This case concerns the compatibility of domestic Lithuanian legislation with the Asylum Procedures Directive 2013/32 and the Reception Conditions Directive 2013/33. The relevant domestic legislation meant that during a state of emergency in Lithuania due to a mass influx of migrants, the applicant, a third country national who entered the country unlawfully, was denied the opportunity to lodge an application for international protection and was placed in detention.
European Union Law
- Article 4(1) of Directive 2011/95
- Article 6(2), Article 7(1) and Article 43 of Directive 2013/32
- Article 2(h), Article 8(2) and (3) and Article 9 of Directive 2013/33
- Article 6 and 18 of the Charter on Fundamental Rights of the European Union
Lithuanian Law
- Article 2(2), Article 67 and Article 140 (12) and 140(17) of the Law of the Republic of Lithuania on the legal status of aliens
The applicant, M.A, a third country national, was arrested in Poland along with others who had travelled from Lithuania, because he did not possess the travel documents or visa required to stay in the EU. A week prior to his arrest, Lithuania had declared a state of emergency in certain parts of its territory as the country was facing a mass influx in migrants from Belarus. The applicant was handed over to the Lithuanian State Border Guard (VSAT) who found that there was no information concerning M.A in any Lithuaian databases and concluded that he was in Lithuania illegally. Having regard to all of the relevant circumstances, VSAT had formed the view that M.A. was liable to abscond in order to avoid being placed in detention or removed from that Member State and it accordingly requested that M.A. be placed in detention for a period not exceeding six months while his legal situation was established.
The applicant made an application for international protection but was ordered by the District Court to be placed in detention until a decision could be adopted on his legal situation. The applicant appealed to the Supreme Administrative Court of Lithuania (the referring court) and re-submitted his asylum application to VSAT which was declared inadmissible. M.A had argued before the referring court that he had received no information regarding the outcome of his application for asylum and that he had not been informed of the procedure for making such an application. The referring court pointed out, first of all, that, in the event of an emergency caused by a mass influx of migrants, such as that declared by Decree No 517/21, an application for asylum must comply with the conditions laid down in Article 14012(1) of the Law on Aliens, failing which it will be inadmissible. Moreover, pursuant to Article 14017 of the Law on Aliens, in such an emergency, an alien who has entered Lithuanian territory illegally may be placed in detention. The referring court effectively found that the Law on Aliens rendered it impossible for the applicant, a third country national who entered Lithuania illegally during this state of emergency, to apply for asylum, be considered an asylum seeker, and avoid detention
Due to the doubts regarding the legality of the applicant’s detention, VSAT was instructed by the Court to place M.A in provisional accommodation. The migration department was instructed not to deport M.A until a final decision was taken in the proceedings. It is against this background of uncertainty that the Court referred the following questions to the CJEU.
1) Does Articles 4(1) of directive 2011/95 and Article 7(1) of directive 2013/32 preclude provisions of national law according to which, in the event that an emergency is declared due to a mass influx of aliens, an individual who has entered the territory illegally and is staying there illegally may be deprived of the possibility to make an application for international protection?
2) If the answer to the first question is affirmative, must directive 2013/33 be interpreted as precluding provisions of national law according to which, in the event that an emergency is declared due to a mass influx of aliens, an asylum applicant may be detained for the sole reason that he/she has entered Lithuania illegally?
It should be noted that subsequently, during proceedings, both the applicant and VSAT representatives requested the Court to instruct the migration department to examine MA’s application for asylum, and as of March 2022 his application has been submitted and is being examined. The CJEU still sought to determine the legality of the measures that were applied to the applicant from his first application attempt and so still considered the first question referred to be relevant still. Furthermore, the referring court had requested that this reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure as M.A was in detention at the time the decision to make a reference was adopted. The CJEU agreed with this request due to the ongoing deprivation of liberty of M.A.
The applicant argued that he had no information regarding the outcome of his application for asylum and that he had not been informed of the procedure for making such an application. His representatives requested that the Court instruct the migration department to examine his application for international protection.
Due to the state of emergency caused by the influx of migrants, an application for asylum must meet the requirements of Article 140 12 (1) of the Law of Aliens, which M. A’s application did not. They stated that as per Article 140 17 of the Law on Aliens, because the applicant had entered the territory illegally and was placed in detention, this meant he could not make an application and be classed as an asylum seeker. And, due to this state of emergency, less restrictive measures than detention can only be taken with regard to asylum seekers. The Court therefore considered it impossible to impose any measure other than detention.
The Lithuanian Government argued that these restrictions to the applicant’s rights as outlined above, were justified under an Article 72 derogation. They claim that in the context of the emergency caused by a mass influx of migrants from Belarus, there exists a threat to public order.
The first question
The Court noted, inter alia, that Article 140 (1) of the Law on Aliens effectively means that, during an emergency due to an influx of aliens, third country nationals can make a valid application for asylum only from abroad or from the Lithuanian border. By entering Lithuanian territory illegally, third country nationals lose the opportunity to make an asylum application and they are effectively deprived of the opportunity of access to the asylum applications procedure.
The Court then considers the applicable provisions of EU law. It stated that Article 7(1) of the 2013/32 Procedures Directive provides that any adult with legal capacity has the right to make an application for international protection. Moreover, it is clear from its case-law that any third country national, or stateless person has the right to make an application for international protection on the territory of a member state, even if he or she is staying illegally. The Court stated this right must be respected regardless of the prospects of success of the application. Additionally, Article 6 (2) of the 2013/32 Procedures Directive requires that Member states ensure any person who has made an application for international protection has an effective opportunity to lodge it as soon as possible. The objective of this Directive is to guarantee effective access to the procedure for granting asylum, and this right is further enshrined in Article 18 of the Charter of Fundamental Rights of the European Union. It follows, according to the Court, that the making, registering and lodging of asylum applications must adhere to this objective and the rights laid out in the Charter.
Therefore, the Court concluded that provisions such as Article 140 (1) of the Law on Aliens, which deprives third country nationals of making or lodging an asylum application, solely due to the fact they are staying illegally in a country, prevents these nationals from enjoying the rights enshrined in Article 18 of the Charter. Nor can the conditions laid out in Article 140 (1) be said to be compliant with the provisions of Article 6 and Article 7 of the 2013/32 Procedures Directive [paras 63-64].
The Court then considered if the restriction of the rights outlined above can be justified by a threat to public order or internal security, as suggested by the Lithuanian Government. The Court reiterates that only in clearly defined cases does the Treaty for the Functioning of the European Union expressly provide for derogations, and that threats to public order and security caused by a mass influx of aliens provides no justification for provisions such as Article 140 (1). The Lithuanian government did not specify what effect such a measure would have on the maintenance of public order in this context. The Court concludes its analysis of the first question by stating that there are other measures to maintain public order at borders without relying on an Article 72 derogation [paras 72-75].
The second question
The Court began by setting out the applicability of Article 8 of the 2013/32 Procedures Directive. It states that it is clear from the case law that a third country national acquires the status of an applicant for international protection when they “make” an application. It is also clear from the case-law that Articles 8 and 9 of this directive place big limitations on a Member State’s power to hold a person in detention. Article 8 (2) provides that an applicant for international protection can only be held in detention following an overall proportionality assessment of the detention.
The Court continues that the Court’s case law, under Article 8 (3) is settled and there is an exhaustive list of grounds which may justify detention. These grounds are self-standing, and all meet specific needs. The Court explains that limitations on such rights can only be conducted when strictly necessary due to the importance of the right to liberty, as enshrined in Article 6 of the Charter. The Court confirms that applying for international protection whilst staying illegally on the territory of a Member State as is the case here, is not one of the grounds outlined. Therefore, an applicant cannot be subject to detention for that reason alone.
The Court then considers it useful to determine whether such circumstances could, at any point, justify the detention of an asylum seeker on the ground of protection of public order or security, particularly in the context of a mass influx of migrants. The Lithuanian government had argued that in this context of a mass influx, an individual in the applicant’s position constitutes a threat to public order. The Court concludes that keeping or placing an applicant in detention is justified on the ground of threat to public order or security, only if the applicants conduct represents a genuine, present, sufficiently serious threat affecting a fundamental interest of society or the internal or external security of the Member State [para 89].
Article 6 and Article 7(1) of Directive 2013/32/ must be interpreted as precluding the legislation of a Member State, which provides that in the event of a declaration of a state of emergency/martial law, third country nationals who have entered/are staying illegally in that Member State, are deprived of effective access to the procedure for lodging an application for international protection [para 94].
Article 8(2) and (3) of Directive 2013/33 must be interpreted as precluding the legislation of a Member State which provides that in the event of a declaration of a state of emergency/martial law, third country nationals who have entered/are staying illegally in that Member State may be placed in detention for the sole reason that he or she is staying illegally in the Member State [para 94].
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