Административен съд, София град
National case details
Instance: Appellate on fact and law
Case status: Final
Area of law
Relevant principles applied
Identification of the case
- Article 25, para. 1, item 12 of the Act on Foreigners in the Republic of Bulgaria
- Article 18 TFUE
- Articles 6 of the preamble, 5 and 13 of the Directive 2003/109/EU
Summary of the case
The case started with the complaint of David Torosyan against the refusal of the Director of Migration Directorate - Ministry of the Interior, which denied him the right to a permanent residence in the Republic of Bulgaria.
David Torosyan has applied for a permanent residence permit in the Republic of Bulgaria. With his application he has producted the birth certificate issued by the competent authorities of the Republic of Armenia, showing that David Torosian was born on 15.03.1995 in Yerevan, a notary deed certifing that a Bulgarian citizen will provide living for the foreigner during his stay in the country, documents proving that Torosyan has attended a nursery school and a school and that he has completed his secondary education in the Republic of Bulgaria and a student's book showing that David Torosyan is enrolled as a student at Varna Free University - Faculty of Law. There was also a recommendation for work from a law firm, where he worked as an assistant.
In order to issue the contested refusal, the administrative body has considered the negative prerequisite provided by Art. 25, § 1, item 12 of the Act on Foreigners in the Republic of Bulgaria, namely that David Torosyan is a citizen of the Republic of Armenia, a former Soviet republic, and therefore he cannot be entitled to permanent residence in the Republic of Bulgaria.
In the current case is not controversial that David Torosyan has entered the territory of the Republic of Bulgaria before December 27, 1998, that he resided and he did not leave the territory of the Republic of Bulgaria. The dispute is limited to the fact that, according to the official Armenian authorities, he is a national of the Republic of Armenia, which, according to the above mentioned rule, does not entitle him to a right of permanent residence.
- Administrative judicial enforcement
The Court has annulled the contested refusal and returned the case for a new ruling on the application with an indication of granting of permanent residence.
The Court pointed that EU secondary legislation dealing with the problems of obtaining the right of residence of third-country nationals in the territory of the Member States is Council Directive 2003/109/EU of 25 November 2003 concerning the status of long- term resident. Pursuant to Art. 6 of the preamble to the Directive, the main criterion for obtaining long-term resident status should be the duration of residence in the territory of the Member State. This residence should have been legal and continuous in order to testify to the permanent attachment of the person to that country.
It is undeniable that David Torosyan had entered the country at few months of age and there are no data that he has left Bulgaria. He speaks Bulgarian, he attended a Bulgarian school and he is currently a student at a Bulgarian university. His work recommendation suggests that he has a good educational capacity and an excellent knowledge of the subject he studies. These circumstances testify to established lasting cultural and social ties of the contestant with Bulgaria.
Pursuant to Art. 5 of the Directive, the conditions for long-term/permanent residence within the meaning of the Directive are that the person has a stable and regular income sufficient to cover his/her own and family subsistence without recourse to the social Support to the Member State concerned and health insurance covering all normal insurance cases for the nationals of the Member State concerned. David Torosyan has producted evidences that there is a provision of support, and in the contested act there is no reason to argue that it would be a burden on the country's social security system.
The conditions for granting a right of permanent residence are not exhaustively listed in the Directive, but according to Art. 13, Member States may issue apermanent residence permit or open-ended certificates on terms more favorable than those laid down in that Member State. SCAC has founded that the provision of Art. 25, § 1, item 12 of the Act on Foreigners in the Republic of Bulgaria, the condition for obtaining a right of permanent residence of foreigners in the Republic of Bulgaria, namely not being recognized as citizens of the former Soviet republics, is not only less favorable than the conditions provided by the Directive but also directly discriminatory. Art. 18 TFEU prohibits any discrimination on grounds of nationality. The above reasoning justifies the court to accept that the provision in Art. 12, § 1, item 12 of the Act on Foreigners in the Republic of Bulgaria, a condition for granting a right of permanent residence is contrary to the norms of EU law and therefore, by the primacy of EU law, should not be applied.
Role of the Charter and role of the general principles on enforcement
The Court has founded that the condition provided by Art. 25, § 1, item 12 of the Act on Foreigners in the Republic of Bulgaria for obtaining a right of permanent residence of foreigners in the Republic of Bulgaria, namely not being recognized as citizens of the former Soviet republics, is not only less favorable than the conditions provided by the Directive but also directly discriminatory. Art. 18 TFEU prohibits any discrimination on grounds of nationality.
The national law was not applied in this case, in observance with the principle of primacy of EU law.