In a judgment handed down on Thursday, 30 June, the Court of Justice of the EU ruled that a Member State of the European Union that has declared a state of emergency due to a mass influx of migrants can neither refuse a migrant the right to lodge an application for asylum nor detain him or her solely on the grounds that he or she is staying in the country unlawfully (Case C-72/22 PPU).
In November 2021, M.A.—a third-country national who was staying in the EU unlawfully—was arrested in Poland coming from Lithuania. Handed over to the Lithuanian authorities, he challenged the decision to reject his application for asylum in Lithuania on the grounds that it would have been lodged in breach of Lithuanian law, which notably prohibits asylum applications from being lodged in the event of an emergency situation caused by a mass influx of foreigners, coming from Belarus in this instance.
In its judgment, the Court of Justice declares that the [Asylum] Procedures Directive (2013/32) and the Reception [Conditions] Directive (2013/33) conflict with the Lithuanian law at issue.
First, the court explains that any third-country national or stateless person has the right to lodge an application for asylum in a Member State’s territory, including at its borders or in its transit zones, even if he or she is staying in that territory unlawfully. This right aims to ensure effective access to the procedure for granting international protection as well as the effectiveness of the right to asylum guaranteed by the EU Charter of Fundamental Rights (Article 18).
Moreover, the European court is of the opinion that the option to examine an asylum application at the EU’s external borders, in situations where the application appears to be unfounded or abusive, allows Member States to maintain public order and safeguard internal security.
Second, the court recalls that, under the Reception [Conditions] Directive, an asylum seeker may be detained only when—following an individual assessment of the person’s case—detention proves necessary and if other less coercive measures cannot be applied. It points out that the circumstance in which an asylum seeker is unlawfully staying in a Member State’s territory is not included in the directive’s exhaustive list of grounds that could potentially justify detention (Article 8.3).
Finally, the court adds that a threat to national security or public order can only justify the detention of an applicant on the condition that his or her 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. The unlawful nature of an asylum seeker’s stay cannot in itself demonstrate the existence of such a threat.
Amnesty International welcomed the Court of Justice’s judgment, which confirms its report listing Lithuania’s violations of EU law and international law regarding asylum. The organisation called on the country’s authorities to end the “cruel practice” of automatically detaining irregular migrants.
When questioned, the European Commission asked Lithuania to take action in order to comply with European case law. It reiterated that it was taking action to stem the flow of migrants entering the EU from Belarus: negotiations with the countries of origin and transit as well as exceptional measures allowing Lithuania, Latvia, and Poland to derogate from certain asylum rules (see EUROPE 12844/11). These proposals never came to fruition (see EUROPE 12879/1).
See the Court of Justice’s judgment (in French): https://aeur.eu/f/2fq (Original version in French by Mathieu Bion)