On the 30 June 2022, the Court of Justice of the European Union (CJEU) ruled that Lithuania’s national migration laws, restricting refugees’ right to apply for asylum and allowing authorities to automatically place refugees in detention, are incompatible with EU law. This ruling came just a few days after Amnesty International published a report detailing abuses and human rights violations against people crossing the Belarusian border into Lithuania. However, the Lithuanian government stands by its policies, claiming that the laws are crucial to upholding national security.  

INCREASED SECURITISATION BY THE BELARUSIAN BORDER

In the summer of 2021, thousands of people, mainly from Iraq but also Syria, Afghanistan, Cameroon, and other countries, attempted to enter the EU by crossing the Belarusian border into Poland, Latvia, and Lithuania. Lithuania, and later also the EU, accused Belarus of maliciously encouraging migrants to cross into the EU by its borders. They accused Belarus of using migrants as a “hybrid attack”, a political weapon in response to the EU sanctions that were imposed on Belarus in 2020. The situation quickly developed into an intensified securitisation of the EU's border with Belarus where thousands of refugees and other migrants were stuck and being pushed back and forth by the two sides. 

Leading up to August 2021, Lithuania had registered and detained more than 4000 so called “irregular migrants”, meaning refugees and other migrants that the state deems to have entered Lithuania illegally. The parliamentary response in Lithuania to the influx of migrants from Belarus had been immediate and highly restrictive. A new resolution and a set of amendments to the “Aliens law” were passed in July 2021, aimed at limiting the right to asylum. The new legislation allowed in practice for the automatic detention of asylum seekers and restricted asylum seekers’ right to appeal against decisions rejecting their asylum applications. Deportation of asylum seekers while their appeals are under consideration was also made lawful. The Ministry of Interior also issued an order to stop and push back migrants attempting to enter Lithuania from Belarus. In November 2021, the government declared a state of emergency and placed military troops on high alert along its border and, in December the same year, new legislative changes were adopted which allowed authorities to automatically detain asylum seekers for up to one year.

RESTRICTIVE MEASURES MET WITH INTERNATIONAL CRITICISM

Lithuania’s restrictive migration policies have been heavily criticised by the UN and numerous human rights and civil society organisations. In October 2021, the UNHCR raised serious concerns about reports of pushbacks and called on the government to “live up to international obligations by providing access to asylum-seekers and by ensuring proper reception conditions and fair and efficient asylum procedures”. In August 2021, The Commissioner for Human Rights of the Council of Europe, Dunja Mijatović, also raised concerns about the new laws adopted in July of that year as well as incoming reports of detentions and forced returns. The Commissioner called on the government to uphold the human rights of people crossing the border, highlighting the principle of non-refoulement. A fundamental principle to the protection of refugee rights which guarantees that no one should be returned or expelled to a state where the life and freedom of that person would be under threat. This is enshrined in the Convention of the Status of Refugees and in the Charter of Fundamental Rights of the European Union as well as in the Treaty on the Functioning of the European Union.

Despite criticism, the Lithuanian government continued its practices of pushbacks at the border and automatic detention of refugees and other migrants. The government’s migration policies were reported to have had serious human rights consequences. According to Amnesty International’s report “Lithuania: Forced Out or Locked Up”, published on 27 June 2022, Lithuania had carried out more than 10 000 pushbacks of refugees since 3 August 2021. The report also stated that maltreatment at detention centres has occurred, where people have been detained in overcrowded facilities and experienced inadequate access to health care. Torture and other ill-treatment was also underway where guards have performed collective and harsh punishments in response to protests held in the centres. According to the report, the automatic detention system in Lithuania is designed with the purpose of pushing refugees and other migrants into accepting voluntary returns to their countries of origin. This is additionally showcased through several statements made by the Lithuanian government where refugees are encouraged to leave the country. This pressure to return is argued by Amnesty International to constitute forms of coercive conditions. 

THE CJEU RULING

In early 2022, the Lithuanian Supreme Administrative Court (LVAT) was considering an appeal involving an asylum seeker who was detained by the State Border Guard Service (VSAT) and whose asylum application was not examined because he was deemed to have entered the country illegally in November 2021. In hearing the case, the LVAT justices considered the Lithuanian migration laws’ compatibility with EU law and turned to the CJEU for legal clarification on the matter. 

The CJEU ruled that the laws and proceedings, which restrict asylum seekers the right to seek asylum in Lithuania on the grounds that they have entered "irregularly", to be in violation of EU Directive 2013/32 and article 18 in the Charter of Fundamental Rights of the European Union. The court highlighted that the state must ensure effective access to an asylum application procedure regardless of migration status. The court also ruled that the detainment of asylum seekers solely on the grounds of their “irregular” entry or stay is not in accordance with EU law. The Lithuanian state’s general argument that a mass influx of migrants constitutes a risk to its national security and is a state of emergency is, according to the CJEU, not justifiable grounds for detaining refugees and other migrants. Ruled by the CJEU, detention can only be applied in strictly necessary instances where an individual assessment has been made and “if the applicant’s individual conduct represents a genuine, present and sufficiently serious threat affecting a fundamental interest of society or the internal or external security of the Member State concerned”. 

One of the main tasks by the CJEU is stated as being to “examine the legality of EU measures and ensure the uniform interpretation and application of EU law”. Rulings by the court are binding on all national courts in the EU. Since the court’s ruling, the Lithuanian Interior Minister Agnė Bilotaitė has stated that the government is in consultation with the European Commission, but that the country will not back down from its policies and that the Lithuanian government wants to see European law and migration policy align with Lithuanian national law. The Lithuanian Interior Minister argues for the country’s right to defend itself from Belarus’s “hybrid attacks” and that the measures therefore are deemed necessary by the government. Hence, instead of complying with the court ruling, the Lithuanian government is pursuing a bill to legalise the migration pushback policy, stating that there is not enough time to wait for EU law to change. 

In the case that Lithuania decides to ignore the CJEU’s ruling, the European Commission may open an infringement procedure against Lithuania, which could lead to financial penalties should the Lithuanian government continue to not comply with CJEU judgments. However, infringement procedures can take several years as seen in the case of Hungary’s violation of EU law through its migration policies. 

A LARGER TREND OF SECURITISATION AT THE EU BORDER

The Lithuanian case must be viewed as part of a larger trend of securitisation along the EU’s borders. Since the 2015 refugee crisis, an increasing number of member states have put up border walls and fences on their external borders. Member states using pushbacks as a policy method has been increasingly more prevalent, in breach of EU law. These border policies have catastrophic consequences for refugees and other migrants attempting to reach Europe. More than 29 000 people are reported to have died in the process of migrating to Europe since 2014. Earlier this year, the UN High Commissioner raised warnings about the increasing use of violence against migrants in Europe and urged all states to stop pushbacks and other violent measures. 

In order to end this crisis member states must recognise the legality of those claiming asylum and ensure that there is effective access to an individual assessment of their claims. Member states must expand the availability of safe and legal pathways for refugees in order to prevent people from taking hazardous and deadly routes to reach Europe. In this context, the Lithuanian government’s call for EU law to be reformed to align with Lithuanian migration law must be condemned by the other member states in the EU. Upholding the rule of law by standing up for the right to asylum within the EU is essential, not only in strengthening the protection of refugees but also for the legitimacy of the legal framework of the EU.

Mattias holds a BA in Human Rights Studies at Lund University. He is currently working as a Project Manager for a democracy project in Sweden. He is pursuing an MA in International Administration and Global Governance at the University of Gothenburg.

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