Foundation for Access to Rights - FAR, our clients and partner organisations have achieved great success in the first-instance court in the strategic case we are leading to restore access to international protection for Ukrainian refugees in Bulgaria. You can find information about our reasons for filing the case in the article "David and Goliath: the court cases we are fighting for access to the right to asylum for Ukrainian refugees in Bulgaria".
On the 21 of December 2022, the Administrative Court Sofia-City (ACSC) declared null parts of Order No. RD05 -263/08.04.2022 of the Chairperson of the State Agency for Refugees (SAR). The order suspended the registration of applications for international protection by Ukrainian citizens, terminated the proceedings already initiated to examine applications for international protection, and compulsorily registered all those concerned as aliens with temporary protection. The ACSC's decision finds unlawful the requirement of the expiry of temporary protection as a condition for access to the international protection procedure.
The ACSC accepted FAR's argument that according to the applicable European Directive, beneficiaries of temporary protection have the right to access the international protection procedure at any time (Article 17, Directive 2001/55/EC). According to the Court, the existence of temporary protection does not preclude the examination of the application for international protection, in accordance with the provisions of Directive 2001/55/EC and the European Commission's Operational Guidelines. The Court concludes that the temporary protection regime must, in general, be compatible with the Member States' obligations concerning refugees and, in particular, must not prejudice the possibility of being granted refugee status (Recital 10 of the Preamble to the Temporary Protection Directive).
The ACSC also agreed with our argument that SAR’s order supplements the law, without having legislative powers to do so, by introducing a previously non-existent ground for termination of the international protection proceedings. The Law on Asylum and Refugees (LAR) (Article 15(1)) exhaustively lists the circumstances which constitute grounds for the termination of asylum proceedings that have already been initiated and the existence of a temporary protection decision is not one of them. In the Court's view, the provision cited by the Chairperson of SAR as the legal ground for the termination of pending proceedings (Article 68(1)(2) of the LAR) in fact refers to their initiation. Thus, the ACSC finds that the order of the Chairperson of SAR is null as there is no legal basis for its issuance.
The Court also finds merit in FAR's objections that the LAR does not confer jurisdiction on the Chairperson of SAR to terminate "summarily" multiple separate international protection proceedings. The Foundation insists that the the cumulative termination of temporary protection proceedings for all Ukrainian nationals is unlawful and violates the rights of asylum seekers. The ACSC rules that there is also no legal possibility to pre-execute the decisions to terminate the proceedings in a general manner, without taking into account the individual characteristics of each case.
We cannot agree, however, with certain elements of the court's analysis. The ACSC concluded in its decision that FAR has no independent legal interest to appeal SAR's order. According to FAR, the SAR Chairman's order directly violates the rights and legitimate interests of refugees, whose protection is at the core of the Foundation's mission under its statute. Nor can we accept the court's holding that the SAR Chairperson's instruction to agency officials to immediately cease registering and initiating protection proceedings on applications made by Ukrainian nationals, registering them instead as foreigners with temporary protection (article 1 of the Order), constitutes an internal act not subject to judicial review. Any restriction of access to the international protection procedure has a direct impact on the ability of asylum seekers to exercise their rights in practice and to integrate into the host country. We are appealing against this part of ACSC's decision before the Supreme Administrative Court and will continue to fight for a principled and reasoned final decision.