1 Legal Assisstance. What are the needs?Denitsa Georgieva, Foundation fo Access to Rights (FAR)
2 Foundation fo Access to Rights (FAR)A not-for-profit NGO working for public benefit in Sofia, Bulgaria; Mission - to contribute to access to rights in practice through provision of free legal aid, trainings and public awareness initiatives * Снимка – Slimmer Jimmer, Whiteford Point Lighthouse at Flickr
3 FAR – Basic activities:- Provision of free legal assistance - Independent professional research on access to rights in Bulgaria; - Promoting public awareness; - Organizing and conducting trainings, seminars and lectures on access to rights; - Providing an opportunity for gaining knowledge and practical experience by students and young professionals ; - Partnerships with similar organizations and cooperation with authorities;
4 I. Needs related to human traffickingI. Access to the territory; II. Access to the procedure; III. Reception conditions; IV. Unaccompanied minors; V. Labour exploitation
5 I. Access to the territoryIllegal entry *Are there any alternatives? * Risk of human trafficking Omar Barcena – Mexical /Calexico 4904 at Flickr
6 II. Access to the procedureDetention for illegal entry and stay *Directive 2008/115/EU Law on Foreigners in Republic of Bulgaria * A Return decision BBC World Service – Otay Detention Centre at Flickr
7 II. Access to the procedureFAR’s experience Return of asylum seekers due to the lack of access to the Asylum procedure. BBC World Service – Otay Detention Centre at Flickr
8 II. Access to the procedureApplying for asylum Registration of the asylum applications
9 II. Access to the procedureRegistration – Article 6, para 1 and 2 of Directive 2013/32: the registration shall take place no later than three working days after the application is made If the application for international protection is made to other authorities, the registration shall take place no later than six working days after the application is made. Transposed in the Law on Asylum and Refugees (Art. 58, para 4 LAR; Art. 61, para 2 LAR)
10 II. Access to the procedureRegistration The asylum seeker may also file a lawsuit when he/she has submitted an application for international protection and the State Agency for Refugees has not yet registered this application. Legal grounds: Article 257 of the Administrative Procedure Code in conjunction with Article 6 of Directive 2013/32/EU * Length of the court procedure – deportation during this period
11 II. Access to the procedureBan to return? Art. 10, para 2 Council of Europe Convention on Action against Trafficking in Human Beings “Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.”
12 III. Reception conditionsFAR’s experience: *Seeking asylum because the person was a victim of human trafficking in her country of origin; *Sexual exploitation * Medical evidence
13 III. Reception conditionsRecognition as a vulnerable group: Directive 2003/9/EC - not included Directive 2013/33/EU - included
14 III. Reception conditionsArticle 21 Directive 2013/33/EU: “minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation” The list is not exhaustive!!!
15 III. Reception conditionsWhat are the obligations of Member States? Assessment of the special reception needs (Article 21 Directive 2013/33/EU) within a reasonable period of time after an application for international protection is made; the special reception needs should be also addressed when they become apparent at a later stage in the asylum procedure;
16 III. Reception conditionsWhat are the obligations of Member States? Assessment of the special reception needs * access to appropriate medical and psychological treatment or care
17 III. Reception conditionsWhat are the obligations of Member States? National law – Law on Asylum and Refugees (Закон за убежището и бежанците) The victims of human trafficking are included in the definition of vulnerable persons (Para 1, point 17 from the Additional provisions of LAR; Rights when they have lodged a subsequent application for asylum - right to accommodation, food and social assistance (Article 29, para 7 LAR)
18 Procedural guaranteesRequirements for a personal interview – Article 15 Directive 2013/32/EU: the person who conducts the interview is competent to take account of the personal and general circumstances; An Interviewer of the same sex; An Interpreter of the same sex;
19 Procedural guaranteesRequirements for a personal interview : Article 18 – Medical examination: “Member States shall, subject to the applicant’s consent, arrange for a medical examination of the applicant concerning signs that might indicate past persecution or serious harm. Alternatively, Member States may provide that the applicant arranges for such a medical examination.”
20 IV. Unaccompanied minors“Learning is important! My father was teacher in Afghanistan and was killed by Taliban because he did not stop teaching” [...]. (Boy, 14, Austria) “I have not seen my family since I was 7 years old. My brother found me through the Red Cross, but he couldn’t find the rest of my family.” (Boy, 17, UK) “Aunt [social worker] is the most important person for me. She is like my mom” (Girl, 16, Poland) Unaccompanied minors in the EU,
21 IV. Unaccompanied minorsRisks of human trafficking when entering the country; Detention in a detention center (Special Home for Temporary Accommodation of Foreigners/ Специален дом за временно настаняване на чужденци); A ban to detain unaccompanied minors – Art. 44, para 9 LFRB But what is the reality?
22 IV. Unaccompanied minorsAccommodation of unaccompanied minors during the asylum procedure Article 29, para 10 LAR: Unaccompanied minors are accommodated until they come of age at: 1. the family of relatives or at close acquaintances, foster family, social service – residential type, or at a specialized institution in accordance with the conditions and procedure under the Law on Child Protection; 2. other accommodation places with special conditions for minors. In practice – in open centers of SAR
23 IV. Unaccompanied minorsLegal representation during the asylum procedure Article 25, para 1 LAR: A representative from the municipal administration, assigned by the mayor of the municipality or by an official authorized by the mayor, is appointed to every unaccompanied minor asylum seeker or protection status holder who is on the territory of the Republic of Bulgaria.
24 IV. Unaccompanied minorsChildren disappear from the centers => risk of human trafficking What are the needs? An individual care plan according to the needs of the child; A responsible employee who monitors the implementation of the plan of care and implement individualized support and guidance of the child; An Assessment of the quality and quantity of the food, provided by SAR, in relation to the special needs of children
25 IV. Unaccompanied minorsChildren disappear from the centers => risk of human trafficking UNHCR, Monitoring report on Reception Condition and Social Protection Provided to Unaccompanied Asylum – seeking and Refugee Children in Bulgaria in 2014, * “Data provided by SAR shows that the accommodation in RRC is done by a registration officer at the center; the social workers take care of the everyday needs of the minors. However, there are no employees who are solely responsible for the care provided to the unaccompanied minors.”
26 IV. Unaccompanied minorsChildren disappear from the centers => risk of human trafficking UNHCR, Monitoring report on Reception Condition and Social Protection Provided to Unaccompanied Asylum – seeking and Refugee Children in Bulgaria in 2014, Material conditions No educational or social services, provided by external NGOs or the Agency for Social assistance in Banya;
27 IV. Unaccompanied minorsChildren disappear from the centers => risk of human trafficking UNHCR, Monitoring report on Reception Condition and Social Protection Provided to Unaccompanied Asylum – seeking and Refugee Children in Bulgaria in 2014, “The conditions in the child-raising facilities where unaccompanied minors are currently accommodated are considerably better than the ones in the SAR reception centers since they are specifically established and organized for the purpose of bringing up children at risk. There are two main difficulties for the accommodation of unaccompanied minors in residential facilities: the language barrier and the lack of expertise in working with the target group.”
28 IV. Unaccompanied minorsChildren disappear from the centers => risk of human trafficking UNHCR, Monitoring report on Reception Condition and Social Protection Provided to Unaccompanied Asylum – seeking and Refugee Children in Bulgaria in 2014, “During the meetings within the framework of this research, the unaccompanied minors accommodated in RRC-Banya shared that the food quality is bad and during the summer months the food distributed in the last work day for the weekend gets spoiled due to the lack of refrigerators where it could be stored. The unaccompanied minors stated that there are days on which they do not eat enough because of the insufficient food quantity provided. The unaccompanied minors accommodated in the SAR centers in Sofia did not share complaints with regard to the food. None of the interviewed children accommodated on the territory of Sofia complained that he or she was hungry. ”
29 V. Labour exploatation Access to the labour market:The foreign national has the right to access the labour market, if the asylum procedure is not completed within a determined period in the law from lodging the application for status determination, due to reasons beyond the foreign national’s control. 1 year; 3 months (amendment of LAR – ); 9 months (in force )
30 V. Labour exploatation Valeria Ilareva, Ph. D, “Severe forms of labour exploitation Supporting victims of severe forms of labour exploitation in having access to justice in EU Member States” (a report for the European Union Agency for Fundamental Rights)
31 V. Labour exploatation Challenges – Reporting labour exploatation:“To a large extent, access to justice in Bulgaria is affected by the fact that slavery, servitude and forced labour are criminalised only in the context of human trafficking. Therefore, as noted during the focus group discussion, since there is no institutional way to report these abuses if there is no element of movement of the victim (as required by the definition of human trafficking), this contributes to the concealment of these cases.”
32 V. Labour exploatation Right to free legal aidPre – litigation advice and preparation of documents for bringing a case before a court (Article 22, para 2, p. 7 in conjunction with Article 21 Law on Legal Aid) “victims of domestic or sexual violence or of trafficking in human beings, who are unable to pay and wish to avail themselves of the assistance of a lawyer”
33 V. Labour exploatation Challenges – Practical access to the system of free legal aid: * “the procedure for obtaining legal aid should be simplified. Currently it requires submission of a lot of documents and people simply do not know how to get them issued.” * “Although workers do not pay court fees in the civil justice system, they have to pay for a lawyer.” * “Lack of information”
34 V. Labour exploatation Challenges – To claim compensation and back pay of denied wages: “The first step is to gather evidence and to prove the compensation due. The second step is to implement the decision of the court. The latter also depends on the actual ability of the offender to pay the victim. There might be practical difficulties in both stages.”
35 V. Labour exploatation Reasons to leave illegally Bulgaria and risk of human trafficking: Late access to the labour market although it is in compliance with maximum period in EU law; Risk of Labour exploitation; Lack of social assistance in practice; Knowledge that there is programme integration for persons who received protection and asylum
36 V. Labour exploatation Reasons to leave illegally Bulgaria and risk of human trafficking: “I know that in Germany they might refuse to grant me asylum but during that period I would have decent accommodation, food, social assistance and work”
37 V. Labour exploatation
38 Concluding remarks Victims of human trafficking are entitled to a residence permit under Article 24 (1) point 17 of the Law on Foreign Nationals in the Republic of Bulgaria but there are practical obstacles to this right: - there is no explicit provision in Bulgarian law which a victim of trafficking could invoke in order to temporally suspend his/her removal until the competent authorities make the decision whether to grant him/her a special protection status; - The requirement of a visa;
39 Concluding remarks Needs in Bulgaria:- Effective dialogue between the experts, working with asylum seekers and immigrants, and the experts in the field of combatting human trafficking; - Trainings on the (social) services, available for victims of human trafficking
40 [email protected] www.farbg.euThank you!