Ombudsman Diana Kovacheva approached the Director of the Migration Directorate Nikolai Nikolov and pleaded for two foreign nationals, from Iran and from Afghanistan, who had been residing in Bulgaria for many years and who were subjected to “a coercive administrative measure and placed at a special facility for temporary placement of foreigners” and are in danger of being taken back to their countries of origin.

18 January 2024

Ombudsman Diana Kovacheva approached the Director of the Migration Directorate Nikolai Nikolov and pleaded for two foreign nationals, from Iran and from Afghanistan, who had been residing in Bulgaria for many years and who were subjected to “a coercive administrative measure and placed at a special facility for temporary placement of foreigners” and are in danger of being taken back to their countries of origin.

In both cases, following appeals from the two foreigners’ lawyers, experts from the Directorate National Preventive Mechanism (NPM) and Fundamental Human Rights and Freedoms with the Ombudsman Institution conducted an onsite inspection and came up with a recommendation to draw on Art. 44, para 5 of the Foreigners in the Republic of Bulgaria Act (FRBA), viz., alternative measures of forced placement. As per this provision, where there are obstacles to a foreigner leaving Bulgaria immediately or to entering another country, and no actions for the removal thereof have been scheduled, the authority which issued the order imposing an administrative enforcement measure, or the Director of the Migration Directorate shall, by an order impose any of the precautionary measures as an alternative to the placement. An option, for example is, to make it forcing on the foreigner to report on a weekly basis at the territorial office of the Ministry of Interior exercising jurisdiction over his/her place of residence.

Both foreign nationals have lived in Bulgaria for more than ten years and have a residence: one of them holds a valid passport; the other one holds a valid rental agreement and a notarized declaration from a guarantor, a Bulgarian citizen providing the means of sustenance of the person during his stay in Bulgaria.

During the interview with the Iranian citizen, the NPM experts were informed that he is not willing to go back to Iran, that he does not hold any valid Iranian identity documents and that he is willing to stay in Bulgaria officially, for which he duly filed an application to the State Agency for Refugees with the Council of Ministers. The inspecting team found that he fluently speaks Bulgarian, that he has knowledge of the Bulgarian customary practices, that he has many friends who are Bulgarian citizens and that he is fully integrated into the country.

“In connection with the above-stated and drawing on Art. 20, para 1, subpara 2 in relation to Art. 19 of the Ombudsman Act, I address to you a proposal to carry out an investigation on the case. I recommend that in line with your powers as per Art. 44, para 5 FRBA and if a reason is seen for the enforcement of more lenient measures, you issue an order that some of the precautionary measures be enforced upon the foreigner,” the Ombudsman wrote.

Regarding the man from Afghanistan, the Ombudsman added the fact that the situation in that country continues to be dangerous and uncertain, especially after the Taliban seized power in August 2021.

According to the information released for the general public on the website of the Ministry of Foreign Affairs, the security situation in Afghanistan continues to be complicated and unpredictable while the risk index (five) remains the highest,” Prof. Diana Kovacheva wrote.

She stated firmly that in keeping with Art. 44а, para 5 FRBA no foreigner under a coercive administrative measure of return shall be returned to a country where the life and freedom thereof are jeopardized and the said foreigner is endangered by persecution, torture, or inhuman or degrading treatment.

Further, the Ombudsman pointed out that when the NPM experts spoke with the foreigner’s lawyer, they were informed that the person is about to submit an application to seek international protection and that new evidence would be attached to this application: medical certification of scars of torture to which the person has been subjected in Afghanistan.