The LARB prohibits the detention of unaccompanied children in general and imposes a maximum period of 3 months for the detention of accompanied children who are detained with their parents.1 An exemption had been introduced in the beginning of 2017 to exclude from the detention prohibition unaccompanied children upon condition that it was applied as a last resort and after best interests determination.2 Never applied in practice and widely criticised, including by UNHCR and UNICEF, the provision was abolished at the end of 2017.3
The law does not contain sufficient guarantees to ensure that detention of children is a measure of last resort, for the shortest possible period and subject to best interests assessment.
Additionally, the LAR provides for the possibility to detain accompanied children for asylum purposes as a last resort, in view of ensuring family unity or ensuring their protection and safety, for the shortest period of time.4 The position of UNHCR is that the respective provisions do not explicitly refer to the primacy of the best interests of the child when ordering detention. They also do not incorporate sufficient guarantees to ensure speedy judicial review of the initial decision to detain and a regular review thereafter. Although presently expanded with additional alternative arrangements,5 the law still does not envisage specific alternatives to detention appropriate for children such as alternative reception / care arrangements for unaccompanied children and families with children.
In practice, both asylum-seeking and other migrant unaccompanied children continue to be detained in pre-removal detention centres. Unaccompanied children arrested by the Border Police upon entry or, if arrested during their attempt to exit Bulgaria irregularly, are assigned (“attached”) to any of the adults present in the group with which the children travelled, which has been a steady practice ongoing for last couple of years. Thus, the arrested unaccompanied children are not served with a separate detention order, but instead described as an “accompanying child” in the detention order of the adult to whom they have been assigned. The same treatment is applied by the regular police services to those unaccompanied children who are captured inside the Bulgarian territory and considered to be irregular due to the lack of identity documents. All of them without exception are transferred to the pre-removal detention centres in Busmantsi or Lyubimets. In order to do this, identical to the approach of the Border Police, the regular police authorities assigned (“attached”) the children to adults without collecting any evidence or statements for a family link or relation between them.
The so-called ”attachment” is implemented on the basis of a legal definition on extended relatives’ circle, who could be considered as “accompanying adults”; this definition is applicable solely in asylum procedures, however.6 Therefore the application of this definition in immigration procedures in order to substantiate unaccompanied children’s inclusion in the detention orders of adults other than their parents is identified as yet another infringement of the law, additional to the principal violation of the detention prohibition.7 National jurisprudence has proved controversial and inconsistent in this regard, however.8 Accordingly, at the end of 2017 the Ombudsperson requested the Supreme Administrative Court to deliver mandatory interpretation of the law in this respect.9 The interpretation is expected to be delivered in the course of 2018.
In 2017, 712 children were detained in the pre-removal detention centres. Among them, the Bulgarian Helsinki Committee identified 195 unaccompanied children, including children detained as “attached” to an adult or wrongly recorded as adults.10
- 1. Article 44(9) LARB.
- 2. Article 44(13) in fine LARB.
- 3. Law amending the LARB, State Gazette No 97, 5 December 2017.
- 4. Article 45f(1) LAR.
- 5. Article 44(5) LAR.
- 6. Article 1(4) LAR.
- 7. Article 44(9) LARB.
- 8. See e.g. Supreme Administrative Court, 7th Department, Decision No 12271, 14 November 2016; Decision No 2842, 8 March 2017; Decision No 10789, 4 September 2017; Decision No 12116, 11 October 2017.
- 9. Ombudsperson, Request No 11-78, 8 December 2017, available in Bulgarian at: http://bit.ly/2DSflva.
- 10. Bulgarian Helsinki Committee, 2017 Project performance report, 8 February 2018.