Iliyana SAVOVA The specific socio-political situation in the past two decades made migration and asylum issues a top priority for the international and, most of all, for the European community. Although industrialized countries, not limited to traditional immigrant countries, are reaping a lot of benefits from immigrants, there is still a significant public and political opposition in these countries to any liberalization of the existing policies and regimes in this area. The double bind between the economic necessity for liberalization and the political pressure to close the borders contributes to the dynamic character of legislation, public policies and practices. The governments of destination countries are faced with the challenge to strike a balance between these contradictory concerns in order to prevent the problems that are bound to arise in such a conflict. The latter vary from marginalization of local communities, changes in the political landscape, diversification of cultures, religions and traditions, to the loss of centuries-old national identities, overspending in the social service system, inevitable tax burden, illicit human trafficking and illegal labor related crimes. MIGRATION POLICY: BETWEEN RIGHTS AND CONTROL The attempts to solve these issues clearly emphasize the imbalance between the state control of immigration and the right to freedom of movement and choice of residence by each individual; however the scales are tipped completely in favor of the state. In the past few years, this imbalance has been transformed into largescale national and regional policies and practices which lead to violations of migrants’ rights. This, in turn, has had a great impact on the development of Bulgarian immigration policy and legislation. The lack of independence in identifying practical and legislative solutions to migration – a relatively new issue in Bulgaria - is determined not only by the global processes of constant intensification of migration, but in no small measure, by the country’s EU accession negotiations. The second factor was a major spur for the development of legislation and helped amend the inadequate and obsolete legal framework, inherited from the socialist regime. Studies conducted during the pre-accession period gave a positive evaluation of the country’s progress with regard to the common non-discriminatory regime of treatment of foreign nationals and profit-generating legal entities in Bulgaria. It must be noted, however, that these analyses assessed the development of the Bulgarian migration policy solely in the context of the narrow interests of the regional economic structure, that is the European Union, despite declarations about European values protecting the equality of all individuals and the proclamation of Europe as a zone of freedom and security. The policy pledges of the Bulgarian governments through1 OBEKTIV
Outside the P out this period focused on the adoption of immigration control measures. This was inspired by the pre-accession and specific legislative requirements of the European Union in this field. In the context of the large-scale political and economic measures introduced by the government to restrict migration flows, what seems to remain outside the public focus is the unprecedented restriction of individual rights, which are safeguarded as fundamental by a series of international legal documents: Art. 13 of the Universal Declaration of Human Rights, Art. 12 of the International Covenant on Civil and Political Rights and Art. 35, Paragraph 1 of our own Constitution. The restrictions are in complete contravention of these normative guarantees. A classic example is the provision under Art. 75(5 and 6) of the Bulgarian Identification Documents Act, which authorizes administrative bodies to deny permission to leave the country on account of violations of the terms of stay in other (European) countries. VIOLATIONS OF FOREIGN IMMIGRANTS’ RIGHTS CONTINUE The blatantly discriminatory approach in the application of provisions in the Foreigners in the Republic of Bulgaria Act (FRBA) pertaining to foreigners married to Bulgarian citizens is an especially severe violation. The general provision under Art. 27, para 1 of the FRBA, which allows for the granting of a residence permit to such foreigners, without the possession of a long-term D-type visa, was applied only in relation to citizens of the EU, the EEC and North America. All other foreigners, especially of African or Arab descent, were denied residence permits due to the lack of a D-type visa. This constitutes a straightforward violation of Art. 6, para 2 of the Constitution, Art. 4, para 1 of the Protection from Discrimination Act and Art. 14 of the European Convention on Human Rights (ECHR). After what initially looked like a good practice of revocating such refusals on the grounds of Art. 8 of the European Convention on Human Rights (the right to respect for private and family life), in 2006, the courts passed contradictory rulings, a fact that causes concern with regard to their independence and integrity. Violations of foreign immigrants’ rights continue, as under Art. 46, para 4 of the FRBA, the complaints against orders for imposing involuntary administrative measures have no suspension effect on the enforcement of the measure. This fails to guarantee migrants’ right to an effective remedy under Art. 13 of the ECHR. Furthermore, foreigners in administrative detention awaiting deportation do not
Public Focus have access to legal aid in police proceedings, which violates their rights under Art. 5 of the European Convention on Human Rights. The court fees for such proceedings should be revoked in order to prevent a potential denial of justice. REFUGEES: ACCEPTED AND UNWANTED If, as far as immigrants are concerned, these restrictions could be justified by the need to control immigration flows into the country, such restrictions are hardly justifiable when they are being imposed on a specific category of foreigners, who are traditionally conflated with immigrants, but whose need to access the country’s territory and obtain a leave to remain arises from completely different reasons. While immigrants leave their countries of origin voluntarily, in search of a better standard of living, refugees are forced to flee in order to escape persecution and circumstances endangering their life, liberty and other fundamental rights. Immigrants may return safely to their country of origin at any time. If refugees are returned without guarantees that the threat has been eliminated, their life is often at risk. Therefore, the continuous efforts of the State Refugee Agency to impose ever growing restrictions on the rights of refugees and asylum seekers in Bulgaria, are bewildering. Undoubtedly, this has been inspired and justified by the requirements to adopt EU regulations with regard to asylum. However, when this adoption leads to restriction and even revocation of rights, arising from UN human rights legislation, the question whether this is acceptable is more than natural. It should be noted that Bulgaria had decided to protect the right to asylum in its Constitution (Art. 27, para 2) before it signed and ratified the 1951 United Nations Convention relating to the Status of Refugees. The so-called European acquis* on asylum is a regional act of a limited number of European countries, as defined by the Convention and its implementation procedures. However, it is highly restrictive in nature and impose rules for the non-enforcement, rather than the enforcement of the Geneva Convention. As these countries have ratified the Convention without
* EU Council Regulations 343/2003/EC and 1560/2003/EC Dublin II, EU Council Regulation 304/2002/EC Eurodac and the directives on the procedures for granting refugee status (EU Council Directive 2005/85/EC), qualification of refugee applications (EU Council Directive 2004/83/EC), reception of asylum seekers and refugees (2003/9/EC), family reunion (2006/83/EC) and temporary protection (2001/55/EC).
reservations, the European acquis on asylum represents a completely unacceptable legal act of actual denunciation. In a national context, this factual denunciation is manifested, for example, in the proposed amendments aimed at narrowing the definition of refugee under Art. 1A of the Convention relating to the Status of Refugees by the introduction of additional definitions (Art. 8, para 5, Art. 13, para 1(11) and § 67, item 5-9 and item 12 of the Additional Provisions of the Amendments and Supplements to the Asylum and Refugees Act), expansion of cases in which the nonrefoulement principle is cancelled (Art. 4, para 4 and Art. 67, para 3 of the ASARA), restrictions on the right to family reunification (Art. 8, para 10 and Art. 9, para 7 of the ASARA) and expansion of the termination clause under Art. 1C of the Geneva Convention (Art. 15, para 5 of the ASARA). The proposed amendment of Art. 92 of the Act is a cause of serious concern. It introduces fees for court expert examinations payable by individuals seeking asylum, which ties court protection of fundamental human rights to the availability of financial means; in other words, a property qualification is being imposed in contradiction to the cautio judicatum solvi principle proclaimed by the Geneva Convention. Finally, the revocation of the right to submit an asylum request to any state body, and its restriction in Art. 58 solely to the State Refugee Agency, is the crown jewel in the efforts to hinder in every possible way refugees’ access to the country’s territory and asylum procedures, insofar as the border and immigration police authorities will have to completely disregard requests addressed to them once this amendment enters into force. Such restrictions are unacceptable. They boost the regional political interests of a union which is economic by nature at the expense of the generally recognized norms of an international legal act, whose enforcement guarantees the universal protection of fundamental human rights. While it is true that over the past 18 years of its existence the Bulgarian state has suffered from a complete lack of an independent political will, decision-makers should correctly assess the extent to which they can give up on their integrity, especially on issues concerning the protection of human life, liberty and personal security. Otherwise, we will witness the re-occurrence of situations in which our own policy on people like refugees puts us in a situation of moral deficiency, by having no say in insisting for justice in cases, such as the one with our nurses in Libya. If the policies of the Bulgarian state result in returning people whose life is endangered and who are at risk of being tortured to the countries they are fleeing from, then the difference with the Libyan security services that have tortured our compatriots becomes blurred in a way which is not only unpleasant but represents a verdict for the society we live in and the conventionalities we submit. OBEKTIV 2