Author: Lyra Jakulevičienė, Professor of Mykolas Romeris University Law School

Just few months ago heated debates were ongoing about migrants pouring from the territory of Belarus when about 4,000 of them applied for asylum in Lithuania just within a few summer months. These numbers were in itself shocking having previously seen some 500 applicants annually. Today, just few weeks after Russia‘s aggression against Ukraine, over 20,000 war refugees have arrived to Lithuania, though real numbers might be even higher. The United Nations report that over 3 million of Ukrainian residents have already fled their homeland. This time also marks half a year since arrival of asylum seekers from Belarus territory to Lithuania. In this context, the first principle that needs to be mentioned as we speak about treatment of refugees under international law – is the principle of non-discrimination. In other words, no refugee could be treated differently because of his or her nationality, country of origin. All refugees need to receive the same reception. The situation may differ only in few respects when states face mass influx situations. Thus, standard refugee reception situation and reception during mass influx from a particular country or region will be considered further in the text.

Main obligations on treatment of asylum seekers

Refugees arriving to Lithuania are firstly protected from refoulement (return). In other words, a refugee cannot be returned to a country of danger wherefrom he or she came until the reasons that compelled to leave the country of origin and arrive to Lithuania are clarified. Protection against refoulement under international law extends also to those situations whereby someone is still not admitted to the territory of the state, but such non-admission would result in ending up in the country of danger. For this obligation to apply, irregular or regular arrival does not matter, as refugees frequently do not have proper documents due to objective reasons and international law therefore acknowledges that they should not be punished for irregular entry. Though we still do not know if the person asking for asylum is in fact a refugee, prohibition of expulsion allows time to clarify protection needs of the applicant. Each case of a refugee is very individual and the name of the country of origin or even information about it is far from sufficient to objectively decide if such person could be a refugee or just a migrant. Determination of needs for protection requires objective and comprehensive procedure, which in practice of European countries may last from 3 months to even a few years. While application is examined until the final decision is taken the person is considered as an asylum seeker. Although some applications may be examined faster than others, the asylum procedure may lead to an objective result when sufficient time is devoted to delve into the individual situation of the person. Thus, abrupt examinations should not be overestimated as it usually balances on the verge of biased and incomplete examination, and the risk of such examination might lead to a wrong result, causing more problems than benefits for the state and individual.              

In addition to the legal principles that concern the treatment of refugees, there is an obligation to take care of such a person’s well-being. While an application for asylum is being processed, support shall be provided during that period: accommodation, support to meet basic needs, medical services, access to education, etc.             

During the COVID-19 pandemic, states had to take additional protection measures to prevent the spread of the virus in refugee centres, where large numbers of people were particularly vulnerable to the spread of the virus. For a long time, Lithuania was among the very few countries that did not allow asylum seekers to work. Currently, the right to work is granted after 6 months from the submission of the asylum application, if a decision on this application has still not been taken. This opportunity allows asylum seekers to contribute themselves to their self-sufficiency, not just at public expense. 

State obligations                           

Our obligations as a country with regard to the treatment of refugees are defined by Lithuania’s international treaties, European Union law and, of course, national law, which cannot contradict Lithuania’s international obligations. For example, the abovementioned principle of non-refoulement is enshrined in the 1951 United Nations Convention relating to the Status of Refugees, EU Charter of Fundamental Rights. The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and its Fourth Protocol also protect against expulsion to states where there is a risk of torture or other inhuman treatment.

Noteworthy, that Article 3 of the ECHR does not envisage any exceptions, so even in a state of emergency, a person cannot be expelled to a country of danger. Although asylum seekers and refugees are not directly mentioned in this Convention, the rights enshrined in the Convention are applicable to them as to foreigners in the territory of Lithuania or from their first contact with Lithuanian authorities even if they would not be considered as being legally in the territory.              

Particularly relevant to asylum seekers are guarantees provided by the ECHR regarding freedom from detention: a person may not be detained without a legal basis, detention is possible only if necessary and proportionate, alternative measures need firstly be explored, detention cannot be of excessive duration. It should be noted that in some countries the legislation does not refer to detention, but rather mentions accommodation with restrictions on freedom of movement of asylum seekers in certain places, so no official detention order is issued. However, in its practice, the European Court of Human Rights rules on the basis of a person’s factual situation and has repeatedly recognized so-called accommodation as de facto detention in the event of severe restrictions on freedom of movement. The Convention also provides for the right of appeal to an independent authority (court) against a decision of a state authority in respect of a refugee; family protection that includes the right to reunite with family members who have remained in another state, if the state of asylum is the only place where the family can live together safely.              

More than a half of world’s refugees are children. All children, whether migrants or not, are protected by the United Nations Convention on the Rights of the Child, which provides additional guarantees to refugee law. For instance, while it allows the child to be detained for immigration reasons only as a last resort, in recent years, the Committee established under this Convention has held that immigration detention should not apply to children at all, as it is not compatible with the best interests of the child principle, which must guide any state decision in relation to the child.              

The standards of reception that need to be provided to asylum seekers while they are still waiting for an asylum decision are regulated in detail in the 2013 EU Reception Conditions Directive 2013/33/EC. The need to regulate these issues in the EU is based on the need to maintain similar standards for the reception of asylum seekers in all EU Member States, as different standards do not encourage people to stay in their first country of asylum but to move where those standards are higher. The directive lays down obligations to provide asylum seekers with accommodation, meals, clothing, health care, education for minors and access to employment, information, documents, access to an interpreter, a lawyer, etc. Particular attention shall be paid to vulnerable asylum seekers, in particular unaccompanied minors and victims of torture. States must assess a person’s vulnerability and, if identified, provide additional safeguards (e.g. temporary custody, rehabilitation measures, etc.). These rules for the treatment of asylum seekers are also enshrined in our national law.

Specific arrangements for situations of mass influx in the European Union

Processing asylum applications takes time. In the event of a mass influx of asylum seekers from a particular country or region, individual examination may not be possible as large numbers of applications would overload the asylum system. EU has envisaged a special regime called temporary protection in such a case. As we have seen, temporary protection was not applied during the migration crisis of 2015-2016 in the EU. But it will apply to refugees from Ukraine. This means that Ukrainian citizens will not have to wait for their asylum applications to be processed, as they will be immediately granted protection for a limited period of time. It is assumed in this case that prevailing reasons for leaving the country are related to protection needs.              

Protection means the granting of a one-year residence permit and the consequent rights and obligations. Such a decision has been taken at European Union level. In other words, at the beginning of March this year, the Council of the European Union activated a long-forgotten instrument, the EU Directive on Temporary Protection 2001/55/​​EC. The directive that deals with situations of mass influx of asylum seekers in the EU from a particular country or region, was adopted back in 2001 and has never been invoked. Under this directive, there are two stages to the activation of temporary protection of refugees. First, the EU Council must establish that there is a massive influx, and then the EU Member State authorities need to adopt national decision to grant temporary protection. On 4 March of this year, the EU Council has recognised the massive influx of asylum seekers from Ukraine. Accordingly, all EU Member States must grant temporary protection to Ukrainian refugees. In Lithuania, after the EU Council established a mass influx of refugees, the decision to activate temporary protection is made by the Government on the recommendation of the Minister of the Interior (Article 92 (1) of the Law on the Legal Status of Aliens). Decision of the Government was adopted on 16 March and temporary protection will apply until 4 March 2023.              

EU Temporary Protection Directive stipulates that beneficiaries of such protection have a right to a temporary residence permit (for 1 to 3 years), the right to work, accommodation and social and financial assistance, access to health care, and the right to education for minors. If members of the same family are in different EU countries, or if some family members are not yet in the EU, they must be entitled to reunite in the same EU country. Temporary protection does not preclude an application for asylum, but the processing of such applications may be postponed while temporary protection applies.              

Thus, although in some cases EU law provides protection for refugees in a specific way, when the reason for the departure of those arriving during a mass influx is evident, it must be borne in mind that the protection needs of all asylum seekers are very similar or even identical when they flee war or other human rights violations, thus they should not be treated differently.

The article is a part of the project “#NoPlace4Hate: Improving Institutional Response to Hate Speech in Lithuania”. The “#NoPlace4Hate” is partially funded by the Rights, Equality and Citizenship Programme of the European Commission (Project Agreement No. 875127 — LGKT_HS — REC-AG-2019 / REC-RRAC-RACI-AG-2019. The European Commission is not responsible for any usage of the information published in the article).