In the case-law there are often cases in which a foreigner receives a refusal for issuing the requested visa and sometimes even without mentioning any reason. According to the Law on foreign nationals in the Republic of Bulgaria, a foreigner is every person who is not a Bulgarian citizen. A foreigner is also every person who is not a citizen of any country in accordance to its legislation.
With the Law amending and supplementing the Law on foreign nationals in the Republic of Bulgaria was adopted a new Article 10a which provides judicial review in relation to refusals for issuing airport transit visa (type ”A”) and visa for long-term residence (type “D”). The newly adopted Article is not applicable to the refusals for issuing visas type “C”. In this regard, the Supreme Administrative Court states that the provision on refusals for issuing visas type “D” which prohibits their judicial appeal (except when the person claims interference of fundamental rights and freedoms under the European Convention of Human Rights) as being a procedural
rule has an immediate effect with regard to welded legal proceedings in the absence of explicit transitional provision to the contrary. Such a provision is only contained in the Transitional and final provisions of the Law amending and supplementing the Law on foreign nationals in the Republic of Bulgaria pursuit to which the procedures which have not been concluded before this law enters into force with the exception for proceedings for issuing “cross-border travel document of a stateless person” are being completed according to the previous order.
Provided that the Law on Foreign Nationals in the Republic of Bulgaria regulates administrative proceedings and for court proceedings it refers to the Administrative Procedure Code, the interpretation of the content scope of the described above provision concludes that the provision is concerned with existing pending administrative proceedings. SAC’s Resolution points out that this rule is not applicable when the proceeding is in its administrative phase in which a refusal for issuing a visa type “D” has been completed before the amendment of the law enters into force.
The established judicial review with regard to the refusals for issuing visas “A” and “D” is an expression of the provided for in the Constitution of the Republic of Bulgaria exception to the general clause on appeals against acts of the administration and obstructs the pursuit of the judicial review sought for lawfulness. According to the case law of the Constitutional Court, the legislator is exceptionally entitled to comply with the requirements of lawfulness to provide for the exclusion before a court of a specified category administrative acts only when it is necessary to preserve the foundations to constitutional order or any other major public interests.
