“You are the light of the world. A town built on a hill cannot be hidden. Neither do people light a lamp and put it under a bowl. Instead, they put it on its stand, and it gives light to everyone in the house. In the same way, let your light shine before others, that they may see your good deeds and glorify your Father in heaven.”
- Bible, Book of Matthew, 5:14-16
With this publication we would like to shine light on the lawsuits which we had to conduct for the last month or so to defend the access of Ukrainian refugees to international protection in Bulgaria. As per the Bulgarian Law on Asylum and Refugees (LAR), international protection includes two types of statuses – refugee status and humanitarian status. It is different from the temporary protection, which was additionally activated by the Council of the European Union on the 4th of March 2022 as a response to the mass influx of people due to the war in Ukraine.
CASE AGAINST ORDER № РД05-263/08.04.2022 OF THE CHAIRPERSON OF THE STATE AGENCY FOR REFUGEES
On the 7th and 8th of April 2022 the Chairperson of the State Agency for Refugees (SAR) issued an Order which materialised the talk of political authorities that Ukrainian refugees have access only to temporary protection in Bulgaria. It ordered that “registration of and institution of proceedings for granting international protection upon applications by displaced persons from Ukraine shall be immediately discontinued, and instead these persons shall be registered as foreigners with granted temporary protection.” The Chairperson of SAR also discontinues proceedings for granting international protection to displaced persons from Ukraine instituted after the 14th of March 2022. The Order is issued without regard to the rules for participation of interested parties as laid in the Administrative Procedure Code, due to “urgency”. It is also ordered that the decisions for discontinuing the proceedings for granting international protection shall be preliminarily executed (that is, even if appealed, their immediate execution would not be stalled). The word “immediate” is repeated multiple times throughout the Order of the Chairperson of SAR.
On the 11th of April the Foundation for Access to Rights together with two refugees – a mother and her son, appealed the Order of the Chairperson of SAR and explicitly requested that the execution of the Order is stalled until the Court has decided on its (un)lawfulness. On the 15th of April 2022 the deciding panel of judges of the Administrative Court of Sofia – city rejected our request for the stalling of the immediate execution of the Order. We have appealed this ruling and at present are awaiting the decision of the Supreme Administrative Court on the matter. As for the merits of the case – the question of the lawfulness of the Order, we are currently awaiting the fixing of a date for the first court hearing in the Administrative Court of Sofia – city.
What is the cost of the immediate preliminary execution of the Order?
- Persons in need of urgent medical aid have no access to treatment which endangers their life
As of the date of the Order’s issuing Bulgarian legislation has yet to include the procedure and conditions for receiving urgent medical aid by persons with temporary protection. There is, however, such a procedure available for persons seeking international protection, which is working seamlessly.  This leads to an impossibility for continuation of urgent treatment of persons with chronical diseases (such as diabetes and cardiovascular problems).
- Unaccompanied and separated children from Ukraine are left unprotected
According to current legislation, unaccompanied children seeking or with granted international protection are represented by a lawyer, included in the register for legal aid of the National bureau for legal aid. However, for children with granted temporary protection there is currently no such possibility envisaged in national legislation, meaning that these children are left with no legal representation. This is a grave breach of the principle for the best interest of the child in every decision made by state authorities.
- This list is not exhaustive: obstructed access to psychological help to persons who have suffered loss, or to victims of violence; obstruction of the future access of persons to international protection (explained further on), etc.
Why is the Order, in its merits, unlawful?
- The Order is in breach of European Union Law. Directive 2001/55/EC explicitly states that persons with the right to temporary protection have the right to lodge an application for international protection at any time. This is confirmed by the Operational guidelines of the European Commission, adopted on the 17th of March. The Law of the European Union has a direct effect and primacy over conflicting national provisions and acts.
- The Order “introduces” a new ground for discontinuation of the procedure for international protection, which is not included in the exhaustive list of grounds in Article 15 of the LAR. This is intolerable since laws can be only amended by the Parliament and not by Orders from other authorities.
- With this Order the Chairperson of the SAR has given unfeasible promises. In the Order it is stated that the affected persons shall be informed of the “opportunity” to request a renewal of their proceedings for international protection after the period of validity of temporary protection has finished. In reality there is no such legislation for “renewal” of proceedings and no such amendments of the LAR are currently being planned. According to the LAR, a new application for international protection after the discontinuation of the first proceedings must undergo an admissibility procedure, which requires that the person applying has to provide new evidence and prove new relevant circumstances. Thus, the right of the affected persons to future access to the procedure for granting international protection is barred by the Order of the Chairperson of SAR and the immediate discontinuation of the pending proceedings.
CASES AGAINST DECISIONS 180 AND 181 OF 30.03.2022 OF THE COUNCIL OF MINISTERS OF BULGARIA
Decision №180 of 30th of March 2022 of the Council of Ministers states that until 15th of April 2022 temporary protection is granted to persons arriving from Ukraine regardless of their will. Our arguments to appeal this decision are as follows:
- On the one hand, the right to temporary protection cannot be restricted by such a time limit. This led to an artificial mass panic amongst the affected persons.
- On the other hand, people are subjects, not objects of their own rights and, consequently, should express their will to exercise their rights instead of their rights being forced on them. Refugees from Ukraine have the right to choose in which Member State they want to apply for temporary protection. This requires that they are informed when exercising this right, since they are guaranteed to use the rights resulting from temporary protection only in the Member State which has issued the residence permit.
Proceedings have been instituted for the application against Decision №180 of 30th of March 2022. The court hearing for this case, № 3789/2022 as per the court inventory of the Supreme Administrative Court, is scheduled for the 17th of May 2022.
Decision №181 of 30th of March 2022 of the Council of Ministers amends and supplements the “Program for using humanitarian aid for persons seeking asylum in the Republic of Bulgaria as a result of the war in Ukraine”. The Decision unjustifiably treats displaced persons from Ukraine who have not been registered as foreigners with granted temporary protection until 15th of April 2022 differently and puts them in a disadvantaged position by depriving them from the opportunity to receive humanitarian aid via the above-mentioned program. In breach of the prohibition on discrimination, this Decision discriminates displaced persons from Ukraine who have applied for international protection and do not have a registration card for a foreigner with granted temporary protection. This discriminative decision serves as a threat - a punishment for the people, who have chosen to apply for international protection. In its Decision the Council of Ministers has failed to consider the fact that, regardless of whether the persons have applied for international protection or have been registered as foreigners who have received temporary protection, their reasons for displacement from Ukraine are the same. Therefore, there are no grounds for the application of a different treatment. Both groups are fleeing the developing armed activities in the Ukraine to preserve their lives and have the same need for humanitarian aid, including shelter and food.
Proceedings have been instituted for this application against Decision №181 of 30th of March 2022. The court hearing for this case, № 3790/2022 as per the court inventory of the Supreme Administrative Court, is scheduled for the 16th of May 2022.
WHY IS FOUNDATION FOR ACCESS TO RIGHTS - FAR CONDUCTING THE LAWSUITS?
As pointed out in the name of the organization, the Foundation for Access to Rights - FAR was founded in 2013 with the mission of “creating effective mechanisms for guaranteeing the practical access to rights and effective protection against arbitrary deprivation of rights”. Ever since its establishment the focus group of FAR are refugees and migrants in Bulgaria and especially the most vulnerable ones amongst them. The Chairperson and Head Lawyer of FAR, Valeria Ilareva, has 21 years of experience in the area of refugee and migrant law and an academic training on an European level, unique for Bulgaria. It is our duty to start leading the battle, though we realize that this battle does not belong to us, but to the people who are arbitrarily deprived of access to their right to international protection in Bulgaria.
WHAT CAN AFFECTED PERSONS DO TO PROTECT THEMSELVES?
Until the first court hearing every person (not only natural persons, but also organizations protecting their rights) with a legal interest has the right to request to the court to be added as a party to the dispute. The interested person has to file a request to the court with an accounted for payment order attached for the payment of a state fee of 10 leva on behalf of the applicant. Individuals who do not have the financial possibility to pay the fee can request to be freed from the payment by presenting a declaration for their income and marital status.
If you would like Foundation for Access to Rights to assist you to be added as a party to the dispute, do not hesitate to contact us at firstname.lastname@example.org!
 Short explanation video on the difference and interaction between temporary and international protection, available in Bulgarian at: https://www.farbg.eu/bg/latest/informacionno-video-za-ukrainskite-bezhanci-11-03-2022.
 Administrative case № 3462/2022 as per the court inventory of the Administrative Court of Sofia – city.
 According to Article 29, paragraph 1, point 5 of the LAR, during the proceedings for grating of international protection foreigners have a right to health insurance, accessible medical aid, and free-of-charge medical assistance on the same conditions and through the same procedure as for Bulgarian nationals. This right is unconditional and has no time limit. Moreover, as per Article 40, paragraph 3, point 7 of the Health Insurance Law (HIL), these persons are insured on the expense of the state budget. According to Article 34, paragraph 1, point 3 of the HIL the obligation of the State to provide health insurance starts as of the date of institution of proceedings on the application for international protection. On the 13th of April 2022 the Parliament adopted at second reading a Law for Amending and Supplementing the HIL (LASHIL; promulgated in the State Gazette on the 26th of April). In §4 of the LASHIL it is envisaged that the conditions for providing health insurance to persons under temporary protection shall be defined by an additional ordinance of the Council of Ministers. This ordinance is yet to be adopted and there is no clarity as to what its contents will be.
 Paragraph 10 of the Preamble, Article 3, paragraph 1, Article 17 and 19 of Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.
 Section 7 of the Annex to the Communication from the Commission on Operational guidelines for the implementation of Council implementing Decision 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection, promulgated in the official European Union Gazette C 126 I, 21st of March 2022
 As pointed out in the Operative guidelines of the European Commission of 17th of March 2022 and in accordance with paragraph 16 of the Preamble of Council implementing Decision 2022/382, “Once a Member State has issued a residence permit in accordance with Directive 2001/55/EC, the person enjoying temporary protection, whilst having the right to travel within the Union for 90 days within a 180-day period, should be able to avail of the rights derived from temporary protection only in the Member State that issued the residence permit. This should be without prejudice to the possibility for a Member State to decide to issue, at any time, a residence permit to persons enjoying temporary protection under this Decision.”
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