20 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN BULGARIA In fact, the need to establish one’s identity is a formal ground for detention under Bulgarian national law. According to Article 44, paragraph 6 of the LFRB, detention is imposed when the foreigner “is unidentified, hampers enforcement of the order or there is a risk of absconding”. According to a recent analysis of 55 rulings of the SCAC related to the detention of migrants, “(t)he most common legal reason for issuing a detention order, according to the reviewed court decisions, was that the identity of the foreigner was not established”.79 At the same time, it is noteworthy that the detention ground under Article 44, paragraph 6 of the LFRB that the foreigner is not identified, is not a detention ground under Article 15, paragraph 1 of the EU Return Directive and thus contradicts the EU Directive. Another issue of concern in Bulgaria is that, upon issuance of removal and detention orders, stateless immigration detainees are usually ‘assigned’ to a country of origin from which they have come to Bulgaria.80 In other words, in their detention and removal orders they are not identified as stateless. This is the case both with persons who have recently entered Bulgaria, as well as with persons who have spent decades in Bulgaria. The practice of ‘attaching’ stateless persons to some country can be inferred also from the statistics provided in Section 2.4. above. Thus, for example, in the case of Mr. A., who was detained in Bulgaria from 2005 until 2012, the authorities continued to refer to him as a citizen of Russia, regardless of the fact that in a Ruling of June 2009 the Court had noted that at an unspecified date the Migration Directorate had received answers by the Ukrainian and the Russian embassies in Bulgaria stating that Mr. A. was not a citizen of either of the two countries. In the case of Mr. H., who has lived in Bulgaria for the last 24 years, the Bulgarian authorities refer to him as a citizen of Bosnia and Herzegovina, although he left his country of origin during the Bosnian war and had never had an identity document. “I have had only a birth certificate. I have never had any other paper in my life”, he recalls. Mr. H’s mother, who died when he was four years old, was of Bulgarian origin. That is why he chose to come to Bulgaria. Mr. H. speaks fluent Bulgarian and considers himself a Bulgarian: “I seek a way to stay a Bulgarian citizen. I have lived here for 24 years. These are not 24 hours or 24 months, but years”. Reminded of his removal order issued in December 2015, he states: “I am already old and cannot start my life anew”. His biggest fear is to be expelled from Bulgaria. Mr. H. had previously been subjected to multiple detentions of several days, but then released. In 2015 a removal order was issued against him and he spent four months at the Bousmantsi immigration detention centre until he was released. Mr. H. refers to the four months of his immigration detention as “the most humiliating punishment” that he has suffered in his life. It should be noted that unless detention serves a lawful purpose, it is arbitrary.81 According to Article 5, paragraph 1, “f” of the ECHR, immigration detention should solely be for the administrative purposes of preventing unlawful entry or to enforce removal. The imposition of detention solely for the purpose of administrative convenience is not lawful under international law. In both cases of Mr. A. and Mr. H. detention did not serve the purpose for which it was imposed as no removal was possible. If the authorities had provided space for the stateless persons to be heard before detaining them, they should not have detained them in the first place. Mr. H. shares that he felt like a criminal during his detention: he was fingerprinted and questioned as though he had done something wrong. In detention he often had high blood pressure and started to take medicine to address heart problems. Mr. H. counted every day that he spent detention. In his words, “to live in this place means that you have died and when you come out of here, it is as though you are born again”. 3.2 DECISION TO DETAIN AND PROCEDURAL GUARANTEES With regard to grounds for detention, the LFRB transposes Article 15 of the EU Return Directive 2008/115/EC.82 According to Article 44, paragraph 6 of the LFRB, detention is imposed when the foreigner “is unidentified, hampers enforcement of the order or there is a risk of absconding”. Furthermore, the Draft Law Amending and Supplementing the Law on Foreign Nationals in the Republic of Bulgaria introduces an additional new type of ‘short-term’ immigration detention lasting for up to thirty days. It is imposed on persons who have entered Bulgaria irregularly and its purpose is “to conduct the initial identification and establishment of identity and to assess the subsequent administrative measures that should be imposed or taken”.83 In practice this type of detention is currently taking place at the socalled ‘Redistribution Centre’ at Elhovo near the Bulgarian-Turkish border: for example, in 2015 the number of detained persons there was 15,760.84 By law and in practice, in issuing a detention order the authorities do not consider the existence of reasonable prospects to implement the removal order. For example, in a Judgment of 02 September 2013 in case No.11595/2012, the SAC of the Republic of Bulgaria repealed as wrong the decision of the SCAC that had invoked the test of the reasonable prospect of removal when reviewing the initial detention order. The Supreme Court stated that the detention order should be confirmed as the migrant was undocumented and had entered the country illegally, which constituted a risk of absconding.