘It took me quite a long time, approximately 2 months, to be registered as an asylum seeker. Before that an employee from the Migration Directorate asked me whether I was going back to Iraq. I told him that I couldn’t go back to Iraq—that he couldn’t imagine what problems I had there. He then became angry and told me that I’ll have to spend a long time here, maybe a year…I felt confused’, Majid.

‘No one wants to know why we left Pakistan. We have serious problems there. If we are returned we will die or be killed. We have been here for eight months now. No one has asked any questions. It’s no good. Just write down that you want to go back. The new arrivals – they’ll be much better off going back without waiting in detention’, Mehmud.

‘They want to keep people as long as possible in here to cloud their judgment so that they agree to go home. This is the plan for Busmantsi. If you don’t get reliable help and aren’t lucky with a good lawyer, deportation normally happens in 2-3 months’, Majid.

The reasons for detention may cease to exist on account of there being a possibility for a less restrictive measure as an alternative. On account of the unavailability of information, a common practice in Bulgaria is the use of the so-called system of ‘guarantors’ who provide foreign nationals with a residential address and subsistence, but file an application with the Migration Directorate of the MIA in their own name. The system appears logical to guarantors because the foreign nationals are physically detained and cannot apply to have detention replaced by an alternative less corcive measure. After receiving an application from a guarantor, the Head of the Migration Directorate typically sends a request for additional documents by courier who attempts to make a delivery at the address during normal working hours and is unable to locate a recipient. The letter is then returned to the Migration Directorate and there is no further progress in the case. Although the foreign national is in detention and the administrative body is able to grant his/her a hearing and obtain his/her assistance in the matter, it fails to do so and displays no further interest in the case.

While placed at the Immigrant Detention Centre, Mr. Majid made several unsuccessful attempts to have his detention replaced by a less coercive alternative (weekly reporting to the local police station). Each time he paid ‘guarantors’ to prepare the necessary documents, but remained in detention. With assistance from his lawyer under the HEAR project Mr. Majid challenged the last tacit refusal of the Head of the Migration Directorate to replace his detention with an aternative. The court granted Mr. Majid a hearing and sent the case-file to the Head of the Migration Directorate, instructing him to adopt a decision in his case. As evident from the Court Ruling^[76] where an application for replacement of detention with an alternative measure (such as the submission of an application by a ‘guarantor’) does not conform to the requisite requirements, the administrative body should request a confirmation from the detained migrants instead of dismissing the application[77].

When a detained foreign national files an application for international protection, the return process is ceased by law[78] and the detention is no longer justified. This means that the detained foreign national must be released[79]. According to Article 20(2) of the Regulation on Immigrant Detention Centres ‘a foreign national shall be released from the Immigrant Detention Centre when an application for international protection under the Law on Asylum and Refugees has been filed and the grounds provided for in Article 44(12) of the LFRB no longer exist’. According to Article 44(12) of the LFRB immigration detention is not to be discontinued when there are serious grounds to believe that the foreign national has filed a subsequent application for international protection with the sole purpose of delaying his/her return. In this case the extension of detention can be appealed in court.

In line with the procedure laid down in the API we asked the MIA how many detained foreign nationals at the Immigrant Detention Centres in Sofia and Lyubimets who had filed a first application for international protection were registered as asylum seekers by the State Agency for Refugees (SAR). According to the answer received[80] as at 18 July 2016 the numbers were as follows: there were 409 detained foreign nationals in the Sofia Detention Centre of whom 337 had applied for asylum and 222 in the Lyubimets Detention Centre of whom 53 had applied for asylum. This shows that the authorities are breaking the law and fail to comply with the requirement stipulated in Article 20(2) of the Regulation on Immigrant Detention Centres to release the foreign nationals who have submitted a first application for international protection. This practice was also confirmed by the accounts of the detainees interviewed under the HEAR Project.

In the first place, the amendments to the Law on Asylum and Refugees (LAR) [81] and the introduction of a six-day period for the registration of asylum seekers detained at Immigrant Detention Centres has failed to address the long-time practice[82] of arbitrary delay of the registration of protection seekers by the SAR.

In 23 out of a total of 30 cases studied under the HEAR Project the detained foreign nationals had submitted a first application for international protection to the SAR[83] Out of the 23 cases, 16 foreign nationals were registered by the SAR only after filing lawsuits under Article 257 of the APC against the failure of the Head of the SAR to act in their case. The average length of the period between the submission of an application for international protection and registration by the SAR is as follows:

For the interviewed Pakistani nationals: 4 months and 5 days. This number includes four unaccompanied minors who had to wait 3 months on average to be registered by SAR after submitting applications for international protection;
For the 2 interviewed Syrian nationals: 2 months and 12 days;
For the interviewed Lebanese national: 1 month;
For the interviewed Turkish national: 3 months;
For the interviewed family with a 9-year old child from Iran: 1 month;
For the two cases of Iraqi nationals, including single father with a 7-year old child: 5 months;
For the interviewed Moroccan national: 1 month;
For the 3 interviewed Afghani nationals, including 2 unaccompanied minors: 2 months.

The inaction of SAR does not solely takes the form of failure to register the individuals concerned, but also involves express conditions for registration that asylum seekers had to fulfil. For example, Mr. Halil from Syria, acting through his attorney under the HEAR Project, filed an application directly with the SAR, along with a handwritten request to be granted international protection. In his reply dated 11 November 2015 the Head of the Refugee Camp in Ovcha Kupel under the jurisdiction of the SAR stated the following: ‘Having based your application on a request drawn up in a foreign language, during the course of representing your client as per the annexed power of attorney, you should ensure that the application is accompanied by a legalised translation into Bulgarian[84]’. Despite the instructions contained in the letter received from the SAR official, under the lawsuit brought by Mr. Halil pursuant to Article 257 of the APC the Court ordered the Head of the SAR to register and open a file on Mr. Halil (…), to ensure that he is provided with accommodation at an open refugee camp and to issue him with a registration card[85].

The average times above refer to the period of registration of an individual following the submission of an application for international protection. In addition to this time period, following their registration by the SAR foreign nationals sometimes remain in detention at the Immigrant Detention Centres for a considerable period of time. For example, in the case of Mr. Halil from Syria, release came 1 month and 14 days after he was registered by the SAR. Ahmad from Syria was released approximately 10 days after he was registered by the SAR. Until their release, detained foreign nationals sometimes receive the so-called white card by the SAR, on which the institution has indicated the date when he or she must appear before the SAR to receive a registration card. The current address stated on the white card is Busmantsi (see picture below). No such card is envisaged by law.

Image: the ‘white card’ received by Ahmad from the SAR

Unaccompanied children also remain at the Immigrant Detention Centre following their registration. Thus, for example, Milad from Afghanistan was registered by the SAR 1 month and 10 days after submitting an application, but was released from the Immigrant Detention Centre after a further 2 months of detention.

While the foreign nationals are still in detention, the SAR must issue them with a dedicated registration card indicating their status as asylum seekers, but only hands them over following their release. Thus, Tareq from Morocco was released from the Immigrant Detention Centre 2 months and 10 days after he was registered by the SAR. He was released on 23 March 2016 and received his registration card as asylum seeker under the general administrative procedure, which had been issued on 20 January 2016. The initial address shown on the card was Military Barracks 65A, Busmantsi[86]. Several days before his release, on 18 March 2016, Tareq was interviewed at the Immigrant Detention Centre in connection with his application for protection.

Image: The registration card of an asylum seeker issued while he remained in detention for removal

A review of an application for international protection whilst the foreign national is in detention for the purpose of return essentially deprives the individual of the right to be heard. On the one hand, there is a real risk of the authorities carrying out the removal[87] and detained foreign nationals soon become aware that the authorities are using different means to execute the return:

‘We have surrendered out passports, hoping that it’ll speed up the process. They told us that they could not say what would happen if we didn’t give them our passports. One lady on the staff told me that I had to give her my passport so she could arrange my transfer to an open camp. We filed applications for asylum at the very beginning and they are refusing to let us in’, Zayn.

At the same time, when an interview is conducted, albeit rarely, at the Busmantsi Detention Centre with a foreign national, the detainee typically doesn’t know who they have spoken to. For example, asked whether he has been given a hearing, Mr. Halil from Syria recalled that approximately 2 weeks after he was placed in detention ’some people who work here’ interviewed him. ‘They did not introduce themselves’. Asked how he felt during the interview, Mr. Halil replies:

‘I just wanted to leave. I was nervous and stressed, because they asked me a lot of questions about Syria, which I didn’t want to remember. They make me sad. They make me feel really badly. I have been detained and this adds even more stress. I had no idea what the purpose of the interview was. I thought they were from the refugee camp, but people from the camp came and registered me on 26 November 2015’[88].

We hear this time and again from other detainees:

‘I was interviewed by someone carrying a laptop. I don’t know who they were’. ‘I asked the guy with the green eyes—he works here—about this white card. But I have the feeling they don’t care. This is something totally alien to them’, Tareq.

‘I don’t know who interviewed me. They only asked ‘Asylum’ or ‘Deport[89].’? I told them ‘Asylum’.

‘I have been interviewed twice here at Busmantsi, but I don’t know who they were’. During the second interview, they asked me whether I wanted to be deported to Iraq or stay here’, Aras.

‘Officials came, they wrote something on a computer, made us sign and said that these are our applications for protection. I don’t know who they were. It’s been a month since then and we’re still here’, Fuad.

‘They didn’t introduce themselves, but from the questions asked I knew it was the SANS’, Safar.

‘I hear so much about this grey zone – intelligence agency’, Abdel.

‘Two or three days ago, a guy came, asked how old we were and said ‘finish’. We don’t know who he was or from where’, unaccompanied children from Pakistan.

In the next place, detainees have reported a highly formal procedure for conducting the SAR interviews, without any depth or clear understanding of the translation[90]:

‘He asked me whether I spoke English and I said that I didn’t. They said they didn’t have translation from Urdu. They asked me basic things and wrote down that there were problems between Shi’ites and Sunnis in Pakistan. They didn’t ask for any further details. They want you to tell your story in one sentence’, Umar

‘During the interview we had an interpreter from English. He told me to answer briefly, in one sentence. For example, she would summarise by saying ‘You have a religious problem’, Mehmud.

Two other detained immigrants were registered by SAR with the same wrongly spelled names and citizenship, which were used to enter them into the records of the Detention Centre. They were not heard, although their lawyer under the HEAR Project filed an application for their registration with the SAR, noting expressly that their basic data had been taken down wrongly upon detention.

Those detained for the purpose of removal, despite the filed applications for asylum, were not in a position to furnish the necessary evidence in order to justify their asylum applications. For example, Mr. Naveed’s life was in danger in his country of origin: he had been shot at by a person who had killed 5 members of his family. He says: ‘I can produce all evidence that they require’. Yet, despite this, at the Detention Centre he received a decision refusing his asylum application on the grounds of being manifestly unfounded.

In two cases in the HEAR Project the lawyer assisted the foreign nationals in lodging appeals against the decisions refusing the asylum applications as manifestly unfounded within the seven-day time period stipulated by law. Regrettably, the complaint about the unfairness of the asylum proceedings and the conditions of detention fell on deaf ears in court. The court held that ‘in the case at hand the place where the interview was conducted did not have any effect … on the truthfulness of the answers received from the interviewees. Even if the interview was conducted at a refugee camp in Sofia or at the transit centre in Pastrogor the interview should not have a different content. (…) The interview was conducted by a competent official; the asylum seeker was interviewed in person and given that there were no communication barriers between the interviewer and the interviewee, the interview was conducted in an appropriate manner and not in breach of applicable administrative procedure rules. (…) The fast-track proceedings conducted at Detention Centres by the SAR is an option available to the administrative body to be used at its discretion. There are no express statutory requirements as to where an interview should take place lest the procedure be declared unlawul[91]. In the other case of Mr. Naveed, the Court dismissed the complaints of the foreign national that his basic data (names and citizenship) and his refugee story were not given proper consideration. The court referred to the statements signed by the foreign national, which the SAR had asked him to sign in English, and pointed out the handwritten asylum application in English (in fact the court didn’t know that the application had been written by a fellow countryman acting as a translator—a common practice among foreign nationals wishing to file applications while in detention). In the complaint the foreign national asserted that the barriers to communication meant that the administrative body misunderstood essential facts. In the case at hand the administraive authority had not understood that he was born in India but was a citizen of Pakistan; and that in his infancy his family moved to Pakistan and he has never been to India since. He further asserts that he never told the interviewer that he had left India and went to Pakistan, where he remained for 10 days (according to the SAR decision). He explained that he had left Pakistan and gone to Iran, where he spent 10 days. The negative decision of SAR invokes ‘contradictions’ in the story of the applicant, which are in fact due to the failure to ensure clear communication with the asylum seeker. According to the SAR records the country of citizenship is India and the foreign nationals had spent 10 days in Pakistan. There is a real danger for Mr. Naveed’s life in his country of origin. However, the court concluded that Mr. Naveed had intentionally lied to the authorities. Concerning the place where the interview and the proceedings were conducted, the court held that ‘conducting the interview and the summary proceedings at the Busmantsi Detention Centre was without prejudice to the rights of the complainant and does not constitute a material breach of procedure. This is so because no evidence has been presented in the case, which indicates the likelihood of a different outcome had the interview been conducted elsewhere. Firstly, because the complainant has not stated that he wished to furnish any evidence in support of his application and secondly because he did not wish to put forth any additional considerations relating to his personal circumstances and the protection he sought from the Bulgarian authorities’. The court refers to settled national and ECJ case-law, for example the judgment of 10 September 2013 in Case M.G. and N.R. C-383/13 (paragraph 37) [92]. The reference to the cited case and judgment is an admission that the right to be heard of the asylum seeker has been violated. That violation is however inadmissible in light to Article 4 of Directive 2011/95/EU[93]. In the summary proceedings the judgment of the court is final and cannot be appealed.

Administrative practice and case-law in Bulgaria on the manner of conducting interviews and examining applications for international protection while the applicant is in detention for removal demonstrates how much more work and efforts are still needed in Bulgaria[94].

Recommendations:

The analysis of the information summarised in this section warrants the following conclusions regarding the right to be heard in connection with detention review on a regular basis.

Instead of resorting to psychological pressure and extortion in order to force foreign nationals to sign the papers requisite for ‘voluntary’ return against their will, the authorities may engage with them in meaningful communication in order to obtain valid information about the true facts and circumstances of the case and ask for feedback from the foreign nationals on the planned measures. Relations based on mutual trust can be much more productive than psychological manipulation and coercion.
Detained foreign nationals should be systematically informed about the conditions and procedure for the substitution of detention with a less coercive alternative (weekly reporting to the police station). Where a third party (guarantor) submits an application for the release of a detainee under a less coercive alternative, the administrative body should grant the foreign national a hearing and enable him to participate in the procedure;
The Head of the Migration Directorate should observe the requirement stipulated in Article 20(2) of the Regulation on Immigrant Detention Centres[95] and immediately release foreign nationals who have submitted a first application for international protection;
Conducting asylum interviews in conditions of immediate threat of forced return and detention at an Immigrant Detention Centre should be discontinued. The conditions in question do not enable asylum seekers to effectively exercise their right to be heard.

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4. The right to be heard upon extension of the length of immigration detention

4.1 Right to be heard by the administrative body prior to the decision to extend detention

According to Article 46a(4) of the FNBA ‘after the elapse of every six months of detention’ the Court must rule on the extension, substitution or termination of the detention of foreign nationals on immigration grounds. The a priori extension of detention beyond six months is inadmissible. Following the ECJ Judgment in Case Mahdi, C-146/14, the Head of the Migration Directorate of the MIA commenced the issuance of orders on the extension of detention on immigration grounds by a further period of six months, which are automatically submitted to the competent court for review. Under the HEAR project we examined the orders issued by the Head of the Migration Directorate in order to ascertain whether they conform to the requirements to grant the detained foreign national a hearing during the process of extending detention[96].

Out of the 30 cases studied under the HEAR project, 7 foreign nationals had been detained for a period that exceeded 6 months. In one case, the foreign national was released after he filed a lawsuit through his lawyer in respect of the violation of the prohibition of detention for a period that exceeds that period (in the case at hand the total length of detention in 2013 and 2015/2016). In the remaining six cases, the Head of the Migration Directorate had issued an order extending detention by a period of six months.

The reasons stated by the administrative body for the extension of the period of detention are fully identical in all four cases. According to the body, the extension of the period of detention was required on account of the failure to execute the return order due to the returnees not having a travel document and difficulties encountered in identifying the foreign national. At the same time the order extending the period of detention issued by the administrative body do not state any reasonable actions that have been taken in order to establish the identity of the foreign national detained during the elapsed six-month period. Furthermore, in the cases of the detained foreign nationals in question, the administrative body had omitted to correct the wrong entries indicating their citizenship. In all four cases the foreign nationals had completed the ID forms at the Detention Centre in their own handwriting, noting down that they are citizens of Pakistan. In two of the cases the foreign nationals handed over their original Pakistani passports to the Bulgarian authorities. Despite this, the orders by which the detention period was extended yet again listed them as nationals of India. These flaws are a logical consequence of the failure to grant the foreign nationals a hearing during the process of extending detention, but also throughout the previous period.

In the case of Mr. Musab the reason for the extension of the detention on immigration grounds by the Migration Directorate was that there was a reasonable possibility to remove the Iranian citizen from Bulgaria after the issuance of a temporary travel document by the Embassy of the Islamic Republic of Iran. At the same time, the Head of the Migration Directorate states two arguments for the extended detention period: (1) the foreign national is categorically refusing to assist the return; does not have an ID document and refuses to cooperate for the issuance of one; and (2) multiple breaches of in-house rules, resulting in several punishments on disciplinary grounds[97]. The administrative body had omitted to mention that the Iranian Embassy refuses to issue travel documents to Iranians refusing to return. The administrative decision does not take into account that Mr. Musab has refused to sign a voluntary return statement on account of having applied for international protection. The administrative body has effectively failed to grant Mr. Musab a hearing.

In the sixth case of Mr. Hamid, the reasons given in the order on extended detention issued by the Head of the Migration Directorate include the danger of the foreign national absconding and an allegation that he is a threat to national security. The order is not based on the grounds for extended detention on immigration grounds stipulated in Article 15(6) of the Return Directive[98].

As noted in the report, the Head of the Migration Directorate does not employ any interpreters (either or a full or part-time basis). At the same time, the foreign national to be granted a hearing was in detention and making arrangements for conducting a hearing was fully within the remit of competence of the administrative body.

Recommendations

The analysis of the information summarised in this section warrants the following recommendations relating to the right to be heard by the administrative body prior to the adoption of a decision on the extension of the detention period:

Prior to issuing a decision on the extension of the detention on immigration grounds the administrative body must grant the foreign national a hearing to be conducted with assistance from a professional interpreter;
in its decisions on the extension of the period of detention on immigration grounds the administrative body must specify the efforts undertaken to carry out the return during the last six-month period of detention;
when the period of detention is necessitated by a delay in establishing the identity of the foreign national, the administrative body must specify what reasonable actions it has taken in this regard during the last six-month period of detention.

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4.2 Right to be heard by a court of law in the context of judicial review

In Bulgaria the judicial review of detention orders issued on immigration grounds is an automatic process. The Head of the Migration Directorate submits the issued orders to the court on an ex officio basis. For this reason, our study has not put an emphasis on the participation of foreign nationals in court proceedings.

Bulgarian law does not provide for the participation of a foreign national detained on immigration grounds in the proceedings relating to the continuation of detention. According to Article 46a(4) of the FNBA ‘the court rules in a closed hearing’. Despite this, the Bulgarian Supreme Administrative Court disregarded the provision laid down in the FNBA and scheduled an open hearing allowing the detained foreign national to appear before the court. The SAC applied directly Article 47 of the Charter of Fundamental Rights of the EU and noted that ‘the failure to provide the party with an opportunity to participate in the proceedings jeopardises the effectiveness of the defense’[99].

Despite several instances of progressive case-law, which sets aside the application of the provisions laid down in national law and effectively recognises the right of detained foreign nationals to be granted a hearing, some panels are still hearing cases in closed hearings without the participation of the detained parties. Out of the six cases studied under the HEAR Project, in two the court adjudicated the cases without hearing the foreign nationals in concerned and confirmed the extension of the period of detention. In the four remaining cases, the parties were given an opportunity to participate in the proceedings and received legal assistance from a lawyer under the HEAR project: in three cases the court ruled that the individuals be released and in the fourth case the foreign national had already been released by the administrative body as at the date of the court judgment. The sections below contain details on the six lawsuits in question.

The court proceedings relating to the challenged decision on the continuance of the detention of Mr. Naveed on immigration grounds did not involve the complainant and was adjudicated in a closed hearing. The court adjudicated the case on the basis of the administrative case-file submitted by the detention body along with a letter dated 24 August 2015. The detention was continued by six months pursuant to a ruling of the Sofia Administrative Court of 1 September 2015 in Case No 8286/2015: ‘The case-file does not contain evidence that the party has a permanent address or is able to subsist (has any means to support himself), which would have allowed the court to substitute detention with a less restrictive alternative (reporting to the police station on a weekly basis) envisaged in Article 44(5) of the FNBA. A statement dated 20 August 2015 has been by which the party confirms that he does not wish to attend the court hearing nor does he wish to use the services of an interpreter or a defense attorney’. Mr. Naveed was unaware of having signed a declaration stating that he was unwilling appear before the court and did not wish to use the services of an interpreter or lawyer. On the contrary, he shared his strong disappointment that other foreign nationals had been allowed to appear before the court after the elapse of the six-month initial period of detention and he was not given an opportunity to do so. This begs the question how the statement of waiver of rights was signed and its content explained, given that there are no interpreters at Immigrant Detention Centres, and why did the court not question its authenticity and validity.

Mr. Zayn’s appeal was also adjudicated in a close hearing. The order providing for the continuation of his detention was served without an interpreter being present, against a signature, on a form containing the blanket statement: ‘I was advised of the content of the order in a language that I understand’. By a Ruling dated 11 September 2015 in Case No 8572/2015 on the record of the 47^th Panel of the Sofia Administrative Court, the bench conducted a closed hearing without Mr. Zayn appearing before the court: ‘This bench finds that in the case at hand the requisite conditions for continuation of the detention period are present (…). The written evidence submitted in the case indicates a delay in obtaining the travel documents necessary to carry out the involuntary return, notably difficulties in establishing the identity of the party’. The Ruling does not make it clear whether the court was aware of the fact that the foreign national had surrendered his national passport to the administrative body (there is no reference to this fact).

In the cases of Mr. Naveed and Mr. Zayn no interpreting or translation into a language they could understand was provided either of the order issued by the Head of the Migration Directorate or the judgment upholding the continuance of the detention period by six months. Thus, the foreign nationals remained unaware of the reasons for the decision to leave them in detention.

In contrast to the two cases involving his compatriots described above, Mr. Mehmud was given an opportunity to appear before the court with assistance from an interpreter, despite the fact that the Migration Directorate had submitted a statement alleging that ‘Mr. Mehmud does not wish to appear before the court or use the services of a court appointed interpreter’. During the hearing Mr. Mahmud requested in person that an interpreter from Urdu be appointed:

‘The judge asked in English whether I wanted to attend the court sessions and needed an interpreter. I told her that I do and would prefer an interpreter from Urdu’.

Mr. Mehmud has a lawyer under the HEAR Project. By its Judgment dated 2.12.2015 in Case 8571/2015, the Fourth Panel of the Sofia Administrative Court ordered the release of Mr. Mahmud and on 8 December 2015 he was released. The court noted that Mr. Mehmud was seeking protection and his removal from Bulgaria would be unlawful, adding that ‘no information whatsoever has been received that the Migration Directorate has taken steps to return the foreign national to his country of origin’ as at the date of the technical and documentary evidence presented in the case (8 October 2015) that disputes the validity of the national passport held by Mr. Mehmud. In a statement before the judge, through an interpreter from Urdu, Mr. Mehmud stated: ‘My health is poor. I have high blood pressure, my arm hurts, I go to the doctor at the Centre, but he simply gives me a pill that is useless’. During the hearing Mr. Mehmud also explained that his life was under threat in Pakistan and the reasons why he did not wish to return there. He added that if he was released he could live with friends or at one of the Open Camps under the jurisdiction of the SAR.

In the case of Mr. Parvez the court also scheduled an open hearing, setting aside the provision laid down in national law: ‘The court should set aside Article 46a(4) and the procedure laid down therein on account of being contrary to Directive 2008/115/ЕC and conduct adversarial proceedings, providing an opportunity to both parties to the dispute to participate therein and safeguarding their right to defense in the trial, and gather evidence to ascertain all relevant facts and circumstances of the case to be appraised in an open hearing. (…) ‘A copy of the information received in accordance with the procedure stipulated in Article 46a of the FNBA from the Head of the Migration Directorate is to be provided to the foreign national in order to enable him to state his views on the circumstances detailed therein and on the request for continuation of the detention period at the Immigrant Detention Centre[100]. As regards the waiver of rights presented in evidence by the Migration Directorate in respect of Mr. Parvez, the foreign national stated the following before the judge through an interpreter from Urdu:

‘When I signed the statement dated 20 August 2015 I did not understand the language. It states that I don’t wish to use the services of an attorney, but I now declare that I do because I understand the translation’.

During the interview under the HEAR Project, Mr. Parvez said:

‘We worry about the things we sign. The people who were deported thought they were signing documents for the court. We no longer sign anything because there is no interpreter. When I went to the judge, she asked me why I didn’t sign the summons. I told her that I simply didn’t know what it said’.

The order issued by the Head of the Migration Directorate on the continuation of detention was served without an interpreter being present, against the signature of two witnesses who were officers of the Migration Directorate. According to a handwritten notation, the foreign national was made aware of the content of the order but is refusing to receive/sign for it. As at the date of the judgment (4 December 2015), Mr. Parvez was a free man — he was released from detention on 27 November 2015.

In the other two cases of Messrs Musab and Hamid, 44^th Panel of the Sofia City Court scheduled open hearings, granting the parties a hearing to be conducted with the assistance of an interpreter and the legal counsel under the HEAR Project. In the case of Mr. Musab, the hearing took place on 11 December 2015 and a Ruling dated 14 December 2015 in Case No 11493/2015 the Sofia Administrative Court substituted detention with a less restrictive measure[101]. Mr. Musab stated the following before the court:

‘I have been in Bulgaria for four years. I really cannot understand why one out of these four years I have had to spend in prison’.

In its ruling the court gave the following reasons for ending detention: ‘During the court hearing the party stated that he wished to remain in Bulgaria and that he has submitted an application for protection under the ARA (…). Evidence has been presented that he has the necessary funds to cover his subsistence and has a place to live as evident from the tenancy agreement submitted’. The court referred to Conka v. Belgium^[102] and held that it was for the Migration Directorate to prove that there was a risk of the party absconding. The court gave due consideration to the principle of proportionality. It also stated the requirement for the reasonable efforts to be made by the administrative body to carry out the removal. In the case at hand, the court held that the complainant has proven that he was eligible for the substitution. On the other hand, the Head of the Migration Directorate ‘has failed to present any evidence of the efforts made to establish the identity of the foreign national and that this was the reason for the unavailability of a travel document to be used to return him to his country of origin ‘Given that the body has failed to take any such actions during the detention period with a total length of more than 12 months^[103] and establish the relevant particulars, then continued detention is unjustified vis-à-vis the efforts in the part of the body and unproportioned to the goal sought to be achieved. The enforcement of the coercive administrative measure can be achieved by a measure that is less prejudicial to the rights of the foreign national’.

In the case of Mr. Hamid, the court also heard two witnesses, which Mr. Hamid requested in order to be able to prove that in his circumstances he was eligible for the alternative of detention. Ten days after the court hearing, by a Ruling dated 25 January 2016 in Case No 90/2016 the Sofia Administrative Court substituted Mr. Hamid’s detention with the less restrictive obligation to report to the local police station on a weekly basis. On 29 January 2016 Mr. Hamid was released on the grounds of the court judgment.

Recommendations

The analysis of the information summarised above warrants the following recommendations in connection with the right to be heard during judicial review of the lawfulness of the extension of the period of immigration detention:

Article 46a(4) of the FNBA must be amended in line with EU and international law to provide an opportunity to foreign nationals to be heard on the continuation of the period of detention on immigration grounds;
the Migration Directorate of the MIA must discontinue the practice of submitting to the court signed statements alleging that the foreign nationals do not wish to appear before the court or use the services of a lawyer or interpreter. Insofar as they have been signed without a professional interpreter being present, they are invalid and should be dismissed by the court;
in order to ensure that a detained foreign national is able to effectively exercise his/her right to be heard in a trial, the courts must provide the necessary procedural guarantees. During the trial the foreign national is entitled to translation and interpreting; to be notified of the scheduled court hearing and his/her right to be heard; the right to a lawyer or another counsel; the right to consult the file; the right to make his/her views known, establish all relevant facts and have his/her position taken into account by the court before which the case is pending.

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IV. INTERDISCIPLINARY CONCLUSIONS

From a legal standpoint, the right to be heard raises the standard of the administrative process and judicial review and creates effective preconditions for the use of detention as a measure of last resort. The report discusses the need to introduce and respect certain procedural guarantees for the exercise of the right of detained foreign nationals in Bulgaria to be granted a hearing. In this context, it is important to be fully aware that the procedure is one of detention that may last up to 18 months, and not accommodation at a Special Temporary Centre for the Accommodation of Foreign Nationals (as the Immigrant Detention Centres are misleadingly referred to in the FNBA).

One of the most repetitive accounts heard from detained foreign nationals in Bulgaria is that the country is treating them unfairly and inhumanely:

‘I set off to Europe, I escaped because I hoped that I will be seen as a valuable human being here. I am so disappointed. I cannot contact my family. It doesn’t matter whether you’re lying or telling the truth. You get a sentence anyway.’

According to the expert psychologist of the HEAR Project the failures in communication cannot be attributed to personal issues of any individual official who has not received adequate training, does not have sufficient information available to them or cannot rely on the services of a professional interpreter. On the contrary, they are indicative of a systematic problem and should be seen as the effect of certain institutional practices. These practices are based on segregation. Segregation is a phenomenon that goes hand in hand with globalisation. On the one hand, modern means of communication and the permeability of national borders and the boundaries between cultures boost the trend to uniformity and unity of people within ever expanding groups of human beings. However, in parallel the opposite trend aiming to ‘maintain or restore diversification’ is at play[104]. In the 1970s Claude-Levy Strauss said that human civilisation is a world-wide coalition of cultures, which retain their originality. Segregation is a failure of separation, that is of accounting for and keeping these two trends separate. Migrants are seen as ‘different’ people who want to gain entry illegally and destabilise us. What immigrants and refugees have been saying and that, which they represent through the loss of roots and a stable environment, raises fear in others—in those supposed to listen and hear something. This fear means that foreign nationals must be excluded and their words discarded. In the case of our interviewees this exclusion taken on paradoxical forms. What logical explanation can we provide for the errors in registration that are so common in Bulgaria. They have implications for the country of origin, birthdates, the spelling of the names and the languages spoken by detainees. Such frequent disparities between the spoken word and the reality of so many wrong entries must be sought elsewhere, notably in institutions ‘shifting responsibility to someone else’ on the excuse that a lie was initially told on purpose hence the guilt of the parties. This failure to hear underlies out assumption that the authorities are often placing these people in the shoes of one who does not know what they are saying—much like young children or the insane. This segregation is the reason migrants are so often not heard—their words being silenced at the expense of the voice of another, be in an interpreter or an official, who is seen as more authoritative than the migrant himself or herself. On the other hand, when segregation is the dominant practice of an institution then staff cohesion is maintained by excluding an external ‘foreign’ other, which becomes a pole magnet for hatred. This means that detained foreign nationals become the victims of a projected fear of some unspecified threat, hatred and lies, which brings and keeps staff together as an opposing group. The damage whose source is this external enemy must be evaded and prevented as a matter of overriding importance.

Removal and segregation as a key phenomenon in the detention and treatment of immigrants and refugees reveals the need for political action to create procedures and conditions for adequate hearing that conform to existing legal standards. Taking into account that in Bulgaria segregation remains an unresolved problem at institutions such as schools, hospitals, orphanages and old people’s homes, we can imagine the enormous challenges associated with establishing approaches based on listening/hearing and dialogue. On the other hand, there is no other counterweight to the concentration of so much power and dominance in a single place.

According to the expert psychologist under the HEAR Project it is essential to properly understand the social context in which detainees fail to be heard. In Bulgaria, emigration is traditionally much higher than immigration. During the Cold War migration and mobility from and to Bulgaria were strictly controlled by the State^[105]. After the fall of the totalitarian regime in 1989, approximately 2 million Bulgarians left the country. Bulgaria has neither traditions nor a model of accepting and integrating migrants, possibly with the exception of citizens of the former Soviet Union. According to the most recent Census (2011), foreign nationals residing permanently in Bulgaria make up 0.5% of the population^[106]. National migration law still reflects some of the attitudes that became deeply entrenched during the Cold War. Thus migrants—by default—are seen as a threat to national security, particularly those from the Middle East and Africa. Politicians and the media traditionally communicate these attitudes of anxiety to society. The analysis of the interviews with detained foreign nationals conducted under the HEAR Project reveal the following common practices of failing to hear the detainees: non-provision of information at the time of detention; non-communication between the authorities and the detainee during detention, and lack of clear rules and predictability. These practices result in mental problems in detainees (depression, anger, self-harm, attempted suicide), disillusionment and lack of trust in the authorities. Thus, following release, the experience gained with the lack of any respect and the failure to hear a detainee’s voice and story undermines social integration and increases the risk of radicalisation.

‘You remain human as long as you treat others humanely’, Akmal.

‘Busmantsi is a place where they stoke up hatred in your heart: not only for the police, but for Bulgarians in general. Bulgaria would be a much better place without Busmantsi’, Faramarz.

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[1] This is the official name of the immigrant detention centre in Bulgaria.

[2] Detailed information about the profile of all interviewees is contained in the next section of the report.

[3] In cases of subsequent detention, only the length of the last (current) detention is indicated.

[4] See case-study 5: the case of Hafizeh, Modjahed and Setareh.

[5] Decision on granting access to public information No 812100-12241 of 16 May 2016 of the Head of Legal and Regulatory Affairs Directorate of the MIA.

[6] The data relates to adult individuals. For minors, no breakdown in terms of sex is available. Their total number is 1073.

[7] See paragraphs 17-38 of the Handbook on the right to be heard of immigrants in detention

[8] Article 15(1) of the Return Directive

[9] See paragraphs 39-47 of the Handbook on the right to be heard of immigrants in detention

[10] 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 asylum application lodged in one of the Member States by a third country national or a stateless person.

[11] The entry in the Register of the Busmantsi Detention Centre was not corrected even after Mr. Mehmud surrendered his national passport. See case study 8. The case of Mehmud.

[12] The blue card is the registration card of an applicant for international protection.

[13] Article 44(9) of the Foreign Nationals in Bulgaria Act stipulates as follows: ‘By way of exception, where the circumstances detailed in paragraph 6 are present, an order on the accommodation of minors and underage persons at a special home for a maximum period of 3 months shall be issued. At the special homes referred to in paragraph 7 special rooms that are suitable for the accommodation of foreign minors or underage nationals shall be provided that are suitable to their age and needs. Detention shall not be allowed in the case of unaccompanied minors and underage individuals. The body that has imposed the coercive administrative measure shall notify the action taken to the Social Assistance Directorate, which shall take the actions provided for in the Child protection Act’

[14] Regarding the reluctance of the authorities to correct the wrong entries, even after being officially notified of the correct age of the children, see Individual Case Studies 3 and 4 Unaccompanied minors from Pakistan and Unaccompanied minors from Afghanistan.

[15] Detention on immigration grounds was applied as the first measure, without any consideration being given to available alternatives, even in the case of a stateless person who had been living in Bulgaria for 24 years and there were no indications that he was a threat to public order or national security. See Individual Case Study 1: The Case of Christof.

[16] See paragraphs 33-38 of the Handbook on the right to be heard of detained immigrants

[17] CAM (coercive administrative measure) applies to the detention order issued in respect of Mr. Faramarz.

[18] See Individual Case Study 7: The Case of Faramarz.

[19] §1(4)(b) of the Supplementary provisions of the Foreign Nationals in Bulgaria Act

[20] Decision No 212164-54 of 21 June 2016 of the MIA on granting access to public information.

[21] Guidelines No 8121z-78 of 24 January 2015 on the procedure for detention and the requirements for detention facilities and the rules applicable for them of the Ministry of Internal Affairs, Article 15

[22] Ibid, Article 15, paragraph 7

[23] See paragraphs 17-38 of the Handbook on the right to be heard of detained immigrants

[24] For an example of this practice see Case Study 9: The Case of Musab

[25] Article 44(5) of the FNBA stipulates as follows: ‘Where there are obstacles to a foreign national leaving Bulgaria immediately or to entering another country, such foreign national shall be obligated by an order issued by the authority that issued the order imposing the coercive administrative measure to report weekly at the local directorate of the Ministry of Interior exercising jurisdiction over the place of residence thereof according to a procedure established by the Implementing regulations adopted pursuant to this Act, unless barriers to the implementation of the deportation or expulsion, drop out and measures for the forthcoming return have been scheduled’.

[26] See paragraphs 48-50 of the Handbook on the right to be heard of detained immigrants

[27] Article 149(1) of the Administrative Procedure Code (APC).

[28] Article 61 of the APC stipulates the rules for notifying administrative decisions in Bulgaria.

[29] Reply dated 19 July 2016 to our request for access to public information (Ref No. 18532 of 8 July 2016) of the Vice President of the Sofia Administrative Court

[30] Letter reference No 603/18.08.2016 of the Secretary-General of the Supreme Administrative Court

[31] Decision No 3/02.08.2016 pursuant to Article 28, paragraph 2 of the Access to Public Information Act of the President of the Haskovo Administrative Court

[32] Head of the Metropolitan Directorate of Police, Decision No 513000-13711/16.08.2016 in connection with request for access to public information.

[33] MIA, Head of Directorate Legal Affairs, Decision No 812104-75/21.07.2016 on granting access to public information

[34] Only comprehensive data that indicates both the number of issued and the number of contested orders on detention on immigration grounds has been published. For example, according to the reply received the MIA does not keep statistical data about the number of contested orders issued by the Heads of the Local Border Police Directorates and the Border Police Directorate in Ruse. Furthermore, it is stated that the Migration Directorate of the MIA does not keep a register containing the relevant breakdown.

F The phrase is in English.

[36] The text appears in English in the source in Bulgarian.

[37] The text appears in English in the source in Bulgarian.

[38] The text appears in English in the source in Bulgarian.

[39] See paragraphs 50-53 of the Handbook on the right to be heard of detained immigrants

[40] Head of the metropolitan Directorate of Police, Decision No 513000-13711/16.08.2016 on access to public information.

[41] Article 44(7) of the FNBA.

[42] Decision No 812104-75/21.07.2016 on granting access to public information of the Head of the Legal Affairs Directorate of the MIA

[43] MIA, Head of the Legal Affairs Directorate, Decision No 212164-54/21.06.2016 on granting access to public information.

[44] See Section Right to be heard during detention below.

[45] Ombudsman of the Republic of Bulgaria, Annual report as a national prevention mechanism for 2015, p. 21, http://www.ombudsman.bg/pictures/file/Report_NPM_2015_Final_Edited.pdf

[46] According to the annual report on border monitoring of the Bulgarian Helsinki Committee the order was issued in 2016, see p. 27 of the report http://www.bghelsinki.org/media/uploads/documents/reports/special/2015_annual_report_access_to_territory_and_asylum_procedure_bg.pdf

[47] Ibid.

[48] Case No 7592/2015 on the record of the Sofia Administrative Court.

[49] See paragraphs 54-56 of the Handbook on the right to be heard of detained immigrants

[50] Case No 6879/2015 on the record of the Sofia Administrative Court

[51] Case С-9/2016 on the record of the Supreme Administrative Court

[52] Case 1401/2016 on the record of the Sofia Administrative Court

[53] For a detailed analysis of the court judgments, see Individual Case Study 7: The Case of Faramarz and Individual Case Study 9: The Case of Musab

[54] According to Decision No 812104-75/21.07.2016 on granting access to public information of the Head of the Legal Affairs Directorate of the MIA, the Migration Directorate of the MIA does not keep statistics on issued orders for the detention of foreign nationals for the purpose of making arrangements for their removal from Bulgaria or expulsion (the orders issued by the bodies referred to in Article.44(1) of the FNBA.

[55] Pursuant to 44, paragraph 6 of the FNBA.

[56] Pursuant to 44, paragraph 7 of the FNBA.

[57] According to Article 13 Regulation Iz-1201 of 1 June 2010 laying down the rules and provisions on internal order at centres for the temporary detention of foreign nationals and the functioning of such centres

[58] The interpreter under the HEAR project.

[59] Вж още свидетелства за полицейско насилие при „Изследване на индивидуални случаи: 2.Сафар“.

[60] Вж подробен разказ при „Изследване на индивидуални случаи: 3. Непридружени деца от Пакистан“.

[61] Наредба № 8121з-1130 от 14 септември 2015г. за реда за употреба на физическа сила и помощни средства от органите на Министерството на вътрешните работи, издадена от МВР

[62] See the lawyer‘s account in the blog of the FAR published under the title ‘Fearless’ on 16 October 2015 here http://blog.farbg.eu/безстрашие/

[63] In the Bulgarian text, the quote is in English.

[64] The case of Musab is examined in detail in Case Study 9: The Case of Musab. The section in question contains a commentary by the HEAR Project lawyer on disciplinary actions and practice at the Detention Centre.

[65] See Ilareva, Valeria, Detention on immigration grounds in international law and practice (Seeking a solution to challenges in Bulgaria), Human Rights magazine, Issue 1/2008, p. 31-34

[66] See paragraph 63 of the Handbook on the right to be heard of detained immigrants.

[67] See Centre for the Study of Democracy, Analytical report. Monitoring of return in Bulgaria, June 2015, p. 35, http://www.dmp.mvr.bg/NR/rdonlyres/3C8D62B8-E8D0-4920-91A7-7C0B349D2C61/0/Analit_doklad.pdf

[68] Directorate Migration of the MIA is the principal administrative body in Bulgaria responsible for preparing and carrying out returns. See Centre for the Study of Democracy, Analytical report. Monitoring of return in Bulgaria, June 2015, pp. 33-35, http://www.dmp.mvr.bg/NR/rdonlyres/3C8D62B8-E8D0-4920-91A7-7C0B349D2C61/0/Analit_doklad.pdf

[69] See paragraph 65 of the Handbook on the right to be heard of detained immigrants

[70] Article 44(8) of the FNBA

[71] See paragraph 66 of the Handbook on the right to be heard of detained immigrants

[72] The case of Christof is described in detail in Case Study 1: The Case of Christof.

[73] Judgment of 11 October 2011 in Case Awad v. Bulgaria, Application 46390/10, paragraphs 133 and 139

[74] Article 44(8) of the FNBA.

[75] However, the real reason why the Head of the Busmantsi Detention Centre requested the release of Mr. Faramarz were the extreme and desperate protest measures taken by the foreign national: ‘On 23 February 2016 he refused to eat and take his medication. In order to protect his life and health the Detention Centre in Sofia made arrangements for his transfer to the Medical Institute of the MIA. In front of a medical doctor from the Medical Institute Faramarz refused hospitalisation and was returned to the Detention Centre on the same day (Memo of the Head of the Detention Centre in Busmantsi).

[76] Ruling No 26 February 2016 in Case No 176/2016 on the record of the Sofia Administrative Court.

[77] Mr. Majid’s case is examined in detail in the Individual Case Studies 6: The Case of Majid.

[78] Article 67 of the Asylum and Refugees Act.

[79] See paragraphs 70 and 71 of the Handbook on the right to be heard of detained immigrants.

[80] MIA, Head of Legal Affairs Department, Decision No 812104-75/21.07.2016 on granting access to public information

[81] Article 58(4) (amended in the SG Nos 52/2007; 101/2015) of the ARA: When the application referred to in paragraph 3 has been submitted to another administrative body, that body must forward it to the State Agency for Refugees, which handles the registration procedure envisaged in Article 61(2) not later than 6 working days from the day of the application.

[82] See, for example, Ilareva, V., Arbitrariness regarding Access to the Asylum Procedure in Bulgaria. Information Note. 2 January 2012; AIDA Bulgaria Country Report: Fourth Update, October 2015, page 13; Ilareva, Valeria (author), Collection of Refugee Law, Black Flamingo Publishing, 2015, Section 2. Introduction

[83] Case study 4 concerned the submission of a subsequent application. In one case the person was detained while his application was under review (at the time of visiting the SAR); in another case the detained foreign national had already been granted international protection; and in one case no application had been submitted on account of the foreign national having continuously resided in Bulgaria for 24 years.

[84] The same reply was received to our enquiry concerning the Pakistani citizens.

[85] Judgment in Case No 11445/2015 on the record of the 42 Panel of the Sofia Administrative Court.

[86] The address is that of an abandoned army barracks situated next to the Detention Centre. See photograph in the Individual Case Studies: 6 The Case of Majid.

[87] Thus, for example, Zayn was removed from Bulgaria but the return operation to Pakistan failed and he was returned to the Busmantsi Detention Centre. He was then registered by the SAR and released.

[88] The case of Mr. Halil is explored in greater detail in the Individual Case Stories: 10. The Case of Halil.

[89] From English.

[90] Article 15(3)(c) of Directive 2013/32/ЕС stipulates a requirement for the protection seeker to be able to communicate freely in a language of their choosing.

[91] Judgment of 11.03.2016 in Case 12045/2015 on the record of the Sofia Administrative Court

[92] Judgment of 24.03.2016 in Case 12044/2015 on the record of the Sofia Administrative Court

[93] Article 4(1) of Directive 2011/95/EU stipulates as follows: ‘Member States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application’.

[94] By way of comparison, the UK has already ruled that summary refugee proceedings in conditions of detention contradict the standards of fairness. The legal precedents have been presented in: Detention Action, The Legal Challenge: http://detentionaction.org.uk/campaigns/end-the-fast-track-to-despair/legal-challenge

[95] Regulation No Іz-1201 of 1 June 2010 on the rules and procedure for the temporary detention of immigrants and the organisation of Immigrant Detention Centres

[96] See paragraphs 73-78 of the Handbook on the right to be heard of detained immigrants

[97] In connection with the disciplinary punishments Mr. Musab was subjected to and the failure to grant him a hearing prior to levying them, see Individual Case Study 9: The Case of Musab.

[98] See paragraphs 73-75 of the Handbook on the right to be heard of detained foreign nationals

[99] Ruling dated 27.05.2010 in Case 2724/2010 on the record of the Supreme Administrative Court and later case-law.

[100] Ruling dated 2.11.2015 on the record of Panel 8 of the Sofia Administrative Court in Case 8284/2015.

[101] Weekly reporting to the police is the popular name of the less restrictive alternative of detention. Its full name is ‘obligation of the foreign national to report to the local Directorate of Police under the jurisdiction of the Ministry of Internal Affairs in the area where the foreign national resides’ (Article 44(5) of the FNBA).

[102] Judgment of 5 February 2002 in Case Conka v. Belgium, Application 51564/99

[103] The period of prior detentions has been taken into account.

[104] To quote the anthropologist Claude Lévi-Strauss who wrote in the 1950s.

[105] See, for example, Krasteva, from Migration to Mobility. Policies and Roads, New Bulgarian University Publishing House, 2014; Lyakova, M., The Debate about Bulgaria-bound Migration Movements – dimensions of otherness today, in: In the Footsteps of Another. Compilation commemorating Maya Grekova, Prosveta Publishing, 2014.

[106] Source: NSI, pp. 23-24: http://www.nsi.bg/sites/default/files/files/pressreleases/Census2011final.pdf

Analytical report on the exercise by detained immigrants of the right to be heard in Bulgaria

TABLE OF CONTENTS

I. METHODOLOGY

II. INTRODUCTION OF THE INTERVIEWEES

III. STAGES IN THE EXERCISE OF THE RIGHT TO BE HEARD

IV. INTERDISCIPLINARY CONCLUSIONS

I. METHODOLOGY

II. INTRODUCTION OF THE INTERVIEWEES

III. STAGES IN THE EXERCISE OF THE RIGHT TO BE HEARD

1. Hearing before an initial decision on immigration detention is adopted

2. The right to be heard as a remedy after the issuance of an immigration detention order. The right to appeal and to a speedy and fair judicial review.

3. The right to be heard during immigration detention

3.1 Conditions of detention

3.2 Hearing with regard to the proper preparation or carrying out of removal

3.3 Review of detention at regular intervals

4. The right to be heard upon extension of the length of immigration detention

4.1 Right to be heard by the administrative body prior to the decision to extend detention

4.2 Right to be heard by a court of law in the context of judicial review

IV. INTERDISCIPLINARY CONCLUSIONS

**1. Hearing before an initial decision on immigration detention is adopted**

**3. The right to be heard during immigration detention**