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SACL asks CJEU for preliminary ruling in foreigner apprehension case

SACL asks CJEU for preliminary ruling in foreigner apprehension case
2022-02-15

The Supreme Administrative Court of Lithuania (SACL) is hearing an administrative case in which a judgement by The District Court of Alytus is being contested for warranting a three-month apprehension of a foreign national until a decision of the applicant’s legal status is issued.

The foreigner was apprehended by Polish border control after crossing the border from Lithuania. According to the applicant, Belarussian border guards had ensured he would enter Poland directly from Belarus and be able to reach his final destination – Germany. However, the applicant was considered to have crossed the border illegally during a statewide Emergency, declared due to an influx of foreign nationals. The applicant claimed to have submitted asylum applications (both verbally and in writing) to the Migration Department of Lithuania which have all been rejected.

The foreigner crossed the border illegally during a statewide emergency which presupposes application of national rules allowing apprehension of said person (even in the case of asylum seekers). The SACL extended panel of judges raised a question whether such regulation is compatible with the European Union law. If the EU law provisions were to be interpreted as prohibiting the aforementioned rule, the judge panel could declare the foreign national as an asylum seeker and consider appropriate legal grounds for apprehension or other alternative measures against applicant.

Among other things, SACL took into account that the Republic of Lithuania has been facing an influx of foreign nationals which in July 2021 even prompted a statewide emergency. The court has also emphasized the pressure that national competent authorities have been under due to a disproportionate multitude of asylum seekers. The extended panel of judges decided that the legality of the restriction of a person’s freedom of movement can only be assessed once the legal status of the applicant is established, i. e. after it is answered whether the applicant in this particular case can be considered an asylum seeker.

Thus, SACL has decided to refer to the Court of Justice of the European Union (CJEU) asking to interpret provisions of Article 7(1) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, in relation to Article 4(1) Of Directive 2011/95/EU of the European Parliament and of the Council Of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted and Article 8(2) and 8(3) of Directive 2013/33/EU of the European Parliament and Of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection.

Administrative case No. A-1091-822/2022.

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