Revocation of permanent residence permit
We have been consistently reviewing the Bulgarian legislation that regulates when a foreigner’s residence permit can be revoked. Today we will explain whether the residence permit can be cancelled if the foreigner has been absent from Bulgaria (or the EU) for an extended period of time. You can also read our articles Revocation of residence after a 6-year absence and Revocation of status in the absence of a foreigner. In this article, we will explain what has changed in the legislation in recent years, especially in light of Bulgaria’s Schengen membership and the past covid-19 pandemic.
The current legislation – Article 40, par. 1, p. 6 of the Bulgarian Foreigners Law
Let us examine in which cases of long-term absence from Bulgaria/ EU a foreigner’s permanent residence permit is revoked.
The right of residence of a foreigner in the Republic of Bulgaria shall be revoked when: it is established that the foreigner who has obtained a prolonged-term or permanent residence permit has been absent from the territory of the Member States of the European Union for a period of 12 consecutive months, except in cases of a declared state of emergency or of a permanent residence permit granted under Article 25g; the period of a declared state of emergency shall not be considered as absence of the foreigner who has been granted a long-term or permanent residence permit from the territory of the Member States of the European Union for a period of 12 consecutive months;
art. 40, par. 1, p. 6 of the Foreigners Law
Absence from the EU and “state of emergency”
In other words, current legislation provides for the mandatory (compulsory) revocation of prolonged-term or permanent residence permits in the following cases:
- Absence from the EU territory for more than 12 consecutive months;
- The period during which a state of emergency was declared (such as during the covid-19 pandemic) is not considered as an absence.
The withdrawal of the residence permit does not apply to foreigners who have obtained permanent residence as family members of Bulgarian citizens, under certain conditions.
State of emergency in Bulgaria or elsewhere?
Some argue that the definition of “state of emergency” under Article 40, par. 1, p. 6 of the Foreigners Law covers not only a state of emergency in Bulgaria but also in another country. We do not share this opinion. This provision was introduced during the covid-19 pandemic. It was intended not to infringe on the rights of foreigners who were unable to return to the country due to the restrictive measures in place. In other words, the legislator has provided that only the days during which a state of emergency was declared in Bulgaria should not be counted as absence.
How to protect yourself if you have received a coercive administrative measure for revocation of your permanent residence
If you have received a notice from the Ministry of Interior that you will be issued a coercive administrative measure under Article 40, par. 1, p. 6 – you should act immediately. The same applies if you have already received the order itself. We advise you to contact us immediately for professional assistance so that our lawyers can successfully appeal the administrative acts.
But still, what are the key points to emphasise when appealing this order?
Unprofessionally drafted orders for imposing administrative measures
Very often, the authorities of the Ministry of Interior issue orders for the imposition of coercive administrative measures in violation of the law. This may be grounds for their revocation. For example, the order may state that the foreigner was absent from the territory of Bulgaria, rather than from the EU.
The provision of Article 44, par. 2 of the Bulgarian Foreigners Law
Even though, as we mentioned above, revoking a residence permit is a mandatory measure in cases of absence from the EU for more than 12 consecutive months, the Foreigners Law also includes certain “protective” provisions. Such is the provision of Article 44, par. 2:
When imposing coercive administrative measures, the competent authorities shall take into account the length of stay of the foreigner on the territory of the Republic of Bulgaria, the categories of vulnerable persons, the existence of proceedings under the Asylum and Refugees Act or proceedings for the renewal of a residence permit or other permit granting the right of residence, his or her family situation, as well as the existence of family, cultural, and social ties with the person’s country of origin.
art. 44, par. 2 of the Bulgarian Foreigners Law
In other words, before revoking a permanent residence permit, the authorities must conduct a comprehensive analysis of the foreigner’s specific situation. And when a foreigner has permanent residence, it is logical to assume that he or she may have already lost his or her “family, cultural, and social ties” with his or her country of origin.
Directive 2003/109/EC
Fortunately, European legislation also provides for protective mechanisms in favor of foreigners residing long-term in a member state. Council Directive 2003/109/EC of November 25, 2003, stipulates that:
By way of derogation from paragraph 1(c), Member States may provide that absences exceeding 12 consecutive months or for specific or exceptional reasons shall not entail withdrawal or loss of status.
art. 9, § 2 – Directive 2003/109/EC
And according to the Bulgarian Foreigners Law:
“Exceptional circumstances” are natural disasters, accidents, catastrophes, robberies, and circumstances that have led to the provision of emergency medical care, as well as other events that have occurred beyond the foreigner’s control and which he could not have foreseen or prevented.
§ 1, p. 7 of the Foreigners Law
In other words, if, for example, a Ukrainian citizen was residing in Ukraine and was unable to leave the country due to the state of emergency there, he could benefit from the above exception.
Epilogue
Having your permanent residence permit revoked is extremely unpleasant. Therefore, if you have been absent from the EU for a period longer than 12 consecutive months, we advise you to contact us immediately.