The case concerned a cassation appeal submitted by the State Agency for Refugees (SAR) under the Council of Ministers against the judgement no. 7901 of 21 December 2022 of the Administrative Court of Sofia City,  O.V. and M. V. v State Agency for Refugees, where the latter declared null and void points 4 and 5 of the Order no. RD05-263/08.04.2022. The SAR requested the annulment of the contested decision.

The Supreme Administrative Court stated that it does not agree with the lower court conclusion on the absence of a statutory or regulatory provision empowering the President of the State Agency for Refugees in the Council of Ministers to issue the contested order in the parts referred to in point 4 and 5, in particular: terminate the procedures for granting international protection initiated after 14 March 2022 at the request of displaced persons from Ukraine until the expiry of the initial period of validity of the temporary protection on 4 March 2023, pursuant to Article 4 of Implementing Decision/EU/2022/382 of 4 March 2022, or, if that period is extended, until the date on which its extension expires, except in cases where the temporary protection has been terminated or withdrawn in accordance with Article 81(1) or (2) Law on Asylum and Refugees (LAR) (point 4 of the Order).

The Supreme Administrative Court reiterated the legal basis for grating refugee status and temporary protection. It emphasized that temporary protection has the character of an exceptional measure and objective, in the event of a mass influx or threat of mass influx of displaced persons from third countries who are unable to return to the country of origin, granting immediate and temporary protection. It added on national legislation that under Article 48(1)(2) of the LAR  the President of the State Agency for Refugees (SAR) has the power to terminate the procedure for granting international protection.

On the basis of Article 68(1)(2) of the LAR, proceedings for granting international protection are initiated for a foreign national who has lodged an application for international protection by registering the foreign national after the termination or withdrawal of the temporary protection.

According to the Supreme Administrative Court, the legislator expressly provided that, in those cases, the administrative procedure for granting international protection is to be initiated by the registration of the foreign national seeking international protection, but only after the termination or withdrawal of the temporary protection. In other words, there is an explicit normative regulation on the inadmissibility of the legal relationship, in relation to the grant of international protection, refugee status or humanitarian status, in the event of temporary protection. In the light of the above-mentioned rules and contrary to the ruling of the Court of First Instance, the Supreme Administrative Court ruled that Article 15(1) of the LAR is ineffective.

The Supreme Administrative Court underlined that Article 16 of the Council Implementing Decision 2022/382 of 4 March 2022 states that ‘temporary protection is the most appropriate instrument in the current situation. Given the emergency and exceptional situation, including the military invasion of Ukraine by the Russian Federation and the scale of the mass influx of displaced persons, temporary protection should allow them to enjoy harmonised rights offering an adequate level of protection throughout the EU. The introduction of temporary protection is also expected to benefit Member States as the rights accompanying temporary protection limit the need for these displaced persons to seek international protection without delay and thus the risk of overloading their asylum systems, minimising formalities due to the urgency of the situation.

The Supreme Administrative Court stated that in view of the exceptional nature of the situation, the President of the SAR considered that the mass influx of displaced persons on the territory of the Republic of Bulgaria is a circumstance which imposed the application of a uniform solution to all persons displaced from Ukraine for whom international protection proceedings have been initiated under the ordinary procedure.

The Supreme Administrative Court allowed the SAR appeal and annulled the contested decision of the lower court, maintaining the decision of the SAR.