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- Program in Refugee and Asylum Law
Postdoctoral Fellow, Faculty of Law, University of Lund, Sweden
The recently finalized second phase of the Common European Asylum System (CEAS) produced a number of legal instruments which will likely stay with us in the foreseeable future. As the European Council has framed it, “the overall priority now is to consistently transpose, effectively implement and consolidate the legal instruments and policy measures in place.” The deadline for transposing the Reception Conditions Directive (recast) (2013/33/EU) and the Procedures Directive (recast) (2013/32/EU) has now passed and, in order to fulfill its obligations under the above mentioned directives, Bulgaria introduced amendments to its asylum legislation in December 2015. Perhaps the most salient modification incorporated into the Bulgarian Asylum and Refugees Act concerns the detention of applicants seeking international protection. For the first time, Bulgarian legislation dictates circumstances under which detention of asylum applicants is legal. While the new detailed national provisions on detention in the course of the status determination procedure are in the spirit of the Reception Conditions Directive (recast), there are still many questions left unanswered, and the danger of abuse is of real concern. This concern is especially salient considering the increased arrivals of asylum seekers in Bulgaria and the refugee “crisis” that Europe currently faces and the dangerously high probability that many will be affected by detention practices.
Interaction between Immigration Detention and Asylum Detention
Before focusing on how detention is regulated by the Reception Conditions Directive (recast) and the new Bulgarian law, the reader should be reminded that there is a separate regime of immigration detention that operates in parallel with detention in the course of the refugee status determination procedure. Under international human rights law this regime is regulated by Article 9 of the International Covenant on Civil and Political Rights (“Covenant”) and Article 5(1)(f) of the European Convention of Human Rights (“European Convention”). Under EU law this regime of immigration detention is regulated by the Return Directive (2008/115/EC) while under Bulgarian law it is regulated by the Aliens Act. The purpose of detention under this immigration regime is to prepare the return of a third country national who is illegally present in the host country. Most importantly, however, as Recital (9) of the preamble of the Return Directive clarifies, “a third-country national who has applied for asylum in a Member State should not be regarded as staying illegally on the territory of that Member State until a negative decision on the application, or a decision ending his or her right of stay as asylum seeker has entered into force.” The 1951 Convention relating to the Status of Refugees (“1951 Convention”) is also relevant here given the declaratory character of refugee status determination. Though there appears to be a clear separation between the two regimes of detention, there are at least two reasons the relationship between them can be quite complicated.
Firstly, the triggering of the regime addressing the specific situation of asylum-seekers is contingent on the registration of their application for refugee protection. In Bulgaria, however, there has been a widespread practice of not registering applications for refugee status. Thus, instead of benefiting from status as asylum seekers, migrants are issued with deportation decisions that create a basis for the issuance of detention orders. In this scenario, the migrant falls within the regime of immigration detention prior to deportation. We are yet to see whether this practice will end under the influence of Article 6 of the Procedures Directive (recast), which was transposed in the Bulgarian Asylum and Refugees Act and which specifically stipulates that the application for refugee protection shall be registered not later than three working days after its submission. Most importantly, the newly modified national asylum legislation stipulates that if a migrant submits an application for refugee status while in immigration detention facilities or at the border, this application must be forwarded to the National Refugee Agency. The Agency is subsequently under obligation to register the application no later than six working days after its submission. The incorporation of these deadlines into the national legal order is a manifestation of the positive influence of EU asylum law on the national legal order. Hopefully, this effort will ensure a clear separation between immigration detention for the purposes of deportation and detention in the context of the determination of international protection needs. If Bulgaria continues its practice of not registering asylum applications, however, then the distinction between the two regimes of detention will not be guaranteed. Even more troubling, the current practice creates an enormous risk that people will be returned to their countries of origin in violation of the principle of non-refoulement as enshrined within Article 33 of the 1951 Convention.
Restrictions on Residence and Freedom of Movement versus Detention
The Reception Conditions Directive (recast) proclaims the right of applicants to freedom of movement, but also regulates circumstances under which detention is permissible. Here, it is important to make a distinction between restrictions on freedom of movement and detention (a form of deprivation of liberty): a restriction of freedom of movement does not necessarily amount to detention. This distinction is also reflected in international human rights law in terms of Article 9 of the Covenant and Article 5 of the European Convention where deprivation of liberty and, accordingly, detention are addressed. In contrast, Article 12(1) of the Covenant and Article 2(1) of Protocol 4 of the European Convention address freedom of movement. Notably, the personal scope of the right to freedom of movement under the European Convention is restricted to “everyone lawfully within the territory” of the state. In terms of those seeking asylum, individuals who have applied for international protection are lawfully present and can therefore benefit from the right to freedom of movement. However, it is imperative to note that the right to freedom of movement can be subject to permissible limitations as outlined by Article 12(3) of the Covenant and Article 2(3) of Protocol 4 to the European Convention. Again, this is true under international law as well in terms of Article 26 of the 1951 Convention and Article 9 of the Covenant.
How is all of the above reflected in the Reception Conditions Directive (recast) and in Bulgarian law?
As is evident from Article 7 and Article 8 of the directive, a distinction is made between restrictions on the residence of applicants “for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application for international protection,” and detention. The Reception Conditions Directive defines “detention” as “confinement of an applicant by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement.” The latter appears to be a sufficiently broad definition, which might be hard to reconcile with the permissible forms of restrictions on residence and freedom of movement under Article 7 of the Reception Conditions Directive. Thus, the distinction between the detention and restriction on residence and freedom of movement is not particularly clear.
This obscurity is also reflected in Bulgaria’s national legislation. On the one hand, it envisions the establishment of “closed centers,” where asylum seekers may be detained during the procedure and where they have certain procedural guarantees. On the other hand, it also envisions the establishment of transit and registration centers (for the registration, accommodation, medical examination, status determination, and determination of the responsible state under the Dublin mechanism). The latter can be open or closed. The possibility for closed transit and registration centers implies that the asylum seekers accommodated in these centers might be both deprived of freedom of movement, and also, in practice, detained; in other words, the accommodation might be detention in all but name. The danger here, though, is that the formal title of the center, namely “transit” or “registration” center, might affect the available safeguards (detention only as a measure of last resort, subject to the principle of proportionality and necessity, motivation of the detention and possibilities for appealing the measure etc.) that are applicable when an asylum seeker is formally detained in a closed center.
Vague Grounds for Detention
The Reception Conditions Directive (recast) contains elaborate rules on the detention of asylum-seekers. Specifically, Article 8(1) prohibits detention “for the sole reason” of applying for international protection. Detention is permissible only “when it proves necessary and on the basis of an individual assessment of each case,” and if less coercive alternatives cannot be applied. Member States are required to adopt national legislation laying down rules concerning alternatives to detention. The Bulgarian Asylum and Refugee Act, for example, incorporates such an alternative: the responsible national authorities may order the asylum seeker to report every two weeks during the status determination procedure. Asylum seekers can be detained if this measure cannot be effectively applied and after assessment of their individual circumstances. Detention under such circumstances may be based on any of the exhaustive list of grounds as outlined in the national legislation and which correspond to the grounds outlined in Article 8(3) of the Reception Conditions Directive (recast). These grounds are as follows: in order to determine or verify his or her identity or nationality; in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding; when protection of national security or public order so requires; and for establishing the member state responsible for examining the asylum application under the Dublin mechanism.
Overall, the formulation of these grounds, however, is vague and we are yet to see how they will be interpreted and applied in practice. Particularly disturbing is the possibility for detention when protection of national security and public order so requires (Article 8(3)(e), Reception Conditions Directive (recast)). As mentioned above, this possibility was recently dealt with in terms of a preliminary ruling from the EU Court of Justice, which was the the first opportunity for a court to clarify a provision from the Reception Conditions Directive (recast). The Grand Chamber of the Court of Justice rendered its judgment on 15 February 2016 and emphasized that the Article 8(3)(e) allows detention of an applicant only on the basis of his or her individual conduct, when it is strictly necessary and under exceptional circumstances. The gist of the court’s position can be captured with the following quotation from the judgment:
Thus, placing an applicant in detention under […] [Article 8(3)(e) of the Reception Conditions Directive (recast)] is, in view of the requirement of necessity, justified on the ground of a threat of national security or public order only if the applicant’s individual conduct represents a genuine, present and sufficiently serious threat, affecting a fundamental interest of society or the internal or external security of the Member State concerned.
While helpful, the overall vagueness of the grounds for detention has not been alleviated.
No Time Limits on Detention
There is no minimum length of time for which an asylum seeker may be detained under international law, nor is such a minimum provided for in the Reception Conditions Directive (recast) or in the Bulgarian legal order. On this point, the regime of detention in the course of the refugee status determination procedure differs from the regime of immigration detention pending deportation. Paradoxically, the latter might be more protective than the former since the Return Directive and the Bulgarian legislation envision a minimum period of immigration detention. Indeed, the Bulgarian Asylum and Refugees Act stipulates that detention in the course of the refugee status determination has to be “temporal and for the shortest possible period.” This is reflective of Article 9(1) and the preamble of the Reception Conditions Directive as well as provisions in international law. However, the detailed regulation on when it will be possible to detain asylum seekers combined with the vague nature of the grounds justifying detention and the absence of concrete time limits in effect legitimatizes the practice. In this sense, the regulation creates a real danger of unnecessary or prolonged detention in Bulgaria, especially considering the weak procedural guarantees involved.
Weak Procedural Guarantees
Article 9(3) of the Reception Conditions Directive (recast) is a long provision addressing the issue of judicial review: “Where detention is ordered by administrative authorities, Member States shall provide for a speedy judicial review of the lawfulness of detention to be conducted ex officio and/or at the request of the applicant.” The Bulgarian legislation, however, does not envision an ex officio review and rather opts for review at the request of the applicant. Article 9(3) of the Reception Conditions Directive (recast) continues to stipulate that:
[w]hen conducted at the request of the applicant, it [the review] shall be decided on as speedily as possible after the launch of the relevant proceedings. To this end Member States shall define in national law the period within which the judicial review ex officio and/or the judicial review at the request of the applicant shall be conducted [emphasis added].
The Bulgarian Asylum and Refugees Act has failed to define this period though; instead, it contains a vague reference to the Administrative Procedures Code. Pursuant to the national legislation a request for reviewing the detention order also has no suspensive effect.
Review is not only possible when it comes to the initial decision to detain, but also with regards to whether the detention continues to be necessary. To this effect, Article 9(5) of the Reception Conditions Directive (recast) envisions review of the detention at reasonable intervals. The Bulgarian legislation requires that the directors of the closed centers review monthly whether the grounds for detention continue to persist and to report to the director of the National Refugee Agency. The Agency in turn has to review the detention decisions when there are new circumstances or when an asylum seeker requests a review. This review has to result in a motivated decision to be issued within seven days. This decision can be appealed in accordance with the Administrative Procedures Code. As already mentioned above, this procedure is far from satisfactory and lacks the detailed regulation that one would expect in relation to measures infringing such a fundamental right as the right to liberty.
Should the new provisions in the Bulgarian legislation as introduced under the influence of EU law be celebrated? On the one hand, they can be assessed as a positive development: the national authorities are now obliged to register asylum applications and the law has elaborated on when detention of asylum seekers is permissible. On the other hand, it may be argued that the law, by regulating this form of detention, in effect legitimizes it. This is very dangerous in the Bulgarian context, namely because EU law is invoked as the standard and is not often critically evaluated. In effect, as long as repressive detention of migrants is allowed under EU law, the Bulgarian authorities might rush to use it. Worryingly, questions about whether this trend is in compliance with international human rights law and the 1951 Convention are rarely asked. Any justification for depriving an asylum seeker of his or her liberty is rarely scrutinized in the current climate surrounding the European refugee “crisis” and the recognition that detention itself is an infliction of deliberate harm is wholly absent; rather, in a concerning trend, detention is increasingly viewed in Europe and around the world as an inevitable adjunct of the state’s immigration control powers. As of today, we are yet to see whether detention of asylum seekers in Bulgaria will become a mass practice or whether it will be used in isolated cases.
 Source is in Bulgarian.
 Source is in Bulgarian.
 C Costello, The Human Rights of Migrants and Refugees in European law, (Oxford University Press, 2016) 283.
 See paragraphs 74-79 of the judgment.
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