Refugees may require support of their family members, even those whose presence in the country is declared illegal pending execution of removal.
Refugees who left their home because of persecution often suffer from discrimination in the countries where they have found refuge. This often comes in the form of narratives centered on a phobia of the outsider – based on ethnicity and race, religion, language and any signs of cultural or economic “otherness”. As a result, refugees and migrants often perceived as a threat to the local culture, economy and security. This can lead to social exclusion and even to violence. Refugees thus require special protective measures due to their vulnerability. They should enjoy all rights on the same footing as citizens of the State concerned. States parties to the Convention Relating to the Status of Refugees must accord to refugees the same treatment as is accorded to nationals in regard to social security guarantees (Article 24).
In today judgement the Supreme Administrative Court of Lithuania affirmed that refugee status also means that a father of a refugee child cannot be removed to his country of origin. In ReLex case No eA-2280-821/2024, sponsored by Sienos Grupe, the court annulled the decision of the Department of Migration based on arguments that the applicant had established a family life at a time when he and the child’s mother were aware that the applicant’s presence in the Republic of Lithuania was unlawful and that a decision had been taken to remove him, and that there was no evidence that the child’s best interests would be prejudiced by the execution of the decision, and that the applicant would be prevented from being able to be reunited with the child and the child’s mother, either in the State of origin or in another country, and that the applicant had no other means of supporting the minor child.
The Court relied heavily in its decision on the recent jurisprudence of the Court of Justice of the European Union (CJEU). In its judgment on Article 23 of the Qualification Directive 2011/95/EU, the CJEU has held that Article 23 of that Directive requires that Member States arrange their national law in such a way that such family members may, in accordance with national procedures and in so far as is compatible with the personal legal status of those family members, apply for a number of benefits, including, inter alia, residence permits, access to employment or education, aimed at preserving family unity (Case C-652/16, paragraph 68, and Case C-91/20, paragraph 36). The Court also relied on CJEU judgment in Case C-82/16 which states in paragraph 61 of its judgment that, in accordance with Article 3(6) and Article 11(3) of the Return Directive 2008/115/EC Member States are not prevented from lifting or suspending the prohibition of admission in a case in which a return decision has not been carried out and a third-country national is present on their territory.
The Court found that there was no evidence whatsoever that the family could reunite in another country. Or the European Court of Human Rights has emphasised that it must be assessed whether there is a close link between the persons concerned; whether the persons have established a home of their own, the length of time they have lived together and whether there are no circumstances which would exclude the existence of a de facto family life; and it must determine whether the persons concerned may also benefit from the right to family reunification in another country (see, see, for example, judgment of 2 August 2001 in Boultif v. Switzerland (Application No 54273/00); judgment of 18 October 2006 in Üner v. the Netherlands (Application No 46410/99)).
Having assessed the grounds set out in the attacked decision, the Chamber of Judges concluded that they are inconsistent with the above-mentioned case-law. Although the authorities assessed the duration of the applicant’s stay in Lithuania as insufficient, they merely stated the factual circumstances of the birth of the child and the formation of the family, they did not assess and individualise them in terms of the family ties (the age of the child was not taken into account, the applicant’s family situation, the fact that the applicant has formed a family with a vulnerable person, an Eritrean national who has been granted refugee status, whether the child’s mother is able to care for the child without the assistance of the child’s father, and the family’s financial situation). The Court dismissed the statement that the applicant may reunite with his child and his mother in his country of origin or in another country as ungrounded and ordered to assess whether persons in the applicant’s country of origin can benefit from the right to family reunification.
The Court found that the Department’s assessment that a three-year entry ban on the applicant and his family members would not lead to disproportionate negative consequences is superficial and insufficient to establish that the measure imposed on the applicant is proportionate to the objective pursued.
ReLex
