Problems in applying for international protection for Ukrainians under temporary protection
Today we will discuss a very important problem faced by many Ukrainian citizens. This is their inability to obtain international protection in Bulgaria. The problem lies in the fact that the Bulgarian authorities do not want to accept applications for international protection submitted by Ukrainian citizens at all. The explanation is that Ukrainians already enjoy temporary protection and therefore they are not entitled to apply for international protection. The authorities’ “legal” basis is the order RD05-263 of 08.04.2022 issued by the Chairman of the State Agency for Refugees (SAR) under the Council of Ministers. But is this correct? Are the actions of the Bulgarian authorities lawful? And most of all, what can be done in these cases?
Legal framework
The regime for granting international and temporary protection is regulated in the Asylum and Refugees Law. The other important act is Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.
According to the European Directive:
Persons enjoying temporary protection must be able to lodge an application for asylum at any time.
art. 17 of Directive 2001/55/ЕО
From the quoted provision it follows that Ukrainian citizens enjoying temporary protection in Bulgaria should be able to apply for asylum or international protection at any time. However, there are certain additional stipulations in the European Directive:
art. 19 of Directive 2001/55/ЕО
- The Member States may provide that temporary protection may not be enjoyed concurrently with the status of asylum seeker while applications are under consideration.
- Where, after an asylum application has been examined, refugee status or, where applicable, other kind of protection is not granted to a person eligible for or enjoying temporary protection, the Member States shall, without prejudice to Article 28, provide for that person to enjoy or to continue to enjoy temporary protection for the remainder of the period of protection.
It is clear from this Article of the Directive that Bulgarian legislation may provide for the possibility of terminating the temporary protection status while the refugee claim is being examined. In the event that refugee status is not granted, the temporary protection status is resumed.
The idea of the Directive is absolutely clear. Unfortunately, however, in my opinion, for political reasons, it is not being applied in practice in Bulgaria.
Is Order RD05-263 of 08.04.2022 lawful?
Having seen what the relevant provisions of Directive 2001/55/EC say, let us now see what order the SAR has issued:
Immediately cease the registration and initiation of international protection proceedings on applications submitted by displaced persons from Ukraine and instead register them as foreigners granted temporary protection by issuing them the registration card under Article 41(1), p. 5 of the Asylum and Refugees Law.
p. 1 from Order RD05-263 of 08.04.2022 – SAR
It is obvious that point 1 of Order RD05-263 directly contradicts Article 17 of Directive 2001/55/EC. But why then has this point of the SAR order not yet been repealed?
What the Bulgarian court says about Order RD05-263
The cited order of the SAR was attacked for illegality before the Bulgarian court. However, by decision 7901 of 21.12.2022 of the Administrative Court – Sofia, the court REFUSED to consider the claim for annulment of paragraphs 1, 2, 3, 6, 7, 8, 9 and 10 of Order No. RD05-263/08.04.2022. The court’s reasoning is, in my view, entirely correct, namely that these points of the order constitute an inter-ministerial act and do not directly prejudice the interests of citizens. Here is what the court said:
In this case, the order /except for points 4, 5/ is not subject to appeal under the procedure of the Code of Administrative Procedure, since by its legal nature it constitutes an internal departmental act, directed against bodies subordinate to the issuer of the act, without directly affecting rights and legitimate interests.
This court decision was subsequently confirmed by the Supreme Administrative Court.
All this means that at the moment, Order No. RD05-263/08.04.2022 is lawful, as it has not been annulled by a Bulgarian court. However, this in no way means that the acts of the public authorities based on this order are also lawful.
What should Ukrainians with temporary protection who want to get international protection do?
Their task will be extremely difficult. Most likely, their application for international protection will not be accepted at all, based on Order No. RD05-263. However, non-acceptance of the application constitutes an individual administrative act and can be appealed under the procedure of the Code of Administrative Proceedings.
If you are nevertheless determined to fight for justice and wish to obtain international protection in Bulgaria, you can contact us for assistance.