Implied (silent) refusal – the “kiss of death” or the administration’s revenge

Implied refusal is one of the most unfair provisions in the Bulgarian legislation. An implied is when a citizen or a legal entity requests from an administrative authority to issue a certain individual administrative act. Such administrative act can be the issuance of a visa for example. Or in fact, any other administrative service. The administrative authority is obliged to decide either by issuing the act or by issuing a refusal. This refusal can of course be appealed against in court.

The silent (implied) option to say “no”

However, there is a third option, namely not acting within the time limit. In this case, according to the Bulgarian Administrative Procedure Code, a refusal is deemed to have been issued:

Failure to act within the time limit shall be deemed an implied refusal to issue the act.

Art 58, par. 1 of the Bulgarian Administrative Procedure Code
kiss of death - statue
The Kiss of Death – statue in Barcelona

Refusal without “refusal” – the administration’s nuclear weapon

Unfortunately, however, citizens and legal entities rarely understand that they have received a “refusal”. The deadlines for issuing individual administrative acts are complex to understand. It is extremely difficult to calculate the time limits correctly. And this is necessary in order to calculate when the “decision” can be appealed. In this way, citizens and businesses simply miss the time limit when they can appeal such refusals in court. So far with the principles of the rule of law…

Below we will look at some cases where the administration often “issues” implied refusals. From our experience it seems that these refusals occur when the administration doesn’t want to grant the applicant what he wants, but lacks the legal reasoning to reject the application.

Implied refusal to grant a visa

After Bulgaria’s accession to Schengen, the Bulgarian visa has become highly desirable. This is because with a Bulgarian visa, any foreigner can travel to all other Schengen countries as well.

We will analyse a case in which a foreigner applies for a visa D (long-stay visa) as a family member of a Bulgarian citizen. This is when a foreigner marries a Bulgarian citizen and wishes to reside in Bulgaria with his/her spouse.

For the sake of simplicity, let’s assume that a foreigner has submitted his visa D application on July 1st. According to Article 30(4) of the Bulgarian Visa Ordinance, the deadline for issuing the visa is up to 15 days:

…Within the same term (15 calendar days), a decision shall be taken on the application for a long-term residence visa for the purpose of residence on the territory of the Republic of Bulgaria under Art. 24, par. 1, p. 18 (family members of Bulgarian citizens), Art. 24b, 24c and Art. 25, par. 1, p. 4 of the Bulgarian’s Foreigners Law…

Art. 30, par. 4 of the Bulgarian Visa Ordinance

Hence, if there is no decision on the visa application by the 16th of July, an implied refusal is deemed to have been issued. That is, the foreigner’s visa has been rejected! The problem is that the foreigner does not know about this and keeps waiting, calling the embassy and hoping…

And in fact, as of July 16, the deadline for appealing the refusal is already running. Although the foreigner does not actually understand that his visa has been already rejected. And according to Article 149, par. 2 of the Bulgarian Administrative Procedure Code, the deadline for appealing against an implied refusal is one month:

The implied refusal or the implied consent may be contested within one month from the expiry of the period within which the administrative authority was obliged to give its decision.

Art 149, par. 2 of the Bulgarian Administrative Procedure Code
ghost fight

Appealing an implied refusal is like fighting ghosts

In other words, the visa applicant, although not having received a formal refusal, has to appeal against the “non-received refusal”. In doing so, the applicant must appeal against a refusal for which no reasoning has been given. This is so, because no written refusal has been received at all.

The worst part, however, remains the deadline. Because if the implied refusal of the visa is not appealed by 16 August (implied refusal on 16 July /Article 58, par. 1/ + one-month period for appeal /Article 149, par. 2/), the right of the foreigner to appeal against the refusal is forfeited. The visa shall be deemed to have been definitively rejected. And the rejection shall not be subject to any sort of legal appeal after 16th of August. What happens most often is that the foreigner waits and waits. He is waiting in August and in September, hoping that his visa will be issued. But alas, this never happens.

Changing the time limit for issuing the visa – implied refusal on steroids

If you thought the above calculations were definitive, then you were mistaken. According to another norm in the Visa Ordinance:

The time limits referred to in par. 3 and 4 (i.e. the 15-day period for family members of Bulgarian citizens) may be extended by up to 20 calendar days if it is necessary to carry out additional research, checks or submission of documents.

Art. 30, par. 6 of the Bulgarian Visa Ordinance

So this is where things get really complicated. Since when is an implied refusal considered to have been made? From 16th of July or 20 days later, i.e. from 6th of August? The answer to this question is extremely important. Because the answer determines by when the applicant has the right to appeal against the implied refusal – by 16th of August or by 6th of September?

In principle, the administrative authority should notify the visa applicant of the time extension. This shall be done by giving the instructions necessary for the further examinations under the visa regulation. It is then, and in particular from the deadline for implementing the instructions, that the 15-day period starts to run.

Does all this work in practice? NO! The visa applicant is left alone in the “open seas”. He has to guess when the time limit for a decision expires. And therefore when an implied refusal has been issued. And to calculate this accurately is virtually impossible without the assistance of a professional legal immigration support.

Implied refusal in the procedure for acquiring Bulgarian citizenship

You probably already think that the silent refusal of a visa application is the most terrible form of revenge of the authorities. You are deeply mistaken, unfortunately. Because in the naturalisation and Bulgarian citizenship proceedings, things are even worse.

The main problem with the acquisition of Bulgarian citizenship is that it is extremely difficult to determine which of the stages in the procedure constitutes an individual administrative act. The main legal act triggering the naturalisation process is provided for in the Bulgarian Citizenship Law:

The Minister of Justice, on the basis of the opinion of the Citizenship Council, shall make a proposal to the President of the Republic of Bulgaria to issue a decree or to refuse to issue a decree for the acquisition, restoration, release or deprivation of Bulgarian citizenship, as well as for the revocation of naturalisation.

Art. 34 of the Bulgarian Citizenship Law

Implied refusal and Bulgarian citizenship by origin

To illustrate the importance of the deadlines, let us assume that a foreigner of Bulgarian origin applies for Bulgarian citizenship. As per the Bulgarian Citizenship Law, the time limit for the Minister of Justice’s proposal to the President is 9 months:

The Minister of Justice shall make a proposal for the issuance of a decree under Article 34 within nine months – on the applications of persons of Bulgarian origin to acquire Bulgarian citizenship by naturalisation;

Art. 35, par. 1, p. 2 of the Bulgarian Citizenship Law

In other words, if the foreigner has applied for Bulgarian citizenship and was interviewed on July 1st, the deadline for the proposal from the Minister to the President is April 1st on the following year. If no proposal is made, it follows that the Minister of Justice has not issued an individual administrative act within the time limit. That is, from the 1st of April on the following year, the one-month period within which the foreigner can appeal against the Minister’s failure to issue the proposal starts. On the 1st of May on the following year, the foreigner loses the possibility to appeal against this implied refusal and thus, loses his chances to obtain Bulgarian citizenship.

Unfortunately, only 1% of applicants for Bulgarian citizenship realise that the waiting for citizenship cannot last too long. What happens is that the applicant follows on the Ministry’s website the progress of his application, which most often does not move. He checks every day, but there is no change in the status! It is only after 2-3 years that these candidates seek legal assistance. But by then they have already missed all the deadlines for appealing the implied refusal. Sad but a fact…

What to do and how to fight the administration and its right of silent refusal

It is important to understand that the implied refusal is a very effective weapon in the hands of the administration to issue a refusal that will almost certainly not be appealed. In order to protect yourself from such a scenario, it is best to engage the services of an experienced immigration specialists. The professionals will be able to anticipate all deadlines and inform you in the event that you are issued an implied refusal. In this way, you will have the opportunity to challenge the refusal within one month. All this in accordance with the provisions of the Bulgarian Administrative Procedure Code.

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