The new series of cases filed by the FAR lawyers concern the application of the Family Assistance for Children Act (FACA). It has been more than a year and a half since Bulgaria granted temporary protection to Ukrainian citizens and their family members fleeing military actions and almost 10 years since the war in Syria. During this period, many of the beneficiaries of temporary or international protection integrated in our country, started working, children accordingly attend kindergarten or school. The FACA regulates different types of monthly and one-off benefits to support families with children. Thus, for example, the provisions of Articles 10a and 10b of the FACA state that families whose children are enrolled in 1st, 2nd, 3rd, 4th and 8th grade are granted a one-off benefit to cover part of the costs at the beginning of the school year when the children live permanently in the country and are not placed in care outside the family under Article 26 of the Child Protection Act. A question has arisen as to whether persons with temporary or international protection are also entitled to such benefits?
In this regard, our cultural mediators in different parts of the country daily assist the beneficiaries of protection in Bulgaria to apply for social benefits and to file their applications at the respective Social Assistance Directorates of the Social Assistance Agency. Unfortunately, however, very often, especially when it comes to family benefits, access is severely restricted and applications are often refused or verbally refused at the desks altogether.
After overcoming the challenge of submitting the applications, the written refusals " poured in". All refusals are based on Article 3, para. 5 of the FACA and state that only the following are entitled to family benefits under the law“ the families of foreign nationals who permanently reside and raise their children in the country, if the receipt of such benefits is provided for in another law or in an international treaty to which the Republic of Bulgaria is a party”, and as there is no such legal framework or international treaty for the countries of origin of beneficiaries of international or temporary protection, the applications are considered to be unfounded.
In this case, the dispute is on the lawfulness of these rejections, as it concerns only the application of the law and the available international instruments on the basis of which FAR has brought a number of appeals before the Bulgarian administrative courts concerning individual cases. Our main grounds are that the quoted text of Art. 3(5) of the FACA is contrary to general principles of domestic law - the Child Protection Act, the Social Assistance Act, the Constitution of the Republic of Bulgaria, the Law on Asylum and Refugees, International Law - the UN Convention on the Rights of the Child, and the European Union law- Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection.
So far the administrative courts across the country, have unanimously accepted our reasoning and overturned the refusals to grant family benefits to persons residing under temporary or international protection. We thank the Bulgarian administrative courts for their excellent decisions!
It is a pleasure to read reasons for judgments containing a complete analysis of Bulgarian, European and International law relevant to the case.
The decisions read:“The Court finds [...] that the aforementioned provision of Article 3(5) of the FACA does not comply with Article 28(1) of Directive 2004/83/EC of 29 April 2004 concerning minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection (author's note: now recital 45 and Article 29 of Directive 2011/95/EU)"
“Pursuant to Art. 2(1) of the Convention on the Rights of the Child, States parties shall respect and ensure the rights of every child within their jurisdiction as provided for in the Convention, without discrimination of any kind, regardless of race, colour, sex, language, religion, political or other opinion, the national, ethnic or social origin, property, disability, birth or other status of the child or of his or her parents or legal guardians.”
“The Convention recognises the right of every child to a standard of living adequate for his or her physical, mental, spiritual, moral and social development.”
“As a party to the Convention, Bulgaria is obliged to respect its fundamental provisions in its domestic law by creating equal opportunities for the upbringing and development of all children, which is in line with the fundamental principle enshrined in Article 1(2) of the Child Protection Act, according to which the State shall protect and guarantee the fundamental rights of the child in all areas of public life for all groups of children, in accordance with age, social status, physical, health and mental condition, ensuring to all an appropriate economic, social and cultural environment, education, freedom of opinion and security.”
“ The correlation of the norms of the Convention on the Rights of the Child with our domestic law points to the contradiction of the provision of Article 3(5) of the CRC, restricting the right to family benefits for children of the families of foreign nationals permanently residing and raising their children in the country to cases where their receipt is expressly provided for in another law or in an international treaty to which the Republic of Bulgaria is a party.”
So far we have decisions of the Administrative Court - Varna - Decision № 1374 /23.10.2023 in adm. case № 1676/2023, decision № 1405 / 24.10.2023 in adm. case № 1649/2023, decision No 1426/27.10.2023 in adm. case №1675/2023, decision No 1558/10.11.2023 in adm. case №1928/2023, decision No 1620/20.11.2023 in adm. case №2023/2023, of the Administrative Court - Sofia City - decision No. 4052/19.06.2023 in adm. case №10568/2022, decision No. 4731/13.07.2023 in adm. case №. 4213/2023, decision No. 7330/27.11.2023 in adm. case №10361/2023, decision No. 311/12.07.2023 in adm. case №192/2023 of the Administrative Court - Dobrich, decision No. 626/31.03.2023 in adm. case №3189/2022 of the Administrative Court - Plovdiv, decision No. 915/19.05.2023 in adm.case №3232/2022 of the Administrative Court - Plovdiv, and many other pending proceedings.
We thank everyone who trusted us to advise and represent them before the courts! We value your trust and strive to protect and preserve it in every way possible!
We also thank all our colleagues for a job well done!
Author - Vasil Panayotov - lawyer at the Foundation for Access to Rights with an interest in civil, administrative and human rights law.
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