19 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN BULGARIA raise concern about the requirement that applicants for statelessness determination be lawfully within a state. This is because many of the rights in the 1954 Convention are for stateless persons not lawfully in the state. Furthermore, the human rights to nondiscrimination and equality are not conditional upon lawful presence and often can only be met if statelessness is identified. According to UNHCR, it must be taken into account that in many occasions stateless persons’ lack of access to “the very documentation that is necessary to enter or reside in any State lawfully”. Furthermore, Article 1 of the 1954 Convention defines a ‘stateless person’ as a person who is not considered as a national by any State “under the operation of its law”. As the UNHCR Handbook72 sets out, this means both what the law says and how it is implemented, whereas the Bulgarian definition (“in accordance with its legislation”) only includes what the law says. Article 21d(1.1) of the draft law states that applications for statelessness status are refused if the applicant “does not meet the conditions of Art. 21 b.” Thus, the exclusion of individuals who have not entered the country legally and/or who do not have a permanent/long-term residence permit, or whose right to a nationality may be evident under national ‘legislation’ but who may not enjoy this right in practice due to the discriminatory implementation of the law, goes against the main principle behind the 1954 Convention of protecting the stateless. In the reasoning behind the draft law, it is stated that – following an analysis of European good practices – the working group on the draft law “has found it appropriate to adopt the Hungarian practice”. Therefore, it is noteworthy that on 23 February 2015 the Hungarian Constitutional Court declared "that lawful stay requirement in statelessness determination breaches international law" and quashed the lawful stay requirement as of 30 September 2015.73 After the Hungarian Constitutional Court judgment, persons that did not enter Hungary legally or that are residing in the country unlawfully have access to the process of the determination of statelessness. Furthermore, the definition of statelessness used under Section 2(b) of the Hungarian Aliens Act of “a person who is not considered as a national by any state under the operation of its law” is fully compatible with the 1954 Convention definition. Article 21c(1) of the draft law provides that the competent entity to issue the decision granting or refusing the status of a stateless person is the Director of the Migration Directorate at the Ministry of the Interior. This is also the competent body to issue ‘coercive administrative measures’ against migrants such as removal and detention orders. Article 21d(1.2) of the draft law provides that the application will be terminated when “the applicant does not submit within the time limit required additional data or documents necessary for the procedure for granting the status of stateless person”. Here it is important to mention that the UNHCR Handbook, paragraph 91, alerts that “requiring a high standard of proof of statelessness would undermine the object and purpose of the 1954 Convention”. UNHCR advises states to adopt a similar standard of proof to the one required for refugee status determination. In addition, paragraph 89 of the UNHCR Handbook explains that the burden of proof in statelessness determination is a shared one by both the applicant and the determination authority. The Bulgarian draft law stipulates that the procedure for establishing the relevant circumstances for recognising the status of a stateless persons will be determined by the implementing regulation of the law.74 In practice the identification of statelessness should be necessary when determining the destination country to which an illegally staying person is to be removed. As pointed out in Section 2.2.2. of this report, in the case of Mr. Auad the ECtHR stated that “the destination country should always be indicated in a legally binding act and a change of destination should be amenable to legal challenge”.75 Furthermore, in the case of Amie and Others v Bulgaria the ECtHR noted that “the enforcement of expulsion measures against refugees – the Court would add, especially ones who are stateless – may involve considerable difficulty and even prove impossible because there is no readily available country to which they may be removed. However, if the authorities are – as they surely must have been in the present case – aware of those difficulties, they should consider whether removal is a realistic prospect, and accordingly whether detention with a view to removal is from the outset, or continues to be, justified”.76 To-date, this measure has not been implemented by Bulgaria and the destination country of removal is determined in the process of enforcing the removal order, after detaining the person. The Director of the Migration Directorate at the Bulgarian Ministry of the Interior indicated in writing that the identification procedure “is one and the same for all illegally residing foreigners and is no different for persons who have declared that they are stateless. At the moment of detention all illegally residing persons are unidentified and their identity is subject to subsequent verification.” He further explained that the identification procedure upon detention includes “the filling out of an identification form approved by FRONTEX,77 allowing the person to present documents that are available or sent by his relatives, as well as to present information to be verified by the competent administrative authorities through official channels”. The fact that no specific procedure is applied to stateless persons was also confirmed to us by a lawyer from the non-governmental sector.78