CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 octobre 2011

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margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s25347E17 { width:182.43pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FOURTH SECTION         CASE OF AUAD v. BULGARIA   (Application no. 46390/10)               JUDGMENT       STRASBOURG   11 October 2011     FINAL   11/01/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of Auad v. Bulgaria , The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Nicolas Bratza, President ,   Lech Garlicki,   Ljiljana Mijović,   George Nicolaou,   Zdravka Kalaydjieva,   Nebojša Vučinić,   Vincent A. De Gaetano, judges , and Lawrence Early, Section Registrar , Having deliberated in private on 20 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1 .     The case originated in an application (no. 46390/10) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a stateless person of Palestinian origin, Mr Ahmed Jamal Auad (“the applicant”), on 13 August 2010. 2.     The applicant was represented by Ms D. Daskalova, a lawyer practising in Sofia, Bulgaria. The Bulgarian Government (“the Government”) were represented by their Agents, Ms N. Nikolova and Ms   M. Kotseva, of the Ministry of Justice. 3.     The applicant alleged, in particular, that his proposed expulsion to Lebanon would expose him to a risk of ill ‑ treatment or death, that he did not have an effective remedy in respect of his claim in that regard, and that his detention pending deportation had been too lengthy and unjustified. 4.     On 13 August 2010 the applicant asked the Court to indicate to the Government, by way of an interim measure, to refrain from removing him to Lebanon and to release him immediately from his detention pending deportation. On 17 August 2010 the President of the Fifth Section of the Court decided, in the circumstances, not to indicate to the Government the interim measure sought by the applicant. 5.     On 23 September 2010 the President of the Fifth Section decided to give priority to the application under Rule 41 of the Rules of Court and to give notice of it to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). 6.     Following the re ‑ composition of the Court’s sections on 1 February 2011, the application was transferred to the Fourth Section. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7 .     The applicant was born in 1989 in Ain al ‑ Hilweh, a Palestinian refugee camp located on the outskirts of Saida, Lebanon (see paragraphs 52 ‑ 55 below). He currently lives in Sofia, Bulgaria. A.     The applicant’s arrival in Bulgaria and his asylum claim 8 .     On 24 May 2009 the applicant arrived illegally in Bulgaria and on 7   July 2009 applied for asylum, citing his fear that if he returned to Lebanon he would be killed or ill-treated by members of the Islamic militant group Jund al ‑ Sham (see paragraphs 59, 60, 62, 78, 80 and 81 below). His identity was established on the basis of a certificate issued on 26 November 2008 by the Palestine Liberation Organisation. 9 .     The applicant’s story was that he, like his father who had gone missing in 1991, was a member of Fatah (see paragraphs 59 and 60 below). He had been appointed to a salaried position in the movement with the protection of its head of security in Ain al ‑ Hilweh, colonel Maqdah (see paragraphs 54, 55 and 84 below). His job had consisted in organising rallies in support of various Palestinian organisations, commemorations of the Palestinian revolution and protests against the founding of Israel. In early 2009, a neighbour of his who was a member of Jund al ‑ Sham had been killed, the killing having been facilitated by information supplied by a friend of the applicant, also a member of Fatah. In reprisal, members of Jund al ‑ Sham had killed the applicant’s friend. To protect himself, the applicant had moved to his sister’s house, located in a part of the camp which was under the control of Fatah. In July 2009 armed men had fired rounds at his sister’s house, shouting his name. Later on colonel Maqdah had told the applicant that those men had been members of Jund al ‑ Sham seeking revenge for their associate’s killing, that he was not able to protect him from them, and that he should leave Lebanon. 10 .     In August 2009 the applicant tried to leave Bulgaria with false documents. He was arrested by the police at the Bulgarian ‑ Greek border. On 21 August 2009 the Petrich District Court approved a plea bargain whereby the applicant pleaded guilty to offences of illegally crossing the border and trying to deceive a public officer by using an official document issued to another person. He was sentenced to six months’ imprisonment, suspended for three years, and fined 200 Bulgarian levs. 11 .     In a decision of 29 October 2009, the State Refugees Agency refused to grant the applicant refugee status, but granted him humanitarian protection under section 9(1)(3) of the Asylum and Refugees Act of 2002 (see paragraph 29 below). The reasons for the decision described the applicant’s story, as related by him, and continued: “Bearing in mind the situation in the Palestinian [refugee] camp [Ain al ‑ Hilweh],which is characterised by serious armed clashes between ‘Fatah’ and militants from ‘Jund al ‑ Sham’, there are grounds to grant the applicant humanitarian protection, due to the real risk of infringements consisting of personal threats against his life in a situation of internecine armed conflict. Refugee camps in Lebanon have their own system of governance. Camp administrations are not elected by popular vote, but reflect the predominance of one or more groups or formations that constantly vie for territorial control, which often leads to armed clashes. In an interview for the news agency IRIN of April 2008, the head of security of ‘Fatah’ in Lebanon colonel Maqdah said that ‘Fatah’ will take care of security in all Palestinian camps in order to put an end to the spread of radical groups. ... The applicant states that he has been a member of ‘Fatah’ since 2006, but there are no acts of persecution against him by the authorities or by another political organisation that the State is unable to oppose. He does not point to any of the other relevant grounds under section 8(1) of the Asylum and Refugees Act justifying fear of persecution, such as race, religion, nationality, membership of a particular social group, or political opinion or belief. That leads to the conclusion that there are no grounds to grant asylum under the Asylum and Refugees Act [of 2002]. The [applicant] does not raise grounds justifying the application of section 9(1)(1) or (1)(2) of [the Act]. The evidence in the file points to grounds to grant humanitarian protection. There are indications of circumstances falling within the ambit of section 9(1)(3) of [the Act]. The above ‑ mentioned circumstances show that there are grounds to take into account [the applicant]’s personal situation in connection with the general social and political situation in the Palestinian camps in Lebanon. The evidence gathered during the proceedings shows that there is a real danger and risk of encroachments upon [the applicant’s] life and person. Under section 75(2) of the [Act], the [applicant]’s assertions, set out in detail in the record drawn up by the interviewing official, must be presumed to be truthful. ... As required by section 58(7) of [the Act], the State National Security Agency was invited to make written comments. Those comments, dated 21 August 2009, contain no objection to granting the [applicant] protection in the Republic of Bulgaria.” 12.     The applicant did not seek judicial review of the refusal to grant him refugee status. 13 .     During that time he was settled, together with other Palestinians, in a housing facility operated by the State Refugees Agency. B.     The order for the applicant’s expulsion and his ensuing detention 14 .     On 17 November 2009 an agent of the State Agency for National Security proposed to expel the applicant on national security grounds and to place him in detention pending the carrying out of that measure. In support of the proposal he said that the applicant was a member of Usbat al ‑ Ansar, which he described as a Sunni terrorist organisation acting in close cooperation with Hamas, Jund al ‑ Sham, Ansar Allah and others (see paragraphs 54, 59 ‑ 61 and 78 below). The applicant was alleged to have taken part in “wet jobs” for the organisation and in the assassinations of more than ten members of a Palestinian political party; he was being sought by the Lebanese authorities in connection with that. He was a relative of one of the leaders of Usbat al ‑ Ansar. The available information showed that the applicant followed strictly the organisation’s ideas and would unhesitatingly follow the orders of its leaders. This had been confirmed by partner security services. It had also been established that the applicant kept contacts with two asylum seekers who were known to adhere to a terrorist organisation active in Ain al ‑ Hilweh. One of them had been implicated in the killing of a member of a Palestinian political party and kept close contacts with Usbat al ‑ Ansar and Fatah al ‑ Islam (see paragraph 65, 72, 74, 78 and 81 below). All of that showed that the applicant by reason of his previous and current activities presented a serious threat to the national security of Bulgaria, and that his presence in the country discredited it as a reliable partner in the fight against international terrorism. 15 .     On 17 November 2009 the head of the State Agency for National Security made an order for the applicant’s expulsion. He also barred him from entering or residing in Bulgaria for ten years, “in view of the reasons set out in [the above ‑ mentioned] proposal and the fact that his presence in the country represent[ed] a serious threat to national security”. The order relied on sections 42 and 44(1) of the Aliens Act 1998. No factual grounds were given, in accordance with section 46(3) of the Act (see paragraph 33 below). The order further provided that it was to be brought to the attention of the applicant and was immediately enforceable, as provided by section   44(4)(3) of the Act (see paragraph 34 below). 16 .     Concurrently with that order the head of the State Agency for National Security made an order for the applicant’s detention pending deportation (see paragraphs 42 and 43 below). He reasoned that the information featuring in the proposal showed that the applicant would try to prevent the enforcement of the expulsion order, and accordingly directed that the detention order should be immediately enforceable. He also instructed the immigration authorities urgently to take all necessary steps to enforce the expulsion order. 17 .     On 20 November 2009 the applicant was arrested and placed in a special detention facility pending enforcement of the expulsion order. He submits that when brought there he was informed about the two orders against him but was not given copies of them. 18 .     On 19 May 2011, in view of the impending expiry of the maximum permissible period of detention pending deportation – eighteen months (see paragraph 44 below), the head of the State Agency for National Security made an order for the applicant’s release. The applicant was set free the following day, 20 May 2011. He was placed under the obligation to report daily to his local police station. He submits that he is currently without any identification documents, means of support, or the possibility to work. C.     Judicial review of the applicant’s expulsion 19 .     On 4 December 2009 the applicant made an application for judicial review of the expulsion order. He also challenged his detention. He argued that the order was unlawful and that he had not engaged in any illegal activities while in Bulgaria. 20 .     On 23 March 2010 the applicant, having acquainted himself with an excerpt of the proposal for his expulsion and other documents in the file, asked the court to order the authorities to specify – if need be, subject to restrictions resulting from the use of classified information – what was the basis for their belief that he was being sought by the Lebanese authorities “in connection with the killing of members of Palestinian political parties”, as noted in the proposal. He also asked the court to order the authorities to specify whether they had used special means of surveillance to gather information about him; if yes, to order them to produce a copy of the requisite warrant and other documents. 21 .     The Supreme Administrative Court heard the case on 27 April 2010. 22 .     In a memorial filed on that date the applicant argued that the data on which the authorities had relied to order his expulsion were incorrect, vague, unverified, internally inconsistent and unreliable. It was not true that he was a member of Usbat al ‑ Ansar; quite the opposite, he was being sought by terrorist organisations, and had for that reason fled Lebanon. His relative referred to as a terrorist in the proposal was in fact an official of a school administered by the United Nations. There were no concrete elements in support of the assertion that he was being sought by the Lebanese authorities. The Bulgarian authorities had not tried to verify that through official channels, as was possible under the treaty between Bulgaria and Lebanon for mutual cooperation in criminal matters. The lack of concrete information on those issues prevented him from presenting evidence to rebut the allegations against him. He also pointed out that the State Agency for National Security had not objected to his receiving protection in Bulgaria during the asylum proceedings (see paragraph 11 above). Lastly, he drew attention to the fact that he had been granted humanitarian status on the basis of a risk to his life, and argued that his expulsion would breach the principle of “non ‑ refoulement” and Article 3 of the Convention. 23 .     In a final judgment of 22 June 2010 (реш. № 8 ‑ 10 от 22 юни 2010   г. по адм. д. № С ‑ 4/2010 г., ВАС, VІІ о.), the Supreme Administrative Court upheld the expulsion order in the following terms: “The order was issued on the basis of the reasons set out in proposal no.   T ‑ 6 ‑ 5347/17.11.2009 and the factual ground featuring in section 42(1) of the Aliens Act [of 1998 – see paragraph 33 below] – the alien’s presence in the country poses a serious threat for national security. The proposal for imposing the coercive measure in issue says that [the applicant] was born on 30 November 19[8]9 in the refugee camp ‘Ain al ‑ Hilweh’. He became a member of the terrorist radical Islamic organisation ‘Asbat al ‑ Ansar’, which is active on the territory of that camp. That organisation works in close cooperation with similar organisations, including ‘Hamas’. The [applicant] was member of a ‘wetwork’ squad that targeted also members of a Palestinian political party. It is not in dispute that the applicant is a relative of [A] who, according to operative information, is one of the leaders of ‘Asbat al ‑ Ansar’. He follows strictly the organisation’s ideas and would carry out without hesitation the orders of its leaders. [The applicant] entered the territory of the county in June 2009 and applied for asylum. However, in August that year he tried to leave the country with forged documents, heading towards western Europe. He was arrested by the border police at [a checkpoint at the Bulgarian ‑ Greek border]. [On] 21 August 2009 the Petrich District Court ... approved a plea bargain whereby [the applicant] pleaded guilty to offences under Articles 279 § 1 and 318 of the Criminal Code[: illegal crossing of the border and trying to deceive a public officer by using an official document issued to another person]. He was sentenced to six months’ imprisonment, suspended for three years, and fined 200 [Bulgarian] levs. According to operative information, he is in contact with [B] and [C], who are present in the country as asylum seekers. There is information that M.I. is also a member of Jund al ‑ Sham and has taken part in the assassination of a member of ‘Fatah’ in ‘Ain al ‑ Hilweh’, in connection with which he is being sought by the Lebanese authorities. [C] is an adherent of the terrorist organisation ‘Asbat al ‑ Ansar’ and takes part in a human trafficking channel from Lebanon to western Europe that is used by members of Lebanese terrorist organisations. It is known that there are contacts between [D] and individuals who reside in western Europe and who sympathise with ‘Jund al ‑ Sham’. The proposal makes a reasoned assumption that, due to his earlier and present activities the [applicant] presents a serious threat to the security of the Republic of Bulgaria, within the meaning of section 4 of the State Agency for National Security Act [of 2007], and his presence in the country is liable to discredit our country as a reliable partner in the fight against international terrorism. The written evidence in the case includes excepts nos. RB 202001 ‑ 001 ‑ 03 ‑ T6 ‑ 3594, ‑ 95 and ‑ 96 of 12 April 2010. By decision no. 513 of 29 October 2009, the State Refugees Agency refused to grant [the applicant] refugee status. The assertions in the application that [the applicant] resides lawfully on the territory of the country have not been proven. The negative assertions in the application that he has not taken part in unlawful activities cannot be regarded as established, because the specialised agency has made findings in that regard. Under section 46(3) of the Aliens Act [of 1998], expulsion orders do not point to the factual grounds for the imposition of the coercive measure; those grounds are contained in the proposal for its imposition. The proposal shows that there are indications of encroachments on national security, falling within the remit of the State Agency for National Security under section 4(1)(11) and (14) of the State Agency for National Security Act [of 2007]: international terrorism and cross ‑ border organised crime, which creates a threat for national security. The existence of such indications does not require proof beyond doubt of acts directed against the security of the county. There are sufficient grounds to impose a coercive measure if there are indications which can lead to a reasonable assumption that the applicant’s presence creates a serious threat to national security. The factual data gathered through operative methods and set out in proposal no. RB 202001 ‑ 001 ‑ 03 ‑ T6 ‑ 5347 of 17   November 2009 constitute grounds to make a reasonable assumption that this applicant’s presence does create a serious threat to national security. The existing data about the applicant’s activity on the country’s territory show the existence of the grounds set out in section 42 of the Aliens Act [of 1998 – see paragraph 33 below]. A coercive measure, such as that envisaged by section 42 of the Aliens Act, has a preventive character, it aims to prevent actions directed against the country’s security. For it to be imposed, it is not necessary to carry out a full inquiry into the information that has been gathered or seek proof for it, because this is not a case involving the imposition of an administrative sanction. The applicant’s statement, made in open court, that he does not wish to be returned to Lebanon, where his life is under threat, is irrelevant for the present proceedings. Under section 42(2) of the Aliens Act, the withdrawal of the right of an alien to reside in the Republic of Bulgaria and the imposition of a ban on entering its territory inevitably flow from the imposition of the coercive measure under subsection   1 – expulsion. The order complies with the legal requirements. The coercive measure has been imposed by the competent authority under section 44 of the Aliens Act [of 1998], in due form and in compliance with the rules of administrative procedure, the substantive law norms and the aim of the law, and for those reasons the application for judicial review must be rejected as ill ‑ founded.” D.     Judicial review of the applicant’s detention pending deportation 24 .     The legal challenge to the applicant’s detention pending deportation (see paragraph 19 above) was transmitted to the Sofia City Administrative Court. In the course of the ensuing proceedings the court was provided with an excerpt of the expulsion proposal. In a final judgment of 9 February 2010 (реш. № 2 от 9 февруари 2010 г. по адм. д. № С ‑ 66/ 2009 г., САС, І о.), it upheld the order for the applicant’s detention, finding that it had been made by a competent authority, in proper form, in line with the applicable substantive and procedural rules, and in conformity with the aim of the law. It went on to say that there was enough evidence that the applicant would try to hinder the enforcement of the order for his expulsion. 25 .     On an unspecified date in the summer of 2010 the Sofia City Administrative Court, acting of its own motion, as required under new section 46a(4) of the 1998 Aliens Act (see paragraph 45 below), reviewed the applicant’s continued detention (адм. д. № 3872/2010 г., САС). It confirmed it for a further six months. 26 .     On 7 December 2010, again acting of its own motion, the Sofia City Administrative Court confirmed the applicant’s detention for a maximum of a further six months, until 20 May 2011 (опр. № 4227 от 7 декември 2010   г. по адм. д. № 9061/2010 г., САС, І о.). It noted that the detention had already lasted almost twelve months and by law could be prolonged for a maximum of eighteen months. There existed impediments to the enforcement of the order for the applicant’s expulsion. He did not have the required travel document that would enable him to enter Lebanon. In spite of three requests, the Lebanese embassy had failed to issue such a document. The case thus fell within the ambit of section 44(8) of the Aliens Act 1998 (see paragraph 44 below). II.     RELEVANT DOMESTIC LAW A.     Asylum and humanitarian protection 27 .     Article 27 of the Constitution of 1991 provides as follows: “1.     Aliens who reside in the country lawfully cannot be removed from it or delivered to another State against their will except under the conditions and in the manner provided for by law. 2.     The Republic of Bulgaria shall grant asylum to aliens persecuted on account of their opinions or activities in support of internationally recognized rights and freedoms. 3.     The conditions and procedure for granting asylum shall be established by law.” 28 .     Bulgaria acceded to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees on 12   May 1993, and they came into force in respect of it on 10 August 1993. 29 .     Section 9(1)(3) of the Asylum and Refugees Act of 2002 provides that individuals forced to leave or stay out of their country of origin because they faced a real risk of suffering death or ill ‑ treatment as a result of an internal or an international conflict are to be granted humanitarian protection. Section 9(2) makes it clear that the risk may stem from the authorities or from organisations against which the authorities are unable or unwilling to act. Section 9(5) provides that aliens cannot be granted humanitarian protection if in part of their country of origin there is no real risk of serious encroachments and there they can freely and lastingly enjoy effective protection. Under section 75(2), when the authorities determine an asylum application they have to take into account all relevant facts concerning the applicant’s personal situation, country of origin, or relations with other countries. The section also provides that when an applicant’s statement is not supported by evidence, it must be presumed to be true if the applicant has endeavoured to substantiate his or her application and has provided a good explanation for the lack of evidence. Section 58(7) requires the authorities processing asylum applications to obtain written comments by the State Agency for National Security. 30 .     Section 4(3) provides that individuals who have been granted protection under the Act or have entered Bulgaria to seek such protection cannot be returned to the territory of a country where their life or freedom are at risk on account of their race, religion, nationality, membership of a social group, their political opinions or views, or where they may face a risk of torture or other forms of cruel, inhuman or degrading treatment or punishment. However, section 4(4), which reflects a rule laid down in Article 33 § 2 of the 1951 Convention, provides that that benefit may not be claimed by aliens where there are grounds to regard them as a danger to national security. There is no reported case ‑ law under that provision. 31 .     Section 67(1) provides that expulsion orders are not enforced until the asylum proceedings have been concluded. By section 67(2), expulsion orders are revoked if the person concerned has been granted asylum or humanitarian protection. However, those two provisions are not applicable to, inter alia , aliens whose presence in the country may be regarded as dangerous for its national security (section 67(3)). B.     Expulsion of aliens on national security grounds 32 .     A detailed description of the evolution of the law governing expulsion on national security grounds until 2009 can be found in paragraphs 18 ‑ 26 of the Court’s judgment in the case of C.G. and Others v.   Bulgaria (no.   1365/07, 24 April 2008) and paragraphs 30 ‑ 36 of the Court’s judgment in the case of Raza v. Bulgaria (no. 31465/08, 11   February 2010). The relevant provisions are contained in the Aliens Act 1998, as amended, and the regulations for its application. 33 .     Section 42(1) of the Act provides that an alien must be expelled when his or her presence in the country creates a serious threat to national security or public order. However, expulsion orders issued on national security grounds do no indicate the factual grounds for imposing the measure (section 46(3)). Under section 42(2), expulsion must be accompanied by withdrawal of the alien’s residence permit and the imposition of a ban on entering the country. 34 .     Expulsion orders issued on national security or public order grounds are immediately enforceable (section 44(4)(3)). However, if expulsion cannot be effected immediately or needs to be postponed for legal or technical reasons, the enforcement of the expulsion order may be suspended until the relevant obstacles have been overcome (section 44b(1)). 35 .     Expulsion orders may be challenged before the Supreme Administrative Court, whose judgment is final (section 46(2)). The lodging of an application for judicial review does not suspend the enforcement of the order under challenge (section 46(4)). 36 .     Article 166 § 2 of the Code of Administrative Procedure of 2006 provides that a court examining an application for judicial review may suspend the enforcement of the administrative decision under review, even if the administrative authority has directed that it should be immediately enforceable, if enforcement might cause the applicant harm that is considerable or hard to redress. Suspension requests are heard in open court and determined by means of a ruling that is amenable to appeal (Article 166 §   3). In a decision of 27 January 2009, the Supreme Administrative Court held that the enforcement of expulsion orders issued on national security grounds could not be suspended. If immediate enforcement was required by statute, it could be suspended by the court only if the same statute specifically allowed that, whereas section 46(4) of the Aliens Act 1998 expressly precluded that possibility (опр. № 1147 от 27 януари 2009 г. по адм. д. № 393/2009 г., ВАС, петчленен състав). 37 .     In an interpretative decision of 8 September 2009 (тълк. реш. № 5 от 8 септември 2009 г. по тълк. д. № 1/2009 г., ВАС, ОСК), the Plenary Meeting of the Supreme Administrative Court stated that Article 166 § 2 applied even where the immediate enforceability of administrative decisions was required by statute, provided that the law did not expressly preclude judicial review. The effect of that ruling on the possibility of suspending the enforcement of expulsion orders issued on national security grounds is unclear. 38 .     Section 44a of the Aliens Act 1998, added in 2001, provides that an alien whose expulsion has been ordered on national security or public order grounds cannot be expelled to a country where his or her life or freedom would be in danger, or where he or she may face a risk of persecution, torture, or inhuman or degrading treatment. In its early case ‑ law under that provision, the Supreme Administrative Court accepted that the State Refugees Agency could apply it when dealing with asylum requests (реш. № 5848 от 17 юни 2002 г. по адм. д. № 7864/2001 г., ВАС, ІІІ о.; реш. №   6048 от 24 юни 2002 г. по адм. д. № 1298/2002 г., ВАС, ІІІ о.; реш. №   7102 от 16 юли 2002 г. по адм. д. № 994/2002 г., ВАС, ІІІ о.; реш. №   9203 от 16 октомври 2002 г. по адм. д. № 4948/2002 г., ВАС, ІІІ о.; реш. № 10069 от 12 ноември 2002 г. по адм. д. № 996/2002 г., ВАС, ІІІ   о.). However, in a judgment given in 2003 (реш. № 1400 от 18   февруари 2003 г. по адм. д. № 8154/2002 г., ВАС, ІІІ о.), the court held that the Agency had no power to rule on the application of section 44a and that this matter fell within the remit of the immigration authorities. In a 2007 judgment concerning an application for judicial review of a deportation order, the court examined, albeit briefly, the substance of a claim under that provision (реш. № 9636 от 15 октомври 2007 г. по адм. д. № 2222/2007 г., ВАС, ІІІ о.). However, in three 2008 judgments it held that the prohibition spelled out in section 44a does not concern the lawfulness of an expulsion order as such, but merely bars its enforcement. While in two of those cases the court went on to examine, albeit briefly, the substance of the claim that the person concerned was at risk (реш. № 6787 от 5 юни 2008 г. по адм. д. № 11461/2007 г., ВАС, ІІІ о.; реш. № 6788 от 5 юни 2008 г. по адм. д. № 11456/2007 г., ВАС, ІІІ о.), in the third it refused to do so, saying that solely the authorities in charge of executing an expulsion order have the power to apply section 44a (реш. № 7054 от 12   юни 2008 г. адм. д. № 10332/2007 г., ВАС, ІІІ о.). There are no reported cases concerning the application of section 44a by the immigration authorities. 39 .     If a deportee does not have a document allowing him or her to travel, the immigration authorities must provide one by contacting the embassy or the consulate of the State whose national he or she is. If that is not possible, such a document should be provided through the consular department of the Ministry of Foreign Affairs (regulation 52(1) of the regulations for the application of the Aliens Act 1998, issued in 2000, and superseded on 5 July 2011 by regulation 74(1) of the new regulations for the application of the Act). 40 .     Under regulation 71 of the new regulations for the application of the Aliens Act 1998 (superseding regulation 48 of the old regulations), in cases where expulsion orders are enforced through removal by air, the person concerned is to be escorted by immigration officers to his or her country of citizenship or another country of his or her choice to which he or she may be admitted. C.     Detention pending deportation 41 .     A detailed history of the provisions of the Aliens Act 1998 governing detention of deportees may be found in paragraphs 37 ‑ 42 of Raza (cited above). The current regime is as follows. 42 .     Section 44(5) provides that if there are impediments to a deportee’s leaving Bulgaria or entering the destination country, he or she is placed under an obligation to report daily to his or her local police station. 43 .     Under section 44(6), it is possible to detain a deportee in a special detention facility if his or her identity is unknown, if he or she hampers the enforcement of the expulsion order, or if he or she presents a risk of absconding. Under section 44(10), deportees are placed in the detention facilities pursuant to special orders that have to specify the need for such placement and its legal grounds and be accompanied by copies of the orders under section 44(6). 44 .     Under section 44(8), which was enacted with a view to transposing Article 15 §§ 5 and 6 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals (see paragraphs 46 ‑ 48 below), detention may be maintained as long as the conditions laid down in subsection 6 are in place, but not longer than six months. Exceptionally, if a deportee refuses to cooperate with the authorities, or there are delays in the obtaining of the necessary travel documents, or the deportee represents a national security or public order risk, detention may be prolonged for a further twelve months, to a maximum of eighteen months. 45 .     Section 46a provides for judicial review of the orders for the detention of deportees by the competent administrative courts. The application must be lodged within three days of their being issued, and does not stay their enforcement (subsection 1). The court must examine the application at a public hearing and rule, by means of a final judgment, not later than one month after the proceedings were instituted (subsection 2). In addition, every six months the head of any facility where deportees are being held must present to the court a list of all individuals who have been there for more than six months due to problems with their removal from the country (subsection 3). The court must then rule, on its own motion and by means of a final decision, on their continued detention or release (subsection   4). When the court sets aside the detention order, or orders a deportee’s release, he or she must be set free immediately (subsection 5). III.     RELEVANT EUROPEAN UNION LAW 46 .     Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals came into force on 13 January 2009 (Article 22). Under Article 20, the Member States of the European Union were required to transpose the bulk of its provisions in their national laws by 24 December 2009. 47 .     Recital 16 of the Directive reads as follows: “The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient.” 48 .     Article 15 of the Directive, which governs detention for the purpose of removal, provides, in so far as relevant: “1.     Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a)     there is a risk of absconding or (b)     the third ‑ country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. ... 4.     When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5.     Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6.     Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a)     a lack of cooperation by the third ‑ country national concerned, or (b)     delays in obtaining the necessary documentation from third countries.” 49 .     On 10 August 2009 the Sofia City Administrative Court made a reference for a preliminary ruling by the European Court of Justice (“ECJ”), enquiring about the construction to be put on various paragraphs of that Article. 50 .     In his opinion, Advocate General Mazák expressed the view, inter alia , that it was important to note that the periods laid down in Article 15 §§   5 and 6 of the Directive defined only the absolute and outside limits of the duration of detention, that it was clear from their wording that any detention prior to removal must be for as short a period as possible and may be maintained only as long as removal arrangements are in progress and executed with due diligence, and that detention must be brought to an end when the conditions for detention no longer exist or when there is no longer any reasonable prospect of removal. He went on to say that those maximum periods of detention were part of a body of rules intended to ensure that detention is proportionate, in other words that its duration is for as short a period as possible and, in any event, not for longer than the six months or the eighteen months provided for. 51 .     In its judgment of 30 November 2009 ( Saïd Shamilovich Kadzoev v.   Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti , case C ‑ 357/09), the ECJ noted, inter alia , that the objective of Article 15 §§ 5 and 6 was to guarantee in any event that detention for the purpose of removal does not exceed eighteen months. It went on to rule that those provisions must be interpreted as meaning that the period during which enforcement of the deportation order has been suspended because the person concerned has challenged it by way of judicial review is to be taken into account in calculating the period of detention for the purpose of removal, where the person concerned remains in detention during that procedure. The court further ruled that Article 15 § 4 must be interpreted as meaning that only a real prospect that removal can be carried out successfully, having regard to the periods laid down in Article 15 §§ 5 and 6, corresponds to a reasonable prospect of removal, and that such a reasonable prospect does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods. IV.     RELEVANT COUNTRY INFORMATION A.     Background 52 .     There are twelve “official” Palestinian refugee camps in Lebanon: two in the north of the country, near Tripoli, five in the centre (four near Beirut and one near Baalbek), and five in the south (two near Saida and three near Tyre). In addition, there are dozens of informal gatherings, sometimes referred to as “unofficial camps”, spread throughout the country. The majority of Palestinian refugees in Lebanon are those displaced during the Arab ‑ Israeli war of 1948 and their descendants. More Palestinians arrived in 1967 after the Six ‑ Day War, and in the 1970s after they were expelled from Jordan. The refugees fall into three categories: those registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“the UNRWA”) (“registered refugees”), who are also registered with the Lebanese authorities; refugees registered with the Lebanese authorities but not with the UNRWA (“non-registered refugees”); and refugees registered neither with the UNRWA nor with the Lebanese authorities (“non ‑ ID refugees”). According to the UNRWA, on 30 June 2010 there were 427,057 registered refugees in Lebanon; 226,767, or 53.1% of them, were living in the “official” camps. However, according to a report by the International Crisis Group (see paragraphs 76 and 77 below), many observers believe that the numbers cited by the UNRWA are inflated and fail to take account of the impact of the 1975 ‑ 90 Lebanese Civil War and subsequent waves of Palestinian departures; according to their estimates, in 2009 the refugees were between 200,000 and 250,000. There are an estimated 10,000 to 35,000 non ‑ registered refugees and 3,000 to 5,000 non ‑ ID refugees. By law, Palestinian refugees in Lebanon are considered foreigners and are subject to various restrictions (for details, see Amnesty International: Exiled and suffering: Palestinian refugees in Lebanon , October 2007). 53 .     Ain al ‑ Hilweh (other transliterations from Arabic include Ain al ‑ Helweh, Ein el ‑ Hilweh, Ein al ‑ Helweh, and Ayn Hilwa) is one of the two “official” camps located near Saida (Sidon). It was established at the outskirts of the town in 1948 to accommodate refugees from northern Palestine. After displacements resulting from the Lebanese Civil War, it became the biggest refugee camp there, in terms of both population and area. According to the UNRWA, it contains more than 47,500 registered refugees; according to the above ‑ mentioned International Crisis Group report (see paragraphs 76 and 77 below), the number is closer to 70,000. It covers an area of about two square kilometres, and is one of the most densely popul