With this article, we share an update on the developments in the cases we covered in our publication "David and Goliath: the court cases we are pursuing for access of Ukrainian refugees to their right to asylum in Bulgaria".

The Foundation for Access to Rights – FAR, assisted by the Bulgarian Lawyers for Human Rights Foundation, achieved the first strategic success in the fight for the rights of Ukrainian citizens. By Judgment of 7.07.2022 the Supreme Administrative Court (SAC) repealed the Decision 180 of 30 March 2022 of the Council of Ministers, which on the one hand allowed the forced registration of Ukrainian citizens as foreigners with temporary protection, even in the absence of their explicit will, and on the other hand set a deadline of 15 April 2022 for obtaining temporary protection for foreign nationals and stateless persons who have left Ukraine.

The Court found that the Decision of the Council of Ministers contradicted the Asylum and Refugees Act, which contains comprehensive regulation of temporary protection and does not provide for the possibility of such protection to be obtained without registration of the persons or to be limited to a certain date at the discretion of the Council of Ministers.

The Court held that the "ex officio" granting of temporary protection was unlawful because the right to protection (temporary or international) always requires the express will of the beneficiary. The SAC concluded explicitly that the request for protection is made personally and of one's own free will, and “(t)he discretion whether or not to refer the matter to the appropriate authority for a decision on the existence of those rights must lie with the person and not with the authority”. In this sense, the registration of Ukrainian nationals as beneficiaries of temporary protection without their express will violates, on the one hand, their right to choose in which EU country they would like to be registered (and, respectively, in which EU country they would like to enjoy their rights under the temporary protection). According to the Supreme Court, “(a)s rightly pointed out by the applicant, the Foundation for Access to Rights - FAR, persons arriving from Ukraine may decide not to remain on the territory of the Republic of Bulgaria but to travel to another Member State in which they wish to exercise their rights arising from the temporary protection granted there”. On the other hand, the SAC points out that "the granting of temporary protection to persons without their express will deprives them of the possibility to choose to apply for immediate protection or to apply for individual international protection, which they are entitled to by virtue of the Council Implementing Decision (EU) 2022/382 of 4 March 2022 and Articles 17 and 19 of Council Directive 2001/55/EC". The Supreme Court referred to provisions of EU law according to which persons who are entitled to temporary protection do not lose their right to access international protection.

In its reasoning, the Supreme Administrative Court also confirmed that the Decision of the Council of Ministers contradicts the substantive law and, in particular, that the introduced deadline of 15 April 2022 for granting temporary protection to foreign or stateless persons who have left Ukraine is contrary to Council Directive 2001/55/EC. The Court also referred to the vagueness of the contested provision as a separate ground for unlawfulness of the contested administrative act, as the text does not allow the scope of the persons to whom the Decision applies to be determined.

We endorse the reasoning of the SAC, which once again underlines the fundamental principle that the Foundation for Access to Rights - FAR upholds in its work: the principle of the rule of law. It is not permissible for the regulation of temporary protection to be written by the executive in contravention of fundamental legal principles. As stated in the reasoning of the Supreme Court ruling:

"A fundamental European value, adopted as a principle in current international and national law, is the equal treatment in the exercise of any right. In a narrow sense, this means not allowing less favorable conditions for certain categories of persons compared to others to exercise the opportunities granted to them to seek and obtain international protection. The armed conflict in Ukraine, which has given rise to the European Commission's proposal for emergency measures, cannot serve as a justification for Member States to adopt legislative decisions which contravene fundamental principles of law, with the sole objective of minimising formalities due to the urgency of the situation."

On 15 June 2022, the Supreme Administrative Court issued its Judgment on our appeal against Decision No. 181 of the Council of Ministers amending and supplementing the "Program for the Use of Humanitarian Aid to Persons Seeking Temporary Protection in the Republic of Bulgaria as a Result of the Military Actions in the Republic of Ukraine". The appeal was lodged on the grounds of discriminatory exclusion of persons seeking international protection from the scope of the Decision. The Bulgarian Lawyers for Human Rights Foundation joined as a party to the appeal.

Unfortunately, the court dismissed our appeal on the grounds that there was no violation of the substantive provisions of national and European law with regard to the prohibition of discrimination, since both groups of persons fleeing the war in Ukraine enjoyed temporary protection, albeit in different periods and under different conditions. Having read the reasoning of the Court of First Instance, we are unable to share the legal arguments set out therein. We have therefore filed a cassation appeal against the judgment and await the case to be scheduled for hearing by a five-member panel of the Supreme Administrative Court.

In the meantime, with the same considerations of discrimination and exclusion of the asylum seekers, we appealed Decision No. 317 of 20 May 2022 of the Council of Ministers on the adoption of the Program for humanitarian assistance to displaced persons from Ukraine with granted temporary protection in the Republic of Bulgaria, which is valid from 1 June to 31 August 2022. The Supreme Administrative Court opened an administrative case No. 5327/2022, which is scheduled for 14.09.2022.

On 11 April 2022, the Foundation for Access to Rights - FAR together with two refugees appealed in court against the Order of the State Agency for Refugees (SAR), which ceased to register applications of Ukrainian citizens for international protection, terminated the pending proceedings and ordered that all affected persons be compulsorily registered as foreigners with temporary protection.

The first hearing of the Administrative Court Sofia-City in the administrative case No. 3462/2022 was held on 1 July 2022. During the hearing, the court also constituted as parties to the proceedings the Reachout Foundation, the Pituitary Association Foundation and three other refugees represented by lawyers from the Foundation for Access to Rights - FAR.

It turned out that the legal representative of the SAR had not familiarized herself with the written evidence which the Foundation for Access to Rights - FAR submitted on 24 June 2022. The court held that this was a reason for adjourning the case, with the next hearing being scheduled as late as 21 October 2022, despite the case’s extreme importance. We hope that this delay will not adversely affect the public interest, which in our view requires the unlawful order to be revoked as soon as possible.