In a FAR case, the Administrative Court Sofia-City (ACSC) sends a request on 29.05.2023 to the Court of Justice of the European Union (CJEU) regarding the fundamental human rights of migrants residing illegally for decades without legal possibility to leave the legal vacuum in Bulgaria. The Court's ruling in this strategic case has the potential to address the situation of foreigners who, for one reason or another, have lost the legal right to reside in Bulgaria or the EU and cannot be returned to their country of origin. Despite being permanently settled in their host societies, these people have been living for decades without documentation, with limited access to services and often on the brink of survival. 

In the case before the ACSC, Foundation for Access to Rights - FAR represents a long-time client of the organisation who has resided in Bulgaria for 27 years, during which time he has submitted 11 applications for international protection. The competent authorities have consistently rejected his applications for protection on the basis that the individual circumstances of the case do not constitute grounds for granting refugee or humanitarian status under the Law on Asylum and Refugees (LAR). The man's legal situation, therefore, falls within the scope of the Law on Foreigners in the Republic of Bulgaria (LFRB). He has been subjected to a number of compulsory administrative measures (CAM) under that Act for his return to his country of origin, none of which has been successfully implemented due to the lack of valid identity documents. 

There is no specific mechanism in Bulgaria to legalise the stay of people in such situations. The LFRB, which is the main legal instrument regulating the stay of non-EU citizens, does not provide for such a procedure, and there are very limited exceptions to the general regime, but they do not constitute a solution for the majority of cases. Therefore, people who find themselves in such a legal vacuum are forced to submit numerous applications for international protection in order to "legalise", at least temporarily, their stay in the country under the conditions of the LAR. In his most recent application for protection, the FAR client claimed that, as he could not leave Bulgaria and the LFRB could not be applied to him, the only possible way to regularise his status and residence was to obtain humanitarian status "on other humanitarian grounds" (Article 9(8) of the LAR). 

In this context, the decision of the ACSC to admit the subsequent application to examination and to refer to the CJEU for a preliminary ruling on the fundamental rights of migrants in a similar situation is significant. In the Court's view, the factual and legal situation of the case falls within the scope of EU law, in particular Article 78(1) TFEU, the Qualification Directive (2011/95/EU) and the Return Directive (2008/115/EC). The ACSC agrees that no grounds for granting refugee or humanitarian status have been established in respect of the applicant. On the other hand, the judges held that for most of his 27-year stay the man had no access to basic material guarantees of life in violation of Article 14 of Directive 2008/115. Thus, the poor living conditions in which he was placed could lead to a violation of the prohibition of inhuman or degrading treatment in Article 3 of the European Convention on Human Rights (ECHR), in conjunction with Article 1 and Article 4 of the Charter of Fundamental Rights of the European Union (CFREU). 

In contrast to the established case law of the European Court of Human Rights and the CJEU, this case concerns the lack of measures taken by the State and the lack of a national legal framework which potentially lead to inhuman and degrading treatment. Another main difference with the available jurisprudence is that the claimed settlement of the foreign national's status in Bulgaria is based on his treatment in the host country and not on the risk of persecution or serious harm in the country of origin. The ACSC asks how the applicant's status should be regulated under the available legal framework in the country if violations of Articles 1 and 4 of CFREU and Article 3 ECHR, as well as of Article 7 of CFREU and Article 8 ECHR (Respect for private and family life) are found in relation to his situation and constitute "compelling humanitarian considerations" in so far as some of these rights are of an absolute nature. 

The Court concludes that the domestic legislation does not contain a rule governing the applicant's residence on humanitarian grounds within the meaning of Article 6(4) of the Return Directive (2008/115). The introduction of such a clause is not compulsory, but neither has the binding provision in Recital 12 and Article 14(2) of the Directive, which states that the alien must be provided with written confirmation of his situation if removal is not possible, been transposed into Bulgarian law. In this regard, one of the questions raised by the ACSC in the reference for a preliminary ruling to the CJEU is whether the provisions cited here impose a mandatory obligation on the Member State to issue written confirmation attesting that the third-country national is unlawfully staying but cannot yet be removed. 

According to the ACSC, in such a case, the only provision in national law that allows to regulate the status of a foreign national on humanitarian grounds is contained in Article 9(8) of LAR. The Court examines this provision in the light of Recital 15 of the Preamble and Article 2(h) of the Qualification Directive (2011/95), which allows for the introduction of "another kind of protection", which, however, falls outside the scope of that legal instrument. Art. 3 of the Directive, on the other hand, regulates the possibility for Member States to introduce more favourable standards for determining a person as a refugee or as eligible for subsidiary protection, as long as these standards are compatible with Directive 2011/95. In its request to the CJEU, the Bulgarian court asked whether such "other kind of protection" in national law should be compatible with the standards of international protection under Article 3, or whether it could be interpreted without reference to the logic and spirit of Directive 2011/95. 

In conclusion, the ACSC seeks guidance from the CJEU as to whether it is permissible for the sole legal provision in national law that regulates the humanitarian status of foreigners to be interpreted without reference to the grounds in Directive 2011/95, given the provisions therein which refer to "another kind of protection". The Court also wishes to know whether the provisions of the CFREU, as applied in the case of the FAR client, constitute an independent ground for granting international protection on "imperative humanitarian grounds" for the purposes of the Directive. Alternatively, the ACSC asks whether the positive obligation of a Member State to ensure compliance with the CFREU allows Article 9(8) of the LAR to be interpreted beyond the logic and standards of international protection under Directive 2011/95 and whether failure to grant protection under that article would result in breach of the State's obligations under the Charter.