Bulgaria, Sofia City Administrative Court, Decision n. 4477/2016

Identification of the case

• Article 41 of the Act on Foreigners in the Republic of Bulgaria

Summary of the case

The case started with the complaint of H. A., an Iraqi man, against the compulsory administrative measure of "forced eviction to the border of the Republic of Bulgaria" issued by the Chief of Migration Sector at the SDI. 

H. A. has been arrested by the police at the beginning of 2016 in Sofia, because he had not  identification documents. 

From the inquiries made in the information systems of the Ministry of the Interior, it was established that the foreigner had discontinuous humanitarian status by decision of State Agency for Refugees /SAR.

That’s why the Chief of Migration Sector at the SDI issued the contested order.

• Administrative judicial enforcement

The Court has annulled the contested order.

According to the provision of Art. 41 of the Act on Foreigners in the Republic of Bulgaria, forced removal to the border of the Republic of Bulgaria shall be imposed when: 1. the foreigner cannot certify his entry into the country in accordance with the law; 2. the foreigner does not leave the country until the expiration of his authorized term and 3. it is established that the alien has entered and resides in the country with a false or a revised travel document or a substitute document. In order to issue the contested act, the administrative body referred to item 2 of the provision, indicating that the foreigner had discontinued humanitarian status by decision of SAR.

The Court  pointed that in this case, it is not disputed that H. A. had a valid residence permit in the country until April 2016, issued on the basis of granted humanitarian status. That authorization did not expire at the date of the issuing of the contested act. In the event that it has accepted that the decision of SAR has entered into force, the administrative body should have also withdrawn the residence permit and given the alien the term according to the Act on Foreigners in the Republic of Bulgaria to leave the country. Only after the expiry of the residence permit or the term under the Act on Foreigners in the Republic of Bulgaria, and in the absence of voluntary departure, the prerequisites for imposing of CAM "Forced eviction to the border of the Republic of Bulgaria" would be present.

The Court  founded that in this case the contested act was issued contrary to the principle of proportionality. The administrative body has not exercised its powers lawfully and in good faith, because has not been given to the foreigner a period for a voluntary departure from the country.

Role of the Charter and role of the general principles on enforcement

The Court refers to Article 41 of the Act on Foreigners in the Republic of Bulgaria to  specify whether it permits the forced removal to the border only in the absence of a voluntary departure of the foreigner.

• Proportionality

The Court declares that the compulsory administrative measure ("Forced eviction to the border of the Rpublic of Bulgaria") was not issued in observance of the pronciple of proportionality, beacause a time limit for a voluntary departure from the country has not been given to the foreigner.