Guidelines on Advocacy

ADVOCACY GUIDELINES

ACCESS TO INTERNATIONAL PROTECTION OF REFUGEE CHILDREN IN BULGARIA

CONTENT

INTRODUCTION

ADVOCACY – A KEY ACTIVITY OF THE BULGARIAN COUNCIL ON REFUGEES AND MIGRANTS

BACKGROUND

PARTI. STRATEGIC AREA OF ADVOCACY:

ACCESS TO INTERNATIONAL PROTECTION IN BULGARIA – STANDARDS AND PRACTICES

1. Legal framework
2. Access to territory and procedure of asylum seeking children
3. The rights of children in the status determination procedure
4. Representation and legal guardianship of unaccompanied asylum seeking children
5. Recommendations and guidelines on advocacy

PART ІI. STRATEGIC AREA OF ADVOCACY:

RECEPTION CONDITIONS FOR ASYLUM SEEKING CHILDRENIN BULGARIA

1. General standards
2. Accommodation
3. Medical care and health insurance
4. Social assistance
5. Education and Bulgarian language training
6. Recommendations and guidelines on advocacy

INTRODUCTION

ADVOCACY – A KEY ACTIVITY OF THE BULGARIAN COUNCIL ON REFUGEES AND MIGRANTS

The Bulgarian Council on Refugeesand Migrants (BCRM) is a civil society organization acting in the field of asylum and migration in Bulgaria. It was founded in 2005 by the Bulgarian Helsinki Committee, the Bulgarian Red Cross and Caritas-Bulgaria; in 2007 it was joined by the Association for Integration of Refugees and Migrants. The Council is a platform for the activities of the member organizations related to refugee and migration policies. BCRM’s mission is focused on facilitating and promoting the state policy and practice aimed at the protection of the rights of refugees and migrants, and the development of a fair and efficient national policy in the area of asylum and migration.

With the developmentand implementation ofthe advocacy guidelines BCRM is enhancing its role in the design and implementation of the national policy and practice in terms of access to international protection, reception and integration of refugees in conformity with the international and European legal acts and standards.

The advocacy guidelines are relevant to all the institutions and organizations working with asylumseekers and refugees in Bulgaria, as they identify the necessary short-term and mid-term measures and activities which should be taken for the further development and improvement of the policies in the area of access, reception and integration of refugees in our country.

Evidence in support of the above are the Guidelines on Advocacydrafted by BCRM in 2010 within the framework of the Project “Safeguarding Refugee Protection in Bulgaria” financed by the Ministry of Foreign Affairs of the Kingdom of the Netherlands under the Social Transformation Program MATRA. The guidelines on advocacy set forth in this strategic document have facilitated a better understanding and planning of the activities for safeguarding refugees’ protection in Bulgaria.

These guidelines on advocacy are a follow-up to the advocacy activities carried out by BCRM and the member organizations over recent years. The guidelines focus on advocacy policies and measures in the area of access to international protection, reception and integration for refugee children in Bulgaria.

The drafting of these guidelines would not have been possible, had it not been for the cooperation and joint activities among experts from the competent state institutions, the civil society organizations, and the UNHCR Representation in the Republic of Bulgaria. Partnership, the exchange of information and knowledge in the context of a variety of forums, working meetings, and trainings were of great importance for the elaboration of these guidelines on advocacy.

Within the framework of BCRM’s annual projects “Advocacy for Refugee Integration in Bulgaria” financed by UNHCR, in 2012-2014 a number of meetings and trainings were organized on the topic of refugee protection, including the protection of refugee children in Bulgaria:

• Training: Mental health and risk management related to mental disorders among refugees, 9 March 2012, Sofia;
• Roundtable: Advocacy for the integration of vulnerable refugees and humanitarian status holders, 14 June 2012, Sofia;
• Roundtable: Health insurance and healthcare for refugees and asylum seekers in Bulgaria, 5 July 2012, Sofia;
• A monitoring survey and a monitoring report: Implementation in 2012 of the 2011-2013 National Program for Refugee Integration in the Republic of Bulgaria;
• Roundtable: Integration of refugees in Bulgaria in 2012 – challenges, good practices and prospects for 2013, 4 December 2012, Sofia;

• Roundtable: Advocacy for housing of refugees in Bulgaria,28 March 2013, Sofia;
• Workshop: Advocacy for the development of the 2014-2016National Program for Refugee Integration in the Republic of Bulgaria, 25-26 April 2013, Borovetz;
• Roundtable: Advocacy for the protection and integration of refugee children in Bulgaria, 26-27 September 2013, Borovetz;
• Monitoring and a report: Implementation in 2013 of the 2011-2013 National Program for Refugee Integration in the Republic of Bulgaria;

• Roundtable: Challenges and achievemtns in the integration of refugees in Bulgaria in 2013, 3 December 2013, Sofia;
• Conference: Networking for prevention of genderbased violence in the context of international protection, 27 February 2014, Sofia;
• Workshop: Training of future teachers of Bulgarian as a foreign language to refugee children, 28-29 May 2014, Borovetz;
• Conference: Partnership for the protection of refugee children in Bulgaria,20 June 2014, Sofia;
• Roundtable: Advocacy for the social protection and integration of vulnerable asylum seekers and refugees in Bulgaria,17-18 September 2014, Borovetz.

The present paper makes an analysis of the national legal framework and practice in terms of the protection of children who seek or have been granted international protection, and provides guidelines and recommendations regarding the applicable standards. The aim of the document is to facilitate the activity of both state and local administrations, as well as non-governmental organizations working in the area of child protection in Bulgaria.

BACKGROUND

Every year thousands of children, third-country nationals, arrive in Europe and seek international protection. A part of these children seek international protection in Bulgaria, which, due to its geographic location, is one of the EU member states with an external EU border. The majority of these children are accompanied by their parents, others are taken care of by family members/relatives or friends; however, there is yet another group of children who are unaccompanied and have set out alone on this dangerous journey. Armed conflicts, violence, violation of human rights, trafficking or exploitation – these are but some of the reasons for which children seek protection outside their countries of origin.

In the spring of 2014 the civil war in Syria entered into its third year, and the number of fatalities, casualties, internally displaced people and refugees fleeing the country have been on the rise. At present 2,000 children who seek or have been granted international protection are living in Bulgaria – most of these children have fled the atrocities of the civil war.

The national legal framework which regulates the granting of asylum and international protection to persons in need of such protection is based on the provision of Art. 27 (2) and (3) of the 1991 Constitution of the Republic of Bulgaria. By virtue of the organic law, our state shall grant asylum toforeigners persecuted for their opinions or activity in the defense of internationally recognized rights and freedoms, while the terms and procedure for granting asylum are laid down in a subsequent law.

A year after the 1991 Constitution, the latest one in the history of the Bulgarian state, was passed, in 1992 the Republic of Bulgaria signed and ratified the Geneva Convention Relating to the Status ofRefugees of the Organization of the United Nations (prom. SG No 36 of 5 May 1991, amended No 30 of 1991, prom. SG No 88 of 1993), and the New York Protocol Relating to the Status of Refugees (prom. SG No 36 of 1992). Thus, Bulgaria joined the international community of states who grant international protection to persons in need of protection on the grounds of persecution and violation of their fundamental human rights in their country of origin, citizenship or permanent residence.

As a result of its accession to the European Union in 2007, Bulgaria introduced the norms of the EU law, including the general rules, legislative measures and practices in the area of asylum (the so-called asylum acquis). As a result of this, the scope of the national legislation, as well as the administrative practice and the case law have been broadened and supplemented with a number of new and binding community legal standards regarding the treatment of asylum-seekers and their rights and obligations within the territory and jurisdiction of the EU. The European countries have a long lasting tradition in terms of granting asylum to people subject to persecution, while the protection, promotion and observance of children’s rights are amongst the priorities on the European Union agenda.

The right to asylum in the European Union is enshrined in Article 18 of the Charter of Fundamental Rights of the European Union (Charter): “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).” Article 24, paragraph 1 of the Charter focuses onthe children’s right to protection and care by emphasizing that “Children shall have the right to such protection and care as is necessary for their well-being.”Children are entitled to express their views freely, and such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

Article 24, paragraph 2 of the Charter stipulates that in all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.

Since 1999 the European Union has been developing the Common European Asylum System and has taken actions to improve the existing asylum legislation. One of the objectives of the Common European Asylum System is to develop and guarantee high standards in order to provide equal and fair treatment for asylum seekers across the European Union.

Over the period December 2011 and June 2013 a number of legal acts were adopted – fundamental elements in theCommon European Asylum System. For the purpose of this Report, reference will be made to the three directives in the area of international protection which specifically focus on the reception, protection, and integration of children who seek or have been granted protection:

Directive 2011/95/ЕUof the European Parliament and of the Councilof 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted(Qualification Directive).

The deadline for the transposition of this Directive by the member states expired on 21 December 2013; due to a variety of reasons, however, it has not yet been transposed into the national legislation of the Republic of Bulgaria.

Directive 2013/32/ЕUof the European Parliament and of the Councilof 26 June 2013 on common procedures for granting and withdrawing international protection (Asylum ProcedureDirective).

Directive 2013/33/ЕUof the European Parliament and of the Councilof 26 June 2013 laying down standards for the reception of applicants for international protection(Reception Conditions Directive).

Bulgaria is obliged to ensure the transposition of the above two Directives by 20 July 2015 at the latest.

A considerable part of the EU norms regulate the standards for the treatment of children who seek or have been granted protection. Amongst these standards, there are some with a special focus on asylum seeking children who enter the territory of Bulgaria and the European Union without being accompanied by their parents. In parallel with the issues related to age and all the risks ensuing from the involvement of children in mixed migration flows and cross-border human trafficking, in the case of unaccompanied children, in particular, the absence of parental care and control premise a higher risk in terms of their security and additional difficulties in the exercise of their rights during the status determination procedure and after being granted a status. In view of the above, the EU legal norms recognize the need for the state administration to ensure more intensive measures and care aimed at the protection of the rights and legal interests of these children. In addition, the EU law lays down explicit and binding rules to be implemented in the national legislations and practice whereby both legal and practical safeguards will be secured for the protection of the best interest of these children.

PART II. STRATEGIC AREA OF ADVOCACY

ACCESS TO INTERNATIONAL PROTECTION IN BULGARIA – STANDARDS AND PRACTICE

1. Legal framework

The general legal status of children is regulated in several legislative acts.

Achild is any natural person who has not reached the age of 18, as defined in Art. 2 of the Child Protection Act (CPA).

Children are minor till the age of 14, and their legal representatives – parents or legal guardians – perform legal actions for them and on their behalf, as provided for in Art. 3 of the Persons and Family Act (PFA).

Children are underage from the age of 14 till 18, and can perform legal actions, though with the consent of their parents or legal guardians; furthermore, they can make minor deals in order to meet their current needs and are entitled to dispose of the proceeds of gainful employment (Art. 4 of PFA).

When children turn 18 they become of age and thus acquire the full capacity to enjoy rights and assume obligations via their actions (Art. 2 of PFA).

Given the fact that the law does not differentiate between children based on their nationality, the above legal provisions shall cover and apply to all children, irrespective of their nationality (citizenship) or habitual residence, and irrespective of the whether they have a residence permit for the territory of Bulgaria. This approach is in conformity with the general equality principle laid down in Art. 26 (2) of the Constitution, which stipulates that foreigners residing in the Republic of Bulgaria shall be vested with all rights and obligations proceeding from this Constitution, except those rights and duties for which Bulgarian citizenship is required by this Constitution or by another law. As the Constitution does not specify the type of residence, the equality provision regarding the fundamental human rights shall apply in respect of both legally residing and illegally residing children in Bulgaria who are third-country nationals. Therefore, it is not only children who seek or have been granted protection in Bulgaria, but also children who have been refused international protection that shall be entitled to the protection regulated by both national and international legal norms in the area of child protection.

Within the meaning of the above, all general principles of child protection (Art. 3 of CPA) and, in particular, the principle of the child’s best interest (§1 (5) of the AP of CPA) apply, without any exception, with respect to children who seek or have been granted protection in Bulgaria. In terms of asylum seeking children, this principle is also explicitly laid down in the EU law (Art. 23 of Directive 2013/33/ЕU, the so-called Reception Conditions Directive[1]); in addition, other relevant principles are family unity, access to education and health care – which apply equally to children who either seek or have been granted protection (Articles 23, 27, and 30 of Directive 2011/95/ЕU, the so-called Qualification Directive[2][3][4]).

In addition to the general principles, the law regulates yet another principle for the protection of refugee children by introducing the obligation for the responsible authority, the State Agency for Refugees, to exercise supervision and take measures for the protection of aliens who are minors or under the legal age against physical or mental violence, cruel, inhuman or degrading treatment (Art. 25 (3) of LAR).

In respect of the children who seek or have been granted protection, the special law, the Law on Asylum and Refugees, does not set forth a different or special definition of the child, other than the definition in the general legislation. Refugee children are not covered by individual provisions in LAR; they fall within the scope of the provisions regarding family members. The reason is that, by way of rule, children are accompanied by either of the parents or by both of them. Hence, their legal status, rights and obligations, and the outcome from the procedure are directly dependent on their parents’ claim. Such an approach is based on the assumption that the reasons why children flee and seek international protection are rarely different from their parents’ reasons – a fact based also on the argument of cohabitation and shared destiny.

The definition of the family of persons who seek or have been granted protection in LAR, however, has a broader scope compared to the standard understanding of the nuclearfamily both in the Bulgarian legislation and by custom – spouses or a man and a woman in cohabitation and their minor children. Thus, the family members, as defined in refugee law, include: а) the husband, the wife or the person with whom the individual has a proven stable and long-term relationship, and their children who have not come of the legal age, where the latter are not married; b) the children who have not come of the legal age and are not married and are not able to ensure their subsistence on their own due to serious health problems; c) the parents of each spouse who are not able to take care of themselves due to old age or a serious illness and need to live in the same household as their children (§1, item 3 of the AP of LAR). This definition in the national law is more favorable than the definition in the European legislation which excludes, under any conditions whatsoever, adult children and the parents of the wife/husband, i.e. the child’s grandparents. (Art. 2 (j) of Directive 2011/95/ЕU, the so-called Qualification Directive).

In addition to the usual situation of children accompanied by their parents, it often happens that children who seek or have been granted protection find themselves on the territory of Bulgaria alone and unaccompanied by their parents. Such a situation is typical for refugee children – the explanation resides in the coercion, violence or persecution in their country of origin, which, apart from being the reason for their flight, quite often cause disruption in family unity and separate children from their parents – either before or during the flight from the country of origin.