Bulgarian and person of Bulgarian origin – explained
Today we will look at an interesting case that shows serious deficiencies in the Bulgarian legal provisions. More specifically, those regarding the definition of the terms “Bulgarian” and “person of Bulgarian origin”. We will analyze the legislation since 1940 until now alongside with some important decisions and rulings of the Bulgarian Supreme Administrative Court.
Our client’s case study
We were contacted by a woman, whom for the purposes of this material we will be calling Ana Ognyanova, wishing to obtain a permanent residence permit in Bulgaria.
Since we consider that she is of Bulgarian origin, we decided to apply under Art. 25, para. 1, item 1 of the Law on Foreigners in the Republic of Bulgaria:
Foreigners of Bulgarian origin can obtain a permanent residence permitArt. 25, para. 1, item 1 of the Foreigners Law
It should be noted that according to § 1, item 6 of the Foreigners Law, “A person of Bulgarian origin is a person of whom at least one ascendant is Bulgarian“. The definition given in § 2, item 1 of the Law on the Bulgarian Citizenship is absolutely identical. Or in other words:
“Foreigners whose at least one ascendant is Bulgarian can obtain a permanent residence permit.”art. 25, para 1, item 1 and § 1, item 6 from the Foreigners Law
Lack of legal definition of the term “Bulgarian”
The problem however is that in the Foreigners Law and the Citizenship Law, there is no legal definition of who is Bulgarian! For many of our readers, the answer to this question may seem simple, and the question itself even ridiculous. In practice, however, the lack of a legal definition of the term “Bulgarian” leads to a legal vacuum, and many ambiguities regarding one of the most important institutes of Bulgarian law – that of the Bulgarian citizenship!
The story of our client
Ana Ognyanova was born in Sofia (Bulgaria) in 1946. This is evident from the Bulgarian birth certificate issued by an official of the Capital City Municipality and the Birth Certificate issued on the basis of the birth certificate. It is objectified in the documents that the child’s parents are:
- mother – V.A., resident of Sofia, Bulgarian subject, Russian by nationality, and;
- father – A.O., resident of Sofia, Bulgarian citizen, Polish by nationality.
At the time of the child’s birth, the Law on Bulgarian Citizenship (subjection Law) of 1940 was in effect.
Law on the Bulgarian citizenship (subjection Law) from 1940(see the Law or open in new tab)
According to Art. 6 of the Law “Bulgarian citizenship is acquired by origin, by naturalization and by marriage”. The conditions for acquiring Bulgarian citizenship by origin are regulated in Chapter One, Item I of the Law – “Acquisition of Bulgarian citizenship by origin“. Citizenship by origin is acquired either by birth (Art. 7) or by place of birth (Art. 8).
According to Art. 7, item 1, a Bulgarian citizen (subject) by birth (respectively also by origin) is any person whose father or, if the father is without citizenship or of unknown citizenship, whose mother is a Bulgarian citizen, regardless of his place of birth.
“At the time of the child’s birth, both its parents are Bulgarian citizens (subjects), as can be seen from the birth certificate. This also determines the fact that Ana Ognyanova is a Bulgarian citizen (subject) by origin at the time of her birth.”Art. 7, item 1 of the Bulgarian Citizenship Law from 1940, in force at the time of her birth.
From Bulgarian subject to Bulgarian citizen
According to Art. 28 of the Law on the Bulgarian Citizenship from 1948, with its entry into force, “all persons who are Bulgarian subjects, according to the provisions of the previous laws in relation to Bulgarian citizenship are considered Bulgarian citizens“.
Law on the Bulgarian citizenship from 1948(see the law or open in new window)
“As from 29.03.1948. (3 days after the promulgation of the Law in the Official Gazette) Ana Ognyanova is considered to be Bulgarian citizen by origin.”art. 24 from the Bulgarian Constitution of 6.12.1947г.
Emigration from Bulgaria and loss of Bulgarian citizenship
In 1956, Ana Ognyanova (a minor at the time) emigrated from Bulgaria with her parents. According to the Bulgarian Citizenship Act of 1948, in force at the time, she lost her Bulgarian citizenship in accordance with Art. 6, para. 2 of the Law – “A Bulgarian citizen of non-Bulgarian nationality who emigrates from the country loses his Bulgarian citizenship upon emigration.” The loss of citizenship is objectified by an Order of the Bulgarian Minister of Internal Affairs.
Is Ana Ognyanova a person of Bulgarian origin?
Can she obtain permanent residence permit under Art. 25, para. 1, item 1 of the Foreigners Law, as a person of Bulgarian origin? And can she also get Bulgarian citizenship on the same basis?
– these are the questions that we will have to answer!
Historical analysis of the laws on Bulgarian citizenship (subjection)
Let’s first do a historical analysis of the concepts “Bulgarian” and “Bulgarian origin” according to the various laws on Bulgarian citizenship (subjection) from 1940 until now.
We will try to clarify whether, under the term “Bulgarian”, the legislator meant a person of Bulgarian nationality, a Bulgarian citizen or both. The answer to this question, as you will see, turns out to be extremely difficult.
The Law on the Bulgarian citizenship (subjection) 1940-1948
The law stipulates that anyone born to a Bulgarian father and mother is considered to be of Bulgarian origin (Article 4). There is no legal definition of the term Bulgarian (Bulgarians) in the law!
At the same time, in Art. 7 and 8 are list the cases in which a person acquires Bulgarian citizenship by origin. More specifically, Bulgarian citizenship by origin acquires the person:
- whose father or, if the father is without citizenship/subjection or with unknown citizenship/subjection, whose mother is a Bulgarian citizen/subject, regardless of his place of birth;
- legalized by a Bulgarian citizen;
- born from an illegal cohabitation, the origin of which from a Bulgarian citizen/subject was proven during his minority according to the proper procedure, or in case of proven origin from both parents, whose father is a Bulgarian citizen/subject;
- born in the Kingdom of unknown parents or of non-subject parents;
- born in the Kingdom of foreigners, if he has continuously resided in Bulgaria and if, within one year after reaching the age of majority, he has not claimed foreign citizenship/subjection.
An interesting question is whether the legislator had in mind that the person of Bulgarian origin under Art. 4 should have been born to Bulgarians (who are Bulgarians at the time of the child’s birth). While in the hypotheses of Art. 7 and 8, it is possible that the person was born to non-Bulgarians, but subsequently acquired citizenship by origin if one of his parents became a Bulgarian subjects (citizens).
The analysis of the legal texts necessitates the conclusion that the legislator made a distinction between a Bulgarian, a Bulgarian subject and a person of Bulgarian origin. The conclusion is that the concept of a Bulgarian citizen is not identical to a person of Bulgarian origin. The following sample hypotheses are possible:
Bulgarian subject may not be of Bulgarian origin
This is possible, for example, if the person acquired citizenship (subjection) not by descent, but by naturalization or marriage (Article 9 ~ Article 13).
Such a hypothesis is also directly provided for in Art. 15 – “A Bulgarian subject of non-Bulgarian origin, who emigrated from the Kingdom, loses Bulgarian citizenship (subjection) with the fact of emigration”. There are similar hypotheses for a Bulgarian subject of non-Bulgarian origin in other texts of the law too.
Person of Bulgarian origin doesn’t necessarily need be Bulgarian subject
For example, if the person was born by Bulgarians, so he acquired citizenship (subjection) by origin, but lost his citizenship (subjection) subsequently.
The Bulgarian subject is always Bulgarian, while the Bulgarian is not always Bulgarian subject
This should be so, because for a person to be of Bulgarian origin, his father and mother must be Bulgarians (Art. 4). At the same time, in order to acquire citizenship (subjection) by origin, it is sufficient that only one of his parents is a Bulgarian subject (Article 7).
Since there is no definition of the term “Bulgarian(s)”, we can only say with confidence that a Bulgarian citizen (subject) by origin (which also includes a person of Bulgarian origin) is anyone who has acquired citizenship under Art. 7 and Art. 8 of the law!
The Law on the Bulgarian citizenship 1948-1968
In this edition of the law, the terms are most clearly defined to date.
The terms “Bulgarian” and “person of Bulgarian origin” are completely absent from the law. On the other hand, it is already extremely clear who is a Bulgarian citizen by origin. Already in Art. 1 of the law, it is defined that:
“A Bulgarian citizen by origin is any person whose parents are Bulgarian citizens. When only one of the parents has Bulgarian citizenship, the child is a Bulgarian citizen if he was born in the country, or even if he was born abroad – if neither the domestic law of the parent, a foreign citizen, nor the law of the place where he was born, consider him a citizen“.
In other words, a Bulgarian citizen can be a citizen by origin (Article 1), by place of residence (Article 2) or be accepted as a Bulgarian citizen (“naturalized” according to Article 3).
The Law on the Bulgarian citizenship 1968-1999
This is the latest version of the law, prior to the current one.
Here the law is again extremely clear about who is a Bulgarian citizen by origin. Namely in Art. 6 it is written that:
“A Bulgarian citizen by origin is any person whose parents or one parent is a Bulgarian citizen“.
The legislator has completely unnecessarily provided for the hypothesis of two parents who are Bulgarian citizens. This is so as in the same sentence it is stated that a Bulgarian citizen by origin is any person whose one parent is also a Bulgarian citizen.
As in the previous version of the law, the terms “Bulgarian” and “person of Bulgarian origin” are absent.
Bulgarian origin according to the current legislation
To our surprise, in the latest edition of the Citizenship Law and the Foreigners Law, the legislator has returned to the vague wording of the concepts “Bulgarian” and “person of Bulgarian origin”, which existed in the law from 1940.
According to § 1, item 6 of Foreigners Law and the absolutely identical provision of § 2, item 1 of the Citizenship Law:
“Person of Bulgarian origin” is a person whose at least one ascendant is Bulgarian.
Ana Ognyanova was born to parents – Bulgarian citizens (subjects) of non-Bulgarian origin (mother by nationality Russian and father by nationality Polish). Until 3.12.2014 there was a conflicting practice regarding the way in which the term “Bulgarian” should be interpreted. Some authorities completely mistakenly assumed that the concept of “Bulgarian” should not be interpreted as “Bulgarian citizen”, but should be perceived in its ethnic sense only (ie nationality).
Supreme Administrative Court (SAC) definition and case law regarding “Bulgarian origin”
Fortunately, the case seemed to have been finally resolved by the Supreme Administrative Court with Decision No. 14535 of 3.12.2014. The Supreme Court reasoned in an uncontroversial manner and concluded that:
The term “Bulgarian” cannot be interpreted in terms of its ethnic content, but in terms of its legal content – the legal and political relationship between a person and the state of the Republic of Bulgaria, i.e. Bulgarian citizenship.
The main argument of the court is that otherwise, the Citizenship Law would contradict the Constitution of the Republic of Bulgaria:
If the concept of “Bulgarian” used in § 2, item 1 of the Citizenship Law is perceived as ethnic, then the nationality or ethnic origin of the persons who have lost Bulgarian citizenship and apply for its restoration will serve as a basis for different treatment. Thus, persons of Bulgarian ethnic origin will be placed by the law in a more favorable position upon its restoration than persons of other ethnic origin who have lost their Bulgarian citizenship. This is in direct contradiction to the principle of equality of all citizens before the law and is in contradiction to the prohibition of discrimination – Art. 6 of the Constitution.
After the Definition of the SAC, the constant practice of the Bulgarian courts is to accept that the term “Bulgarian” is equivalent to “Bulgarian citizen” (Decision No. 11634 of 4.11.2015 of the SAC under Adm. d. No. 3888/2015, etc.).
Subsequent decisions of the Supreme Court – the more contradictions to come
Everything would be fine if it ended there. But the Supreme Administrative Court provided additional “controversy”. In Decision No. 3444 of 5.03.2020 of the Supreme Administrative Court, the court came to the following conclusion:
In the Citizenship Law there is no equality between the concepts “Bulgarian” and “Bulgarian citizen”. Not every person with Bulgarian citizenship is Bulgarian by origin, and not all persons with Bulgarian origin possess Bulgarian citizenship.
The reasons for this conclusion of the court are that:
From what was accepted above in the reasons, namely that the meaning of § 2, item 1 of the Citizenship Law is that a person of Bulgarian origin is a person whose at least one parent is Bulgarian and the provisions provided for in Art. 15, para. 1 two different hypotheses – item 1 and item 3 for acquiring Bulgarian citizenship, both because of the Bulgarian origin of the person and because of the Bulgarian citizenship of one of his parents, it follows that in the concept of “Bulgarian” used in § 2 , item 1 of the Citizenship Law, the legislator did not include the Bulgarian citizenship of the ascendant. And if the legislator had in mind that any person with Bulgarian citizenship is also Bulgarian, then he would not have foreseen the hypothesis of item 3 of para. 1 of Art. 15 of the Law. The difference that the legislator makes between Bulgarian citizenship and Bulgarian origin is obvious, and from the provisions of Art. 26, para. 1 and para. 2 of the ZBG. The specified article is found in chapter four, entitled “Restoration of Bulgarian citizenship”. The interpretation of para. 2 in connection with para. 1 of Art. 26 of the Citizenship Law, leads to the conclusion that restoration of Bulgarian citizenship may be requested by both persons of Bulgarian origin who have been exempted from Bulgarian citizenship, as well as those who do not have one and have been exempted from Bulgarian citizenship.
The Definition VS the Decision of the Supreme Administrative Court
Although there is no direct contradiction in the initial definition of the SAC and the subsequent decision of the other panel, we believe that the initial definition takes precedence. In the later decision, the SAC considered what the legislator had in mind, without considering whether the legal texts contradicted the Constitution. After all, even if the legislator had in mind exactly what the SAC claimed in its decision, those texts would be unconstitutional, on the grounds of the SAC’s definition, and should not be applied at all.
Back to Ana Ognyanova’s Bulgarian origin and obtaining visa D and permanent residence permit
Let’s recall the current legal provisions:
A long-term residence visa with a validity period of up to 6 months and a right of residence of up to 180 days can be issued to a foreigner who wishes to obtain a permit for long-term, prolonged-term or permanent residence in the Republic of Bulgaria on one of the grounds specified in this law .Art. 1, para 1 of the Foreigners Law
Foreigners of Bulgarian origin can obtain a permanent residence permit.Art. 25, para 1, item 1 of the Citizenship Law
On basis of everything written, the indisputable conclusion is that Ana Ognyanova is of Bulgarian origin. This is by both the law at the time of her birth as well as by the regulations now in force . Accordingly, she has the right to obtain permanent residence as a person of Bulgarian origin, as well as, if she wishes, Bulgarian citizenship on the same basis.
She has been born as a Bulgarian subject (citizen) by origin (Article 7, item 1 of the Act on Bulgarian Citizenship from 1940 in force at the time of birth), to parents – Bulgarian subjects (citizens) of non-Bulgarian nationality (mother by nationality Russian and a Polish father).
“Currently, Ana Ognyanova is a “person of Bulgarian origin”, as she was a child of “Bulgarians” at the time of her birth. The fact that she and her parents lost their Bulgarian citizenship in 1956 does not change her origin since the concept of origin is determined at the time of the person’s birth and cannot be changed subsequently. The other circumstance, namely that she and her parents are of non-Bulgarian nationality is irrelevant.”Posolstvo.eu