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Helsinki Committee report on the detention of migrants and possible alternatives 21.11.16

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01 November 2016

A new report by the Bulgarian Helsinki Committee examines the detention of migrants and possible alternatives: "The purpose of this report is making an analysis of the efficiency of the national practice in applying administrative detention of foreign nationals and the potential new alternatives to detention which, when put in place, would both improve the efficiency of immigration control and lower its financial and human costs."

 

The report: Bulgarian Helsinki Committee: Program for Legal Protection of Refugees and Migrants: Detention Mapping Report (pdf)

With regard to the current use of alternatives to detention in Bulgaria, the findings - based on fieldwork conducted between 1 January 2015 and 30 April 2016 - are not promising:

"At the issuing of the order for detention at DETENTION CENTER, an alternative to detention was not considered by the issuing authority for 99.9% of the detainees, and only one of the respondents was allowed a 30-day time limit to voluntarily leave the country.

After the detention within the period up to the 6th month, the only applicable legal alternative to detention – weekly reporting by the foreigner to the authorities at the MOI territorial structure with jurisdiction over the residence address, as declared by the guarantor – has been requested by 6 persons. Such an alternative measure was approved for 1 person, and the remaining persons either had their applications rejected or were released on other grounds."

The report makes a number of recommendations regarding potential alternatives policies and practices that could be introduced:

"2.5.1. The obligation to consider the possibility to apply alternatives to detention before issuing the detention order;

2.5.2. Individual approach and assessment in each individual case;

2.5.3. An explicit legal provision regulating the possibility to apply various combinations of measures already set out in the law (temporary confiscation of travel documents, external address, daily reporting), which are not applicable at present due to the mandatory application thereof in a cumulative manner;

2.5.4. The order should contain the conditions of the alternative and the reasons for choosing it, as well as the possibility for judicial review;

2.5.5. The possibility to also apply an alternative during detention already imposed – within the monthly ex-officio review by the Migration Directorate, and at the request of the third-country national detained;

2.5.6. Introducing the possibility to impose sanctions (forfeiture of the financial guarantee, increasing the amount of the financial guarantee) on the third-country national in the event of failure to respect the conditions of the alternative, the most serious sanction being detention;

2.5.7. Introducing the possibility to impose sanctions on guarantors providing accommodation and subsistence in relation to the measure of weekly reporting to the authorities at the police department with jurisdiction over the residence of the third-country national (signed promise of appearance);

2.5.8. Developing guidelines/a mechanism for risk assessment, and laying them/it down in a legal act (regulation, ordinance, instruction);

2.5.9. Introducing a financial pledge (cash guarantee) as an additional alternative measure to detention with options for:

a) linking the amount of the cash to the costs of the execution of the return;
b) the possibility to update the amount in the event of emerging changes in the costs of the return to specific countries of origin;
c) the possibility for the financial guarantee to be paid in favour of a third country national by a private guarantor or by means of a deposit by a non-governmental organization."