Immigration is on the international agenda; from George Bush's tough new line on border control to France's controversial immigration bill. The Sofia Echo's LUCY COOPER and PETAR KOSTADINOV examine the immigration process for asylum seekers in Bulgaria, looking in particular at the case of Javed Nouri, an asylum seeker from Afghanistan currently being held in Druzbha detention centre in the outskirts of Sofia.

The Bulgarian Helsinki Committee
Lucy Cooper spoke to Georgi Toshev of the Bulgarian Helsinki Committee, Javed Nouri's lawyer.

"Javed Nouri as an asylum seeker was one of the people who successfully integrated into our society," says Toshev.

"He is young and managed to learn Bulgarian on an operational level quite fast. He attended the course for the Bulgarian language which is provided by the State Agency for Refugees." These are open to all refugees, but very few people choose to take them, according to Toshev. 

"After this, because of his personal qualities - he is a very open person and can speak freely with people - he became close to people. That's why he was chosen many times to speak for the refugees, on refugee day for example. He can speak on behalf of the refugee society here in Bulgaria."

 He took an active role in the community, taking part in Afghanistan's national day and helping out at the Ovcha Kupel centre for refugees where he lived. He sings and paints. "He's quite a talented person," says Toshev. "He tried to help other Afghans who were not so well educated, some of them are not educated at all, they cannot speak any other language apart from the Afghan language and cannot write in any other languages. So, in the refugee determination procedure, after they claim that they want to be a refugee here in Bulgaria, they need help. This is one of the reasons that this unit exists - the Bulgarian Helsinki Committee, we are a programme to give legal protection to refugees and migrants who come here to ask for asylum," says Toshev.

The State Agency for Refugees (SAR) are obliged to provide an interpreter for administrative, official procedures, but, Toshev says, these asylum seekers need interpreters in their life outside the SAR. "For example, they need to know how to get to our offices when they receive a rejection from the SAR and need to make an appeal."

So, he says "Javed Nouri fit in that gap in our system where there are no interpreters. He brought the people from the SAR to the Helsinki Committee in order to help them. These people come from the very undeveloped regions of Afghanistan They know how to shoot, and how to survive, nothing more. They need someone to help them. So, people like him (Nouri) are at some point useful for the Bulgarian system."

"So," says Toshev, "we were quite surprised when he was caught and detained in Druzbha detention centre. More than that, "we were surprised by the legal grounds that gave the possibility to our Migrate Directorate to detain him there."

Article 10
 "Javed Nouri has an ongoing procedure with the Supreme Adminstrative Court (SAC) in Bulgaria to establish his refugee status. There is a legal provision that states that this person cannot be detained in a facility such as Druzbha detention centre because during this procedure, he has the right to have a temporary ID card," says Toshev.  "There are also legal provisions that protect him, such as Article 33 from the Geneva Convention '51 on the status of refugees. Bulgaria's Law on Refugees directly implements this in Article 4 of the Law on Refugees (LAR). There are also such provisions in Article 44a of the Aliens in the Republic of Bulgaria Act and in the Ministry of Interior Act."

Toshev explains that Article 67 LAR clearly states that a person cannot be detained for any period while the procedure to determine their refugee status is ongoing. This means that the asylum seekers have applied to the State Agency for Refugees and are waiting for a decision on whether they will be granted refugee status in Bulgaria.

"But," says Toshev, "LAR makes one exception and this exception is related to when the reasons for detention are based on grounds of threat to national security, or threat to the public order" (Art. 67, al.3 LAR).

"In the particular case of Javed Nouri, the reason he is detained is Article 10 in the Aliens Act. The grounds are threat to national security and threat to public order. BHC were really very surprised when we found that this order was issued in December 2005. He was detained on April 6, 2006."

Toshev says that "when an order for expulsion is issued based on Article 10, the competent body, which in this case is the director of the NSS, is not obliged to give any motive or reasons in his order. He is released of that obligation `ex lege'."

This means that neither the defendant nor their lawyer  know what the accusations, or reasons for detainment are until the court hearing. "We still don't know the reasons why he is being detained, just the legal grounds. We don't know what this `threat' is," says Toshev.

"Most of the orders which I have seen," says Toshev "do not have a signature of the person who is going to be expelled. There is no signature of an interpreter, which means that no interpreter attended the procedure, and the right of legal protection is definitely violated, which is a direct violation of Article 6 of the Convention on Human Rights. And finally, the conditions of his detention were not in compliance with the requirements of Article 3 of the Convention, prohibiting inhuman and degrading treatment."

He says that Article 10 could be used against any foreigner with permanent residence here, citing examples of people who have been living Bulgaria long-term and who have a Bulgarian spouse and family against whom the article was used. "This is quite a worrying practice, but at present we don't have an effective procedure to deal with it."

Toshev believes that if all people issued with these orders for expulsion had a lawyer and a translator at the very beginning, the number of orders would decrease immediately. However, it is difficult for organisations such as the Helsinki Committee to know who is being issued with these orders. "Our authorities rely on the fact that nobody knows who is detained or when. If the detained person doesn't know his rights to appeal and to professional legal help, he will not claim these rights and will loose the opportunity to call a lawyer and to submit a proper appeal. If the person does not speak Bulgarian, which is usually the case, of course they won't be capable of organising a proper defence for themselves." Toshev says that it is the responsibility of the authorities to secure legal protection and an interpreter to protect the rights of the detainee, if it is his will, but that often does not happen.

`Temporary' confinement?
Forced placement of foreigners is regulated by Article 44 of the Aliens Act. The Act does not set any specific deadline or time limit for the deportation and/or the detention. Under this legislation it is also possible not to detain foreigners awaiting  deportation. They may remain free upon the condition of reporting to a police office at regular intervals. The law, however, does not indicate any grounds on the basis of which the authorities should decide whether to detain a foreigner, pending deportation or not, leaving the matter to their unfettered discretion.

"Our authorities issue orders for people to be expelled from the country. In order to secure this expulsion procedure, our Law on Foreigners states that people can be detained in detention centres, but only to secure the necessary actions from the Migration Directorate," says Toshev. Currently, there is no law determining how long a person can be detained for. "We have cases of up to two-and-a half years," says Toshev. A new Interior Ministry law defines the term as six months, but this has not yet come into practice.
In cases of such long periods of detention, the Helsinki Committee has made appeals before Sofia City Court and the SAC, stating that detention for such an excessive period is a contravention of Article of 5(1)F from the Convention on Human rights, which states that a person may be deprived of their liberty if action is being taken with a view to deportation. Toshev argues that in many of the cases, nothing is being done toward securing deportation.

 The Convention on Human Rights is an international act and according to the Bulgarian constitution it has precedence over national level legislation.

"Because of the lack of state provisions, we address directly this article 5(1)F in order to help these people, for the administrative acts to be withdrawn and for them to be released. We have cases when the SAC ruled that this was a very extensive and unusual detention, a "not `lawful' detention" and that the administrative body had not done anything to try to secure their expulsion, which is why the person must be released from the detention centre," says Toshev.

The Bulgaria Helsinki Committee are currently trying to make this procedure faster and the legal term shorter and to initiate debate in order to change legislation, so that people can only be detained for a certain period, and not indefinitely.

Javed Nouri case
The appeals against the orders for expulsion and forced placement have already appeared before the SSC. They appalled on the grounds that these orders should not be put into action because: they were in contravention of Article 33 from the Geneva Convention for Refugees, Article 4 from the Law on Refugees and Article 68 from the Law on refugees, and because Nouri still has ongoing refugee status determination procedure. "It is a complete violation of the legal provision of the LAR and the principle of non-refoulemnt. If you have an ongoing procedure before the state Agency of Refugees you cannot be deprived of liberty. Secondly, this order of expulsion should not be executed until the  refugee determinant procedure is completed. A person should not be returned to the country where his life and health will be threatened and he could be a victim of inhumane or degrading treatment, which would be a violation of Article 3 in the convention against torture,"says Tishev. They are now waiting for a court hearing to be appointed.