Proceedings before the CJEU

On June 30, 2022, the Court of Justice of the European Union delivered its judgment in Case C-72/22. The case concerned a foreign national (M.A.) who had been detained in Lithuania for undocumented residence in Lithuania during the state of emergency. After being detained, M.A. submitted a written request to the Lithuanian border guards to be granted international protection in Lithuania. This request was rejected on the basis of special provisions related to the state of emergency in the national territory. The legislation restricted the ability of an irregular resident to make an asylum claim. According to the adopted legislation, the possibility of making such a request has been restricted to border control points and transit zones. Consequently, a person staying on Lithuanian territory contrary to the migration rules, in particular detained and unable to travel to the designated place, was deprived of the possibility to apply for asylum. Simultaneously, under the decree imposing the state of emergency, it was permitted to detain a foreigner seeking protection solely on the basis of the fact that he had crossed the border in an irregular manner.

The Lithuanian national court hearing the case referred two questions to the Court of Justice of the European Union for a preliminary ruling on the compatibility of these temporary provisions with EU regulations. In its judgment, the CJEU ruled that both depriving a foreigner of the opportunity to apply for asylum and detaining him or her solely on the basis of unregulated crossing of a national border are incompatible with EU law. The judgment is also significant in the context of the situation on the Polish-Belarusian border.

The inviolable right to asylum

The CJEU primarily referred to Art. 7 Para. 1 of Directive 2013/32, which provides any adult with legal capacity with the entitlement to make an application for international protection on his or her own behalf. It also cited the view well-established in previous case law that any third-country national or stateless person shall have the right to lodge an application for international protection in the territory of a Member State, including at its borders or in its transit zones, even if he or she is residing in that territory in an irregular manner. The Court also referred to the necessity of ensuring the effectiveness of Art. 18 of the EU Charter of Fundamental Rights, which constitutes the entitlement to asylum. At the same time, the Court emphasised that a general allegation of a breach of public order or internal security caused by a “massive influx of foreigners” does not justify such far-reaching restrictions upon the rights of individuals seeking asylum.

Illegal border crossing and detention

With respect to the detention of persons seeking protection, the Court emphasised that EU law does not allow for the detention of an asylum seeker solely on the basis of his or her irregular residence on the territory of a Member State in the absence of any indication of such a ground in Art. 8 Para. 3 of Directive 2013/33. Moreover, it was highlighted that a threat to national security or public order may only justify the detention of a foreigner if his or her individual behaviour constitutes a genuine, present and sufficiently serious threat affecting a fundamental interest of society or the internal or external security of the Member State concerned.

Conclusions for Poland

The judgment in question is significant in that it concerns Lithuanian solutions of a similar nature to those introduced in Poland in connection with the Polish-Belarusian border crisis. Polish legislation also introduced the possibility of leaving an application for international protection unprocessed when it was submitted by a foreigner apprehended immediately after crossing an external EU border in an unregulated manner. The amended Ordinance of the Minister of Interior and Administration on the temporary suspension or restriction of border traffic at certain border crossing points also has a similar effect, providing a basis for the immediate return of persons crossing the Polish border in an uncontrolled manner, effectively depriving them of the possibility to submit an application for international protection. The CJEU judgment also serves as a reminder to the Polish authorities that depriving foreigners of their liberty cannot be justified by the general migration situation at Poland’s external borders, and the possible necessity of detaining a particular foreigner must always be determined on the basis of the individual circumstances of the case.

Marta Górczyńska

Human rights lawyer. She works with the NGO community, including the Helsinki Foundation for Human Rights. She monitors compliance at borders and detention centres (she is, inter alia, co-author of the reports “Migration is not a crime” and “The road to nowhere”). She has conducted research for the European Commission, UNHCR and FRA. She has been involved in volunteering in various places around the world. She is currently a PhD student at the University of Warsaw.

photo: the author’s own archive