Detention of asylum seekers: interaction between the Return and Reception Conditions Directives in Bulgaria
25 Wednesday Nov 2015
In order to transpose the recast Reception Conditions Directive 2013/33/EU, Bulgaria amended its national asylum law to introduce detention of asylum seekers for the first time as of 1 January 2016. Until now, the Bulgarian legislation has not formally envisaged detention of asylum seekers, but in practice, asylum seekers have been detained as irregular immigrants. Detention currently happens under the Return Directive 2008/115/EC prior to giving asylum seekers access to the asylum procedure. Therefore, the new detention regime under the asylum law (Directive 2013/33) will complement the period of detention of asylum seekers, which starts to run under the regime of immigration law (Directive 2008/115). The focus of this article is the differentiation and interaction between the two distinct legal regimes of detention of persons who seek asylum. The analysis looks at the purpose and grounds for detention under the Reception Conditions and Return Directives, as well as at the respective length of detention, available remedies and detention conditions. The article further examines the conditions for lawfulness of the ‘switch’ of detention under a different legal regime.
Purpose and grounds for detention
According to Recital 9 of the Preamble of the Return Directive 2008/115/EC, 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 an asylum seeker has entered into force. Consequently, Article 2 of the EU Return Directive clearly defines its scope as applying to third-country nationals staying illegally on the territory of a Member State. The purpose of immigration detention of ‘a third-country national who is the subject of return procedures’ under Article 15 (1) of the Return Directive is ‘to prepare the return and/or carry out the removal process’.
Unlike the purpose of detention of illegally staying immigrants under the Return Directive, detention of asylum seekers under the recast Reception Conditions Directive serves a different aim. According to the fundamental principle of non-refoulement in refugee law, asylum seekers as a rule cannot be subject to return procedures. Article 8, paragraph 3 of Directive 2013/33/EU enumerates exhaustively six various grounds for detention of asylum seekers:
(a) in order to determine or verify the ‘identity or nationality’ of asylum seekers;
(b) 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 of the applicant;
(c) in order to decide, in the context of a procedure, on the applicant’s right to enter the territory (Bulgaria does not apply such an admissibility procedure and therefore this ground for detention has not been transposed);
(d) when the asylum seeker is detained subject to a return procedure under Directive 2008/115/EC, ‘in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision’;
(e) when ‘protection of national security or public order so requires’;
(f) in accordance with Article 28 of the Dublin Regulation (EU) No 604/2013 for the purpose of a transfer to the Member State responsible for examining the application for international protection and when there is a significant risk of absconding of the asylum seeker.“
As the grounds for detention are different under the immigration regime and the asylum regime, so too are the authorities responsible for issuing the respective detention orders. In Bulgaria, detention orders facilitating return are issued by the administrative body that issued the return/removal decision or by the Director of the Migration Directorate at the Ministry of the Interior. On the other hand, under the amendments in the asylum legislation, the competent authority for issuing detention orders for asylum seekers is the head of the State Agency for Refugees (or an official authorized by him), who is also the decision-making body on the applications for international protection in the country. Detention for the purpose of return is stipulated in the Law on Foreign Nationals in the Republic of Bulgaria. Detention of asylum seekers is regulated by the Law on Asylum and Refugees.
In view of the fact that both detention regimes relate to deprivation of liberty for administrative reasons, they have similar fundamental principles. Both the Return Directive (Article 15, paragraph 1 and Recital 16 of the Preamble) and the recast Reception Conditions Directive (Article 8, paragraph 2 and Recital 15 of the Preamble) provide that detention is a measure of last resort applied only in exceptional circumstances defined in law and subject to the principle of necessity and proportionality with regard to the manner of detention and the purpose pursued. Priority shall be given to less coercive measures that serve the same objectives. Another feature of detention under both Directives is that the administrative procedures relating to the grounds for detention (e.g. removal or securing the participation of the third country national in the examination of his/her asylum application) shall be implemented with ‘due diligence’. There shall be an individual approach. The fact that one is staying illegally or the fact that one is an asylum seeker is not in itself a sufficient ground for his/her detention.
Length of detention
The length of detention is the main issue that preoccupies every detainee. “How long I will stay here?’ is the first question that they ask at the detention centre. Detainees count every day of their deprivation of liberty and, if they are informed of the timeframe of their detention, they know exactly the number of days left to freedom. Lack of an exact time limit to detention leads to deep insecurity and anxiety.
The Return Directive provides for a maximum time limit of detention of 18 months, which has also been adopted in Bulgarian law. Every six months there is ex officio judicial review of the length of detention for the purpose of return/removal, but it cannot be extended beyond 18 months.
With regard to asylum seekers, however, neither the recast Reception Conditions Directive, nor Bulgarian national law, provide for an exact time limit of the length of detention. Article 45b (1) of the Bulgarian Law on Asylum and Refugees only states that detention shall be ‘temporary and for the shortest possible period’. This wording is in line with Recital 16 of the Preamble and Article 9 (1) of Directive 2013/33/EU, which requires that in accordance with the ‘due diligence’ notion, ‘Member States take concrete and meaningful steps to ensure that the time needed to verify the grounds for detention is as short as possible, and that there is a real prospect that such verification can be carried out successfully in the shortest possible time. Detention shall not exceed the time reasonably needed to complete the relevant procedures.’ It remains to be seen how these provisions will be interpreted and applied in practice and whether the national case law will allow for longer detention of asylum seekers than of irregular migrants.
Remedies against detention can be classified in two types. The first ones concern the lawfulness of the initial detention order. The second, the lawfulness of the length of detention.
Speediness is the crucial legal requirement with regard to review of the lawfulness of detention (Article 15, Paragraph 2 of the Return Directive and Article 9, Paragraph 3 of the recast Reception Conditions Directive). Bulgarian asylum law, however, has not fulfilled the requirement of Article 9 (3) of Directive 2013/33 that Member States shall define in national law the period within which the judicial review shall be conducted. Article 45c (5) of the national Law on Asylum and Refugees only provides that the detention order can be appealed under the general procedure of the Code on Administrative Procedure; the appeal does not suspend the execution of the detention order and the judgment of the first court is final. The available remedies under the national asylum regime are less favourable in comparison with the remedies regarding immigration detention of illegally staying immigrants. In the latter case, the Law on Foreign Nationals in the Republic of Bulgaria provides that the decision of the court shall be issued within one month from initiation of the court proceedings. The workload of administrative judges who decide on the lawfulness of detention is significant and lack of prioritization of asylum detention cases tends to add to the length of detention of asylum seekers.
The above setback might be compensated by the remedies for review of the duration of detention. Article 45d, paragraph 3 of the Law on Asylum and Refugees (LAR) provides that upon establishment of new data and circumstances or by request of the detained asylum seeker, within 7 days the competent authority shall issue a reasoned decision whether to continue or discontinue the detention. This decision is subject to appeal under the same rules as described above with regard to the initial detention order. An important guarantee in this regard is the explicit provision of paragraph 5 of Article 45d LAR, which states that non-completion of the asylum proceedings within the period prescribed in the law, which is not the fault of the asylum seeker, cannot be a ground for extension of the length of detention.
Under the new asylum detention regime in Bulgarian law, third country nationals have to be moved to a different place when the ground for their detention leaves the scope of Directive 2008/115 and falls within the scope of Directive 2013/33. Currently the detention centres for irregular migrants in Bulgaria are under the auspices of the Migration Directorate at the Ministry of Interior. The detention centres for asylum seekers as of 01 January 2016 shall constitute ‘closed departments’ at the reception centres for asylum seekers under the auspices of the head of the State Agency for Refugees. The national law guarantees detained asylum seekers access to open air spaces; visits by family members, lawyers and representatives of non-governmental and international organisations, access to information, as well as respect for privacy.
It is noteworthy, however, that while the detention regime of irregular migrants under the Law on Foreign Nationals in the Republic of Bulgaria explicitly prohibits detention of unaccompanied minors, detention of unaccompanied minor asylum seekers is permitted by the new asylum regime. According to Article 45f of LAR, detention of children can take place as a last resort ‘with a view to preserving family unity or to guarantee their protection and security’. It is hard to find the compatibility of the cited national provision with Article 37 of the Convention on the Rights of the Child and the requirement that detention shall be a measure of last resort.
Switch of regimes
In the Bulgarian administrative practice, access to the asylum procedure is not automatic upon submission of the asylum application, as required by Article 3 of the Asylum Procedures Directive 2013/32/EU. Usually, asylum seekers who have entered the country irregularly are immediately issued a removal order and detained for the purpose of its execution. It is against this background that asylum seekers make their applications for international protection, often from within the detention centre for irregular immigrants. Their asylum application is forwarded to the State Agency for Refugees, which is the competent institution to register the third country nationals as asylum seekers and accommodate them in the reception centres for asylum seekers. For the latter there is no time limit in national law, which makes access to the asylum procedure arbitrary: registration as asylum seeker might take from several days to several months (if the asylum seekers’ removal order has not been carried out in the meantime). By national law, upon registration as asylum seeker, the implementation of one’s removal order is suspended until a final negative decision on the asylum application enters into force. However, in practice, detention of asylum seekers in Bulgaria has been allowed until they are admitted in the so-called ‘regular’ asylum procedure, because the head of the State Agency for Refugees has issued an order that the immigration centres can be used as ‘transit centres’ for carrying out the Dublin procedure and for processing manifestly unfounded applications for international protection.
Thus, in the Case of Kadzoev C‑357/09 PPU, the asylum seeker had been placed in immigration detention for the purpose of removal and his asylum application was registered as late as 7 months after it was made. Mr. Kadzoev’s asylum application was processed and rejected as manifestly unfounded in the immigration detention centre, in spite of credible accounts that he was a torture victim. In national court proceedings, the question arose ‘whether, when calculating the period of detention for the purpose of removal under Article 15(5) and (6) of Directive 2008/115, the period must be included during which the execution of the removal decision was suspended because of the examination of an application for asylum’ (paragraph 40 of the Judgment). The Court of Justice noted that detention for the purpose of removal governed by Directive 2008/115 and detention of an asylum seeker ‘fall under different legal rules’ (para.45). Consequently, the Luxembourg Court answered that a period during which a person has been held in a detention centre on the basis of a decision taken pursuant to the provisions of national and European law concerning asylum seekers may not be regarded as detention for the purpose of removal within the meaning of Article 15 of Directive 2008/115. The latter was not the case with Mr. Kadzoev, whose detention during the asylum procedure had continued on the basis of the detention order for the purpose of removal. The Bulgarian national legislation did not contain legal grounds for the detention of asylum seekers.
In the Case of Arslan C-534/11, the Court of Justice of the European Union elaborated further the conditions, upon which a third country national may continue to be detained upon change of status from ‘irregular immigrant’ to ‘asylum seeker’. The Court found that the Reception Conditions Directive and the Asylum Procedures Directive do not preclude a third-country national who has applied for international protection after having been detained under Article 15 of Directive 2008/115 from being kept in detention on the basis of a provision of national law, where it appears, after an assessment on a case-by-case basis of all the relevant circumstances, that the application was made solely to delay or jeopardise the enforcement of the return decision and that it is objectively necessary to maintain detention to prevent the person concerned from permanently evading his return. The joint reading of the cases of Kadzoev and Arslan, along the lines of Directives 2008/115 and 2013/33, reveal that should the authorities wish to continue the detention of a third country national, the competent body shall issue a new detention order on a national law ground in the field of asylum.
Differentiation of the legal regimes of detention under migration law and asylum law respectively has important practical consequences. It makes the authorities conscious of the purpose of detention and the steps needed for its effective achievement. Such a distinction might prevent the aimless detention of asylum seekers and stop their exposure to a real risk of refoulement under the regime for illegally staying third-country nationals. The analysis of the two regimes in Bulgaria has revealed that, paradoxically, in some instances (such as the length of detention, speediness of judicial review, possibility to detain unaccompanied children), the national transposition of EU law has led to less favourable treatment of third country nationals under the detention regime of asylum seekers in comparison with the detention regime of irregular migrants. Asylum seekers, however, have a special standing under EU and international law, which takes into account their specific vulnerability. Any detention of asylum seekers exposes them to a high risk of re-traumatisation and reduces the future prospect of successful adaptation and eventual integration in the host society.