29 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN BULGARIA undocumented migrants, receive no papers and remain in a legal limbo. This report has revealed that prevention of arbitrary detention of stateless persons in Bulgaria requires a number of interrelated overhauls to the system and how it is implemented, regarding recognition of the status of a stateless person, issuance of return and removal decisions and imposition of immigration detention. Concrete recommendations for improvement are listed below: 1. 2. 3. 4. 5. 6. The definition of a stateless person in the draft Law Amending and Supplementing the Law on Foreign Nationals in the Republic of Bulgaria should be revised in line with the 1954 Statelessness Convention, according to which, “a person who is not considered as a national by any State under the operation of its law” is stateless. The provision in the draft Bulgarian law that the status of ‘stateless person’ should be accessible only to persons who were born in or entered legally onto the territory of Bulgaria and who hold a permanent or long-term residence permit, should be removed, as these criteria contradict Bulgaria’s international treaty obligations. In removal proceedings, Bulgaria should determine the destination country before enforcing a removal order and detaining the individual. In this regard, it should implement the measure set out by the European Court of Human Rights in the Auad case that “the destination country should always be indicated in a legally binding act and a change of destination should be amenable to legal challenge”. Identification of statelessness should take place before issuing a removal and detention order. Stateless persons should be identified as such and should not be arbitrarily ‘assigned’ a country of origin in their detention and removal orders. The need to establish the identity of a person should not be a formal ground for detention. Article 44, paragraph 6 of the Law on Foreign Nationals in the Republic of Bulgaria, which provides that detention is imposed when the foreigner “is unidentified, hampers enforcement of the order or there is a risk of absconding” should be amended and brought in line with Article 15, paragraph 1 of the EU Return Directive and Article 5(1)(f) of the European Convention on Human Rights. Both administrative and judicial authorities in Bulgaria should recognise every person’s right to be heard when they are subject to removal and detention. In order to guarantee access to justice, Bulgarian law should envisage automatic judicial review of removal and detention orders and court hearings with the appropriate participation of the addressee of the orders. 7. 8. 9. 10. 11. 12. 13. 14. Unless removal efforts are carried out with due diligence, detention is unlawful. In reviewing the length of detention, the authorities should follow the burden of proof test, stipulated by the Court of Justice of the European Union in the Mahdi case. For it to be possible to consider that there is a ‘reasonable prospect of removal’ within the meaning of Article 15, paragraph 4 of the Return Directive, there must be a real prospect that the removal can be carried out successfully within the allowed time limit of detention. Before authorities consider whether the detainee has shown that he has failed to cooperate, the authority concerned should be able to demonstrate that the removal operation is lasting longer than anticipated, despite all reasonable efforts of the removing authorities. ‘Lack of cooperation’ by the detainee should not be inferred solely from their refusal to sign a declaration for voluntary return. Bulgarian authorities should take into consideration the fact that the one alternative to detention that currently exists in Bulgaria, weekly regular reporting, is not feasible in cases of persons who have entered the country shortly before their detention and have no social links in Bulgaria. Furthermore, this one alternative, with onerous weekly reporting requirements is not fit for purpose to meet the varying needs of different vulnerable persons. Bulgaria should therefore introduce new alternatives to detention that are in line with respect for human rights, and which are considered and exhausted first, before, in exceptional cases, detention is resorted to. Vulnerable persons should not be detained and alternatives to detention should be explored instead. To that end, identification of vulnerability is crucial. The number of detained unaccompanied children in Bulgaria despite the legal ban on their detention speaks of the pressing need to take concrete measures for initial screening and identification of unaccompanied minors and other vulnerable persons at the earliest possible stage and on a continuous basis. With regard to conditions of detention, the Bulgarian authorities should hear the repeated complaints of detainees over the years and take measures to ensure that detention does not amount to inhuman and degrading treatment in violation of Bulgaria’s human rights obligations and does not threaten the health and life of detainees. The application of solitary confinement to immigration detainees in Bulgaria has been arbitrary. Before imposing disciplinary punishments on detainees, there should be regulation of the conditions, procedure and remedies in this regard, which are stipulated in an act of law. When persons are released from detention without any identity documents, they remain in a legal limbo without access to fundamental human rights and