Protecting Unaccompanied Minor Asylum Seekers in Bulgaria: Balancing Law and Practice

Publication Date: 
Wednesday, June 6, 2018
 Holly Young/IRIN

This guest blog comes to us from Eliza Campbell and Stanislava Topouzova. Stanislava Topouzova is a PhD Candidate at the Faculty of Law at the University of Oxford, and has worked at the International Migration Institute, the Refugee Studies Centre, the Centre for International Peace and Security Studies, and most recently, the International Centre for Migration Policy Development. Eliza Campbell is a current Fulbright researcher based in Bulgaria and an MA candidate in Arab Studies at Georgetown University, and has worked with the UNHCR, UNICEF, and the International Rescue Committee.

Since 2016, Europe has continued to face an unprecedented influx of unaccompanied minors seeking legal protection within its borders. In 2016 alone, 63,300 unaccompanied and separated children applied for international legal protection in the European Union (EU). In Bulgaria, a country directly at the front gate of the EU, an unprecedented 2,750 unaccompanied and separated children applied for refugee or humanitarian protection status in 2016. While these numbers have decreased significantly in the past two years, the sudden presence in Bulgaria of a significant number of unaccompanied and separated children applying for legal protection has ushered in a set of new challenges and indeed, long-term questions about the overall child protection regime in the country. What can be learned from the case of Bulgaria, a state frequently absent from international attention and headlines, is how Member States of the European Union can respond to the disjunctures between domestic law and practices as they relate to unaccompanied minors, and vulnerable populations more broadly.

Clashes between law, practice, and ‘the best interest’ principle

When it comes to unaccompanied minors seeking asylum, many Member States of the European Union use an individual legal guardianship model, which seeks to protect the rights and well-being of children by providing an individual guardian responsible for each child in the absence of a family member. The Bulgarian domestic asylum regime, however, does not allocate an individual legal guardian; rather, the Law on Asylum and Refugees (LAR) stipulates that a municipal official has the authority to act as the legal guardian of all unaccompanied minors registered in his or her jurisdiction. In practice, the municipal official represents unaccompanied minors in status determination proceedings, requests for legal aid assistance, and is generally the sole party responsible for discerning the minors’ “best interests”, which can range from legal protection to decisions about schooling, healthcare, and accommodation. Taken together, the functions of the legal representative are not strictly legal or procedural insofar as refugee status determination procedures are still conducted exclusively by members of the State Agency for Refugees, but rather, are more broadly defined to encompass the “well-being” of the unaccompanied minors. This is a new and vital intersection of legal and practical arguments about the protection of unaccompanied and separated minors, and of child protection overall.

In practice, however, the flexibility that is afforded to the legal guardian can create protection gaps. When a legal guardian is appointed, the LAR does not establish a formal legal requirement for the representative to consult the minor, nor does it establish a communication channel by which the appointed guardian can communicate with the unaccompanied minor. This means that the legal guardian is conferred with the discretionary authority to determine how and when to consult the unaccompanied minor. This can create significant communication and coordination challenges, particularly if the legal guardian is appointed to numerous unaccompanied minors who are registered in the municipality.

Determining the ‘best interests’ of the child is further complicated by the disparate accommodation of unaccompanied minors in specialized institutions across the country. The LAR provides that the unaccompanied minor can be accommodated with family members, a foster family, or a specialized institution in the country. This means that once unaccompanied minors are identified, officials from the State Agency are conferred the discretionary authority to determine accommodations in a refugee registration and reception centre run by the State Agency for Refugees, a foster home run by a municipality, an orphanage run by a municipality, or in any other specialized institution run by the Child Protection Agency. According to the State Agency for Refugees, 450 unaccompanied minors were accommodated across the country in orphanages and children’s homes run by the Child Protection Agency in 2016. This can create significant challenges in communicating to unaccompanied minors, particularly concerning the status determination processes, and even, the final verdict of the determination.

“Post-Crisis” Bulgaria: Recommendations for the Way Forward

Legal provisions are never fully prescriptive, but rather, contain a degree of opportunity for interpretation and implementation for designated authorities. Discretion, to varied degrees, is incorporated within the provisions of the Law for the Asylum and the Refugees precisely to allow state authorities to render context-specific interpretations and applications of the provisions. As such, the practices by which state authorities interpret, understand, and implement the letter of the law are critical to shaping their responses. As the case study of Bulgaria demonstrates, even with robust legal provisions for unaccompanied minors, in practice, numerous challenges and disjunctures can arise. For this reason, the elaboration of additional legal provisions and legal mechanisms is in itself not sufficient to address the tensions that emerge in practice. Rather, direct and meaningful engagement with state officials, and actors vested with implementing the letter of law, is critical.

Basic lessons and steps forward can be drawn from the case of Bulgaria for other EU Member States as well. Manageable reforms to improve protection for unaccompanied minors, both at the national and international level, could center on local reforms of existing systems, rather than sweeping national policy decisions. In Bulgaria in particular, further enhancing the existing coordination mechanisms among all state and non-state actors that work with unaccompanied minors could address existing disjunctures. For the non-state actors that work with the State Agency, such strengthened coordination could usher in additional programming opportunities in the refugee registration and reception centres. In addition to existing working groups that bring together social workers, medical professionals, and protection officers, such coordinating mechanisms could seek to further unify operating protocols for the reception, accommodation, and case management of unaccompanied and separated minors. By agreeing upon and implementing such operating protocols, non-state humanitarian actors would see their role transformed from that of  seemingly oppositional or supplementary actors to partners of the State Agency.

A strengthened coordination mechanism could also be supplemented by a holistic, centralized case management system, in which all actors safely share information concerning particular cases of asylum-seekers. As policymakers look to the future of migration within Europe, it is certain that addressing disjunctures between law and practice is the only way to create safer outcomes for the most vulnerable.

 

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