ECJ ruling: asylum emergency in Lithuania not legal

Status: 06/30/2022 1:17 p.m

When the Belarusian dictator Lukashenko sent thousands of refugees across the borders to EU countries in 2021, Lithuania issued emergency rules. At that time, asylum applications were hardly accepted. The ECJ has now rejected this.

By Gigi Deppe, ARD legal department

It all started in the summer of 2021, just over a year ago: Suddenly more and more people came to Lithuania, Latvia and Poland via Belarus. The EU soon accused the Belarusian ruler Alexander Lukashenko of smuggling large numbers of these people across the EU’s external borders in order to exert pressure.

Lithuania then declared a state of emergency and tightened its laws. Anyone who had crossed the border illegally was no longer allowed to apply for asylum in the country. Many were also directly imprisoned under these laws. Amnesty International continues to criticize the fact that the Lithuanian authorities have been arbitrarily detaining thousands of people in run-down detention centers for months, where they have also been subjected to torture and other ill-treatment.

Emergency rules illegal

A man who was detained in Lithuania after illegally crossing the border in November complained. According to his own statements, he had handed an official a written application for asylum at the time. But the Lithuanian authorities simply did not register this request. And they rejected another application from January because it was too late. The Higher Administrative Court of Lithuania now wanted to know from the EU’s highest court, the ECJ, whether these new Lithuanian emergency rules are compatible with EU law at all.

The first chamber of the ECJ now answers very clearly: It doesn’t work that way. Even if someone enters the country illegally, they must be able to apply for asylum. That is what the European Charter of Fundamental Rights provides for. Otherwise the right to asylum would be ineffective. This also applies in the event that a state declares a state of emergency due to the mass entry of people from countries outside the EU.

Special measures are possible

However, as the court points out, the authorities may well introduce special procedures at the borders to examine applications that are obviously unfounded or abusive. This is conceivable to protect the external borders and could also serve to maintain public order.

But detaining people simply because they entered the country illegally is not permissible. At least not if there are other ways to monitor them, such as reporting. European law would allow detention in very specific cases. But just because an undocumented person crossed the border and applied for international protection, they shouldn’t be locked up. Even in an emergency, people could only be detained if their behavior posed a real threat. However, illegal entry in itself is not a dangerous threat.

refugee organization satisfied

The refugee protection organization Pro Asyl welcomed the decision of the European Court of Justice. The ECJ would put a stop to the ongoing erosion of refugee rights. And he would make it clear that access to the right to asylum also applies in times of crisis.

ECJ on the right to asylum in the case of mass exodus

Gigi Deppe, SWR, 6/30/2022 12:23 p.m

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