The image has been used under licence from CC BY 2.0. Author: changTing
The cases of Ali and Milad
They are unaccompanied minors. Both Afghani citizens. Both are 16 years old.
Ali was detained at the Busmantsi Detention Centre on the 23rd of September 2015 and released on the 17th of December 2015, Length of detention: 2 months and 23 days
Milad was held in detention at Busmantsi Detention Centre on the 7th of September 2015 and released on the 17th of December 2015. Length of detention: 3 months and 10 days.
What is specific in their case is that both of them have valid Afghani passports, which however have their dates of birth declared such that the boys would appear to be of age. (to enable them to travel unaccompanied outside of Afghanistan). Ali surrenders his passport voluntarily at the Busmantsi Detention Centre and Milad’s passport was seized by the police at the time of his detention.. Via their HEAR Project lawyer , the families of the two minor children are able to produce their birth certificates which show their real age.
In his detention order, Ali is given a completely different name and date of birth.
‘My current name was written down for me at the police station. I told them this was not my name, but they wouldn’t listen. There were lots of people there. In the police station there was only an English interpreter. I don’t speak English. The interpreter would single-handedly give people dates of birth, so we could go away quicker.’
Ali has a copy of the initial order for his 24- hour detention at the Second Police Department in Sofia. He was served the order without an interpreter being present.
At the Busmantsi Detention Centre, Ali voluntarily surrenders his passport, which has his real name. He had tried to explain to the issue with his age, but couldn’t because no interpreter was provided. No one had spoken to him. And now one corrects the wrongly submitted name in the Court order despite his real name being indicated in the passport.
In Milad’s case, at time of his apprehension, the police takes his passport and without giving him a chance of a hearing., his details are copied in the orders (his correct name and incorrect date of birth).
The detention for Ali and Milad are issued by the Head of the Migration Directorate of the Metropolitan Directorate of Internal Affairs. They both follow the same template and contain references to a memo drawn up by the Head of the Control of the Stay of Foreign Nationals Unit of the Migration Directorate. The orders are served to Ali and Milad without an interpreter present against a blank signatory statement declaring: ‘I have been advised of the content of the order written in a language that I understand’. Neither Ali nor Milad were able to contest the orders or file complaints.
During his time spent in detention Ali complains of pain and heaviness on the right side of the head. He is a victim of kidnapping and physical violence in Afghanistan. His father is a businessman in Afghanistan who imports goods from Iran and China. He helps local schools, which does not please the Taliban.. One day, as Ali is leaving his father’s shop a group of people getting off a black van hit him in the head, blindfold and kidnap him.. For a month he is kept by ‘men with hoods’. Ali shows us his hands, which show scars from knife cuts. His kidnappers had also threatened to cut his throat. After a while, Ali manages to escape and his father sends us him outside of Afghanistan.
‘I have this pain on the right-hand side of my head, but the policeman wouldn’t allow me to see a doctor. The sergeant took a pill out of his pocket and gave it to me but I don’t trust him enough to take it.’
Via his HEAR project lawyer, on 10 December 2015, Ali submits a direct application with the Registry of the State Agency for Refugees (SAR). The application expressly states that he is an unaccompanied minor. Ali is registered as an asylum seeker on 17 December 2015 and released from the Busmantsi Detention Centre on the same day. The SAR register him with his correct name.
 The names have been chosen by the interviewees.
 Special Centre for the temporary Accommodation of Foreign Nationals (the legal name of the Bulgarian Immigrant Detention Centre in Busmantsi).
The image has been used under licence from CC BY-NC-SA 2.0. Author: Greenmonster
During a meeting with his lawyer on the 4th of December 2015, Milad said that the SAR had registered him some 45 days before but still left him in detention at Busmantsi. At the time of his registration, he told the authorities that he was 16 years old. According to the ruling dated the 25th of November 2015 of the Sofia Administrative Court, SAR did indeed register Milad as an asylum seeker on the 16th of October 2015 (the application for protection is lodged one month earlier on the 15th of September 2015). On account of Milad’s registration on the 16th of October 2015, the Court dismisses his application, but states the following: ‘In view of the application filed in the case, however, there are no barriers preventing the finding that the actions of the administrative body, from the date on which an asylum application was lodged to the actual registration of the asylum seeker, do indeed amount to failure to act in the case’. Despite being registered as an asylum seeker on the 16th of October 2015, the unaccompanied minor Milad remains in detention at Busmantsi for a further two months before his final release on the 17th of December 2015.
Milad is convinced that he was kept in Busmantsi longer on account of having a national passport. ‘They always keep Afghanis with passports longer that the others.’
Firstly, the failure to provide the two children with a hearing during the administrative procedure prior to the issuance of detention orders results in their incorrect age being recorded, causing the authorities to falsely believe that they are of age, in contravention of the statutory prohibition of detaining unaccompanied minors. The administrative bodies should heed the identified malpractice in the case of unaccompanied minors from Afghanistan who are also carriers of valid national passports. The fact that a foreign national holds an identity document does not discharge the authorities from the obligation to provide them with a hearing. After his detention order is issued, Ali voluntarily surrenders his passport , which however still leaves the wrongful record of his name unamended.
Secondly, both children are refugee seekers. . Ali is fleeing persecution in Afghanistan and belongs to at least two categories of vulnerable persons— unaccompanied minors and victims of serious forms of physical and mental violence. Despite this, the authorities fail to identify his vulnerabilities because a hearing is negated. Despite the child’s repeated complaints of heaviness and pain in the right-hand side of his head, which he attributed to earlier episodes of violence, the police guards at the Detention Centre do not allow him to see a doctor. This yet again raises grave concerns about the conditions under which children are kept at the Busmantsi Detention Centre .
Milad remains in detention at Busmantsi three months after the filed asylum application and two months after the application is officially registered. He is convinced that the reason for that is that he has been in possession of an Afghani passport. His allegations are corroborated by the observations of the ARF in other cases where legal aid was granted to detainees at the Busmantsi Centre. If, following the registration of Milad’s asylum application, the Bulgarian authorities had not discontinued the procedure for Milad’s return, their actions would be unlawful and in violation of the principle of prohibition of return (non-refoulement). Failure to release a person from detention, its immigratory character is still unlawful and is arbitrary.
 Case No 9740/2015 on the record of the 10th Panel of the Sofia Administrative Court.
 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’.
 Within the meaning of Article 21 of 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 and §1(4b) of the Foreign Nationals in Bulgaria Act.
 In May 2015 the ARF documented the return of dozens of Afghani citizens from vulnerable groups who had filed applications for international protection. They held valid Afghani passports, which the authorities retained, meaning that expulsion is not influenced by the policy of the Afghani Embassy to Sofia to refuse the issuance of travel documents to the citizens of that country who are unwilling to return to Afghanistan.