Controversial, but definitive decision by the Supreme Administrative Court (SAC)
The reason for today’s article is, in our opinion, a rather controversial decision of the SAC – No. 8723 of 11.07.2024. With this decision, the Supreme Court implies that according to art. 25, par. 1, p. 11 of the Foreigners Law, the applicant for a permanent residence permit should have resided not only continuously, but also legally in Bulgaria. Let us recall the quoted norm:
A permanent residence permit may be obtained by foreigners: family members of a Bulgarian citizen if they have resided continuously on the territory of the Republic of Bulgaria for the last five years;
art. 25, par. 1, p. 11 of the Foreigners Law
A new interpretation of the Foreigners Law?
The above cited decision of the SAC, dated 2024, is contrary to the previous case law of the same court and more particularly to its decision No. 5922, dated 06.06.2023. The Supreme Court, in our view, quite correctly ruled in 2023, that Art. 25 par. 1, p. 11 of the Foreigners Law does not require the applicant for permanent residence to have been lawfully residing in Bulgaria. You can read more about the 2023 SAC decision in our article – Another victory at the Supreme Administrative Court.
Extremely dangerous judicial precedent
The new SAC ruling from 2024 is extremely worrying. This is because the fates of many foreigners in Bulgaria depend on the correct interpretation of the law. And those foreigners who wish to take advantage of the cited legal provision have most often been residing in Bulgaria for many years, even decades. In particular, the “foreigner” who was disadvantaged by the SAC decision of 2024 has been living in Bulgaria since 1997. That is why we put “foreigner” in quotation marks. Technically, of course, she is a foreigner. In purely human terms however – no.
As a result of the SAC ruling of 2024, the “foreigner” can now be sent back to her “homeland” where she has not been for 30 years. Where she has no home, no family, no friends, no one to go to and find shelter. She may need to leave Bulgaria where she has lived for the past 30 years.
Why we think the SAC decision of 2024 is illogical, to put it mildly
In its 2024 decision, the court’s main argument was that although there is no requirement in the Foreigners Law, that the foreigner’s residence be legal, if the foreigner was in Bulgaria illegally, his stay in Bulgaria can not be considered as “residence” at all. Let us see what the court wrote:
The term “residence without interruption” is not regulated in the law, because the law gives a legal definition of the general term “residence of a foreigner in the Republic of Bulgaria” in the norm of Article 22 of the Foreigners Law. It follows from the said provision that the residence of a foreigner in the country may be based only on a visa; international or European Union treaties with third countries on visa-free regime; acts of European Union law in force and applied by the Republic of Bulgaria and permission of the services for administrative control of foreigners. In order to conclude that an alien is residing in the Republic of Bulgaria, his stay in the country must be on the explicitly mentioned legal grounds. This is the legal obstacle to granting rights to illegally established persons in the Republic of Bulgaria.
decision № 8723 / 11.07.2024 of SAC
First, in our view, the court incorrectly assumed that the options for LEGAL residency enumerated in the Foreigners Law exhaust all possible residency OPTIONS. That is, the court assumed that if the residence is not legal, the foreigner does not reside in Bulgaria at all. This sounds absurd even in purely human terms – where then has the “foreigner” resided for the last 30 years if not in Bulgaria? But there is also a legal definition of the term “illegal resident” in the law, namely:
“Illegally residing foreigner” means any foreigner – a third-country national, who is on the territory of the Republic of Bulgaria and does not meet or has ceased to meet the conditions for stay or residence.
§ 1, p. 3б of the Additional Provisions of the Foreigners Law
That is, the legislator has quite logically defined who is an “illegal foreign resident”. Namely the one who is in Bulgaria without legal grounds. But this foreigner, although illegally, still RESIDES in Bulgaria. That is according to the law, but not according to the SAC’s ruling of 2024. And the fates of many people depend on this small difference in the interpretation of the law.
Next, SAC believes that illegal residence is “… the legal obstacle to granting rights to persons illegally established in the Republic of Bulgaria“. Such a heavy-handed conclusion is in our view untenable. Even in the Foreigners Law, there is a specific provision granting rights to illegal residents:
A long-term residence permit may also be granted to illegally residing foreigners who are participants in pending administrative or criminal proceedings initiated under Art. 3 and 5 of the Criminal Code – until the proceedings are concluded.
art. 24z, par. 1 of the Foreigners Law
In no case can we assume that illegal foreigners cannot derive rights if the law so foresees. As to the applicability of Art. 25 par. 1, p. 11 of the Foreigners Law, the foreigner’s rights are derived from the fact that he has been settled in Bulgaria for at least 5 years and because he is a member of the family of Bulgarian citizens. It is a pity that the Supreme Administrative Court, with its decision of 2024, sees things in a completely different way.
An interpretative decision on the case is needed
But the fight is still ahead. Clearly, an interpretative decision is needed to resolve this crucial issue. And we are personally convinced that, upon a thorough analysis of the legal provision under discussion, the Supreme Court judges will decide that Article 25, par. 1, p11 of the Foreigners Law does not require the foreigner to have been legally residing in Bulgaria.
Legal absurdity
At the very least, because if we take the SAC decision of 2024 as being correct, and add the requirement for legality of the stay (in red), then we get a legal absurdity. Here is what will happen to two of the provisions of the law, namely which foreigners will be able to obtain a permanent residence permit:
| who have resided legally and without interruption on the territory of the Republic of Bulgaria within the last 5 years prior to the application for permanent residence and have not been absent for more than 30 months… | family members of a Bulgarian citizen if they have resided continuously and legally on the territory of the Republic of Bulgaria for the last five years |
| art. 25, par. 1, p. 5 | art. 25, par. 1, p. 11 |
In other words, if the legality of residence is also required under point 11, foreigners who are not family members of Bulgarian citizens will receive more rights than those who are family members of Bulgarians. So to obtain a permanent residence permit, non-Bulgarian family members will be entitled to have been absent for up to 30 months in the last 5 years. In contrast, for foreigners – mothers and fathers of Bulgarian children and spouses of Bulgarian citizens, no such “extras” are foreseen. This is how it turns out according to the decision of the SAC from 2024. And this is very, very unfortunate and worrying. And we are sure that this was not the idea of the legislator (the Bulgarian National Assembly) when the texts of the law have been adopted.